[Cite as Predescu v. Ohio Dept. of Transp., Dist. 12, 2011-Ohio-2753.]

                                       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




GHEORGHE PREDESCU

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

        Defendant

        Case No. 2010-11714-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Gheorghe Predescu, filed this action against defendant,
Department of Transportation (ODOT), contending his 2003 Chrysler Sebring was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 480 in Cuyahoga County. Plaintiff advised he was
traveling “west on I 480 on the Ridge Road ramp” at rush hour on October 29, 2010
trailing an SUV that “ran over a railroad tie that was in the middle of the ramp.” Plaintiff
related he did not see the railroad tie and his car in turn “ran it over, damage all four
tires and possibly my exhaust or shocks.” Plaintiff submitted photographs depicting the
damage-causing wooden object that he took after pulling the object from the traveled
portion of the roadway to the berm area.                    The object depicted appears to be an
elongated block of wood similar to a railroad tie. In his complaint, plaintiff requested
damages in the amount of $2,435.52, representing claims for automobile replacement
parts, towing, car rental expense, gasoline, and work loss. The filing fee was paid.
        {¶ 2} Defendant conducted an investigation and determined that the damage-
causing incident occurred at milepost 13.04 on Interstate 480 in Cuyahoga County.
Defendant asserts that it had no “notice of the subject condition 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.”    Defendant asserted that
plaintiff failed to produce any evidence to establish the length of time the debris
condition existed prior to 5:00 p.m. on October 29, 2010. Defendant also asserted that
plaintiff did not offer any evidence to show the damage-causing debris condition was
attributable to any conduct on the part of 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 13.04 on Interstate 480 the last time that specific section of roadway was
inspected prior to October 29, 2010. Defendant reviewed a six-month maintenance
jurisdiction history of the area in question and found twenty-eight litter pick-ups were
performed in the area with the last occurring on October 25, 2010 and according to
defendant, any debris found would have been picked up.
       {¶ 4} Plaintiff filed a response noting, “I can not present evidence to indicate
how long the debris existed in the roadway prior to the incident.” Plaintiff stated, “I have
the right to drive on (the) roadway to work without incidents.” Plaintiff maintained he is
entitled to all damages listed in his complaint, plus $940.00 for newly discovered
suspension damage to his car.
       {¶ 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.
       {¶ 6} 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.
      {¶ 7} 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.
      {¶ 8} 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.
      {¶ 9} 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 wood debris condition prior to 5:00 p.m. on October
29, 2010.
      {¶ 10} Ordinarily, to recover in a suit involving injury proximately caused by
roadway conditions including wood block 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.
      {¶ 11} “[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.
      {¶ 12} Plaintiff has not produced any evidence to indicate the length of time that
the wood 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 wood block 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 wood debris on the roadway.
      {¶ 13} 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 that ODOT personnel were periodically
performing work activities on the particular section of Interstate 480 where plaintiff’s
damage incident occurred. Plaintiff has failed to provide sufficient evidence to prove
that defendant maintained a hazardous condition on the roadway which was the
substantial or sole cause of his 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 his property. Hall v. Ohio Department of
Transportation (2000), 99-12963-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




GHEORGHE PREDESCU

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

      Defendant

      Case No. 2010-11714-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:

Gheorghe Predescu               Jerry Wray, Director
6501 Flowerdale Avenue          Department of Transportation
Cleveland, Ohio 44144           1980 West Broad Street
                                Columbus, Ohio 43223
RDK/laa
2/8
Filed 3/9/11
Sent to S.C. reporter 5/27/11
