[Cite as Bush v. Ohio Dept. of Transp., 2015-Ohio-4859.]




                              IN THE COURT OF CLAIMS OF OHIO



MATT BUSH

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant
Case No. 2015-00171-AD

Clerk Mark H. Reed

MEMORANDUM DECISION



        {¶1} Plaintiff Matt Bush filed this claim on March 6, 2015 to recover damages
which occurred when his 2005 Ford Focus struck an orange traffic cone that was lying
in the center of Interstate 90. At the time of the accident, February 3, 2015, plaintiff was
traveling on I-90 west in Lake County, Ohio. This road is a public road maintained by
the Ohio Department of Transportation. Plaintiff’s vehicle sustained damages in the
amount of $1,050.01.           Plaintiff maintains an insurance deductible in the amount of
$500.00.
        {¶2} In order to recover on a claim for roadway damages against the Ohio
Department of Transportation, Ohio law requires that a motorist/plaintiff prove all of the
following:
        {¶3} That the plaintiff’s motor vehicle received damages as a result of coming
into contact with a dangerous condition on a road maintained by the defendant.
        {¶4} That the defendant knew or should have known about the dangerous road
condition.
        {¶5} That the defendant, armed with this knowledge, failed to repair or remedy
the dangerous condition in a reasonable time.
       {¶6} In this claim, the court finds that the plaintiff did prove that his vehicle
received damages and that those damages occurred as a result of the plaintiff’s vehicle
coming into contact with a dangerous condition on a road maintained by the defendant.
       {¶7} The next element that a plaintiff must prove to succeed on a claim such as
this is to show that the defendant knew or should have known about this dangerous
condition.
       {¶8} Based on the evidence presented, the court is unable to find that the
defendant had actual knowledge of the dangerous condition. Likewise, the court is
unable to find that the defendant should have known about this dangerous condition
and thus would have had constructive notice about the highway danger. Constructive
notice is defined as “(n)otice arising from the presumption of law from the existence of
facts and circumstances that a party has a duty to take notice of…Notice presumed by
law to have been acquired by a person and thus imputed to that person.” (Black’s Law
Dictionary at 1090 8th Ed. 2004.)
       {¶9} In order for there to be constructive notice, a plaintiff must prove that
sufficient time has passed after the dangerous condition first appears, so that under the
circumstances the defendant should have gained knowledge of its existence. This the
plaintiff has been unable to do.
       {¶10} In the Investigation Report filed May 29, 2015, the defendant stated that
the location of the incident was between mile markers 190.9 and 191.9 on IR 90 west in
Lake County. This section of the roadway has an average daily traffic count of between
52,210 and 71,570 vehicles. Despite this volume of traffic, the department had received
no notice of an orange traffic cone being present in this section of the highway. Thus,
the court is unable to find that the department knew about this road hazard. Within the
past six months, the department conducted two hundred twenty-nine (229) maintenance
operations on IR 90 in Lake County.       Thus, if any traffic cone was present for an
appreciable length of time, it is probable that it would likely have been discovered by the
department’s work crews, or more likely the Department would have been notified by a
Case No. 2015-00171-AD                       -3-             MEMORANDUM DECISION


passing motorist of the hazard. Thus, it is more probable than not that the traffic cone
had only moved into its hazardous location very near the time plaintiff had his accident.
The Department thus had no notice or reasonable opportunity to otherwise become
aware of the hazard and remedy the situation. Thus, the court cannot find that the
department should have known about this road hazard. Finally, the law in Ohio is that
the department is not an absolute insurer of a motorist’s safety on the highway. The
department is only liable for damage when the court finds that it was negligent. This the
court is unable to do. The plaintiff did not offer any evidence to counter what was in the
defendant’s report regarding this element.
      {¶11} Since the plaintiff is unable to prove that the defendant knew or should
have known about this dangerous condition, the claim must fail.




                        IN THE COURT OF CLAIMS OF OHIO



MATT BUSH

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2015-00171-AD
Clerk Mark H. Reed

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.




                                                  ________________________________
                                                  MARK H. REED
                                                  Clerk

Entry cc:

Matt Bush                                         Jerry Wray, Director
383 E. Main Street, #203                          Ohio Department of Transportation
Orwell, Ohio 44076                                1980 West Broad Street
                                                  Mail Stop 1500
                                                  Columbus, Ohio 43223


Filed 6/30/15
Sent to S.C. Reporter 11/24/15
