[Cite as Lark v. Ohio Dept. of Transp., 2011-Ohio-4784.]



                                       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




MATTHEW T. LARK

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

        Case No. 2011-02174-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}     Plaintiff, Matthew Lark, filed a complaint against defendant, Department of
Transportation (ODOT), alleging that he suffered tire and rim damage to his 2010 Ford
Fusion as a proximate result of negligence on the part of ODOT in maintaining a
hazardous condition on State Route 61. Plaintiff stated that he “hit a very large pothole
on State Route 61 just north of the Ohio Turnpike in Berlin Heights.” Plaintiff recalled
that the incident occurred on January 2, 2011 at approximately 7:00 p.m. Plaintiff seeks
damages in the amount of $650.01, the cost of replacement parts and related repair
costs. The filing fee was paid.
        {¶2}     Defendant filed an investigation report requesting that plaintiff’s claim be
dismissed due to the fact that the Village of Berlin Heights and not ODOT bears the
maintenance responsibility for SR 61 where plaintiff’s incident occurred. In support of
the request to dismiss, ODOT stated that, “[d]efendant has performed an investigation
of this site and this area on SR 61 and I-90 or the Ohio Turnpike falls under the
maintenance jurisdiction of the Village of Berlin Heights (See attached map).”
Defendant further stated that, “ODOT has advised the Village of Berlin Heights since
July 8, 2009, that the Village is responsible for the maintenance of SR 61 as it passes
underneath the Ohio Turnpike structure.”            Defendant asserted that, “[a]s such this
section of roadway is not within the maintenance jurisdiction of the defendant.”
Consequently, defendant contended that the Village Of Berlin Heights is the proper
party defendant to plaintiff’s action.      The site of the damage-causing incident was
located in the Village of Berlin Heights.
       {¶3}    Plaintiff did not file a response.
       {¶4}    R.C. 2743.01(A) provides:
       {¶5}    “(A) ‘State’ means the state of Ohio, including, but not limited to, the
general assembly, the supreme court, the offices of all elected state officers, and all
departments,     boards,    offices,   commissions,      agencies,   institutions,   and   other
instrumentalities of the state. ‘State’ does not include political subdivisions.”
       {¶6}    R.C. 2743.02(A)(1) states in pertinent part:
       {¶7}    “(A)(1) The state hereby waives its immunity from liability, except as
provided for the office of the state fire marshal in division (G)(1) of section 9.60 and
division (B) of section 3737.221 of the Revised Code and subject to division (H) of this
section, and consents to be sued, and have its liability determined, in the court of claims
created in this chapter in accordance with the same rules of law applicable to suits
between private parties, except that the determination of liability is subject to the
limitations set forth in this chapter and, in the case of state universities or colleges, in
section 3345.40 of the Revised Code, and except as provided in division (A)(2) or (3) of
this section. To the extent that the state has previously consented to be sued, this
chapter has no applicability.”
       {¶8}    Ohio Revised Code Section 5501.31 in pertinent part states:
       {¶9}    “Except in the case of maintaining, repairing, erecting traffic signs on, or
pavement marking of state highways within villages, which is mandatory as required by
section 5521.01 of the Revised Code, and except as provided in section 5501.49 of the
Revised Code, no duty of constructing, reconstructing, widening, resurfacing,
maintaining, or repairing state highways within municipal corporations, or the bridges
and culverts thereon, shall attach to or rest upon the director, but he may construct,
reconstruct, widen, resurface, maintain, and repair the same with or without the
cooperation of any municipal corporation, or with or without the cooperation of boards of
county commissioners upon each municipal corporation consenting thereto.”
      {¶10} The site of the damage-causing incident was not the maintenance
jurisdiction of defendant. Consequently, plaintiff’s case must be dismissed. See Sandu
v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-02606-AD, 2008-Ohio-6858, Gerzina v.
Ohio Dept. of Transp., Ct. of Cl. No. 2010-09809-AD, 2011-Ohio-1952.
                                 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




MATTHEW T. LARK

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-02174-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, plaintiff’s claim is DISMISSED.
Court costs are assessed against plaintiff.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Matthew T. Lark                                   Jerry Wray, Director
2448 Hartland Center Road                         Department of Transportation
Collins, Ohio 44826                               1980 West Broad Street
                                                  Columbus, Ohio 43223
SJM/laa
5/12
Filed 6/14/11
Sent to S.C. reporter 9/21/11
