[Cite as Taylor v. Ohio Dept. of Transp., 2010-Ohio-6684.]

                                       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




JANICE TAYLOR

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-06851-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Janice Taylor, filed this action against defendant, Department of
Transportation (ODOT), contending her 1996 Oldsmobile Delta 88 was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 90 West in Cuyahoga County.                  In her complaint, plaintiff
described her damage incident noting: “[w]hile traveling westbound on Interstate 90
West enroute to work, I struck something in the roadway (steel object) which punctured
my gas tank.” Plaintiff located the damage-causing debris “in the high speed lane near
the West 44th St Exit of Interstate 90 West.” Subsequently, plaintiff located the damage
causing debris condition at “490 West between milemarker I-10 & I-12 near West 7th
Street exit in the high speed lane.” Plaintiff claimed the metal object that damaged her
car “had fallen from a truck traveling upon this roadway” which was ultimately located
between milemarkers 10 and 12 on Interstate 490 West in Cuyahoga County. Plaintiff
did not offer a description of the truck or identify an owner of the truck which deposited
the metal object on the roadway.               Plaintiff recalled the described damage incident
occurred on April 15, 2010 at approximately 6:45 a.m.               Plaintiff requested damage
recovery in the amount of $518.80, the total cost of repairs she incurred resulting from
the April 15, 2010 event. The $25.00 filing fee was paid and plaintiff requested recovery
of that cost along with her damage claim.
      {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of a metal object debris condition on the roadway prior to
plaintiff’s damage occurrence. Defendant reasoned, “[a] steel object, if it were in the
roadway for any length of time, would probably have generated more calls from the
motoring public.” Defendant’s submitted record (radio log) shows no reports of a metal
object on Interstate 490 West were received on or before April 15, 2010. Defendant
denied receiving any calls or complaints regarding a metal object on the roadway and
suggested the debris condition existed “for only a relatively short amount of time before
plaintiff’s incident.” Defendant asserted plaintiff failed to offer evidence to establish
ODOT negligently maintained the roadways in Cuyahoga County. Defendant further
asserted plaintiff did not produce evidence t prove her property damage was attributable
to any conduct on the part of ODOT personnel.           Defendant advised the ODOT
“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 metal
object was discovered on Interstate 490 West between milemarkers 10 and 12 the last
time that section of roadway was inspected prior to April 15, 2010. The claim file is
devoid of any inspection record.     Defendant related plaintiff failed to present any
“evidence to indicate how long the debris existed in the roadway prior to her incident.”
Defendant argued the damage causing object was displaced by a third party and
therefore ODOT cannot bear liability for damage proximately caused by the act of an
unknown third party not affiliated with ODOT.
      {¶ 3} Plaintiff filed a response locating the steel object that damaged her car
was between milemarkers 10 and 12 on Interstate 490 West. Plaintiff did not produce
any evidence to establish the length of time the metal object was on the roadway prior
to 6:45 a.m. on April 15, 2010.
      {¶ 4} 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.
       {¶ 5} Defendant has the duty to maintain its highways 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.
       {¶ 6} 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.
       {¶ 7} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. Generally, defendant is only liable
for roadway conditions of which it has notice, but fails to correct. Bussard. However,
proof of notice of a dangerous condition is not necessary when defendant’s own agents
actively caused such condition. See 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. Plaintiff has failed to produce any evidence to prove
that her property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular metal debris condition prior to 6:45 a.m. on April
15, 2010.
       {¶ 8} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including tire debris, plaintiff must prove that either: 1) defendant
had actual or constructive notice of the debris condition 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 provided any evidence to prove that ODOT had
actual notice of the damage-causing condition. Therefore, in order to recover plaintiff
must offer proof of defendant’s constructive notice of the condition as evidence to
establish negligent maintenance.
      {¶ 9} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge. In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “A finding of
constructive notice is a determination the court must make on the facts of each case not
simply by applying a pre-set time standard for the discovery of certain road hazards.”
Bussard, at 4.     “Obviously, the requisite length of time sufficient to constitute
constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.
(Feb. 4, 1993), Franklin App. 92AP-1183.        In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, that
sufficient time has elapsed after the dangerous condition appears, so that under the
circumstances defendant should have acquired knowledge of its existence. Guiher v.
Dept. of Transportation (1978), 78-0126-AD; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
      {¶ 10} Plaintiff has not produced any evidence to indicate the length of time that
the metal debris was present on the roadway prior to the incident forming the basis of
this claim. Plaintiff has not shown that defendant had actual notice of the condition.
Also, the trier of fact is precluded from making an inference of defendant’s constructive
notice, unless evidence is presented in respect to the time that the tire 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 that defendant had constructive notice of the metal
debris on the roadway.
      {¶ 11} Plaintiff’s admission in the instant action claimed the metal debris
emanated from the act of an unidentified third party. Defendant has denied liability
based on the particular premise that it 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 conducts needs to be controlled. See 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 if 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.
      {¶ 12} “If an injury is the natural and probable consequence of 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 the 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.
      {¶ 13} Evidence in the instant claim tends to show the damage-causing debris
condition was caused by an unidentified third party and not negligent maintenance on
the part of ODOT. 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 or conditions. Herlihy v. Ohio Department of Transportation (1999),
99-07011-AD.
      {¶ 14} Plaintiff has failed to prove, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to plaintiff, or that plaintiff’s injury was
proximately caused by defendant’s negligence. Plaintiff failed to show that the damage-
causing object at the time of the damage incident was connected to any conduct under
the control of defendant or any negligence on the part of defendant proximately caused
the damage. Herman v. Ohio Dept. of Transp. (2006), 2006-05730-AD; Husak v. Ohio
Dept. of Transp., Ct. of Cl. No. 2008-03963-AD, 2008-Ohio-5179.
                                 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




JANICE TAYLOR

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2010-06851-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:

Janice Taylor                                     Jolene M. Molitoris, Director
2353 East 61st                                    Department of Transportation
Cleveland, Ohio 44104                             1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
11/24
Filed 12/29/10
Sent to S.C. reporter 2/25/11
