Opinion
Case No. 2016-00553-AD
01-06-2017
RICHARD E. CARPENTER Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
MEMORANDUM DECISION
{¶1} Plaintiff Richard Carpenter (hereinafter "plaintiff") filed a complaint against Defendant Ohio Department of Transportation (hereinafter "ODOT"), in which he seeks reimbursement for work performed on July 2, 2016 near Bowling Green Road-East (Rt. 105) approximately ½ mile east of I-75. The work consisted of mowing and spraying "noxious" weeds. He explains that he owns the farmland adjacent to this property and the weeds blow into his fields causing expensive problems. He claims that he has mowed in this manner "for years" and is only seeking compensation for his labor and reimbursement for the Roundup and 2-4-D that he applied, for a total of $150. He does not seek reimbursement for any of the alleged damage to his crops.
{¶2} ODOT filed an investigation report in which it asserts that plaintiff's claim should be dismissed. It contends that plaintiff performed this work on property owned by ODOT and he did not have a permit to perform such work. It states that plaintiff should have contacted ODOT so that its employees located in Wood County could have alleviated the problem, as opposed to plaintiff performing the work himself. Further, ODOT argues that plaintiff has not provided any receipts or documentation to substantiate his $150 expenditure.
{¶3} An individual who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation, is a licensee. A licensee takes his license subject to its attendant perils and risks. Provencher v. Ohio DOT, 49 Ohio St.3d 265, 551 N.E.2d 1257 (1990).
{¶4} ODOT claims that it did not give plaintiff permission to enter the property and remove the weeds. However, it likely knew or should have known that plaintiff was performing this task for a period of many years. It acquiesced to plaintiff's conduct. However, since it did not give plaintiff permission to perform the work, plaintiff was doing so for his own pleasure or benefit and is therefore a licensee. As a licensee he performed the work subject to the risks associated with it. Besides the obvious risks of working on the roadside, one risk is that he would not be paid for the work.
{¶5} In the event that plaintiff is also claiming that ODOT was negligent for failing to properly maintain this area or for other unstated reasons, plaintiff has failed to prove his claim.
{¶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 Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573, 788 N.E. 2d 1088, ¶8 citing Menifee v. Ohio Welding Products, Inc., 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707 (1984). 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 only furnishes a reasonable 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., 145 Ohio St. 198, 61 N.E. 2d 198 (1945), approved and followed.
{¶7} Defendant has the duty to maintain its property in a reasonably safe condition for the motoring public. Knickel v. Ohio Department of Transportation, 49 Ohio App. 2d 335, 361 N.E.2d 486 (10 Dist. 1976). However, defendant is not an insurer of the safety of its highways. Kniskern v. Township of Somerford, 112 Ohio App. 3d 189, 678 N.E. 2d 273 (10 Dist. 1996); Rhodus v. Ohio Dept. of Trans., 67 Ohio App. 3d 723, 588 N.E. 2d 864 (10 Dist. 1990).
{¶8} In order to prove a breach of the duty to maintain its property, plaintiff must prove, by a preponderance of the evidence, that defendant had actual or constructive notice of the precise conditions of which it has notice, but fails to reasonably correct. Brussard v. Dept. of Transp., 31 Ohio Misc. 2d 1, 507 N.E. 2d 179 (Ct. of Cl. 1986). There is no evidence that the Defendant had actual notice that the noxious weeds adjacent to plaintiff's property caused damage to his crops.
{¶9} In the absence of actual notice, plaintiff may prove that ODOT had constructive notice of the defect. The trier is precluded from making an inference of defendant's constructive notice, unless evidence is presented in respect to the time that the defective condition developed. Spires v. Ohio Highway Department, 61 Ohio Misc. 2d 262, 577 N.E. 2d 458 (Ct. of Cl. 1988).
{¶10} In order for there to be constructive notice, plaintiff must show 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, 78-026-AD (1978). "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." Brussard, at 4. Obviously, the requisite length of time sufficient to constitute constructive notice varies with each specific situation." Danko v. Ohio Dept. of Transp., 10 Dist. No. 92AP-1183 (Feb. 4, 1993). No evidence has shown that ODOT had constructive notice that the weeds were causing damage to plaintiff's crops. Even if ODOT had constructive notice of the existence of the weeds on its own property, there is no evidence that it had constructive notice of their allegedly damaging effect on plaintiff's property.
{¶11} Further, ODOT, as the licensor, is not liable for ordinary negligence and owed the plaintiff-licensee no duty except to refrain from wantonly or willfully causing injury. Provencher, 49 Ohio St.3d 265.
{¶12} For the reasons herein, plaintiff has failed to prove that ODOT has a duty to reimburse him for the work he performed, or that ODOT had a duty to perform said work. Accordingly, plaintiff's claim is dismissed. RICHARD E. CARPENTER Plaintiff
v. OHIO DEPARTMENT OF TRANSPORTATION Defendant Case No. 2016-00553-AD Clerk Mark H. Reed
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 shall be absorbed by the Court.
/s/_________
MARK H. REED
Clerk Filed 1/6/17
Sent to S.C. Reporter 5/18/17