[Cite as Fry v. Ohio Dept. of Transp., 2011-Ohio-4586.]



                                       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




GARY L. FRY

       Plaintiff

       v.

DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-02085-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1} Plaintiff, Gary Fry, filed this action against defendant, Department of
Transportation (ODOT), contending his 2010 Ford Taurus was damaged as a proximate
result of negligence on the part of ODOT in maintaining a road reflector on State Route
224 in Seneca County. In his complaint, plaintiff provided a narrative description of his
damage incident noting on January 23, 2011, he was traveling west on State Route 224
when “I passed another vehicle. When passing I ran over one of the reflectors in the
road that identifies the centerline. When I did it slit my left rear tire.” Plaintiff requested
damages in the amount of $228.07, the cost of a tire and associated repair expenses.
The $25.00 filing fee was paid.
        {¶2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any notice of a loose reflector on SR 224 prior to plaintiff’s
incident. Defendant located plaintiff’s incident at milepost 0.90 on SR 224 in Seneca
County. Defendant asserted plaintiff failed to provide any evidence to establish his
property damage was attributable to any conduct on the part of ODOT. Furthermore,
defendant asserted plaintiff failed to provide any evidence indicating the length of time
the road reflector was loose or detached from the roadway surface prior to his January
23, 2011 damage occurrence. Defendant explained SR 224 was regularly maintained
in the vicinity of plaintiff’s damage incident with ODOT personnel conducting “eleven(11)
maintenance operations on SR 224 at milepost 0.90 for the past six months.”
Defendant further explained ODOT was performing inspections of signs and markings
on January 20, 2011, a few days before plaintiff’s incident. Defendant related, “if there
was a noticeable defect with any raised or loosened pavement markers it would have
immediately been repaired.”
      {¶3} Plaintiff did not file a response.
      {¶4} 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 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 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 reflector
condition prior to January 23, 2011.
      {¶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 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
ODOT had actual notice of the loose reflector. Therefore, in order to recover plaintiff
must offer proof of defendant’s constructive notice of the condition or 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, 47 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 road 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 condition 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 dislodged reflector.
       {¶10} 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 SR 224 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 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 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




GARY L. FRY

        Plaintiff

        v.

DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-02085-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:

Gary L. Fry                                       Jerry Wray, Director
92 Douglas Street                                 Department of Transportation
Tiffin, Ohio 44883                                1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
5/10
Filed 6/4/11
Sent to S.C. reporter 9/12/11
