Jessop v. Ohio Dept. of Transp.

[Cite as Jessop v. Ohio Dept. of Transp., 2011-Ohio-3964.] 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 DEVIN HEATH JESSOP Plaintiff v. DEPARTMENT OF TRANSPORTATION Defendant Case No. 2010-12958-AD Deputy Clerk Daniel R. Borchert MEMORANDUM DECISION {¶ 1} Plaintiff, Devin Jessop, filed this action against defendant, Department of Transportation (ODOT), contending his 2000 Oldsmobile Alero was damaged as a proximate result of negligence on the part of ODOT in maintaining a hazardous condition on State Route 95 (SR 95). Specifically, plaintiff claimed his car was damaged when he “hit a tree that was hanging across 95.” In his complaint, plaintiff requested damage recovery in the amount of $2,330.17, the total cost of replacement parts and related repair expense. The filing fee was paid. {¶ 2} Defendant conducted an investigation and determined the incident occurred on November 26, 2010, “between milepost 9.25 in Richland County and milepost 1.08 in Ashland County.” Defendant asserted “ODOT did not receive any reports of the tree limb or have any knowledge of the tree limb prior to the incident.” Defendant suggested, “it is likely the tree limb existed for only a short time before the incident.” Defendant pointed out plaintiff did not offer any evidence to establish the length of time the fallen tree limb was across the roadway prior to his November 26, 2010 damage occurrence. {¶ 3} Defendant contended plaintiff did not produce any evidence to prove his property damage was proximately caused by negligent maintenance. Defendant advised the ODOT “Richland County Manager inspects all state roadways within the county at least two times a month.” Apparently, no problem with a fallen tree limb was discovered the last time SR 95 between mileposts 9.25 and 1.08 was inspected prior to November 26, 2010. The claim file is devoid of any inspection record. Defendant did submit a copy of “Maintenance Records” covering the period from May 1, 2010 to November 26, 2010, which addressed maintenance work performed on SR 95 by ODOT personnel. On November 22, 2010, ODOT crews conducted maintenance of shrubs, plants, and trees along the roadway at milepost 10.40. Apparently, no downed tree limb was discovered in the area when the work was performed on that date. On November 24, 2010, ODOT personnel conducted litter pickup from milepost 0.00 to milepost 11.26 on SR 95 and defendant asserted “the crew would not have left debris in the roadway.” {¶ 4} Plaintiff did not file a response. Plaintiff did not provide any evidence to establish the length of time the fallen tree limb was across on SR 95 prior to his November 26, 2010 incident. {¶ 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,¶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. {¶ 6} 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 {¶ 7} 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. {¶ 8} 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. {¶ 9} Ordinarily, to recover in a suit involving injury proximately caused by roadway conditions including fallen tree limbs, plaintiff must prove that either: 1) defendant had actual or constructive notice of the debris 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 damage-causing condition. Therefore, in order to recover plaintiff must offer proof of defendant’s constructive notice of the condition or evidence to establish negligent maintenance. {¶ 10} “[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 fact of each case not simply by applying a pre-set time standard for the discovery of certain road hazards.” Bussard, at {¶ 11} 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. {¶ 12} Plaintiff has not produced any evidence to indicate the length of time that the tree limb debris 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 condition. Also, 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 fallen tree limb 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 fallen tree limb on the roadway. {¶ 13} Plaintiff, as a matter of law, in order to prevail, must present evidence with regard to the condition of the tree and the trier of fact is precluded from making any inference of prior notice unless such evidence is submitted. See Shupe v. Ohio Dept. of Transp., Ct. of Cl. No. 2003-04457-AD, 2004-Ohio-644; Blausey v. Ohio Dept. of Transp., Ct. of Cl. No. 91-13003, 2005-Ohio-1807; Varns v. Ohio Dept. of Transp., Dist. 5 (2006), Ct. of Cl. No. 2006-05233-AD; Campbell v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-01120-AD, 2008-Ohio-5777; Miller v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-03971-AD, 2008-Ohio-5912. Plaintiff, in the instant claim, has failed to prove defendant had requisite notice of the fallen tree. {¶ 14} 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 tree limb to be in the roadway. Herlihy v. Ohio Department of Transportation (1999), 99-07011-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 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 his 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 DEVIN HEATH JESSOP Plaintiff v. DEPARTMENT OF TRANSPORTATION Defendant Case No. 2010-12958-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: Devin Heath Jessop Jerry Wray, Director 2601 A County Road 1075 Department of Transportation Perrysville, Ohio 44864 1980 West Broad Street Columbus, Ohio 43223 SJM/laa 4/15 Filed 4/27/11 Sent to S.C. reporter 8/10/11