[Cite as Weiland v. Ohio Dept. of Transp., 2011-Ohio-3960.]



                                      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




ERIN WEILAND

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 10

       Defendant

        Case No. 2010-12656-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶ 1} Plaintiff, Erin Weiland, filed this action against defendant, Department of
Transportation (ODOT), contending that the tire on her vehicle was damaged as a
proximate result of negligence on the part of ODOT in maintaining a hazardous
condition on US Route 33 in Hocking County. In her complaint, plaintiff noted that her
sister “was driving my car and ran over a roadside marker which was laying loose on
the highway” at milepost 7 on US Route 33. Plaintiff recalled that the damage event
occurred on October 26, 2010 at approximately 7:00 p.m. Plaintiff requested damage
recovery in the amount of $133.62, the total stated cost of a replacement tire, wheel,
and wheel cover. The $25.00 filing fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose marker on US Route 33 prior to
plaintiff’s property-damage occurrence.                Defendant denied receiving any calls or
complaints from any entity regarding a loose roadway marker “prior to the (plaintiff’s)
incident.” Defendant argued that plaintiff failed to produce any evidence to establish the
length of time that the marker was dislodged and laying on the roadway prior to the
October 26, 2010 damage event. Defendant suggested that, “the debris existed in that
location for only a relatively short amount of time before plaintiff’s incident.”
       {¶ 3} Defendant contended that plaintiff did not offer evidence to prove her
property damage was attributable to conduct on the part of ODOT personnel.
Defendant acknowledged that US 33 was regularly maintained in the vicinity of plaintiff’s
incident. Indeed, defendant asserted that its employees were engaged in litter pickup
activities on October 25, 2010, and that if ODOT work crews would have noticed any
loose markers, such would have been repaired immediately.
       {¶ 4} Defendant argued that plaintiff did not offer sufficient evidence to prove that
her property damage was proximately caused by negligent maintenance activity on the
part of ODOT. Defendant explained that road inspections were performed from October
20, 2010, through November 2, 2010. The records do not show any problems were
detected involving loose markers at milepost 7.
       {¶ 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 highway 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


       {¶ 7} 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.      However, proof of notice of a dangerous condition is not
necessary when defendant’s own agents actively cause 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 loose
roadway marker prior to October 26, 2010.
      {¶ 9} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including loosened roadway markers, plaintiff must prove that
either: 1) defendant had actual or constructive notice of the reflector 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 loosened reflector 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 loose roadway marker 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 any
problem with the highway marker.       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 loose marker 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 a defective roadway marker.
      {¶ 12} Additionally, 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. 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 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.            Hall v. Ohio Department of
Transportation (2000), 99-12963-AD. Consequently, plaintiff’s claim is denied.
                                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




ERIN WEILAND

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 10

        Defendant

        Case No. 2010-12656-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:

Erin Weiland                                     Jerry Wray, Director
1826 Merganser Run Drive                         Department of Transportation
Columbus, Ohio 43215                             1980 West Broad Street
                                                 Columbus, Ohio 43223
SJM/laa
4/8
Filed 4/27/11
Sent to S.C. reporter 8/10/11
