2008-Ohio-4182
No. 2007-08279-AD.Court of Claims of Ohio.
May 23, 2008.
MEMORANDUM DECISION
FINDINGS OF FACT {¶ 1} 1) On August 2, 2007, at approximately 3:00 p.m., plaintiff, Jerry M. Copley, was traveling south on Interstate 271, “west of the Forbes Rd. exit near milemarker 24, when a metal pipe flew up from the highway” and struck the windshield of his 1993 Toyota Corolla. Plaintiff submitted photographs depicting the damage to his automobile windshield caused by the metal pipe.
{¶ 2} 2) Plaintiff implied the damage to his car was proximately caused by negligence on the part of defendant, Department of Transportation (“DOT”), in failing to keep the roadway free of debris conditions such as the metal pipe. Plaintiff filed this complaint seeking to recover damages of $244.38, the cost of a replacement windshield. Plaintiff paid the filing fee and requested reimbursement of that cost along with his damage claim.
{¶ 3} 3) Defendant denied any liability in this matter based on the contention that no DOT personnel had any knowledge of a metal pipe laying on the roadway prior
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to plaintiffs property damage event. Defendant denied receiving any calls or complaints regarding debris on the particular roadway area which DOT located between state mileposts 24.0 and 23.40 on Interstate 271 in Cuyahoga County. Defendant cannot determine the length of time the damage-causing debris condition existed on the roadway prior to 3:00 p.m. on August 2, 2007. Defendant suggested, “the debris existed in that location for only a relatively short amount of time before plaintiffs incident.” Defendant explained the DOT County Manager “conducts roadway inspections on all state roadways within the county on a routine basis, at least one to two times a month.” Defendant further explained DOT personnel conduct frequent maintenance operations and litter pick-ups on Interstate 271 and DOT work crews would have promptly removed any debris found on the roadway in the course of work related duties. Defendant denied the roadway was negligently maintained.
CONCLUSIONS OF LAW {¶ 4} 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.
{¶ 5} 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 debris 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. The trier of fact is precluded from making an inference of defendant’s constructive notice, unless evidence is presented in respect to the time the debris appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. 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
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(1996), 94-13861.
{¶ 6} 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, 81, 2003-Ohio-2573, 788 N.E. 2d 1088, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. 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 i Steven v. Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed comm.
{¶ 7} Evidence in the instant action tends to show plaintiffs damage was caused by an act of an unidentified third party, not DOT. Defendant has denied liability based on the particular premise 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. 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 DOT was the proximate cause of plaintiffs 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.
{¶ 8} “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, quotin Neff Lumber Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327.
{¶ 9} Plaintiff has failed to establish his damage was proximately caused by any
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negligent act or omission on the part of DOT. In fact, it appears the cause of plaintiff’s injury was the act of an unknown third party which did not involve DOT. 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 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.
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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.
Entry cc:
Jerry M. Copley 1461 Carriage Hill Drive Hudson, Ohio 44236
James G. Beasley, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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