[Cite as Colyer v. Ohio Dept. of Transp., 2009-Ohio-7188.]

                                                         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




ASHLEY S. COLYER

       Plaintiff

     v.
OHIO DEPARTMENT OF
TRANSPORTATION
Case No. 2009-07652-AD

Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION




        {¶ 1} Plaintiff, Ashley Colyer, asserted her 2000 Volkswagen Jetta suffered
serious engine damage when the vehicle struck a “good size rock/boulder” while
traveling southbound on I-71.               Plaintiff recalled the damage indent occurred on
September 9, 2009. Plaintiff related she was unable to avoid the “rock/boulder” due to
vehicles being on her right and left.
        {¶ 2} Plaintiff contended the damage to her vehicle was proximately caused by
negligence on the part of defendant, Department of Transportation (“DOT”), in
maintaining the highway free of hazardous debris.             Consequently, plaintiff filed this
complaint seeking to recover $2,410.10, her cost for a replacement engine and related
repairs that she claimed were the direct result of road conditions on Interstate 71 in
Cuyahoga County on September 9, 2009.
        {¶ 3} On September 29, 2009, plaintiff submitted a poverty statement. Upon
review, the court has determined the validity of the statement and hereby waives
payment of the filing fee only.              On October 1, 2009, plaintiff submitted a letter
concerning her telephone contacts with defendant’s employee. This letter is considered
a motion to submit additional evidence and is GRANTED.
        {¶ 4} Defendant conducted an investigation and determined the damage-
causing incident occurred between state mileposts 247.81 and 246.00 on Interstate 71
in Cuyahoga County. Defendant asserts that it had no “notice of the debris on I-71 prior
to” the damage-causing incident. Defendant “believes that the debris existed in that
location for only a relatively short amount of time before plaintiff’s incident.”
       {¶ 5} Defendant pointed out that defendant’s “Cuyahoga County Manager
conducts roadway inspections on all state roadways within the county on a routine
basis, at least one to two times a month.”          Apparently no debris was discovered
between mileposts 247.81 and 246.00 on Interstate 71 the last time that specific section
of roadway was inspected prior to September 9, 2009. Finally, defendant reviewed a
six-month maintenance history of the area in question and found sixteen litter patrols
were performed, the last being on September 8, 2009, the day before plaintiff’s incident,
and any debris found would have been picked up.
       {¶ 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 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. 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. Defendant professed liability cannot be established when requisite notice of the
damage-causing conditions cannot be proven. 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 a
dangerous condition is not necessary when defendant’s own agents actively cause such
condition. See Bello v. City of Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526, at
paragraph one of the syllabus. Plaintiff has failed to produce sufficient evidence to
prove her property damage was caused by a defective condition created by DOT.
      Generally, in order to recover in any suit involving injury proximately caused by
roadway conditions including debris, plaintiff must prove either: 1) defendant had actual
or constructive notice of the debris 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 produced any evidence to indicate the length of time the debris
condition was present on the roadway prior to the incident forming the basis of this
claim. No evidence has been submitted to show defendant had actual notice of the
debris.    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 the
debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio
Misc. 2d 262, 577 N.E. 2d 458. There is no indication defendant had constructive
notice of the debris. Plaintiff has not produced any evidence to infer 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.


                               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




ASHLEY COLYER

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant
         Case No. 2009-07652-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:

Ashley Colyer                                     Jolene M. Molitoris, Director
16593 Craigmere Drive                             Department of Transportation
Middleburg Hts., Ohio 44130                       1980 West Broad Street
                                                  Columbus, Ohio 43223
DRB/laa
12/7
Filed 12/22/09
Sent to S.C. reporter 4/7/10
