Opinion

Dietz v. Ohio Dept. of Transp.

  • 2010 Ohio 6651
Court
Ohio Court of Claims
Filed
Oct 15, 2010
Status
Published
On the bench
Durfey
Cited by
0 cases
Authority
More cited than 32.2%

The opinion

[Cite as Dietz v. Ohio Dept. of Transp., 2010-Ohio-6651.]

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

JASON DIETZ

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2010-07563-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION

{¶ 1} Plaintiff, Jason Dietz, filed this action against defendant, Department of

Transportation (ODOT), contending that the window on his 2005 Jeep Cherokee was

damaged as a proximate cause of negligence on the part of ODOT in conducting

mowing operations along the berm of Interstate 71 South in Cuyahoga County. Plaintiff

recalled that he was traveling south on Interstate 71 at approximately 8:00 a.m. on May

10, 2010 when he drove onto the Pearl Road exit and noticed “there was lawn mowing

taking place surrounding the traffic light at the off-ramp.” According to plaintiff, his Jeep

Cherokee was damaged when “[a] rock was thrown from the mower which hit and broke

the front, driver’s side window” of the vehicle. In his complaint, plaintiff requested

damages in the amount of $249.87, the cost of a replacement window. The filing fee

was paid.

{¶ 2} Defendant explained that mowing operations for “this section of I-71 @

Pearl Road or US 42 was under contract” with ODOT contractor, Thompson Interstate

Mowing, Inc. (Thompson). Defendant further explained that actual mowing of the

roadway berm area was scheduled to be conducted by Thompson from May 11, 2010 to

October 15, 2010. Defendant denied that any ODOT mowers were operating in the

area on May 10, 2010, the stated date of plaintiff’s described damage incident.

Defendant contended that plaintiff did not offer any evidence to prove that his vehicle

was damaged as a result of any conduct attributable to either ODOT or Thompson.

Defendant suggested that City of Cleveland personnel may have been mowing at the

described area on May 10, 2010. Defendant requested this claim be dismissed due to

the fact that ODOT is not a proper party defendant in this action. Plaintiff did not

produce any evidence to establish his vehicle was damaged by ODOT personnel

conducting mowing operations. Defendant submitted documentation showing that

ODOT did not perform mowing operations along the particular section of Interstate 71

on May 10, 2010.

{¶ 3} Defendant has the duty to maintain its highway 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. Furthermore, the duty to cut grass on highways is

delegable to an independent contractor such as Thompson and consequently, no

liability shall attach to ODOT for damage caused by the negligent acts of the

independent contractor engaged in mowing operations. See Gore v. Ohio Dept. of

Transp., Franklin App. No. 02AP-996, 2003-Ohio-1648; Cwalinski v. Ohio Dept. of

Transp, 2003-06778-AD, 2003-Ohio-5561.

{¶ 4} When maintenance is performed by ODOT personnel, defendant must

exercise due diligence in conducting such maintenance and repair of highways.

Hennessy v. State of Ohio Highway Department (1985), 85-02071-AD. This duty

encompasses a duty to exercise reasonable care in conducting its roadside

maintenance activities to protect personal property from the hazards arising out of the

activities. Rush v. Ohio Dept. of Transportation (1992), 91-07526-AD.

{¶ 5} 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.

{¶ 6} 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 has failed to show the damage to his car

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.

{¶ 7} Furthermore, this court does not have jurisdiction to determine claims

arising from the acts of employees of the City of Cleveland.

{¶ 8} R.C. 2743.01(A) and (B) provide:

{¶ 9} “(A) ‘State’ means the state of Ohio, including, but not limited to, the

general assembly, the supreme court, the offices of all elected state officers, and all

departments, boards, offices, commissions, agencies, institutions, and other

instrumentalities of the state. ‘State’ does not include political subdivisions.

{¶ 10} “(B) ‘Political subdivisions’ means municipal corporations, townships,

counties, school districts, and all other bodies corporate and politic responsible for

governmental activities only in geographic areas smaller than that of the state to which

the sovereign immunity of the state attaches.”

{¶ 11} R.C. 2743.02(A)(1) states in pertinent part:

{¶ 12} “(A)(1) The state hereby waives its immunity from liability . . . and

consents to be sued, and have its liability determined, in the court of claims created in

this chapter in accordance with the same rules of law applicable to suits between

private parties ***.”

{¶ 13} Furthermore, R.C. 2743.03(A)(1) provides in pertinent part:

{¶ 14} “(A)(1) There is hereby created a court of claims. The court of claims is a

court of record and has exclusive, original jurisdiction of all civil actions against the state

permitted by the waiver of immunity contained in section 2743.02 of the Revised Code

***.”

{¶ 15} Based on the facts of this claim, plaintiff’s action does not lie against the

state, but rather a political subdivision or an independent contractor. Consequently, the

court does not have jurisdiction over either entity and therefore plaintiff’s claim is

dismissed.

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

JASON DIETZ

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2010-07563-AD

Clerk Miles C. Durfey

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, plaintiff’s claim is DISMISSED.

Court costs are assessed against plaintiff.

________________________________

MILES C. DURFEY

Clerk

Entry cc:

Jason Dietz Jolene M. Molitoris, Director

32117 Lake Road Department of Transportation

Avon Lake, Ohio 44012 1980 West Broad Street

Columbus, Ohio 43223

RDK/laa

10/1

Filed 10/15/10

Sent to S.C. reporter 2/2/11

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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