Bedel v. Ohio Dept. of Transp. , 2011 Ohio 5530 ( 2011 )

[Cite as Bedel v. Ohio Dept. of Transp., 2011-Ohio-5530.]
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
JENNIFER BEDEL, Case No. 2011-03260-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
OHIO DEPARTMENT OF TRANSPORTATION,
Defendant. MEMORANDUM DECISION
{¶ 1} On December 22, 2010, at approximately 9:00 a.m., plaintiff, Jennifer
Bedel, was traveling south on Interstate 75 “near GE Aviation when a black car with
Florida license plates in the middle lane hit a metal object in the roadway causing it to
fly up and strike the drivers side door of my 2010 Toyota Sienna.” The propelled object
placed a dent and scratches in the driver’s side door. Plaintiff implied that the damage
to the automobile was proximately caused by negligence on the part of defendant,
Department of Transportation (ODOT), in failing to maintain the roadway free of
hazardous debris conditions. Plaintiff filed this complaint seeking to recover $904.05,
which represents the total cost of related expense associated with having her car
repaired and reimbursement of the filing fee. The $25.00 filing fee was paid.
{¶ 2} Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the damage-causing debris condition prior to plaintiff’s
incident. Defendant located the debris between mileposts 13.00 and 13.38 on I-75 in
Hamilton County. Defendant asserted plaintiff failed to establish the length of time the
debris existed on the roadway prior to her property-damage event. Defendant
suggested, “that the debris existed in that location for only a relatively short amount of
time before plaintiff’s incident.” Defendant contended plaintiff failed to establish the
damage-causing debris condition was attributable to any conduct on the part of ODOT.
{¶ 3} 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, 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 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. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
{¶ 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} Alternatively, defendant denied that ODOT maintained its roadways
negligently. Plaintiff did not file a response.
{¶ 6} Ordinarily 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. Plaintiff provided insufficient evidence to show that any ODOT
activity caused the debris condition.
{¶ 7} Generally, in order to recover in any suit involving injury proximately
caused by roadway conditions including debris, plaintiff must prove that either: 1)
defendant had actual or constructive notice of the debris 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 produced any evidence to indicate the length of
time that the debris was present on the roadway prior to the incident forming the basis
of this claim. No evidence has been submitted to show that defendant had actual notice
of the debris. 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 debris 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 debris.
{¶ 8} 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
debris to be on the roadway. Herlihy v. Ohio Department of Transportation (1999), 99-
07011-AD.
{¶ 9} In her complaint, plaintiff acknowledged the debris plaintiff’s car struck
was displaced by a third party, another motorist. 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, Jordan v. Ohio Dept. of
Transp., Dist. 8, Ct. of Cl. No. 2010-01336-AD, 2010-Ohio-4583. However, defendant
may still bear liability if it can be established some act or omission on the part of ODOT
was the proximate cause of plaintiff’s injury. No evidence has been presented to
establish the damage claimed was proximately caused by any act or omission on the
part of ODOT.
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
JENNIFER BEDEL, Case No. 2011-03260-AD
Plaintiff,
v. Acting Clerk Daniel R. Borchert
OHIO DEPARTMENT OF TRANSPORTATION,
Defendant.
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
Acting Clerk
Entry cc:
Jennifer Bedel Jerry Wray, Director
8475 Bluebird Drive Department of Transportation
West Chester, Ohio 45069 1980 West Broad Street
Columbus, Ohio 43223
6/9
Filed 7/19/11
Sent to S.C. reporter 10/27/11