[Cite as Lee v. Ohio Dept. of Transp., 2013-Ohio-5921.]



                                                          Court of Claims of Ohio
                                                                            The Ohio Judicial Center
                                                                    65 South Front Street, Third Floor
                                                                               Columbus, OH 43215
                                                                     614.387.9800 or 1.800.824.8263
                                                                                www.cco.state.oh.us




JANA LEE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2012-08338-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION




                                          FINDINGS OF FACT
        {¶1}     1)      Plaintiff, Jana Lee, filed this action against defendant, Ohio
Department of Transportation (“ODOT”), contending her 2012 Ford Focus was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on “St. Rt. 40 one half mile from St Rt 13 intersection east.”
Plaintiff recalled she was traveling on State Route 40 on November 6, 2012 at
approximately 2:15 p.m., when “a piece of 4 x 8 plywood flew off a trailor [sic] #T5826 in
front of me.”
        {¶2}     2)      Plaintiff filed this complaint seeking to recover $2,623.73 for repair
of the grill, hood, and right side of her vehicle. Plaintiff submitted the $25.00 filing fee
with the complaint.
        {¶3}     3)      Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the damage-causing debris condition prior to plaintiff’s
Case No. 2012-08338-AD                   -2-               MEMORANDUM DECISION



incident. Defendant located the debris “between mile marker 20.0 and 20.2 in Licking
County” and advised ODOT did not receive any calls or complaints for debris at that
location despite the fact the particular “section of roadway has an average daily traffic
count of between 3,170 and 3,330 vehicles.” Defendant suggested, “that the debris
existed in that location for only a relatively short amount of time before plaintiff’s
incident.” Defendant asserted plaintiff failed to establish the length of time the debris
existed on that roadway prior to her property damage event. Defendant insisted no
ODOT personnel had any knowledge of the plywood between mile marker 20.0 and
20.2 on St. Rt. 40 prior to the described incident forming the basis of this claim.
Defendant contended plaintiff failed to establish the damage-causing debris condition
was attributable to any conduct on the part of ODOT. Defendant related the ODOT
“Licking County Manager conducts roadway inspections on all state roadways within the
county on a routine basis, at least one (1) to two (2) times a month. A review of the six
(6) month maintenance history for the area in question reveals that fifty-one (51) debris
removal, cleaning/sweeping, and litter operations were performed on SR 40; twelve (12)
inclusive of the east bound area of plaintiff’s incident. (See Exhibit D)” Apparently, no
debris was discovered between mile marker 20.0 and 20.2 on SR 40 the last time that
section of roadway was inspected before November 6, 2012. Defendant stated, “if
ODOT personnel had found any debris it would have been picked up.” Defendant
argued plaintiff failed to produce evidence to show her property damage was
proximately caused by negligent maintenance on the part of ODOT.
       {¶4}   4)    Defendant denies the plywood in question fell off of an ODOT truck,
and supports that allegation by stating that the ODOT driver’s supervisor “confirmed that
there was no work order for plywood and there was no missing plywood from District 5's
inventory.”
       {¶5}   5)    The driver of the ODOT vehicle, Roger Wimer, maintains that the
Case No. 2012-08338-AD                    -3-               MEMORANDUM DECISION



