[Cite as Leonard v. Ohio Dept. of Transp., 2010-Ohio-4585.]

                                      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




TOM LEONARD

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-01638-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Tom Leonard, filed this action against defendant, Department of
Transportation (ODOT), alleging he sustained property damage as a proximate cause of
negligence on the part of ODOT in conducting snow removal operations on US Route
20 in Ashtabula County. Plaintiff described his damage incident relating that he was
operating a snow blower on his home driveway, which is located adjacent to US Route
20, when “I hit a steel road reflector that was in my driveway.” Plaintiff further related
the “steel road reflector wedged between the snow blower housing and auger which
broke the auger drive chain, bent the auger (and) housing.”          Plaintiff recalled the
damage incident occurred on the morning of January 6, 2010 after a snowstorm.
Plaintiff asserted road reflectors from US Route 20 are routinely uprooted and deposited
in front of his residence, abutting the roadway, from snow removal operations
conducted by ODOT. Plaintiff explained he maintains a long driveway at his residence
and consequently uses a snow blower attached to a lawn tractor to remove snow from
the driveway, pointing out the driveway area is “too much snow to shovel.” Plaintiff
provided photographs depicting dislodged road reflectors and a section of roadway area
where a reflector had been removed. Plaintiff seeks damage recovery in the amount of
$1,083.61, the cost of a replacement snow blower device. The filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose reflector on US Route 20 prior to
plaintiff’s incident.     Defendant argued plaintiff failed to produce any evidence to
establish the length of time the reflector had been dislodged from the roadway prior to
his January 6, 2010 property damage occurrence. Defendant explained the location of
the reflector would correspond to “approximately milepost 6.0 on US 20 in Ashtabula
County.” Defendant suggested “the debris (reflector) existed in that location for only a
relatively short amount of time before plaintiff’s incident.”
        {¶ 3} Defendant contended plaintiff did not offer evidence to prove his property
damage was attributable to conduct on the part of ODOT personnel.                            Defendant
acknowledged ODOT crews conducted snow plowing activities on roads in Ashtabula
County on January 5, 2010 and January 6, 2010. US Route 20 was included in the
snow plowing activity. Defendant seemingly argued that if this court finds ODOT snow
plowing uprooted the pavement marker and proximately caused plaintiff’s property
damage, DOT should be immune from liability. Defendant further argued that snow
plowing that results in hazardous conditions such as loose road reflectors being
deposited on the roadway “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 DOT “the right to remove ice and snow from state highways and the
authority to do whatever is necessary to conduct such removal activities.” Defendant
related, “assuming that a snowplow of Defendant did cause the raised pavement marker
to become dislodged, Defendant contends that it is given statutory authority to do
whatever is reasonable and necessary to remove snow.”                       Contrary to defendant’s
argument concerning “whatever is reasonable and necessary,” the court finds it is
neither reasonable nor necessary to create a dangerous roadway hazard while in the


        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
course of performing snow removal activities. Wertz v. Ohio Dept. of Transp., Ct. of Cl.
No. 2008-11656-AD, 2009-Ohio-6605.
       {¶ 4} Alternatively, defendant asserted plaintiff failed to prove his snow blower
was damaged by a dislodged road reflector. Defendant advised, “Plaintiff could have hit
a bottle, tire, rock, or piece of wood” that could have been deposited in his driveway
from a third party not affiliated with ODOT. Defendant has denied liability based on the
premise the damage-causing object emanated from an unidentified third party and
therefore, ODOT had no duty to control the conduct of a third person except in cases
where a special relationship exists between defendant and either plaintiff or the person
whose conduct needs to be controlled. Federal Steel & Wire Corp. v. Ruhlin Const. Co.
(1989), 45 Ohio St. 3d 171, 543 N.E. 2d 769. However, defendant may still bear liability
if it can be established that        some act or omission on the part of ODOT was the
proximate cause of plaintiff’s injury. 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
       {¶ 5} The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, 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 (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. The court finds the assertions of
plaintiff persuasive in regard to the contention his snow blower was damaged by a
reflector that was dislodged from the roadway by an ODOT snow plow.
       {¶ 6} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his 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 he 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

removal of and to remove snow and ice as the director has on the state highway system.”
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.
       {¶ 7} Defendant has the duty to maintain its highway 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 motoring 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.
       {¶ 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
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR
64, 507 N.E. 2d 1179.      However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause such condition. 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. In the instant claim,
plaintiff has offered sufficient proof to establish the damage to his snow blower was
proximately caused by the acts of defendant’s personnel in conducting snow removal
operations. See McFadden v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-02881-AD,
2004-Ohio-3756; also Ruminski v. Ohio Dept. of Transp., Ct. of Cl. No. 2005-05213-AD,
2005-Ohio-4223; Schultz v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-05125-AD, 2008-
Ohio-6457.
       {¶ 9} “If any 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 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.
       {¶ 10} Plaintiff has proven his property damage was caused by the acts of ODOT
personnel. See Vitek v. Ohio Dept. of Transp., Ct. of Cl. No. 2004-09258-AD, jud,
2005-Ohio-1071; Zhang v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-07811-AD, 2008-
Ohio-7077; Barnett v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-08809-AD, 2009-Ohio-
1589. Consequently, defendant is liable to plaintiff for the damages claimed, $1,083.61,
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 (1990),
62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




                               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




TOM LEONARD

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-01638-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 $1,108.61, which includes the filing fee. Court costs are
assessed against defendant.




                                           DANIEL R. BORCHERT
                                           Deputy Clerk

Entry cc:

Tom Leonard                                Jolene M. Molitoris, Director
6543 North Ridge Road East                 Department of Transportation
Geneva, Ohio 44041                         1980 West Broad Street
                                           Columbus, Ohio 43223
RDK/laa
5/10
Filed 5/25/10
Sent to S.C. reporter 9/17/10
