Opinion
No. 2008-05117-AD.
Filed September 25, 2008.
MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} 1) On March 20, 2008, at approximately 11:30 p.m., plaintiff, Susan Bills-Sweeten, was traveling south on Interstate 71 in Franklin County, when her automobile, a 2007 Toyota Camry, struck concrete debris in the roadway causing tire and rim damage to the vehicle. Plaintiff described the property damage incident noting: "I was driving southbound on I-71 in the right-hand lane. Approximately 20-25 minutes from the Columbus Airport I hit something in the roadway that appeared to be a concrete barrier." Plaintiff recalled that other motorists had hit the same concrete debris as she observed three other damaged cars pulled to the side of the roadway.{¶ 2} 2) Plaintiff asserted the damage to her car was proximately caused by negligence on the part of defendant, Department of Transportation ("DOT"), in failing to maintain the roadway free of debris. Plaintiff filed this complaint seeking to recover $666.88, the cost of repairing damage resulting from the March 20, 2008 incident. The filing fee was paid.
{¶ 3} 3) Defendant denied liability based on the contention that no DOT personnel had any knowledge of concrete debris on the roadway prior to 11:30 p.m. on March 20, 2008. Defendant's records show no calls or complaints were received regarding concrete debris on the particular roadway area which DOT located between county mileposts 103.80 and 97.15 on Interstate 71 in Franklin County. Defendant suggested, "the debris existed in that location for only a relatively short amount of time before Plaintiffs incident."
{¶ 4} 4) Defendant contended plaintiff failed to produce evidence to prove DOT negligently maintained the roadway. Defendant denied the damage causing debris originated from any activity under the control of DOT. Defendant explained DOT personnel conduct frequent litter pickups on Interstate 71 in Franklin County and conduct periodic inspections on that particular roadway. Defendant asserted if any debris had been discovered prior to plaintiffs damage event, DOT employees would have promptly removed the debris from the roadway. Defendant related plaintiff did not offer any evidence to establish the length of time the concrete was laying on the roadway prior to 11:30 p.m. on March 20, 2008.
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) Plaintiff has not produced any evidence to indicate the length of time any concrete debris 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 concrete 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 the concrete 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 defendant had constructive notice of the concrete debris. Plaintiff has not produced any evidence to infer 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.
{¶ 8} 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, 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 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. 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. 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 sufficient evidence to prove her property damage was caused by a defective condition created by DOT.
{¶ 9} 5) Plaintiff has not proven, by a preponderance of the evidence, that defendant failed to discharge a duty owed to her or that her injury was proximately caused by defendant's negligence. Plaintiff has failed to show the damage-causing debris was connected to any conduct under the control of defendant, or 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. Plaintiff has failed to provide sufficient evidence to prove defendant maintained a hazardous condition on the roadway which was the substantial or sole cause of plaintiffs 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 her vehicle. Hall v. Ohio Department of Transportation (2000), 99-12863-AD.
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.
Entry cc:
Susan Bills-Sweeten
4059 Meridell Drive
Beavercreek, Ohio 45430
James G. Beasley, Director
Department of Transportation
1980 West Broad Street
Columbus, Ohio 43223