[Cite as Blubaugh v. Ohio Dept. of Transp., 2011-Ohio-3542.]

                                      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




ABBY D. BLUBAUGH

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-10351-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Abby D. Blubaugh, filed this action against defendant,
Department of Transportation (ODOT), contending her 2007 Jeep Liberty was damaged
as a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 71 in Clinton County. Plaintiff recalled she was traveling south
on Interstate 71 on July 16, 2010 at approximately 4:00 p.m. when a white Honda van
traveling in front of her changed lanes and “kicked up a square heavy object” that then
struck the left front door of her vehicle. Plaintiff reported she immediately stopped her
car after the incident and called for assistance from the Ohio State Highway Patrol.
Plaintiff noted the debris that damaged her vehicle was subsequently determined to be
a dislodged road reflector. In her complaint, plaintiff requested damage recovery in the
amount of $712.70, the cost of repairing the body damage to her jeep.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose or defective reflector on the roadway
prior to plaintiff’s July 16, 2010 property damage occurrence.          Defendant denied
receiving any calls or complaints from any entity regarding a loose reflector which
ODOT located “at approximately state milepost 49.10 . . . on I-71 in Clinton County.”
Defendant advised, “[t]his section of roadway has an average daily traffic count between
24,530 and 37,710,” however, no record of any prior complaint regarding a dislodged
reflector was received. Defendant contended plaintiff did not produce any evidence to
establish the length of time the dislodged reflector was on the roadway at milepost
49.10 prior to 4:00 p.m. on July 16, 2010. Defendant suggested the uprooted road
reflector condition “existed in that location for only a relatively short amount of time
before plaintiff’s incident.”
        {¶ 3} Defendant contended plaintiff did not offer any evidence to prove her
property damage was proximately caused by any conduct attributable to ODOT
personnel. Defendant explained ODOT conducted various maintenance operations on
this particular section of Interstate 71 during the six-month period preceding July 16,
2010.     Defendant noted that ODOT workers “conducted eight (8) maintenance
operations on I-71 for the past six months (and) [t]he last Litter Pickup was on June 21,
2010 for southbound I-71 at milepost 49.1.” Apparently, no problems with dislodged
reflectors were discovered during the time ODOT crews were working on June 21,
2010. Defendant stated that if “ODOT work crews were doing activities such that if
there was a noticeable defect with any raised or loosened pavement markers it would
have immediately been repaired.” Defendant argued it did not believe ODOT breached
any duty of care owed to the motoring public in regard to roadway maintenance.
        {¶ 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 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.
        {¶ 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.      However, proof of notice of a dangerous condition is not
necessary when defendant actively causes 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 reflector
condition prior to 4:00 p.m. on July 16, 2010.
      {¶ 7} Ordinarily, to recover in a suit involving injury proximately caused by
roadway conditions including uprooted reflectors, plaintiff must prove that either: 1)
defendant had actual or constructive notice of the uprooted reflector 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
ODOT had actual notice of the uprooted reflector. Therefore, in order to recover plaintiff
must offer proof of defendant’s constructive notice of the condition as evidence to
establish negligent maintenance.
      {¶ 8} “[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.
      {¶ 9} Plaintiff has not produced any evidence to indicate the length of time that
the uprooted reflector was present on the roadway prior to the incident forming the basis
of this claim. 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 that
the uprooted reflector appeared on the roadway.          Spires v. Ohio Department of
Transportation (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. There is no indication
that defendant had constructive notice of the dislodged reflector.
      {¶ 10} Evidence in the instant action is conclusive that the damage-causing
reflector was originally uprooted by an unidentified third party motorist and subsequently
propelled into the path of plaintiff’s car by another motorist not affiliated with ODOT.
Defendant has denied liability based on the particular premise it had no duty to control
the conduct of a third person except where a special relationship exists between
defendant and either plaintiff or the person whose conduct needs to be controlled.
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 or its agents was the proximate cause of plaintiff’s injury.
Plaintiff has failed to prove, by preponderance of the evidence, that defendant failed to
discharge a duty owed to her, or that her injury was proximately caused by defendant’s
negligence.   Plaintiff failed to show 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 or its agents. Hall v. Ohio Dept. of Transp. (2006),
2006-05730-AD.
      {¶ 11} Plaintiff has not produced any evidence to infer that 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.
Defendant submitted evidence showing ODOT personnel were routinely performing
work activities on the particular section of Interstate 71 where plaintiff’s damage incident
occurred.    Plaintiff has failed to provide sufficient evidence to prove defendant
maintained a hazardous condition on the roadway which was the substantial or sole
cause of her property damage. Plaintiff has failed to prove, by a preponderance of the
evidence, that any ODOT roadway maintenance activity created a nuisance. Plaintiff
has not submitted evidence to prove that a negligent act or omission on the part of
defendant caused the damage to her vehicle. Prstojevic v. Dept. of Transp., Dist. 3, Ct.
of Cl. No. 2009-08519-AD, 2010-Ohio-2186.



                                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




ABBY D. BLUBAUGH

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-10351-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:

Abby D. Blubaugh               Jerry Wray, Director
2607 SR 68 S.                  Department of Transportation
Xenia, Ohio 45385              1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
2/24
Filed 4/5/11
Sent to S.C. reporter 7/8/11
