[Cite as Prstojevic v. Dept. of Transp., Dist. 3, 2010-Ohio-2186.]

                                        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




SNJEZANA PRSTOJEVIC

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION, DISTRICT 3

        Defendant

        Case No. 2009-08519-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On July 12, 2009, at approximately 1:00 p.m., plaintiff, Snjezana
Prstojevic, was traveling east on Interstate 90 “about ½ mile away from exit 218 in
Geneva, Ohio,” when her 2008 Ford Escape was struck by a centerline road reflector
that had apparently been propelled into the path of her vehicle after being dislodged
from the roadway surface.              The dislodged reflector, upon striking plaintiff’s vehicle,
became embedded in the front end of the car above the front bumper and directly below
the left headlamp. Plaintiff submitted photographs depicting the reflector embedded in
the front of her Ford Escape. Other submitted photographs depict pieces of roadway
pavement material attached to the intact reflector. The impact of the reflector with
plaintiff’s Ford Escape caused substantial damage to the vehicle.
        {¶ 2} Plaintiff asserted the damage to her car was proximately caused by
negligence on the part of defendant, Department of Transportation (ODOT), in failing to
maintain the roadway free of hazardous conditions such as a loose road reflector
subject to being easily dislodged.                Plaintiff filed this complaint seeking to recover
damages in the amount of $2,399.00, the total cost of automotive repair needed
resulting from the July 12, 2009 incident. In her complaint, plaintiff acknowledged she
carries insurance coverage with a $500.00 deductible provision and her insurer paid
$1,899.00 for automotive repair expenses.                 Pursuant to R.C. 2743.02(D), plaintiff’s
damage claim is limited to $500.00, her insurance coverage deductible.1 The $25.00
filing fee was paid and plaintiff requested reimbursement of that cost along with her
stated damage claim.
        {¶ 3} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose reflector on the roadway prior to
plaintiff’s July 12, 2009 property damage occurrence. Defendant denied receiving any
calls or complaints from any entity regarding a loose reflector which ODOT located “at
approximately state milepost 217.50 or county milepost 2.17 on I-90 in Ashtabula
County.” Defendant asserted that plaintiff did not produce any evidence to establish the
length of time that the uprooted reflector was on the roadway prior to 1:00 p.m. on July
12, 2009. Defendant suggested the uprooted road reflector condition “existed in that
location for only a relatively short amount of time before plaintiff’s incident.”
        {¶ 4} Defendant contended plaintiff did not offer any evidence to prove her
property damage was proximately caused by any conduct attributable to ODOT
personnel. Defendant explained ODOT conducted various maintenance operations on
this particular section of Interstate 90 during the six-month period preceding July 12,
2009. Defendant noted that ODOT workers conducted “litter patrol” operations in the
vicinity of plaintiff’s incident on July 9, 2009 and did not discover any dislodged reflector
on the roadway on that date. Defendant stated that if “ODOT work crews were doing
activities such that if there was a noticeable defect with any raised or loosened
pavement markers it would have immediately been repaired.” Defendant argued it did
not believe ODOT breached any duty of care owed to the motoring public in regard to
roadway maintenance.
        {¶ 5} Plaintiff filed a response relating “I cannot provide you with the evidence
as to how long the reflector was loose prior to my incident.” Plaintiff acknowledged “the


        1
            R.C. 2743.02(D) states:
          “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
disability award, or other collateral recovery received by the claimant. This division does not apply to civil
actions in the court of claims against a state university or college under the circumstances described in
section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section
reflector could have been dislodged from the pavement at any time.” Plaintiff argued
that due to the heavy traffic volume on Interstate 90 defendant should have taken extra
precaution to prevent dislodged reflector conditions that are more likely to occur on
roadways with high vehicle use.      Plaintiff contended the damage-causing reflector
condition would not have occurred if ODOT had properly maintained the roadway.
       {¶ 6} 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 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.          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} 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.
       {¶ 8} In order to prove a breach of the duty to maintain the highways, 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 (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388.
Defendant is only liable for roadway conditions of which it has notice but fails to

apply under those circumstances.”
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR
64, 507 N.E. 2d 1179.
        {¶ 9} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. Generally, defendant is only liable
for roadway conditions of which it has notice, but fails to correct. Bussard. However,
proof of a dangerous condition is not necessary when defendant’s own agents actively
caused such condition. See Bello v. City of Cleveland (1922), 106 Ohio St. 94, 138
N.E. 526, at paragraph one of the syllabus; Sexton v. Ohio Department of
Transportation (1996), 94-13861. Plaintiff has failed to produce any evidence to prove
that her property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular loosened reflector prior to 1:00 p.m. on July 12,
2009.
        {¶ 10} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including loosened reflectors, plaintiff must prove that either: 1)
defendant had actual or constructive notice of the reflector condition and failed to
respond in a reasonable time or responded in a negligent manner, or 2) that defendant,
in a general sense, maintains its highways negligently.        Denis v. Department of
Transportation (1976), 75-0287-AD. Plaintiff has not provided any evidence to prove
ODOT had actual notice of the loosened reflector condition. Therefore, in order to
recover plaintiff must offer proof of defendant’s constructive notice of the condition as
evidence to establish negligent maintenance.
        {¶ 11} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “A finding of
constructive notice is a determination the court must make on the facts of each case not
simply by applying a pre-set time standard for the discovery of certain road hazards.”
Bussard, at 4.      “Obviously, the requisite length of time sufficient to constitute
constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.
(Feb. 4, 1993), Franklin App. 92AP-1183.        In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, that
sufficient time has elapsed after the dangerous condition appears, so that under the
circumstances defendant should have acquired knowledge of is existence. Guiher v.
Dept. of Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
       {¶ 12} Plaintiff has not produced any evidence to indicate the length of time that
the loosened road reflector was present on the roadway prior to the incident forming the
basis of this claim. Plaintiff has not shown that defendant had actual notice of the
uprooted reflector. Additionally, the trier of fact is precluded from making an inference
of defendant’s constructive notice, unless evidence is presented in respect to the time
that the loosened road reflector appeared on the roadway. Spires v. Ohio Highway
Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication that
defendant had constructive notice of the dislodged reflector.
       {¶ 13} Additionally, plaintiff has not produced any evidence to infer that
defendant, in a general sense, maintains its highways negligently or that defendant’s
acts caused the defective condition.      Herlihy v. Ohio Department of Transportation
(1999), 99-07011-AD. Defendant submitted evidence showing ODOT personnel were
frequently performing work activities on the particular section of Interstate 90 where
plaintiff’s damage incident occurred. Plaintiff has failed to provide sufficient evidence to
prove defendant maintained a hazardous condition on the roadway which was the
substantial or sole cause of her property damage. Plaintiff has failed to prove, by a
preponderance of the evidence, that any ODOT roadway maintenance activity created a
nuisance. Plaintiff has not submitted evidence to prove that a negligent act or omission
on the part of defendant caused the damage to her vehicle. Hall v. Ohio Department of
Transportation (2000), 99-12963-AD.


                                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




SNJEZANA PRSTOJEVIC

      Plaintiff

      v.
DEPARTMENT OF TRANSPORTATION, DISTRICT 3

        Defendant

         Case No. 2009-08519-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:

Snjezana Prstojevic                               Jolene M. Molitoris, Director
36630 Jefferson Court                             Department of Transportation
Apt. 7303                                         1980 West Broad Street
Farmington Hills, Michigan 48335                  Columbus, Ohio 43223

RDK/laa
1/20
Filed 2/4/10
Sent to S.C. reporter 5/14/10
