Wertz v. Ohio Dept. of Transp.

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[Cite as Wertz v. Ohio Dept. of Transp., 2009-Ohio-6605.] 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 JAMES R. WERTZ Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-11656-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION {¶ 1} Plaintiff, James R. Wertz, related he was traveling east on State Route 2 approximately 1 mile west of St. Rt. 250" in Erie County, when his 2004 Honda Civic ran over an uprooted road pavement marker causing damage to the tire, rim, and rear bumper cover of the vehicle. Plaintiff recalled the described incident occurred at approximately 1:30 p.m. on November 24, 2008. {¶ 2} Plaintiff asserted the damage to his car was proximately caused by negligence on the part of defendant, Department of Transportation ( DOT ), in failing to maintain the roadway free of hazardous conditions such as completely uprooted pavement markers. Consequently, plaintiff filed this complaint seeking to recover $500.00, his insurance coverage deductible for automotive repairs. The filing fee was paid. {¶ 3} Defendant denied any liability in this matter based on the contention that no DOT personnel had any knowledge of a loose reflector on the roadway prior to plaintiff s November 24, 2008 property damage occurrence. Defendant denied receiving any calls or complaints from an entity regarding a loose pavement marker on the roadway which DOT located at approximately milepost 12.00 on SR 2 in Erie County. Defendant asserted plaintiff did not produce any evidence to establish the length of time the uprooted road reflector was on the roadway prior to 1:30 p.m. on November 24, 2008. Defendant suggested that the uprooted pavement marker existed in that location for only a relatively short amount of time before plaintiff s incident. {¶ 4} Defendant argued plaintiff did not offer evidence to prove his property damage was proximately caused by conduct attributable to DOT personnel. Defendant explained DOT crews conducted litter patrol operations and sign inspection on the particular section of State Route 2 on November 24, 2008, the day of plaintiff s incident. However, no uprooted pavement markers were found. Defendant stated that if any DOT 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. {¶ 5} Defendant acknowledged DOT maintenance crews were performing snow plowing activities on the day of plaintiff s incident in Erie County. Presumably State Route 2 was plowed on the date of plaintiff s incident. Defendant seemingly argued that if this court finds DOT snow plowing uprooted the pavement marker and proximately caused plaintiff s property damage, DOT should be immune from liability. Defendant further argued that snow plowing that results in hazardous conditions such as loose road reflectors being deposited on the roadway was necessary and reasonable for the safety of the traveling public and done in a manner consistent with normal standards. Defendant stated R.C. 5501.411 grants DOT the right to remove ice and snow from state highways and the authority to do whatever is necessary to conduct such removal activities. Defendant related, assuming that a snowplow of Defendant did cause the raised pavement marker to become dislodged, Defendant contends that it is given statutory authority to do whatever is reasonable and necessary to remove snow. Contrary to defendant s argument concerning whatever is reasonable and necessary, the court finds its neither reasonable nor necessary to 1 R.C. 5501.41 covering DOT s discretionary authority to remove snow and ice states: The director of transportation may remove snow and ice from state highways, purchase the necessary equipment including snow fences, employ the necessary labor, and make all contracts necessary to enable such removal. The director may remove snow and ice from the state highways within municipal corporations, but before doing so he must obtain the consent of the legislative authority of such municipal corporation. The board of county commissioners of county highways, and the board of township trustees on township roads, shall have the same authority to purchase equipment for the create a dangerous roadway hazard while in the course of performing snow removal activities. Defendant contended plaintiff failed to offer sufficient proof to show his property damage was caused by any negligent conduct on the part of DOT in performing snow removal operations on State Route 2 on November 24, 2008. {¶ 6} 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, 788 N.E. 2d 1088, ¶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 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. 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. {¶ 7} 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. Additionally, defendant has a duty to exercise reasonable care for the motoring public when conducting snow removal operations. Andrews v. Ohio Department of Transportation (1998), 97-07277-AD. {¶ 8} Ordinarily in a claim involving roadway defects, plaintiff must prove either: 1) defendant had actual or constructive notice of the defective 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 removal of and to remove snow and ice as the director has on the state highway system. Transportation (1976), 75-0287-AD. There is no proof defendant had actual notice or constructive notice of the raised pavement marker despite the fact DOT crews were in the area on November 24, 2008. {¶ 9} 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. 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. Ohio Highway Department (1988), 61 Ohio Misc. 2d 262, 577 N.E. 2d 458. However, proof of notice of a dangerous condition is not necessary when defendant s own agents actively cause such condition. 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. Evidence is inconclusive whether or not the damage-causing pavement marker was originally dislodged from the roadway by defendant s personnel. {¶ 10} 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 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. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327. {¶ 11} Plaintiff has not shown, by a preponderance of the evidence, that defendant failed to discharge a duty owed to him or that his property damage was proximately caused by defendant s negligence. Plaintiff failed to show that the damagecausing reflector was connected to any conduct under the control of defendant, or that there was 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. {¶ 12} 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 defective condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. Therefore, defendant is not liable for any damage plaintiff may have suffered from the dislodged pavement marker. 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 JAMES R. WERTZ Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2008-11656-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: James R. Wertz 1218 W. Adams Street Sandusky, Ohio 44870 RDK/laa 7/21 Filed 8/6/09 Sent to S.C. reporter 12/11/09 Jolene M. Molitoris, Director Department of Transportation 1980 west Broad Street Columbus, Ohio 43223

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