2011-Ohio-4780

Joshua T. Ackerman, Plaintiff, v. Department of Transportation, Defendant.

No. 2011-01615-AD.Court of Claims of Ohio.
Filed June 15, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM DECISION {¶ 1} Plaintiff, Joshua Ackerman, filed this action against defendant, Department of Transportation (ODOT), contending that his 2009 Ford Focus was damaged as a proximate result of negligence on the part of ODOT in maintaining a road reflector on “Milan Rd. 250” in Erie County. In his complaint, plaintiff provided a narrative description of his damage incident noting that he was driving his car on December 31, 2010, when “a life light came out of the road and damaged my car on the passenger side door.” Plaintiff requested reimbursement “for my $25.00 filing fee and the damages repaired on my Ford Focus.” The 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 US 250 prior to plaintiff’s incident. Defendant located plaintiff’s incident at milepost 3.50 on US 250 in Erie County. Defendant asserted that plaintiff failed to provide any evidence to establish that his property damage was attributable to any conduct on the part of ODOT. Furthermore, defendant asserted that plaintiff failed to provide any evidence indicating the length of time that the road reflector was loose or detached from the roadway

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surface prior to the December 31, 2010 damage occurrence. Defendant explained that US 250 was regularly maintained in the vicinity of plaintiff’s damage incident with ODOT personnel conducting “fifteen (15) maintenance operations in the area during the six-month period prior to the day of plaintiff’s incident.” Defendant further explained that, “[w]ithin these fifteen (15) maintenance operations (records submitted), four (4) of them were for Litter Pickup and ODOT was last there on December 30, 2010.” Defendant related that “ODOT crews were doing [activities] such that 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 i 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

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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 December 31, 2010.

{¶ 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,

{¶ 8} 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 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.

{¶ 9} “[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

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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.

{¶ 10} 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.

{¶ 11} 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 routinely performing work activities on the particular section of US 250 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 vehicle. Prstojevic v. Dept. of Transp., Dist. 3, Ct. of Cl. No. 2009-08519-AD, 2010-Ohio-2186.

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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:

Joshua T. Ackerman 113 Newberry Avenue Sandusky, Ohio 44870

Jerry Wray, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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