[Cite as Levinson v. Univ. of Akron, 2011-Ohio-3770.]



                                      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




MARK LEVINSON

       Plaintiff

       v.

THE UNIVERSITY OF AKRON

       Defendant


        Case No. 2010-10581-AD


Deputy Clerk Daniel R. Borchert


MEMORANDUM DECISION


                                         FINDINGS OF FACT
        {¶ 1} On August 19, 2010, at approximately 1:30 p.m., plaintiff, Mark Levinson,
suffered property damage to his car while exiting a parking lot owned and operated by
defendant, The University of Akron ("UA”). Specifically, the hood of plaintiff's car was
scratched when the vehicle was struck by a traffic gate arm located at the exit of Quaker
Square Inn on defendant's premises. Plaintiff implied the gate arm malfunctioned and
fell upon his car. A written report of the incident compiled by an officer of the UA police
department noted plaintiff stated “while leaving the gated entrance of Quaker Square he
stopped, began backing up, and the parking booth gate came down on his hood
causing some scratches.” As a result of the August 19, 2010, incident plaintiff filed this
complaint seeking to recover $305.58, the cost of repairing his car. The $25.00 filing fee
was paid.
        {¶ 2} Defendant denied the gate arm at the exit to the UA parking facility
malfunctioned on August 19, 2010.          Defendant suggested plaintiff's vehicle was
damaged as a proximate cause of plaintiff's own negligence in backing up after his
vehicle had already activated the sensor which raises the gate arm.              Defendant
asserted the attendant has no control over the gate arm mechanism once the sensor
has been activated. Defendant maintained plaintiff's negligent driving maneuver was
the sole cause of his property damage. Plaintiff has not submitted any evidence to
show the traffic gate arm at defendant's parking lot was malfunctioning on August 19,
2010.
                                    CONCLUSIONS OF LAW
        {¶ 3} The traffic gate and mechanism which governs it is under the exclusive
control of defendant. Thus, defendant will be liable for any malfunction which causes
damages. Han v. Traffic Department, Ohio State University (1981), 81-04575-AD.
        {¶ 4} However, plaintiff has the burden of proving, by a preponderance of the
evidence, that the particular traffic gate malfunctioned during normal and intended use.
Saunders v. The Ohio State University (1993), 93-05245-AD. To make such a showing,
plaintiff must produce sufficient evidence or documentation to satisfy the trier of fact.
Saunders.
        {¶ 5} If plaintiff produces sufficient evidence which furnishes a basis for only a
guess, among different possibilities, the claim is insufficient. Landon v. Lee Motors, Inc.
(1954), 161 Ohio St. 82, 99, 118 N.E.2d 147. Rather, plaintiff must establish a
reasonable basis for substantiating all essential issues in the claim. Landon.
        {¶ 6} Plaintiff has failed to prove his car was damaged by a malfunctioning traffic
gate arm under the control of defendant. See Quaiser v. Cleveland State University
(1999), 99-02035-AD; Watson v. University of Toledo (2001), 2001-02635-AD, Reese v.
Cleveland State Univ., Ct. of Cl. No. 2004-10493-AD, 2005-Ohio-3248.
                                  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




MARK LEVINSON

          Plaintiff

          v.

THE UNIVERSITY OF AKRON

          Defendant

          Case No. 2010-10581-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 defendant. Court costs are assessed against plaintiff.



                                                   ________________________________
                                                   DANIEL R. BORCHERT
                                                   Deputy Clerk

Entry cc:

Mark Levinson                                      M. Celeste Cook
543 Morewood Parkway                               Associate Vice President and
Rocky River, Ohio 44116                            Assistant General Counsel
                                                   302 Buchtel Mall
                                                   Akron, Ohio 44325-4706
SJM/laa
3/24
Filed 4/13/11
Sent to S.C. reporter 7/29/11
