[Cite as Mabe v. Ohio Dept. of Transp., 2015-Ohio-4858.]




                              IN THE COURT OF CLAIMS OF OHIO



SHERRY MABE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2015-00153-AD

Clerk Mark H. Reed

MEMORANDUM DECISION


        {¶1} Plaintiff Sherry Mabe filed this claim on February 27, 2015 to recover
damages which occurred when her 2001 Jeep Cherokee vehicle struck a loose reflector
that was kicked up into her driveway which is off State Route 39 in Mansfield, Richland
County, Ohio. State Route 39 is a public road maintained by the Ohio Department of
Transportation. Plaintiff’s vehicle sustained damages in the amount of $585.00.
        {¶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 her 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 7, 2015, the defendant stated that the
location of the incident was off of SR 39 in Richland County located at mile marker 9.4.
This section of the roadway has an average daily traffic count of between 5,830 and
7,100 vehicles. Despite this volume of traffic, the department had received no notice of
loose reflectors or other debris on this road thus, the court is unable to find that the
department knew about the loose reflector. Within the past six months, the department
had also conducted ninety (90) maintenance operations on SR 39 in Richland County
without discovering any debris or loose reflectors.           A review of the inspections
performed by ODOT and submitted to the Court does not show a report of missing
reflectors.
       {¶11} Finally, it must be pointed out that under Ohio law, the burden of proof in
civil claims like this one rests on the plaintiff. Admittedly, this places a difficult task on a
plaintiff in a loose reflector claim against ODOT. However, this is the law that is binding
on this court at the present time.
Case No. 2015-00153-AD                       -3-              MEMORANDUM DECISION

      {¶12} If a reflector were loose for any appreciable length of time it is probable that
it would likely have been discovered by the department’s work crews. Thus, the court
cannot find that the department should have known about this loose reflector. 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.
      {¶13} 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



SHERRY MABE

      Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2015-00153-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:

Sherry Mabe                      Jerry Wray, Director
2279 State Route 39              Ohio Department of Transportation
Mansfield, Ohio 44903            1980 West Broad Street
                                 Mail Stop 1500
                                 Columbus, Ohio 43223


Filed 6/8/15
Sent to S.C. Reporter 11/24/15
