2006-Ohio-7263
No. 2006-03346-AD.Court of Claims of Ohio.
September 6, 2006.
Melanie B. Clark, Akron, Ohio 44312, Plaintiff, Pro se.
Gordon Proctor, Director, Department of Transportation, Columbus, Ohio 43223, for Defendant.
MEMORANDUM DECISION {¶ 1} Plaintiff, Melanie B. Clark, states she was traveling north on Interstate 77, when her van struck an orange traffic control barrel that had rolled from the right lane of the roadway into plaintiff’s driving lane. The impact with the traffic control barrel caused damage to the front passenger side of plaintiff’s vehicle. The incident occurred within a construction zone at about 4:00 p.m. on March 23, 2006, near milepost 116.3 on I-77 in Summit County.
{¶ 2} Plaintiff filed this complaint seeking to recover $895.26, the cost of automotive repair and expenses related to the March 23, 2006, property damage event. Plaintiff paid the $25.00 filing fee. Plaintiff asserted the damage to her van was proximately caused by negligence on the part of defendant, Department of Transportation (“DOT”), or its agents in failing to maintain proper positioning of the traffic control barrels or installing defective barrels.
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{¶ 3} Defendant denied liability for this matter based on the contention that none of defendant’s agents was aware of the displaced traffic barrel which ultimately caused plaintiff’s property damage. Defendant stated it is unknown to defendant or its contractor, The Shelly Company (“Shelly”), the circumstances involved in how the traffic control barrel became displaced. DOT denied Shelly proximately caused plaintiff’s damage by placing a defective barrel on the roadway. Defendant denied placing the barrel on the roadway and suggested the barrel was deposited on the highway by an unidentified third party at some undetermined time prior to plaintiff’s damage occurrence.
{¶ 4} In her response to defendant’s investigation report, plaintiff insisted the barrel her vehicle struck rolled out into the traveled traffic lane and was therefore, “either faulty placed or not safe for use.” Plaintiff did not produce any evidence to establish defendant’s agents placed a defective barrel on the roadway.
{¶ 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. However, defendant is not an insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723.
{¶ 6} 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,
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Inc. 99 Ohio St. 3d 79, 81, 2003-Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio Misc. 3d 75, 77. 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. 1981, approved and followed.
{¶ 7} Ordinarily, in a claim involving roadway debris which includes out of position traffic control devices, plaintiff must prove either: 1) defendant had actual or constructive notice of the out of position traffic control device 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. 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.
{¶ 8} Plaintiff has not produced any evidence to indicate the length of time the traffic barrel was present on the roadway prior to the incident forming the basis of this claim. No evidence has been submitted to show defendant had actual notice of a misplaced barrel. Additionally, the trier of fact is
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precluded from making an inference of defendant’s constructive notice, unless evidence is presented in respect to the time the traffic barrel appeared in the traveled portion of the roadway. Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. There is no indication defendant had constructive notice of the barrel’s location. Finally, plaintiff has not produced any evidence to infer defendant, in a general sense, maintains its highways negligently or that defendant’s acts caused the traffic barrel to be in the traveled portion of the roadway Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD.
{¶ 9} Plaintiff’s case fails because plaintiff has failed to show, 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 barrel was connected to any negligence on the part of defendant, defendant was negligent in maintaining the construction area, or any negligence on the part of defendant. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v. Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of Transportation (2000), 2000-04758-AD. Consequently, plaintiff’s claim is denied.
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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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
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