[Cite as Kohler v. Ohio Dept. of Transp., 2010-Ohio-6689.]

                                       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




DEBORAH A. KOHLER

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-08225-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Deborah A. Kohler, filed this action against defendant,
Department of Transportation (ODOT), alleging nine Norway Spruce trees she had
planted on her property adjacent to US Route 22 in Warren County “started (dying)” as
a proximate cause of negligence on the part of ODOT personnel in conducting snow
removal operations on the roadway. Plaintiff explained, “[i]n 2002 I had installed nine
6’-7’ Norway Spruces/landscaping along the three lane wide Montgomery Road (US
Route 22)” and in 2008 Montgomery Road adjacent to her property was expanded to
five lanes. Plaintiff advised that, “[d]uring the winter of 2009-2010 I noticed that the
Ohio Department of Transportation salt trucks were throwing salt, snow, ice, etc. into my
landscaping and yard.” In her complaint, plaintiff noted, “[t]he berm of Montgomery
Road is 10’ wide, next is a grassy area that is 14’ wide, the area for landscaping is 12’
wide and the remainder of the salt, snow, ice, etc. was being thrown 2’ more into my
yard.” Plaintiff estimated the ODOT snow plows traveling on Montgomery Road were
depositing snow removal debris, including salt, a distance of thirty-eight feet from the
traveled portion of the roadway when snow removal operations were conducted during
the winter season of 2009-2010. Plaintiff submitted photographs depicting the condition
of her spruce trees in 2007 (before Montgomery Road was widened) and in 2010. The
photographs taken in 2007 depict healthy trees and the 2010 photographs depicting
decaying and dying trees. Plaintiff implied the damage to her trees was caused by
negligence on the part of ODOT personnel in depositing toxic substances on her land
when conducting snow removal operations on Montgomery Road during the winter of
2009-2010.     Consequently, plaintiff filed this complaint requesting damages in the
amount of $2,250.00, the stated replacement cost of nine Norway Spruce trees, plus
$229,90, the value of nine cedar trees and ten shrubs (arborvitaes) not planted in 2010
apparently due to the observed damaged state of the spruce trees. The filing fee was
paid.
        {¶ 2} Defendant denied liability in this matter asserting that plaintiff has not
produced sufficient evidence to establish ODOT snow removal operations constituted
the proximate cause of the damage to her trees. Plaintiff submitted photographs (taken
July 1, 2010) depicting plaintiff’s Norway Spruce trees. Defendant related “[t]he grass
and trees do not look like they have been harmed by salt or any other source.” After
reviewing defendant’s submitted photographs, the trier of fact finds one photograph
clearly shows the limbs of the lower trunks of the depicted trees are denude of any
foliage and therefore, do display various degrees of damage. Furthermore, defendant
contended, “any harm alleged by Plaintiff is harm to the public in general and constitute
damnum abseque injuria - a wrong for which the law affords no redress. Shover v.
Cordis Corp. (1991), 61 Ohio St. 3d 213.” Defendant argued plaintiff has no redress to
seek recovery for damage to her trees that may have been harmed by ODOT
conducting snow removal operations. Additionally, defendant argued plaintiff failed to
prove ODOT breached any duty owed to her by applying salt to the roadway and
conducting other snow removal activities.
        {¶ 3} 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,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. 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 (1977), 76-0368-AD. 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. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
        {¶ 4} Defendant has the duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996),
112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67
Ohio App. 3d 723, 588 N.E. 2d 864. Additionally, defendant has a duty to exercise
reasonable care for the public when conducting snow removal operations. Andrews v.
Ohio Department of Transportation (1998), 97-07277-AD; Peters v. Dept. of Transp., Ct.
of Cl. No. 2008-11630-AD, 2009-Ohio-3031.
        {¶ 5} Defendant contended plaintiff, “failed to provide sufficient evidence that
the proximate cause of the alleged tree death was due to Defendant negligently
conducting snow and ice removal on its roadways.” Defendant advised that the salting
of Montgomery Road adjacent to plaintiff’s property “was necessary and reasonable for
the safety of the traveling public and done in a manner consistent with normal
standards.” Defendant stated R.C. 5501.411 grants ODOT “the right to remove ice and
snow from state highways and the authority to do whatever is necessary to perfect that
right.” Defendant acknowledged “[i]t is conceivable that salt and snow over spray could
travel outside the right-of-way” and contact with plaintiff’s trees. However, defendant
contended ODOT “is given the statutory authority to do whatever is reasonably
necessary to remove snow and ice.” Defendant maintained the actions of removing
snow and ice from Montgomery Road were reasonable.                          Contrary to defendant’s


        1
          R.C. 5501.41 covering DOT’s discretionary authority to remove snow and ice states:
        “The director of transportation may remove snow and ice from state highways, purchase the
necessary equipment including snow fences, employ the necessary labor, and make all contracts
necessary to enable such removal. The director may remove snow and ice from the state highways
within municipal corporations, but before doing so he must obtain the consent of the legislative authority
of such municipal corporation. The board of county commissioners of county highways, and the board of
township trustees on township roads, shall have the same authority to purchase equipment for the
argument concerning “whatever is reasonable and necessary,” the court finds it is
neither reasonable nor necessary to create a dangerous hazard to property while in the
course of performing snow removal activities. Wertz v. Ohio Dept. of Transp., Ct. of Cl.
No. 2008-11656-AD, 2009-Ohio-6605.
       {¶ 6} In the instant claim, plaintiff asserted the damage to her trees was caused
by negligence on the part of ODOT in creating hazardous conditions to plant life when
performing snow removal operations on Montgomery Road. As a necessary element of
this type of claim, plaintiff was required to prove proximate cause of her damage by a
preponderance of the evidence. See, e.g. Stinson v. England (1994), 69 Ohio St. 3d
451, 1994-Ohio-35, 633 N.E. 2d 532. This court, as trier of fact, determines questions
of proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446,
471 N.E. 2d 477.
       {¶ 7} “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of the 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. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber
Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171
N.E. 327. In the instant claim, plaintiff has failed to offer sufficient proof to establish the
cause of the damage to her trees.               In a situation asserted in the instant claim
referencing salt damage to her trees from snow removal operations plaintiff is required
to produce expert testimony regarding the issue of causation and that testimony must
be expressed in terms of probability. Stinson, at 454; see also Paradise Tree Farm, Inc.
v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-11167, 2008-Ohio-4213. Plaintiff, by not
supplying the requisite expert testimony to state a prima facie claim of causation of the
damage to her trees has failed to meet her burden of proof in regard to liability. See
Ryan v. Ohio Dept. of Transp., Ct. of Cl. No. 2003-09297-AD, 2004-Ohio-900; Ringel v.
Ohio Dept. of Transp., Ct. of Cl. No. 2006-02081-AD, 2006-Ohio-7279.




removal of and to remove snow and ice as the director has on the state highway system.”
                               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




DEBORAH A. KOHLER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-08225-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 defendant. Court costs are assessed against plaintiff.



                                                ________________________________
                                                DANIEL R. BORCHERT
                                                Deputy Clerk

Entry cc:

Deborah A. Kohler                               Jolene M. Molitoris, Director
8811 Pembrooke Street                           Department of Transportation
Maineville, Ohio 45039                          1980 West Broad Street
                                                Columbus, Ohio 43223
RDK/laa
11/3
Filed 12/29/10
Sent to S.C. reporter 2/25/11
