[Cite as Gallagher v. Cleveland State Univ., 2012-Ohio-3219.]



                                                        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




KEVIN GALLAGHER

       Plaintiff

       v.

CLEVELAND STATE UNIVERSITY

       Defendant

        Case No. 2011-12048-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     On October 24, 2011, plaintiff, Kevin Gallagher, filed this complaint
alleging he suffered property damage to his automobile on October 17, 2011, at
approximately 10:45 a.m., while backing his 2004 Pontiac GTO into a vacant parking
space located in parking lot “S2” on the campus of defendant, Cleveland State
University (CSU).        Specifically, plaintiff maintained the rear bumper, brackets, side
molding, and wheel rim on his car were damaged as a result of the rear tire dropping
into a pothole near a sewer grate adjacent to the curbing at the end of a parking space
in defendant's parking lot. Plaintiff recalled that, “[w]hen backing up, I heard a loud
bang, which I saw was the frame of my car hitting the ground. I saw that concealed
under leaves was a sinkhole of approx. 1.5 ft. in length and over 1 ft. in depth (as the
pictures show) next to the drain.”1 Plaintiff further recalled he carefully drove the car
forward out of the hole, got out of the vehicle, and made a cursory inspection
discovering damage to the automobile.


        1
         Plaintiff submitted photographs depicting the sunken area of asphalt beside the concrete pad
where the drain is located. The defect appears to be at least eighteen inches in length and several inches
        {¶2}    Plaintiff has contended defendant should be responsible for the cost of
repairing his car for the property damage suffered on October 17, 2011.              Plaintiff
indicated he has filed a claim with his insurance company, State Farm Insurance, and
that such claim is pending.           Consequently, plaintiff filed this complaint seeking to
recover $500.00, his stated insurance coverage deductible for automotive damage
repair. Plaintiff's damage claim for repair expense is limited to his insurance deductible
pursuant to the statutory directive found in R.C. 3345.40(B)(2). The filing fee was paid.
        {¶3}    Defendant denied liability based on the contention that plaintiff failed to
prove the damage occurred on defendant’s premises. According to defendant, plaintiff
never reported the incident to CSU’s police department or to CSU’s parking services
personnel. Defendant acknowledged locating a sewer grate in the S2 lot “with some
damage to the exterior of the grate.” Nonetheless, defendant contended the defect was
not as deep as plaintiff described. Defendant included pictures showing an area next to
the grate where gravel has been added since the date plaintiff’s incident occurred.
        {¶4}    From a review of the photographs, the damage depicted on plaintiff’s car
appears consistent with the vehicle’s bumper and undercarriage dropping onto the
concrete curbing after plaintiff’s driver’s side rear tire fell into the sinkhole next to the
drainage grate.       In addition, the scraped areas on plaintiff’s bumper and tailpipe
correspond to the gouges in the curbing behind the grate which is depicted in the
photographs supplied by defendant. The trier of fact notes that plaintiff’s photographs
show scratches and body damage consistent with the description of events offered by
plaintiff in the complaint. In addition, the photographs supplied by defendant document
a rather extensive rectangular area beside the concrete pad around the grate has been
repaired and filled with gravel.
        {¶5}    On January 30, 2012, plaintiff filed a response stating he notified CSU’s
parking services and police department of the incident after it happened.            Plaintiff
submitted a copy of a CSU police report dated October 17, 2011, wherein the
investigating officer met with plaintiff at the S2 lot and recorded that the sinkhole was
“significant in size and could easily cause damage to another vehicle.” Thus, based
upon a review of all the evidence presented, the trier of fact finds plaintiff’s car was
damaged as the result of a pavement defect on defendant’s premises.

