[Cite as Meade v. Ohio Dept. of Transp., 2011-Ohio-6953.]



                                      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
WALTER MEADE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2011-06684-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

        {¶1}    Plaintiff, Walter Meade, filed this complaint against defendant, Department
of Transportation (“DOT”), alleging roadway improvement work performed on New
Albany Condit Road caused flooding problems to his property. Plaintiff related that DOT
widened the road in front of his property “[a] few years ago” and “[w]hen redigging the
ditch, it was not dug deep enough, causing flooding multiple times throughout our yard
and into our garage.” According to plaintiff, DOT came out and inspected the area and
“determined the issue was with their original subcontractor and had the ditch redug at
that time. However, we continue to have flooding issues as the ditch is still too shallow–
- it is not the depth of the original ditch.” In his complaint, plaintiff requested damages in
the amount of $2,500.00, although he did not submit receipts or estimates for the
expense associated with having the problem resolved. The filing fee was paid.
        {¶2}    According to defendant, the roadway widening project was completed on
or about June 30, 2006. Defendant denied any liability for any damage plaintiff may
have suffered and maintained that the roadway improvement work had met “all of the
relevant guidelines and specifications for such a highway.” Defendant observed that
plaintiff’s property “does lie physically lower than the road and drainage in the general
area does drain away from the right of way.”                Defendant acknowledged that after
plaintiff complained about the flooding, DOT “performed additional excavation of the
roadway ditch in front of Plaintiff’s property in 2007.” Defendant contended it “should
not be perpetually responsible for its reasonable diversion of water off its roadway.” In
addition, defendant argued plaintiff has failed to mitigate his damages during the
intervening four years prior to filing his complaint. Finally, defendant pointed out that
plaintiff waited nearly four years to file this complaint and that as such, his claim is
untimely.
       {¶3}   Plaintiff did not file a response.
       {¶4}   Based on the statute of limitations requirement in R.C. 2743.16(A), plaintiff
had two years from the date his cause of action accrued to file a claim against DOT for
perceived damages resulting from the roadway improvement project. Plaintiff filed this
claim on April 28, 2011. Plaintiff stated he was aware of the flooding problem, at the
latest, in 2007 when DOT agreed to further excavate the ditch in front of his property.
Thus, pursuant to R.C. 2743.16(A) plaintiff had to file a claim for damages arising from
flooding allegedly caused by the roadway improvement project within two years after the
date in 2007 that the final corrective action was performed by DOT. Plaintiff filed his
complaint more than two years after the cause of action accrued; therefore, the claim is
barred by the two-year statute of limitations.
       {¶5}   Even assuming plaintiff’s claim was timely filed, in order for plaintiff to
prevail upon his claim of negligence, he must prove, by a preponderance of the
evidence, that defendant owed him a duty, that it breached that duty, and that the
breach proximately caused his injuries. Armstrong v. Best Buy Company, Inc. 99 Ohio
St. 3d 79, 81, 2003-Ohio-2573, ¶8, citing Menifee v. Ohio Welding Products, Inc.
(1984), 15 Ohio St. 3d 75, 77, 472 N.E. 2d 707. A breach of duty can be found only if
defendant’s interference with drainage water flow is unreasonable, which is determined
“by balancing the gravity of the harm caused by the interference against the utility of the
[defendant’s] conduct.” McGlashan v. Spade Rockledge Terrace Condo Dev. Corp.
(1980), 62 Ohio St. 2d 55, at 60, 16 O.O. 3d 41, 402 N.E. 2d 1196, adopting 4
Restatement on Torts 2d (1979), 146, Section 833.
       {¶6}   Plaintiff claimed defendant failed to have the ditch excavated to the proper
depth which ultimately caused flooding in his yard and garage. As a necessary element
of his particular claim, plaintiff was required to prove the proximate cause of his damage
by a preponderance of the evidence. See e.g. Stinson v. England, 69 Ohio St. 3d 451,
1994-Ohio-35, 633 N.E. 2d 532. This court, as trier of fact, determines questions of
proximate causation. Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51, 14 OBR 446,
471 N.E. 2d 477.
       {¶7}   “If an injury is the natural and probable consequence of a negligent act
and it is such as should have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result of negligence. It is not necessary
that the defendant should have anticipated the particular injury. It is sufficient that his
act is likely to result in an injury to someone.” Cascone v. Herb Kay Co. (1983), 6 Ohio
St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber Co. v. First National
Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 N.E. 327.           In a
situation such as the instant claim, plaintiff is required to produce expert testimony
regarding the issue of causation and that testimony must be expressed in terms of
probability. Stinson, supra. Plaintiff, by not supplying the requisite expert testimony to
state a prima facie claim has failed to meet his burden of proof. See Ryan v. Ohio Dept.
of Transp., Ct. of Cl. No. 2003-09297-AD, 2004-Ohio-900; also Ringel v. Ohio Dept. of
Transp., Ct. of Cl. No. 2006-02081-AD, 2006-Ohio-7279. Plaintiff has failed to prove
DOT’s roadway improvement project proximately caused the damage claimed. See
Wasilewski v. Ohio Dept. of Transportation, Ct. of Cl. No. 2004-03560-AD, 2004-Ohio-
7326; Haake v. Dept. of Transp., Ct. of Cl. No. 2007-05733-AD, 2008-Ohio-2849.
                                 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




WALTER MEADE

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2011-06684-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:

Walter Meade                                      Jerry Wray, Director
7454 New Albany Condit Road                       Department of Transportation
New Albany, Ohio 43054                            1980 West Broad Street
                                                  Columbus, Ohio 43223
9/8
Filed 9/21/11
Sent to S.C. reporter 1/27/12
