Hulec v. Ohio Dept. of Transp., Dist. 4

[Cite as Hulec v. Ohio Dept. of Transp., Dist. 4, 2010-Ohio-4215.]

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 F. HULEC

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

Defendant

Case No. 2009-06150-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

{¶ 1} Plaintiff, Richard F. Hulec, filed this complaint against defendant,

Department of Transportation (ODOT), alleging a 2007 Hyundai Sonata he was driving

was damaged on June 1, 2009 as a proximate cause of negligence on the part of

ODOT in maintaining a hazardous condition on State Route 8 in the Village of

Northfield, Ohio. In his complaint, plaintiff described the particular damage incident

noting: “I was driving north on State Route 8 (Northfield Road) in the curb lane when an

animal darted across the road, causing me to steer to the right. The tires on my 2007

Hyundai Sonata rubbed the curb, but due to a storm sewer sticking out approx. eight (8)

inches from the curb, my tires and wheels struck the sharp steel.” The contact with the

storm sewer cover caused tire and wheel damage to plaintiff’s vehicle. After the

damage incident, plaintiff filed a “Traffic Crash Report” (copy submitted) on June 2,

2009 with the Village of Northfield Police Department. According to information

contained in the “Traffic Crash Report,” the damage event occurred at approximately

4:00 p.m. on a straight dry section of roadway as the plaintiff was traveling about 25

mph. Plaintiff filed this complaint seeking to recover damages in the amount of $811.48

representing the total cost of replacement parts and related repair expenses plaintiff

incurred as a result of the 2007 Hyundai Sonata striking “this misaligned sewer” on

State Route 8. The $25.00 filing fee was paid and plaintiff requested reimbursement of

that cost along with his damage claim.

{¶ 2} Defendant filed an investigation report asserting the site on State Route 8

where plaintiff’s incident occurred “falls under the maintenance jurisdiction of the Village

of Northfield” and consequently, ODOT is not a proper party defendant in this action.

Defendant explained ODOT “only has maintenance responsibilities on the traveled

portion of the road (on State Route 8 within the Village of Northfield), longitudinal

striping, snow and ice removal and installing and maintaining regulatory and warning

signs.” Defendant specifically denied the storm sewer plaintiff’s vehicle struck was

located on a portion of roadway under the maintenance jurisdiction of ODOT.

Consequently, defendant requested the court dismiss plaintiff’s claim.

{¶ 3} Defendant submitted a copy of a 1968 Village of Northfield Ordinance

which outlines ODOT’s statutory responsibilities for roadway maintenance on State

Route 8 inside the village corporation limits. This Ordinance No. 1968-83 states in

pertinent part that ODOT shall be required to provide “general maintenance of the

travelled roadway surfaces of the State Highways.” Furthermore, Ordinance No. 1968-

83 provides:

{¶ 4} “WHEREAS. This ordinance shall in no manner relieve or discharge the

said village from any claim or claims of any nature arising from, or growing out of the

maintenance by the Department of Highways of the State of Ohio of said highways in

said village, and the said village shall save the State of Ohio harmless from any and all

such claims.”

{¶ 5} Also, Ordinance No. 1968-83 specifically states:

{¶ 6} “Said village shall save the Department of Highways of the State of Ohio

and the State of Ohio from any and all claims of any nature arising from or growing out

of the maintenance of the highways within said village as aforesaid.”

{¶ 7} Defendant submitted a photograph depicting the roadway site of State

Route 8 where plaintiff’s described incident occurred. The photograph is undated, The

photograph shows the curb, storm sewer and portion of the roadway of State Route 8

with the focus directed on the storm sewer. From a review of the photograph, it appears

the top of the storm sewer is angled from the curb area with one side of the top of the

sewer protruding from the curbed area perhaps a maximum of two inches. Plaintiff also

submitted multiple photographs (taken June 2, 2009), depicting the storm sewer on the

curb area of State Route 8. From a review of these photographs, it appears to the trier

of fact that the top of the storm sewer protrudes a maximum of two inches from the

curbed area on State Route 8. Defendant contended, “the Village of Northfield is

responsible for the maintenance of the roadway upon which plaintiff’s incident

occurred.” Defendant based this position on the fact that the damage-causing storm

sewer was located off the traveled portion of State Route 8 and was therefore the

maintenance responsibility of the Village of Northfield and not the statutory1

maintenance responsibility of ODOT.

{¶ 8} Plaintiff filed a response document insisting the top of the storm sewer

was protruding “at least eight (8) inches” onto the traveled portion of State Route 8 at

the time the vehicle he was driving struck the storm sewer. The trier of fact finds, from

reviewing the photographs submitted, that the storm sewer was protruding

approximately no more than two inches from the curbed area off the traveled portion of

the roadway. Plaintiff suggested defendant created the protruding storm sewer

condition while conducting snow removal activities on State Route 8 presumedly during

the winter months of 2008-2009. Plaintiff related, “ODOT snow plows are likely to have

caught the sewer while hugging the curb of the highway.” Plaintiff did not submit any

evidence to substantiate his allegation that ODOT snow removal operations caused the

storm sewer “to have been pushed out of alignment.” Plaintiff referenced the Village of

Northfield Ordinance NO. 1968-83, particularly the language stating:

{¶ 9} “Said Village shall save the Department of Highways of the State of Ohio

and the State of Ohio from any and all claims of any nature arising from or growing out

of the maintenance of the highways within said Village as aforesaid.” (Emphasis added

by plaintiff.)

{¶ 10} Plaintiff advised that defendant should move to have the Village of

1

R.C. 5521.01 provides in pertinent part:

“The director of transportation, upon the request by and the approval of the legislative authority of

a village, shall maintain, repair, and apply standard longitudinal pavement marking lines as the director

considers appropriate, or may establish, construct, reconstruct, improve, or widen any section of a state

highway within the limits of a village.”

Northfield joined as a defendant in this action.

{¶ 11} After reviewing all the evidence submitted in this action, the court

concludes ODOT is not the proper party defendant in this action. Based on the

language of the Village of Northfield Ordinance No. 1968-83 (referenced above), the

Village assumed responsibility for any claims arising from maintenance activity

attributable to ODOT.

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

{¶ 13} “(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.

{¶ 14} “(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 small than that of the state to which the

sovereign immunity of the state attaches.”

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

{¶ 16} “(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 ***.”

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

{¶ 18} (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

***.”

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

state, but rather a political subdivision. Consequently, the court does not have

jurisdiction over the matter presented 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

RICHARD F. HULEC

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant

Case No. 2009-06150-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 F. Hulec Jolene M. Molitoris, Director

11198 Valley View Road Department of Transportation

Sagamore Hills, Ohio 44067 1980 West Broad Street

Columbus, Ohio 43223

RDK/laa

4/14

Filed 5/5/10

Sent to S.C. reporter 9/2/10