plywood was road debris and he “could not avoid running over it.” No statement from
the driver in question regarding the circumstance surrounding this incident is provided
by defendant.
          {¶6}   6)   Plaintiff did not submit a response to defendant’s investigation
report.
                                    CONCLUSIONS OF LAW
          {¶7}   1)   For plaintiff to prevail on a claim of negligence, she must prove, by
a preponderance of the evidence, that defendant owed her a duty, that it breached that
duty, and that the breach proximately caused her injuries.        Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,788 N.E. 2d 1088, ¶8 citing Menifee
v. Ohio Welding Products, Inc., 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707 (1984). Plaintiff
has the burden of proving, by a preponderance of the evidence, that she suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University, 76-0368-AD (1977). However, “[i]t is the duty of a party on whom the
burden of proof rests to produce evidence which furnishes a reasonable basis for
sustaining his claim. If the evidence so produced furnishes only a basis for a choice
among different possibilities as to any issue in the case, he fails to sustain such
burden.” Paragraph three of the syllabus in Steven v. Indus. Comm., 145 Ohio St. 198,
61 N.E. 2d 198 (1945), approved and followed.
          {¶8}   2)   Defendant has the duty to maintain its highways in a reasonably
safe condition for the motoring public. Knickel v. Ohio Department of Transportation, 49
Ohio App. 2d 335, 361 N.E. 2d 486 (10th Dist. 1976). However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford, 112 Ohio
App. 3d 189, 678 N.E. 2d 273 (10th Dist. 1996); Rhodus v. Ohio Dept. of Transp., 67
Ohio App. 3d 723, 588 N.E. 2d 864 (10th Dist. 1990).
          {¶9}   3)   In order to prove a breach of the duty to maintain the highways,
Case No. 2012-08338-AD                   -4-                MEMORANDUM DECISION



plaintiff must prove, by a preponderance of the evidence, that defendant had actual or
constructive notice of the precise condition or defect alleged to have caused the
accident. McClellan v. ODOT, 34 Ohio App. 3d 247, 517 N.E. 2d 1388 (10th Dist. 1986).
Defendant is only liable for roadway conditions of which it has notice but fails to
reasonably correct. Bussard v. Dept. of Transp., 31 Ohio Misc. 2d 1, 507 N.E. 2d 1179
(Ct. of Cl. 1986).
       {¶10} 4)      Defendant professed liability cannot be established when requisite
notice of the damage-causing conditions cannot be proven. However, proof of notice of
a dangerous condition is not necessary when defendant’s own agents actively caused
such condition. See Bello v. City of Cleveland, 106 Ohio St. 94, 138 N.E. 526 (1992), at
paragraph one of the syllabus; Sexton v. Ohio Department of Transportation, 94-13861
(1996).
       {¶11} 5)      Defendant may bear liability if it can be established if some act or
omission on the part of ODOT or its agents was the proximate cause of plaintiff’s injury.
This court, as the trier of fact, determines questions of proximate causation. Shinaver v.
Szymanski, 14 Ohio St. 3d 51, 471 N.E. 2d 477 (1984).
       {¶12} 6)      “If an injury is the natural and probable consequence of a negligent
act and it is such as should have been foreseen in light of all the attending
circumstances, the injury is then the proximate result of negligence. It is not necessary
that the defendant should have anticipated the particular injury. It is sufficient that his
act is likely to result in an injury to someone.” Cascone v. Herb Kay Co., 6 Ohio St. 3d
155, 160, 451 N.E. 2d 815 (1983), quoting Neff Lumber Co. v. First National Bank of St.
Clairsville, Admr., 122 Ohio St. 302, 309, 171 N.E. 327 (1930).
       {¶13} 7)      R.C. 4511.21(A) states:
       {¶14} “(A) No person shall operate a motor vehicle, trackless trolley, or streetcar
at a speed greater or less than is reasonable or proper, having due regard to the traffic
Case No. 2012-08338-AD                   -5-               MEMORANDUM DECISION



