Kiser v. Ohio Dept. of Transp.

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[Cite as Kiser v. Ohio Dept. of Transp., 2009-Ohio-6897.] 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 KEVIN A. KISER Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2009-05366-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On May 19, 2009, at approximately 7:30 a.m., plaintiff, Kevin A. Kiser, was traveling east on State Route 279 in Jackson County, when his automobile tire was punctured by a dislodged centerline road reflector. Plaintiff located the uprooted road reflector at the 18 mile marker in the east bound lane. {¶ 2} 2) Plaintiff asserted that the damage to his tire was proximately caused by negligence on the part of defendant, Department of Transportation (DOT), in failing to maintain the roadway free of hazards. Plaintiff filed this complaint seeking to recover damages in the amount of $124.22, the total cost of a replacement tire. The $25.00 filing fee was paid and plaintiff requested reimbursement of that cost along with his damage claim. {¶ 3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of a loose reflector on the roadway prior to plaintiff s May 19, 2009 property damage occurrence. Defendant related DOT records indicate no previous calls or complaints were received from any entity regarding a dislodged road reflector at milepost 18 on State Route 279 in Jackson County. Defendant contended plaintiff failed to produce any evidence to establish the length of time the dislodged reflector existed at milepost 18 on the roadway prior to 7:30 a.m. on May 19, 2009. Defendant suggested that the loose reflector existed in that location for only a relatively short amount of time before plaintiff s incident. {¶ 4} 4) Furthermore, defendant argued plaintiff did not offer any evidence to prove his damage was caused by negligent maintenance on the part of DOT. Defendant explained the DOT Jackson County Transportation Manager travels each state highway twice a month in Jackson County and looks for potholes, low berms, and other safety hazards and records any deficiencies he finds on the Road Inspection Report. Defendant submitted copies of the Road Inspection Reports for March, April, and May 2009. The last time State Route 279 was inspected prior to plaintiff s damage event was May 7, 2009 and there is no record of a dislodged road reflector discovered during that inspection. Defendant submitted a photograph of the specific road reflector at mile marker 18. The photographs depicts a portion of a reflector which appears to be raised less than one inch from the pavement. A vast portion of the reflector is missing. Defendant stated [t]his particular reflector (that remains) is not unseated, jagged, protruding above its normal limits or loose. The trier of fact finds the portion of the reflector that remains seated on the roadway does not appear to present a particularly hazardous condition. CONCLUSIONS OF LAW {¶ 5} 1) 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} 2) 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} 3) [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, 197-197, 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 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. {¶ 8} 4) Plaintiff has not produced any evidence to indicate the length of time the particular loosened road reflector was present on the roadway prior to the incident forming the basis of this claim. Plaintiff has not shown 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 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 defendant had constructive notice of the dislodged reflector. 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 or conditions. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. {¶ 9} 5) 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 it 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 the 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. 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, 31 Ohio Misc. 2d 1, 31 OBR 64, 507 N.E. 2d 1179. However, proof 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, 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 a dangerous roadway condition was created by DOT. {¶ 10} 6) Plaintiff has not proven, by a preponderance of the evidence, that defendant failed to discharge a duty owed to him or that his injury was proximately caused by defendant s negligence. Plaintiff failed to show that the damage-causing condition was created by conduct under the control of defendant, or negligent maintenance on the part of defendant. Taylor v. Transportation Dept. (1998), 97-10898AD; 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 that 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 vehicle. Hall v. Ohio Department of Transportation (2000), 99-12863-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 KEVIN A. KISER Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2009-05366-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: Kevin A. Kiser 2694 Flatwoods Road Oakhill, Ohio 45656 Jolene M. Molitoris, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 8/12 Filed 8/28/09 Sent to S.C. reporter 12/23/09

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