2011-Ohio-4802

Melissa Adams, Plaintiff, v. Ohio Department of Transportation, Defendant.

No. 2011-03685-AD.Court of Claims of Ohio.
Filed June 17, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM DECISION {¶ 1} Plaintiff, Melissa Adams, filed this action against defendant, Department of Transportation (ODOT), contending her 2011 Volkswagon Jetta was damaged as a proximate result of negligence on the part of ODOT in maintaining a hazardous condition on US Route 224 in Summit County. Plaintiff related, “I was driving on 224/277W and hit a massive pothole right by the South Main Street exit in Akron/Coventry Ohio. As soon as I hit the pothole, my front passenger tire wheel blew.” Plaintiff recalled her described damage incident occurred on March 5, 2011 at approximately 9:15 p.m. In her complaint, plaintiff requested damages in the amount of $307.41, the cost of a replacement tire and related repair expense. The filing fee was paid.

{¶ 2} Defendant filed an investigation report requesting plaintiff’s claim be dismissed due to the fact the City of Akron and not ODOT bears the maintenance responsibility for the section of roadway where plaintiff’s incident occurred. In support of the request to dismiss, ODOT stated, “the City of Akron, and not the defendant is responsible for maintaining the roadway upon which plaintiff’s incident occurred on I-277.”

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Defendant advised the maintenance responsibility for this section of roadway was delegated by contractual agreement between ODOT and the City of Akron. Defendant related: “[o]n November 6, 2009, the Ohio Department of Transportation entered into an Interstate Lane Mile and Maintenance Agreement with the City of Akron for maintenance services. I-277 is part of the Interstate Lane Mile and Maintenance Agreement (See Exhibit A).”

{¶ 3} The contract between ODOT and Akron at Section 1.2 states, in pertinent part:

{¶ 4} “In the interest of public safety and convenience, it is the desire of the parties hereto that the CITY shall perform contracted maintenance and repair of the interstate highway system using its own labor forces, equipment and materials, or by contracting for these items, with reimbursement from the STATE.”

{¶ 5} Defendant asserted the contracted maintenance responsibility includes repairing potholes on the road surface such as plaintiff’s vehicle struck on March 5, 2011. Defendant contended, “the City of Akron assumed the responsibility to maintain and repair the interstate system within its corporate limits,” and consequently, the City of Akron should be considered the proper party defendant in this action. The site of the damage-causing incident was shown to be located within the City of Akron and shown to be the maintenance responsibility of that political subdivision.

{¶ 6} R.C. 2743.01(A) provides:

{¶ 7} “(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.”

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

{¶ 9} “(A)(1) The state hereby waives its immunity from liability, except as provided for the office of the state fire marshal in division (G)(1) of section 9.60 and division (B) of section 3737.221 of the Revised Code and subject to division (H) of this section, 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, except that the determination of liability is subject to the limitations set forth in this chapter and, in the case of state universities or colleges, in

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section 3345.40 of the Revised Code, and except as provided in division (A)(2) or (3) of this section. To the extent that the state has previously consented to be sued, this chapter has no applicability.”

{¶ 10} Ohio Revised Code Section 5501.31 in pertinent part states: {¶ 11} “Except in the case of maintaining, repairing, erecting traffic signs on, or pavement marking of state highways within villages, which is mandatory as required by section 5521.01 of the Revised Code, and except as provided in section 5501.49 of the Revised Code, no duty of constructing, reconstructing, widening, resurfacing, maintaining, or repairing state highways within municipal corporations, or the bridges and culverts thereon, shall attach to or rest upon the director, but he may construct, reconstruct, widen, resurface, maintain, and repair the same with or without the cooperation of any municipal corporation, or with or without the cooperation of boards of county commissioners upon each municipal corporation consenting thereto.”

{¶ 12} The site of the damage-causing incident was not the maintenance jurisdiction of defendant. Consequently, plaintiff’s case is dismissed. See Sandu v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-02606-AD, 2008-Ohio-6858.

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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.

Entry cc:

Melissa Adams 93 Beauparc Drive Akron, Ohio 44313

Jerry Wray, Director Department of Transportation 1980 West Broad Street Columbus, Ohio 43223

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