2011-Ohio-1766
No. 2010-10939-AD.Court of Claims of Ohio.
Filed January 21, 2011.
ENTRY OF DISMISSAL {¶ 1} On September 29, 2010, plaintiff, Michael Zwick, filed a complaint against defendant, Department of Transportation. Plaintiff asserts on September 16, 2010 at approximately 12:30 p.m., while traveling northbound on State Route 128 underneath the I-275/I-74 overpass his vehicle struck a series of metal plates causing damage. Plaintiff seeks reimbursement for tire damage in the amount of $141.83. The filing fee was paid.
{¶ 2} On November 22, 2010, defendant filed a motion to dismiss. In support of the motion to dismiss, defendant stated in pertinent part:
{¶ 3} “Duke Energy was working in this area by permit to relocate two aerial lines into two buried flex ducts along SR 128 under I-74. They were working on a utility relocation project and ODOT’s permit was issued on September 2, 2010. The permit has language that states `The permittee shall save harmless the State of Ohio and all of its representatives from all suits, actions, or claims of any character brought on account
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of any injuries or damages sustained by any person or property in consequence of any neglect or on account of any act or omission as a result of the issuance of this permit (See Exhibit A). This permit mentions that Duke Energy was doing work associated with ODOT ProjectHAM-74-7.76 but this project will not be sold until November 18, 2010 and the utility company is doing the relocation work in advance of the construction project.”
{¶ 4} Plaintiff has not responded to defendant’s motion to dismiss.
{¶ 5} Defendant was not responsible for the work being performed at the site of plaintiff’s incident. Accordingly, defendant is not the appropriate party to sue. Therefore, defendant’s motion to dismiss is GRANTED. Plaintiff’s case is DISMISSED and the court shall absorb the court costs of this case in excess of the filing fee.
Entry cc:
Chester T. Lyman, Jr. Department of Transportation 1980 West Broad Street Columbus, Ohio 43223
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