deep, although part of the area is obscured by leaves.
      {¶6}   Plaintiff was present on defendant’s premises for such purposes which
would classify him under law as an invitee. Scheibel v. Lipton (1985), 156 Ohio St. 308,
46 O.O. 177, 102 N.E. 2d 453. Consequently, defendant was under a duty to exercise
ordinary care for the safety of invitees such as plaintiff and to keep the premises in a
reasonably safe condition for normal use. Presley v. City of Norwood (1973), 36 Ohio
St. 2d 29, 65 O.O. 2d 129, 303 N.E. 2d 81. The duty to exercise ordinary care for the
safety and protection of invitees such as plaintiff includes having the premises in a
reasonably safe condition and warning of latent or concealed defects or perils which the
possessor has or should have knowledge. Durst v. VanGundy (1982), 8 Ohio App. 3d
75, 455 N.E. 2d 1319; Wells v. University Hospital (1985), 85-01392-AD. As a result of
plaintiff’s status, defendant was also under a duty to exercise ordinary care in providing
for plaintiff’s safety and warning him of any condition on the premises known by
defendant to be potentially dangerous. Crabtree v. Shultz (1977), 57 Ohio App. 2d 33,
11 O.O. 3d 31, 384 N.E. 2d 1294.
      {¶7}    Additionally, it has been previously held “the liability of an owner or
occupant to an invitee for negligence in failing to render the premises reasonably safe
for the invitee, or in failing to warn him of dangers thereon, must be predicated upon a
superior knowledge concerning the dangers of the premises to persons going thereon.”
38 American Jurisprudence, 757, Negligence, Section 97, as cited in Debie v. Cochran
Pharmacy Berwick, Inc. (1967), 11 Ohio St. 2d 38, 40, 40 O.O. 2d 52, 227 N.E. 2d 603.
      {¶8}   “The knowledge of the condition removes the sting of unreasonableness
from any danger that lies in it, and obviousness may be relied on to supply knowledge.
Hence the obvious character of the condition is incompatible with negligence in
maintaining it. If plaintiff happens to be hurt by the condition he is barred from recovery
by lack of defendant’s negligence towards him, no matter how careful plaintiff himself
may have been.” 2 Harper and James, Law of Torts (1956), 1491, as cited in Sidle v.
Humphrey (1968), 13 Ohio St. 2d 45, 48, 42 O.O. 2d 96, 233 N.E. 2d 589. “In short, if
the condition or circumstances are such that the invitee has knowledge of the condition
in advance, there is no negligence.” Debie, at 11 Ohio St. 2d 38, 41, 40 O.O. 2d 52,
227 N.E. 2d 603, 606.
      {¶9}   In the instant case, it is not obvious or apparent plaintiff had any
knowledge of the pavement defect at the rear of the parking space. Considering a
driver's position in a vehicle, and the position of the sinkhole on the ground partially
covered with leaves, it is probable the hole was never seen as plaintiff backed in the
parking space. Therefore, the court finds defendant had superior knowledge of the
hazardous condition and failed to warn plaintiff of the condition or remove it.       See
Meinking v. E. Fork State Park, Ct. of Cl. No. 2005-10071-AD, 2006-Ohio-1015.
Consequently, defendant is liable to plaintiff for the property loss claimed, $500.00, plus
the $25.00 filing fee, which may be reimbursed as compensable damages pursuant to
the holding in Bailey v. Ohio Department of Rehabilitation and Correction (1990), 62
Ohio Misc. 2d 19, 587 N.E. 2d 990.
                                               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




KEVIN GALLAGHER

        Plaintiff

        v.

CLEVELAND STATE UNIVERSITY

        Defendant

        Case No. 2011-12048-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 plaintiff in the amount of $525.00, which includes the filing fee. Court costs are
assessed against defendant.



                                                 ________________________________
                                                 DANIEL R. BORCHERT
                                                 Deputy Clerk

Entry cc:

Kevin Gallagher                                  Sonali B. Wilson
17207 Neff Road                                  Cleveland State University
Cleveland, Ohio 44119                            2121 Euclid Avenue
                                                 Administration Center Suite 327
                                                 Cleveland, Ohio 44115-2214
011
Filed 2/15/12
sent to S.C. Reporter 7/17/12
