[Cite as Spears v. Ohio Dept. of Transp., 2011-Ohio-6862.]



                                                        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

SPEARS,                                                      Case No. 2010-10441

       Plaintiff,                                            Judge Clark B. Weaver Sr.

       v.

OHIO DEPARTMENT OF TRANSPORTATION,

       Defendant.


      ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT


        {¶1} On July 21, 2011, defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B). Plaintiff did not file a response. The motion is now before the court for
a non-oral hearing pursuant to L.C.C.R. 4.
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
        {¶4} According to the complaint, plaintiff’s automobile sustained damage as a
result of colliding with a fallen tree branch on State Route 12 near Bettsville, Ohio, in the
Case No. 2010-10441                        -2-                                   ENTRY

early morning of July 25, 2010. Plaintiff claims that defendant was negligent in failing
either to remove the branch from the highway or to warn him of the hazardous
condition.
      {¶5} In order to prevail upon his claim of negligence, plaintiff must prove by a
preponderance of the evidence that defendant owed him a duty, that defendant’s acts or
omissions resulted in a breach of that duty, and that the breach proximately caused
injury to his property. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-
Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
       {¶6} It is well-settled that defendant is subject to a general duty to exercise
ordinary, reasonable care in maintaining state highways. White v. Ohio Dept. of Transp.
(1990), 56 Ohio St.3d 39, 42. However, defendant is not liable for damages caused by
hazardous conditions on state highways unless it has actual or constructive notice of
the condition. McClellan v. Ohio Dept. of Transp. (1986), 34 Ohio App.3d 247, 249.
The distinction between actual and constructive notice is in the manner in which notice
is obtained rather than in the amount of information obtained. Whenever the trier of fact
is entitled to find from competent evidence that information was personally
communicated to or received by the party, the notice is actual. Constructive notice is
that notice which the law regards as sufficient to give notice and is regarded as a
substitute for actual notice. In re Estate of Fahle (1950), 90 Ohio App. 195, 197-198.
       {¶7} In support of its motion, defendant submitted the affidavit of Harry Bare, III,
who is employed as defendant’s District 2 Court of Claims Coordinator. Bare avers that
“[o]n the date of [plaintiff’s] accident, there was a severe windstorm in the area which is
believed to be the cause of the fallen tree branch.” According to Bare, defendant had
no notice of the fallen tree branch until after plaintiff’s accident, when it was contacted
by an Ohio State Highway Patrol trooper responding to the accident.
Case No. 2010-10441                         -3-                                  ENTRY

       {¶8} As stated above, plaintiff did not file a response to defendant’s motion, nor
did he provide the court with any affidavit or other permissible evidence to support his
allegations.
       {¶9} Civ.R. 56(E) states, in part, as follows:
       {¶10} “When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon the mere allegations or denials of the
party's pleadings, but the party's response, by affidavit or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial. If the
party does not so respond, summary judgment, if appropriate, shall be entered against
the party.”
       {¶11} Based upon the uncontested affidavit testimony of Bare, the only
reasonable conclusion to be drawn is that defendant did not have actual or constructive
notice of the fallen tree branch laying on State Route 12.       Inasmuch as defendant
cannot be held liable for a hazardous condition unless it has notice thereof, the court
concludes that there are no genuine issues of material fact and that defendant is
entitled to judgment as a matter of law. Accordingly, defendant’s motion for summary
judgment is GRANTED and judgment is rendered in favor of defendant. Court costs are
assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.


                                           _____________________________________
                                           CLARK B. WEAVER SR.
                                           Judge




cc:
Case No. 2010-10441                  -4-                        ENTRY


Jennifer A. Adair                     Michael C. Spears
John P. Reichley                      919 Quail Drive, Apt. 5
Assistant Attorneys General           Fremont, Ohio 43420
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130



Filed November 15, 2011
To S.C. reporter December 30, 2011
