Elston v. Ohio Dept. of Transp., (Ohio 2005)
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Summary
Automobile damage, mowing operation. Mower not under operation or control of defendant or defendant’s agents. Judgment for defendant.
Summary
Automobile damage, mowing operation. Mower not under operation or control of defendant or defendant’s agents. Judgment for defendant.
Text
[Cite as Elston v. Ohio Dept. of Transp., 2005-Ohio-836.]
IN THE COURT OF CLAIMS OF OHIO DAVID ELSTON :
Plaintiff :
v. : CASE NO. 2004AD
OHIO DEPARTMENT OF : MEMORANDUM DECISION TRANSPORTATION : Defendant
____________________
Plaintiff, David Elston, stated he was driving his truck north on State Route 637 in Paulding County on August 31, 2004, at approximately 11:30 a.m. when he noticed a mower operating along the side of the roadway. Plaintiff asserted the mower was owned by defendant, Department of Transportation ("DOT") and operated by a DOT employee. Plaintiff related that just as he passed by the mower along State Route 637 about .25 of a mile north of State Route 613, the mower kicked up some stones which struck plaintiff's vehicle and hit the vehicle's passenger in the arm. Plaintiff filed this complaint seeking to recover the cost of body repair to his truck which was allegedly damaged as a proximate cause of DOT conducting mowing operations on August 31, 2004. The filing fee was paid.
Defendant asserted no DOT personnel were performing mowing along State Route 637 in the area designated by plaintiff during late August, 2004. Defendant located the area of plaintiff's stated damage occurrence at milepost 7.06 on State Route 637. Defendant related DOT "maintenance records indicate that mowing operations . . . were last performed on SR 637 at milepost 7.06 on July 14, 2004." Therefore, defendant denied plaintiff's property
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damage was related to any roadway maintenance activity under the control of DOT. Defendant contended plaintiff failed to produce sufficient evidence to establish his property damage was caused by DOT operations.
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. However, defendant is not an insurer of its highways. See Kniskern v. Township of Somerford (1996), 112 Ohio App. 3d 189; Rhodus v. Ohio Dept. of Transp. (1990), 67 Ohio App. 3d 723.
Further, defendant must exercise due diligence in the maintenance and repair of the highways. Hennessey v. State of Ohio Highway Department (1985), 85AD. This duty encompasses a duty to exercise reasonable care in conducting its roadside maintenance or construction activities to protect personal property from the hazards arising out of these activities. Rush v. Ohio Dept. of Transportation (1992), 91AD.
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. Strother v. Hutchinson (1981), 67 Ohio St. 2d 282, 285. 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), 76AD. However, "[i]t is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a 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 failed to sustain such burden." Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio St. 198, approved and followed.
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Plaintiff has not proven, by a preponderance of the evidence, that defendant failed to discharge a duty owed to him or that his damage was proximately caused by defendant's negligence. Plaintiff failed to show the damage to his truck 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. Consequently, plaintiff's claim is denied. IN THE COURT OF CLAIMS OF OHIO
DAVID ELSTON :
Plaintiff :
v. : CASE NO. 2004AD
OHIO DEPARTMENT OF : ENTRY OF ADMINISTRATIVE TRANSPORTATION DETERMINATION : Defendant
____________________
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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
____________________
DANIEL R. BORCHERT Deputy Clerk Entry cc:
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David Elston Plaintiff, Pro se 12057 SR 637 Paulding, Ohio 45879 Gordon Proctor, Director For Defendant Department of Transportation 1980 West Broad Street Columbus, Ohio 43223 RDK/laa 1/26 Filed 2/4/05 Sent to S.C. reporter 2/28/
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