[Cite as Zwick v. Ohio Dept. of Transp., 2011-Ohio-1766.]

                                      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




MICHAEL JAMES ZWICK

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2010-10939-AD

Deputy Clerk Daniel R. Borchert


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
Case No. 2010-10939-AD                         -2-                                  ENTRY



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 Project HAM-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.




                                                     ________________________________
                                                     DANIEL R. BORCHERT
                                                     Deputy Clerk

Entry cc:

Michael James Zwick                                  Chester T. Lyman, Jr.
8214 West Mill Street, Apt. 416                      Department of Transportation
Cleves, Ohio 45002                                   1980 West Broad Street
                                                     Columbus, Ohio 43223
DRB/laa
Filed 1/21/11
Sent to S.C. reporter 4/8/11
