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Mark E. Parsons v. Department of Transportation

September 14, 2011

MARK E. PARSONS
PLAINTIFF
v.
DEPARTMENT OF TRANSPORTATION DEFENDANT



The opinion of the court was delivered by: Magistrate Anderson M. Renick

Cite as

Parsons v. Ohio Dept. of Transp.,

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

Judge Joseph T. Clark

MAGISTRATE DECISION

{¶1} Pursuant to Civ.R. 53, Magistrate Anderson M. Renick was appointed to conduct all proceedings necessary for decision in this matter.

{¶2} Plaintiff brought this action against defendant, the Ohio Department of Transportation (ODOT), alleging negligence. The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.

{¶3} Plaintiff alleges that defendant failed to maintain a drainage ditch that runs alongside State Route (SR) 555 and that, as a result of such failure, the drainage system became obstructed causing water and debris to flow onto plaintiff's property during a rainstorm on or about June 6, 2008. Plaintiff testified that rain water accumulated on his property and deposited dirt and a "black, mirky" substance which contaminated his garden and a spring that he used to water livestock. (Plaintiff's Exhibits A1-12 and B1-14.)

{¶4} In order for plaintiff to prevail under a theory of negligence, plaintiff must establish that ODOT owed plaintiff a duty to maintain the drainage system in working order, that ODOT's acts or omissions resulted in a breach of that duty, and that plaintiff suffered damages as a proximate result thereof. Strother v. Hutchinson (1981), 67 Ohio St.2d 282. The duty element of a negligence claim may be established by common law, legislative enactment, or the particular circumstances of a given case. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶23.

{¶5} Pursuant to R.C. 5501.11(A), ODOT is responsible for establishing "state highways on existing roads, streets, and new locations and [to] construct, reconstruct, widen, resurface, maintain, and repair the state system of highways and the bridges and culverts thereon."

{¶6} As a general rule, "[w]here damage to one property is alleged by water run- off created by an adjacent property owner, Ohio has adopted a reasonable-use rule with respect to water run-off. McGlashan v. Spade Rockledge Terrace Condo Dev. Corp. (1980), 62 Ohio St.2d 55, 60." Peters v. Angel's Path, LLC, Erie App. No. E-06-059, 2007-Ohio-7103, ¶33. Similarly, "a possessor of land is not unqualifiedly privileged to deal with surface water as he pleases, nor absolutely prohibited from interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with the flow of surface water is unreasonable." Id., quoting McGlashan, at the syllabus. The reasonableness of an interference is determined by the trier of fact. Id.

{¶7} ODOT may be held liable for damage caused by defects, or dangerous conditions, on state highways where it has notice of the condition, either actual or constructive. McClellan v. Ohio Dept. of Transp. (1986), 34 Ohio App.3d 247, paragraph one of the syllabus. "Actual notice exists where, from competent evidence, the trier of fact can conclude the pertinent information was personally communicated to, or received by, the party." Kemer v. Ohio Dept. of Transp., Franklin App. No. 09AP- 248, 2009-Ohio-5714, ¶21, citing In re Fahle's Estate (1950), 90 Ohio App. 195, 197. Constructive notice is that notice which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. Id. at ¶24.

{¶8} According to plaintiff, he contacted defendant's District 10 office several times after the incident and defendant's employees inspected his property on several occasions. Plaintiff's complaints to defendant were documented and forwarded to James Kemp, a maintenance engineer for defendant. (Defendant's Exhibit E.)

According to defendant's records, Kemp visited the site on June 11, 2008, and on the same date he scheduled "a ditching crew with a gradall to re-establish" the ditch. Plaintiff testified that after one such inspection Kemp informed him that defendant would clean the ditch. Plaintiff also met with Robert Roush, a transportation engineer who worked in defendant's District 10 office in Marietta, Ohio. Both Kemp and ...


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