2006-Ohio-7262
No. 2006-03257-AD.Court of Claims of Ohio.
September 6, 2006.
Joseph J. Filak, Street Lorain, Ohio, Plaintiff, Pro se.
Gordon Proctor, Director Department of Transportation, Columbus, Ohio, For Defendant.
MEMORANDUM DECISION {¶ 1} Plaintiff, Joseph J. Filak III, related he was traveling east on Interstate 90, “exiting the freeway at W 117th St.” in Cleveland, when his automobile struck debris laying in the roadway causing substantial property damage to the vehicle. Plaintiff pointed out the debris condition was caused from a downed light pole that had apparently been knocked down by a preceding motorist. Plaintiff stated debris from the downed pole covered roadway lanes spanning the entire roadway exit ramp. Plaintiff recalled he “could not stop or swerve to avoid any of the debris.” According to plaintiff, this property damage incident occurred on January 24, 2006, at approximately 10:00 p.m.
{¶ 2} Plaintiff filed this complaint seeking to recover $2,300.00, his cost of automotive repair associated with the January 24, 2006, incident. Plaintiff also seeks recovery of the $25.00 filing fee which he paid. Plaintiff implied he suffered these damages as a proximate cause of negligence on the part of defendant, Department of Transportation (“DOT”), in
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maintaining the roadway.
{¶ 3} Defendant denied any liability in this matter. Defendant denied any DOT personnel had knowledge of a downed light pole prior to plaintiff’s property damage occurrence. Defendant asserted Cleveland Police called DOT and reported a downed light pole on Interstate 90 at approximately milepost 10.62 in Cuyahoga County. Defendant related the information was received “that someone had knocked down the light pole and left the scene.” Defendant observed this notice of the down light pole was received at 10:02 p.m. on January 24, 2006. Defendant contended plaintiff failed to produce evidence establishing his property damage was connected to any negligent act or omission on the part of DOT personnel.
{¶ 4} In his response to defendant’s investigation report, plaintiff insisted his property damage was the result of negligence on the part of DOT in failing to remove various light fixture debris from the roadway. Plaintiff reiterated he could not see the debris in adequate time to avoid striking the light fixtures that remained on the roadway. Plaintiff questioned defendant’s assertions regarding lack of notice about the downed light pole.
{¶ 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 18 9; Rhodus v. Ohio Dept. of Transp. (1990),
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67 Ohio App. 3d 723.
{¶ 6} In order to prove a breach of 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. 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. 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 defective condition developed Spires v. Highway Department (1988), 61 Ohio Misc. 2d 262. 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, at paragraph one of the syllabus Sexton v. Ohio Department of Transportation (1996), 94-13861.
{¶ 7} 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, 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 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
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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, approved and followed.
{¶ 8} Evidence in the instant action tends to show plaintiff’s 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. 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 plaintiff’s injury. This court, as trier of fact, determines questions of proximate causation.Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51.
{¶ 9} “If any 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.
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(1983), 6 Ohio St. 3d 155, at 160 quoting Neff Lumber Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309.
{¶ 10} Plaintiff has failed to establish his damage was proximately caused by any negligent act or omission on the part of DOT. In fact, the sole 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. 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. Plaintiff has failed to provide sufficient evidence to prove defendant maintained a hazardous condition on the roadway which was the substantial or sole cause of plaintiff’s property damage. Plaintiff has failed to prove, by a preponderance of the evidence, that defendant’s roadway maintenance activity created a nuisance. Plaintiff has not submitted conclusive evidence to prove a negligent act or omission on the part of defendant caused the damage to his car. Hall v. Ohio Department of Transportation (2000), 99-12863-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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
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