Hughes v. Ohio Dept. of Transp. , 2010 Ohio 6555 ( 2010 )

[Cite as Hughes v. Ohio Dept. of Transp., 2010-Ohio-6555.]
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
CARRIE HUGHES
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2010-05315-AD
Clerk Miles C. Durfey
MEMORANDUM DECISION
{¶ 1} On February 22, 2010, at approximately 7:00 p.m., plaintiff, Carrie
Hughes, was traveling west on State Route 125 within the Village of Amelia in Clermont
County, when her 2008 Mitsubishi Outland “ran over a road marker (reflector) that was
no longer in the road and it flew up and hit my car, leaving a gash in the bumper above
the back, passenger side tire.” Plaintiff submitted photographs of the reflector and her
damaged vehicle. Plaintiff asserted that the damage to her vehicle was proximately
caused by negligence on the part of defendant, Department of Transportation (ODOT),
in failing to maintain the roadway free of defects such as uprooted reflectors. Plaintiff
filed this complaint seeking to recover $686.72, the total cost of automotive repair. The
filing fee was paid.
{¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of a loose reflector on the roadway prior to
plaintiff’s February 22, 2010 property damage occurrence. Defendant denied receiving
any calls or complaints from any entity regarding a loose reflector which ODOT located
“between milepost 7.31 and 7.34 on SR 125 in Clermont County.” Defendant asserted
that plaintiff did not produce any evidence to establish the length of time that the
uprooted reflector was on the roadway prior to 7:00 p.m. on February 22, 2010.
Defendant suggested that the uprooted road reflector condition “existed in that location
for only a relatively short amount of time before plaintiff’s incident.”
{¶ 3} Defendant contended plaintiff did not offer any evidence to prove her
property damage was proximately caused by any conduct attributable to ODOT
personnel. Defendant explained that ODOT conducted various maintenance operations
on this particular section of State Route 125 during the six-month period preceding
February 22, 2010. Defendant noted that ODOT workers conducted “litter patrol
operations” in the vicinity of plaintiff’s incident on January 22, 2010 and did not discover
any dislodged reflector on the roadway on that date. Defendant stated that if “ODOT
work 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.”
Defendant argued that it did not believe ODOT breached any duty of care owed to the
motoring public in regard to roadway maintenance.
{¶ 4} 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 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.
{¶ 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.
{¶ 7} Defendant professed liability cannot be established when requisite notice
of the damage-causing conditions cannot be proven. Generally, defendant is only liable
for roadway conditions of which it has notice, but fails to correct. Bussard. However,
proof of a dangerous condition is not necessary when defendant’s own agents 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 her property damage was caused by a defective condition created by ODOT or that
defendant knew about the particular loosened reflector prior to 7:00 p.m. on February
22, 2010.
{¶ 8} Ordinarily, to recover in any suit involving injury proximately caused by
roadway conditions including loosened reflectors, plaintiff must prove that either: 1)
defendant had actual or constructive notice of the reflector 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 loosened reflector condition. Therefore, in order to
recover plaintiff must offer proof of defendant’s constructive notice of the condition as
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, 48 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 is 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 loosened road reflector was present on the roadway prior to the incident forming the
basis of this claim. Plaintiff has not shown that defendant had actual notice of the
uprooted reflector. 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 loosened road reflector 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} Additionally, 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 periodically performing work activities on the particular section of State Route 125
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 her property.
Hall v. Ohio Department of Transportation (2000), 99-12963-AD.
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
CARRIE HUGHES
Plaintiff
v.
OHIO DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2010-05315-AD
Clerk Miles C. Durfey
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.
________________________________
MILES C. DURFEY
Clerk
Entry cc:
Carrie Hughes Jolene M. Molitoris, Director
2676 State Route 132 Department of Transportation
New Richmond, Ohio 45157 1980 West Broad Street
Columbus, Ohio 43223
RDK/laa
8/19
Filed 9/20/10
Sent to S.C. reporter 12/29/10