Mark Phillip Alessio, Plaintiff, v. Ohio Department of Transportation, Defendant.

No. 2005-02362-AD.Court of Claims of Ohio.
May 11, 2005.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM DECISION FINDINGS OF FACT {¶ 1} 1) On September 4, 2004, or September 3, 2004, or September 7, 2004, plaintiff, Mark Phillip Alessio, was exiting US Route 20 west, at the Oberlin exit in Lorain County, when his automobile struck a pothole on the exit ramp causing substantial damage to the vehicle.

{¶ 2} 2) Plaintiff filed this complaint seeking to recover $789.48 for automotive repair costs, filing fees, and other expenses which plaintiff contends he incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway.

{¶ 3} 3) Submitted photographs of the roadway defect which damaged plaintiff’s car depict a deteriorated area well off the traveled portion of the roadway. Additionally, a hand drawn diagram on the crash report of plaintiff’s property damage incident clearly shows the pothole defect located off the traveled portion of the US 20 off ramp.

CONCLUSIONS OF LAW {¶ 4} 1) This court has previously held that the Department of Transportation is not to be held liable for damages sustained by individuals who used the berm or shoulder of a highway for travel without adequate reasons. Colagrossi v. Department of Transportation (1983), 82-06474-AD.

{¶ 5} 2) The shoulder of a highway is designed to serve a purpose which may include travel under emergency circumstances. It is for the trier of fact to determine whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of the highway. Dickerhoff v. City of Canton (1983), 6 Ohio St. 3d 128. In the case at bar, plaintiff has offered no reasonable explanation or excuse for using the berm of the highway.

{¶ 6} 3) Plaintiff, in the instant case, has shown no adequate reason for the driver’s action of driving on the berm of the highway, consequently, based on the rationale of Colagrossi, supra, this case is denied. If a plaintiff sustains damage because of a defect located off the marked, regularly traveled portion of a roadway, a necessity for leaving the roadway must be shown. Lawson v. Jackson (1977), 75-0612-AD. Inadvertent travel based on inattention is not an adequate reason or necessity for straying from the regularly traveled portion of the roadway. Smith v. Ohio Department of Transportation (2000), 2000-05151-AD.

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. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.