[Cite as Terry v. Ohio Dept. of Transp., 2011-Ohio-2118.]

                                       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




DAVID R. TERRY

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

Case No. 2010-10874-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF DISMISSAL



        {¶ 1} On September 28, 2010, plaintiff, David R. Terry, filed a complaint against
defendant, Department of Transportation. Plaintiff alleges on September 11, 2010 at
approximately 9:30 p.m., as he was traveling southbound on State Route 747 in Butler
County, he struck a pothole as he “crossed over the rail road tracks just north of Port
Union Road.” Plaintiff seeks damages in the amount of $894.72, for a new wheel and
tire due to the negligence of defendant in maintaining the roadway. Plaintiff submitted
the filing fee with the complaint.
        {¶ 2} Defendant filed a motion to dismiss. In support of the motion to dismiss,
defendant stated in pertinent part:
        {¶ 3} “Defendant’s investigation reveals that Norfolk Southern Railroad is north
of Port Union Road at milepost 2.36 on SR 747 in Butler County (See Exhibit A and
destape). Defendant asserts that the location is not the maintenance responsibility of
the Department of Transportation.
        {¶ 4} “Defendant asserts that it is not responsible for the maintenance of the
Case No. 201-10874-AD                      -2-                                    ENTRY

roadway within the railroad crossing area . . .” pursuant to R.C. 4955.20.
         {¶ 5} Plaintiff has not responded to defendant’s motion to dismiss.
         {¶ 6} R.C. 4955.20 in pertinent part states:
         {¶ 7} “Companies operating a railroad in this state shall build and keep in repair
good and sufficient crossings over or approaches to such railroad, its tracks,
sidetracks, and switches, at all points where any public highway, street, lane, avenue,
alley, road, or pike is intersected by such railroad, its tracks, sidetracks, or switches.”
(Emphasis added.)
         {¶ 8} The site of the damage-causing incident was not the maintenance
responsibility of defendant. Consequently, plaintiff’s case is dismissed.
         {¶ 9} Having considered all the evidence in the claim file and, for the reasons
set forth above, defendant’s motion to dismiss is GRANTED.              Plaintiff’s case is
DISMISSED. The court shall absorb the court costs of this case in excess of the filing
fee.




                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Deputy Clerk

Entry cc:

David R. Terry                                   Chester T. Lyman, Jr.
6126 Princeton Glendale Road                     Department of Transportation
Liberty Twp., Ohio 45011                         1980 West Broad Street
                                                 Columbus, Ohio 43223
DRB/laa
1/25
Filed 2/16/11
Sent to S.C. reporter 4/29/11
