[Cite as Griebling v. Ohio Dept. of Transp., 2011-Ohio-1121.]

                                       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




JEANNE GRIEBLING

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-10459-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Jeanne Griebling, filed this action against defendant, Department
of Transportation (ODOT), contending her 2006 Mercedes Benz ML350 was damaged
as a proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on Interstate 90 East in Cuyahoga County. Specifically, plaintiff asserted the
tire and wheel on her car were damaged when the vehicle struck “[a] huge concrete
block which was on the roadway.” Plaintiff advised her damage incident occurred when
the concrete block “flew over the hood of the car in front of me (and) bounced, then
went under my car (and) wheel.” Plaintiff located the described damage incident on
Interstate 90 East, “just west of the West 41st/43rd St exit” in Cleveland.             Plaintiff
recalled her damage event occurred on July 15, 2010 at approximately 8:30 a.m.
According to plaintiff, “[a]s of 8/4/10, that same block of concrete (looked like a step)
was still on the berm of I90 on the overpass of W 44th/45th, just west of the W 41st/43rd
exit ramp.” In her complaint, plaintiff requested damages in the amount of $581.32, the
total cost of replacement parts. 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 between state mileposts 169.42 and 169.52 on
Interstate 90 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 94,520 and 118,150 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 failed to establish the length
of time the concrete debris existed on the roadway prior to 8:30 a.m. on July 15, 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’s evidence in her complaint pointed to the fact the damage-causing concrete
block was deposited on the roadway by an unidentified third party not affiliated with
ODOT. Defendant pointed out plaintiff stated in her complaint that the concrete block
was thrown into the path of her car by another unidentified third party motorist.
Defendant argued ODOT is generally not liable for damage caused by the acts of third
parties with no connection to ODOT.
       {¶ 3} Defendant related 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 concrete debris were discovered between
mileposts 169.42 and 169.52 on Interstate 90 the last time that section of roadway was
inspected before July 15, 2010.       The claim file is devoid of any inspection record.
Defendant did submit a six-month maintenance history of the specific roadway area in
question which recorded over one hundred Road Cruiser patrols were conducted in the
area between January 15, 2010 and July 15, 2010.             Road Cruisers patrolled from
mileposts 160.50 to 186.10 on Interstate 90 on July 12, 2010, July 13, 2010, July 14,
2010, and July 15, 2010. Apparently, no concrete block was discovered on the traveled
portion of Interstate 90 between milepost 169.42 and 169.52 at any time that area was
patrolled on the dates referenced.         Defendant’s submitted records show ODOT
conducted Litter Patrols on the particular area of Interstate 90 on forty-seven occasions
between January 15, 2010 and July 15, 2010. The last Litter Patrol ODOT conducted
before July 15, 2010 was on June 18, 2010. Furthermore, the submitted records show
ODOT performed Litter Pickup in the specific area of Interstate 90 twenty-five times
during the six-month period in question. The last time litter was removed from the
roadway prior to plaintiff’s incident was on July 8, 2010. Defendant stated “if ODOT
personnel had found any debris it would have been picked up.” Defendant argued
plaintiff failed to produce evidence to show her property damage was proximately
caused by negligent maintenance on the part of ODOT.
      {¶ 4} Plaintiff filed a response relating that “[o]ne trip down the highway on any
given day is proof positive that cleaning and litter pickup is rarely done as outlined in”
defendant’s maintenance record. Plaintiff questioned the efficacy of defendant’s Road
Cruiser operations; noting ODOT conducted these operations the day before and the
day of her incident, yet apparently did not discover a concrete block on the traveled
portion of Interstate 90. Plaintiff contended, “if they (ODOT personnel) truly do perform
a maintenance cleaning or reporting function, our roadways and berms along I-90 would
be a lot cleaner.” Plaintiff reported the concrete block her car struck on July 15, 2010
“sat alongside the right side of the berm, right over the W. 43rd Street overpass for at
least two weeks after causing my accident.”        Plaintiff acknowledged the damage-
causing concrete block was thrown into the path of her car by an unidentified motorist
traveling in front of her during rush hour on the morning of July 15, 2010. Plaintiff
advised she is unaware of the       circumstances involving the concrete block being
deposited on the traveled portion of Interstate 90. Plaintiff argued, “if ODOT monitored
and kept the road free of debris as is their duty, the concrete block would not have been
on I-90 to be displaced by any vehicle nor to have been run over by my vehicle.”
Plaintiff insisted her property damage was caused by negligence on the part of
defendant in failing to maintain the roadway free of debris.          Plaintiff contended
defendant was negligent in not conducting more frequent inspections and patrols of
Interstate 90 due to the fact the roadway is constantly cluttered with debris. Plaintiff
reported she has noticed “a huge piece of vinyl siding” and “a retread tire” laying on the
roadway berm area “for over two weeks.” Plaintiff disputed the efficacy of defendant’s
Litter Patrol and Litter Pickup operations.    Plaintiff asserted she recently observed
ODOT personnel ignoring debris (car parts) on the roadway berm area of Interstate 90.
Plaintiff did not provide any evidence to establish the length of time the debris condition
that damaged her vehicle was present on the traveled portion of Interstate 90 prior to
8:30 a.m. on July 15, 2010.
      {¶ 5} 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.
      {¶ 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 her property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular debris condition prior to 8:30 a.m. on July 15, 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 conduct 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




JEANNE GRIEBLING

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

      Case No. 2010-10459-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:
Jeanne Griebling               Jolene M. Molitoris, Director
1484 Bobby Lane                Department of Transportation
Westlake, Ohio 44145           1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
12/2
Filed 1/7/11
Sent to S.C. reporter 3/4/11
