[Cite as Bardo v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-2132.]

                                       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




RICHARD WOODROW BARDO

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

        Defendant

Case No. 2010-11471-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Richard Woodrow Bardo, filed this action against defendant,
Department of Transportation (ODOT), contending his 2006 Toyota Camry was
damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on Interstate 74 in Hamilton County. Specifically, plaintiff related
the suspension on his car was damaged when the vehicle traveled over “an extremely
large bump across the (middle and left) lanes” of Interstate 74 West at approximately
milepost 16.8. Plaintiff recalled his described damage incident occurred on October 21,
2010 at approximately 11:00 p.m. Plaintiff advised “my Toyota only has 89,000 miles
on it” and was informed by repair personnel that the damage to his vehicle does not
normally occur from age or high mileage. In his complaint, plaintiff requested damage
recovery of $461.31, the total cost of automotive repair and related expenses. The filing
fee was paid.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
ODOT personnel had any knowledge of the particular damage-causing condition prior to
plaintiff’s October 21, 2010 described occurrence.                   Defendant located the particular
“pothole or bump” near milepost 16.80 on Interstate 74 in Hamilton County and advised
that “ODOT did not receive any reports of the pothole or have knowledge of the pothole
prior to the (October 21, 2010) incident.”         Defendant denied receiving any other
complaints regarding roadway defects at the particular location despite the fact the
particular section of Interstate 74 has an average daily traffic count of over 58,000
vehicles.
       {¶ 3} Defendant denied ODOT negligently maintained Interstate 74 in Hamilton
County.     Defendant noted the ODOT “Hamilton County Manager inspects all state
roadways within the county at least two times a month.” Apparently, no “bumps” or
other defects were discovered at milepost 16.80 on Interstate 74 West the last time that
section of roadway was inspected prior to October 21, 2010. The claim file is devoid of
any copy of ODOT Hamilton County inspection records.                Defendant asserted the
particular location of Interstate 74 is a well patrolled location and suggested the pothole
plaintiff’s vehicle struck “existed for only a short time before the incident.”
       {¶ 4} Defendant submitted “Maintenance Records” for Interstate 74 covering the
dates from April 21, 2010 to October 21, 2010. According to the information supplied,
no roadway defects in the vicinity of milepost 16.80 were repaired during the time frame
covered. Defendant’s evidence shows ODOT crews patched potholes on Interstate 74
from milepost 13.00 to 16.00 on September 24, 2010.
       {¶ 5} Plaintiff filed a response noting his car was damaged when the vehicle
struck “a large crease (bump) across the highways.”            Plaintiff did not produce any
evidence to establish the length of time the particular defective condition at milepost
16.80 existed prior to 11:00 p.m. on October 21, 2010.
       {¶ 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 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.
      {¶ 7} 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.
      {¶ 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. There is no evidence that defendant had actual notice of the
defect.     Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the defect must be presented.
      {¶ 9} “[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 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.
      {¶ 10} 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 defect
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular condition was present. Size of the defect is insufficient to show notice or
duration of existence. O’Neil v. Department of Transportation (1988), 61 Ohio Misc. 2d
287, 587 N.E. 2d 891. Plaintiff has failed to prove that defendant had constructive
notice of a dangerous condition. 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. Therefore, defendant is not liable for any damage that plaintiff
may have suffered from the roadway.




                              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




RICHARD WOODROW BARDO

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 8

      Defendant

Case No. 2010-11471-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:

Richard Woodrow Bardo                             Jerry Wray, Director
5733 Lofty View Lane                              Department of Transportation
Cincinnati, Ohio 45247                            1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
1/25
Filed 2/16/11
Sent to S.C. reporter 4/29/11
