[Cite as Schwendeman v. Ohio Dept. of Transp., 2010-Ohio-4586.]

                                      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




JOSEPH E. SCHWENDEMAN

         Plaintiff

         v.

OHIO DEPT. OF TRANSPORTATION

         Defendant

         Case No. 2010-01735-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



         {¶ 1} Plaintiff, Joseph E. Schwendeman, filed this action against defendant,
Department of Transportation (ODOT), contending his 2007 Pontiac Vibe received body
damage as a proximate cause of negligence on the part of ODOT personnel in
conducting mowing operations along State Route 676.                        Plaintiff seeks recovery of
damages in the amount of $1,775.85, the cost of repairing his vehicle. The $25.00 filing
fee was paid and plaintiff requested reimbursement of that cost along with his damage
claim.
         {¶ 2} Defendant filed an investigation report admitting liability, but disputing
plaintiff’s damage claim.           Defendant submitted documentation showing plaintiff’s
automotive repair expense of $1,775.85 was covered in its entirety by his insurance
carrier.      Consequently, defendant pointed out plaintiff’s entire damage claim was
covered by a collateral source and is subject to the provisions of R.C. 2743.02(D).1

         1
            R.C. 2743.02(D)
          “(D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,
disability award, or other collateral recovery received by the claimant. This division does not apply to civil
actions in the court of claims against a state university or college under the circumstances described in
ODOT stated “[i]n sum, defendant respectfully requests that the present action be
dismissed because plaintiff’s repair bill has been compensated by a collateral source.”
ODOT further stated, “[s]ince this claim was paid by plaintiff’s insurance company, the
Defendant would like to reimburse the filing fee and file a Settlement Agreement in the
amount of $25.00.”
        {¶ 3} For plaintiff to prevail on a 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, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the
burden of proof rests to produce evidence which furnishes a reasonable basis for
sustaining his claim. If the evidence so produced furnishes only a basis for a choice
among different possibilities as to any issue in the case, he fails to sustain such
burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
        {¶ 4} Defendant has the duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996),
112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67
Ohio App. 3d 723, 588 N.E. 2d 864.
        {¶ 5} When maintenance is performed by ODOT personnel, defendant must
exercise due diligence in conducting such maintenance and repair of highways.
Hennessy v. State of Ohio Highway Department (1985), 85-02071-AD.                             This duty
encompasses a duty to exercise reasonable care in conducting its roadside
maintenance activities to protect personal property from the hazards arising out of these
activities. Rush v. Ohio Dept. of Transportation (1992), 91-07526-AD; Victor v. Ohio


section 3345.40 of the Revised Code. The collateral benefits provisions of division (B)(2) of that section
apply under those circumstances.”
Dept. of Transp., Ct. of Cl. No. 2007-07329-AD, 2008-Ohio-2519.
       {¶ 6} “If any 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.
       {¶ 7} This court, as the 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.    In the instant claim, sufficient evidence has been presented to show that
defendant’s mower operator breached a duty of care which resulted in plaintiff’s
property damage. See Barnett v. Ohio Dept. of Transp., Ct. of Cl. No. 2008-08809-AD,
2009-Ohio-1589. However, any damage claim plaintiff is entitled to receive is subject to
the collateral source recovery provision of R.C. 2743.02(D), Therefore, defendant is not
liable for any damages claimed but is liable for the $25.00 filing fee which may be
reimbursed as compensable costs. See 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




JOSEPH E. SCHWENDEMAN

       Plaintiff

       v.
OHIO DEPT. OF TRANSPORTATION

        Defendant

         Case No. 2010-01735-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 $25.00, which represents the filing fee. Court costs are
assessed against defendant.




                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Joseph E. Schwendeman                             Jolene M. Molitoris, Director
1961 Highland Ridge Road                          Department of Transportation
Lowell, Ohio 45744                                1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/la
5/18
Filed 5/25/10
Sent to S.C. reporter 9/17/10