surface, and width of the street, or highway and any other conditions, and no person
shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or
highway at a greater speed than will permit the person to bring it to a stop within the
assured clear distance ahead.”
      {¶15} 8)      A violation of the statute and a finding of negligence per se
depends on whether there is evidence that defendant’s agent collided with the plywood
which 1) was ahead of him in his path of travel, 2) was stationary or moving in the same
direction as the driver, 3) did not suddenly appear in the driver’s path, and 4) was
reasonably discernible. McFadden v. Elmer C. Brewer Trans. Co., 156 Ohio St. 430,
130 N.E. 2d 385 (1952).
      {¶16} 9)      “The statute imposes a specific safety requirement, the violation of
which amounts to negligence per se (negligence as a matter of law). Woods v. Brown’s
Bakery (1960), 171 Ohio St. 383 [14 O.O. 2d 145]. The only circumstances under
which a driver’s compliance may be excused are those which arise out of sudden
emergencies which change the situation in which the driver finds himself, but which do
not arise by reason of his own failure to comply with the rule. Smiley v. Arrow Spring
Bed Co. (1941), 138 Ohio St. 81, at 88 [20 O.O. 30]. As a practical matter, the only
sudden emergency which has been specifically recognized by our Supreme Court as
excusing compliance with the assured-clear-distance-ahead rule is one where the
driver’s assured clear distance ahead is, without his fault, suddenly cut down by the
entrance into his path of some obstruction which renders him incapable, in the exercise
of ordinary care, of avoiding a collision with the obstruction. Cox v. Polster (1963), 174
Ohio St. 224, at 226 [22 O.O. 2d 220]; Smiley v. Arrow Spring Bed Co., supra,
paragraph two of the syllabus. Under these circumstances, compliance is excused
because the rule simply does not apply to the circumstances resulting from the sudden
emergency – the driver’s previous assured clear distance ahead, through no fault of his
Case No. 2012-08338-AD                      -6-               MEMORANDUM DECISION



own, no longer exists.” Blair v. Goff-Kirby Company, 49 Ohio St. 2d 5, 358 N.E. 2d 634
(1976).
       {¶17} 10)      In the case at bar, defendant presented no evidence from its driver
that the plywood suddenly appeared in the path of ODOT’s vehicle.
       {¶18} 11)      “The ‘assured clear distance ahead’ rule is not applicable unless it
be shown that the obstruction or defect which caused the accident is discernible, and
discernible in time to permit the driver to avoid it.
       {¶19} “The ‘assured clear distance ahead’ rule has no application where the
obstacle in front is for the first time in the driver’s view, after the vehicle has passed the
point where the rule would be effective, and the obstacle is then too close to be
avoided.” Farris v. City of Columbus, 85 Ohio App. 385, 85 N.E. 2d 605 (10th Dist.
1948) syllabus.
       {¶20} 12)      Defendant has presented no evidence from its agent, Roger Wimer,
concerning the traffic conditions, the time from his observation of the plywood until
striking it, or any other information which would have prevented him from compliance
with R.C. 4511.21(A).
       {¶21} 13)      The credibility of witnesses and the weight attributable to their
testimony are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St. 2d
230, 227 N.E. 2d 212 (1967), paragraph one of the syllabus. The court is free to believe
or disbelieve, all or any part of each witness’s testimony. State v. Antill, 176 Ohio St.
61, 197 N.E. 2d 548 (1964).         In the instant action, the trier of fact finds that the
statements of plaintiff concerning the origin of the damage-causing debris are
persuasive. McTear v. Ohio Dept. of Transp., Dist. 12, Ct. of Cl. No. 2008-09139-AD,
2008-Ohio-7118. Defendant is liable to plaintiff for the damage claimed, $2,623.73, plus
the $25.00 filing fee which may be reimbursed as compensable costs pursuant to R.C.
2335.19. See Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio
Case No. 2012-08338-AD                   -7-          MEMORANDUM DECISION



Misc. 2d 19, 587 N.E. 2d 990 (Ct. of Cl. No. 1990).
[Cite as Lee v. Ohio Dept. of Transp., 2013-Ohio-5921.]


                                                          Court of Claims of Ohio
                                                                               The Ohio Judicial Center
                                                                       65 South Front Street, Third Floor
                                                                                  Columbus, OH 43215
                                                                        614.387.9800 or 1.800.824.8263
                                                                                   www.cco.state.oh.us




JANA LEE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2012-08338-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE
DETERMINATION


          Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of plaintiff in the amount of $2,648.73, which includes the filing fee. Court costs are
assessed against defendant.




                                                   DANIEL R. BORCHERT
                                                   Deputy Clerk

Entry cc:

Jana Lee                                           Jerry Wray, Director
10881 Flintridge Road                              Department of Transportation
Newark, Ohio 43055                                 1980 West Broad Street
                                                   Columbus, Ohio 43223
DRB/laa
Case No. 2012-08338-AD          -9-   MEMORANDUM DECISION



Filed 4/29/13
sent to S.C. Reporter 1/30/14
