Osborne v. Ohio Dept. of Transp. , 2011 Ohio 6977 ( 2011 )


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  • [Cite as Osborne v. Ohio Dept. of Transp., 
    2011-Ohio-6977
    .]
    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
    SHERMAN J. OSBORNE
    Plaintiff
    v.
    OHIO DEPARTMENT OF TRANSPORTATION
    Defendant
    Case No. 2011-08181-AD
    Deputy Clerk Daniel R. Borchert
    MEMORANDUM DECISION
    {¶1}    Plaintiff,   Sherman        Osborne,      filed   this   action   against      defendant,
    Department of Transportation (ODOT), contending that his vehicle was damaged as a
    proximate result of negligence on the part of ODOT in maintaining a road reflector on
    “US 32 near US 23.” In his complaint, plaintiff provided a narrative description of his
    damage incident noting that he was driving his car on May 6, 2011, at approximately
    8:00 p.m. when he heard a loud noise and then discovered that his tire was damaged.
    Plaintiff stated that he walked back down the road and found “a safety light” dislodged in
    the middle of the road. Plaintiff seeks recovery of damages in the amount of $126.95,
    the stated total amount for a replacement tire and rim. 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 SR 32 prior to plaintiff’s incident.
    Defendant located plaintiff’s incident at or near milepost 15.21 on SR 32 in Pike 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 surface prior to the
    May 6, 2011 damage occurrence.                  Defendant explained that SR 32 was regularly
    maintained in the vicinity of plaintiff’s damage incident and a review of the road
    inspection reports prepared by the Pike County Transportation Manager Adam Smith
    documents that he inspected the section of SR 32 where plaintiff’s incident occurred on
    February 28, March 16, March 29, April 11, and April 27, 2011. Defendant maintained
    that Smith did not locate any loose reflectors during those inspections.
    {¶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 in 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
    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 May 6, 2011.
    {¶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, 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.
    {¶8}   “[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
    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
    .
    {¶9}   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.
    {¶10} 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
    roadway inspections on the particular section of SR 32 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
    .
    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
    SHERMAN J. OSBORNE
    Plaintiff
    v.
    OHIO DEPARTMENT OF TRANSPORTATION
    Defendant
    Case No. 2011-08181-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:
    Sherman J. Osborne                                Jerry Wray, Director
    516 Maple Avenue                                  Department of Transportation
    Piketon, Ohio 45661                               1980 West Broad Street
    Columbus, Ohio 43223
    9/14
    Filed 9/28/11
    Sent to S.C. reporter 2/6/12
    

Document Info

Docket Number: 2011-08181-AD

Citation Numbers: 2011 Ohio 6977

Judges: Borchert

Filed Date: 9/28/2011

Precedential Status: Precedential

Modified Date: 10/30/2014