[Cite as Barnhart v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-6985.]

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

CANDACE BARNHART 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 9 

 Defendant 

Case No. 2011-08458-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, Candace Barnhart, filed this action against defendant, 

Department of Transportation (ODOT), contending that her car was damaged as a 

proximate result of negligence on the part of ODOT in maintaining a road reflector on 

State Route 207. In her complaint, plaintiff provided a narrative description of her 

damage incident noting that she was traveling on State Route 207 when “I hit a 

centerline broken reflection marker which was standing on its end pointed side up, 

which punctured my tire and rim.” Plaintiff recalled the described incident occurred on 

May 29, 2011, at approximately 2:00 p.m. Plaintiff requested damages in the amount of 

$354.85, the cost of a tire, rim, and reimbursement of the filing fee. The $25.00 filing 

fee was paid. 

{¶2} Defendant denied liability in this matter based on the contention that no 

ODOT personnel had any notice of a loose reflector on SR 207 prior to plaintiff’s 

incident. Defendant located plaintiff’s incident between mileposts 5.86 and 8.21 on SR 

207 in Ross County. Defendant asserted that plaintiff failed to provide any evidence to 

establish her property damage was attributable to any conduct on the part of ODOT. 

Furthermore, defendant asserted that plaintiff failed to provide any evidence indicating 

the length of time that the road reflector was loose or detached from the roadway 
surface prior to her May 29, 2011 damage occurrence. Defendant explained that SR 

207 was regularly maintained in the vicinity of plaintiff’s damage incident with ODOT’s 

Ross County Manager inspecting the roadways for hazards and defects. According to 

defendant, the inspections took place on March 16, March 28, April 6, April 27, and May 

17, 2011. Although missing signs and potholes were discovered, the routine 

inspections did not reveal any loose or uprooted reflectors. 

{¶3} Plaintiff did not file a response. 

{¶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,¶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 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. 

{¶5} 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} 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. However, proof of notice of a dangerous condition is not 

necessary when defendant actively caused 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 any evidence to prove that her property damage was caused by a defective 

condition created by ODOT or that defendant knew about the particular reflector 

condition prior to May 29, 2011. 

{¶7} Ordinarily, to recover in a suit involving injury proximately caused by 

roadway conditions including uprooted reflectors, 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 loose reflector. Therefore, in order to recover 

plaintiff must offer proof of defendant’s constructive notice of the condition or evidence 

to establish negligent maintenance. 

{¶8} “[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, 47 O.O. 231, 105 N.E. 2d 429. “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.” 

Bussard, at 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. 

{¶9} Plaintiff has not produced any evidence to indicate the length of time that 
the road reflector was present on the roadway prior to the incident forming the basis of 

this claim. 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 that 

the condition 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 dislodged reflector. 

{¶10} 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 

defective condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD. 

Defendant submitted evidence showing that ODOT personnel were routinely inspecting 

sections of SR 207 where plaintiff’s damage incident occurred. 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 her 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 her 

vehicle. Prstojevic v. Dept. of Transp., Dist. 3, Ct. of Cl. No. 2009-08519-AD, 2010-

Ohio-2186. 
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 

CANDACE BARNHART 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 9 

 Defendant

Case No. 2011-08458-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: 

Candace Barnhart Jerry Wray, Director 

4804 Owl Creek Road Department of Transportation 

Frankford, Ohio 45628 770 West Broad Street 

 Columbus, Ohio 43223 

9/23 

Filed 9/29/11 

Sent to S.C. reporter 2/6/12