[Cite as Schwartzberg v. Ohio Dept. of Transp., 2011-Ohio-1120.]

                                      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




MARK SCHWARTZBERG

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2010-10122-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Mark Schwartzberg, filed this action against defendant,
Department of Transportation (ODOT), contending his vehicle was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 490 in Cuyahoga County.                    Specifically, plaintiff related his
property damage occurred “[w]hile driving eastbound on I 490 ramp leading to I-77
southbound (Cleveland).” Plaintiff further related, “I drove (over) some sort of large
concrete block which was in the middle of the road.” Plaintiff suggested the damage
causing concrete block “may have fallen off a truck as it appeared to (be) used for
sewer projects.” Plaintiff claimed the “concrete blocks” damaged the right front rim and
body on his vehicle.          Plaintiff recalled the described damage incident occurred on
August 18, 2010 at approximately 9:50 p.m.                     In his complaint, plaintiff requested
damages in the amount of $2,500.00, the statutory maximum under R.C. 2743.10. The
filing fee was paid.
        {¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the damage-causing debris condition prior to plaintiff’s
incident. Defendant located the debris “at milepost 1.88 on I-490 in Cuyahoga County”
and advised ODOT did not receive any calls or complaints for debris at that location
despite the fact the particular “section of roadway has an average daily traffic count
between 25,960 and 27,160 vehicles.” Defendant suggested, “that the debris existed in
that location for only a relatively short amount of time before plaintiff’s incident.”
Defendant asserted plaintiff did not offer any evidence to establish the length of time the
concrete debris existed on the roadway prior to 9:50 p.m. on August 18, 2010.
Defendant further asserted plaintiff failed to establish the damage-causing debris
condition was attributable to any conduct on the part of ODOT.           Defendant noted
plaintiff suggested the concrete block his vehicle struck had fallen from a trunk operated
by an unidentified third party.   Defendant argued ODOT is generally not liable for
damage caused by the acts of a third party motorist not affiliated with ODOT.
      {¶ 3} 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 at
milepost 1.88 on Interstate 490 the last time that specific section of roadway was
inspected prior to August 18, 2010.      Defendant reviewed a six-month maintenance
jurisdiction history of the area in question and found thirty-five Road Cruiser Patrols
were performed, the last being on August 16, 2010. Also, defendant’s records show
that nine litter pick-ups were performed in the area with the last occurring on August 5,
2010 and according to defendant, any debris found would have been picked up.
Defendant contended plaintiff failed to produce evidence to show his damage claimed
was proximately caused by negligent maintenance on the part of ODOT.
      {¶ 4} Plaintiff filed a response noted, “I did run over some type of cement block
related to a sewer project.” Plaintiff revised his damage claim to $250.00, reflecting his
insurance coverage deductible for vehicle repair costs.
      {¶ 5} 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
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.
        {¶ 6} 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.
        {¶ 7} 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.
        {¶ 8} 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 his property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular debris condition prior to 9:50 p.m. on August 18,
2010.
        {¶ 9} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including 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.
      {¶ 10} “[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.
      {¶ 11} Plaintiff has not produced any evidence to indicate the length of time that
the concrete 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 concrete 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 concrete debris on the roadway.
      {¶ 12} Evidence in the instant action is undisputed to show that plaintiff’s damage
was caused by an 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.
      {¶ 13} “If an 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 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.
      {¶ 14} Evidence in the instant claim tends to show the concrete block 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.
      {¶ 15} 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




MARK SCHWARTZBERG

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2010-10122-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:

Mark Schwartzberg                                 Jolene M. Molitoris, Director
5228 Anthony Street                               Department of Transportation
Maple Hts., Ohio 44137                            1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
11/24
Filed 1/11/11
Sent to S.C. reporter 3/4/11
