[Cite as Bird v. Ohio Dept. of Transp., 2010-Ohio-6678.]

                                       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




MARY BIRD

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-09078-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                          FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, Mary Bird, filed this action against defendant, Department of
Transportation (ODOT), contending her 1999 Subaru Forester was damaged as a
proximate cause of negligence on the part of ODOT in maintaining a hazardous
condition on State Route 161 in Franklin County.             Plaintiff related her vehicle was
damaged when it “hit a huge pothole before I got to the State Route 62 exchange.”
Plaintiff located the damage-causing pothole on State Route 161 “directly under the
New Albany Road overpass in the right-hand lane.” Plaintiff recalled the described
damage incident occurred on April 19, 2010 at approximately 5:15 p.m.                        In her
complaint, plaintiff requested damage recovery in the amount of $250.00, her insurance
coverage deductible for automotive repair she incurred. The $25.00 filing fee was paid
and plaintiff requested reimbursement of that cost along with her damage claim.
        {¶ 2} 2)       Defendant filed an investigation report requesting plaintiff’s claim be
dismissed due to the fact that the City of Columbus and not ODOT bears the
maintenance responsibility for the section of State Route 161 where plaintiff’s incident
occurred.      Defendant advised that, “the City of Columbus is responsible for the
maintenance of the roadway upon which plaintiff’s incident occurred (and) [a]s such, the
City of Columbus is the proper party to plaintiff’s claim.” The site of the damage incident
was not on a roadway area maintained by ODOT. Defendant submitted documentation
showing the area of State Route 161 (milemarker 20.380) under the New Albany Road
overpass is located within the municipal boundary of the City of Columbus. Defendant
asserted “ODOT is not responsible for maintenance of the New Albany Road Overpass
for SR 161.”
       {¶ 3} 3)    Plaintiff filed a response reporting that she was advised by an ODOT
representative that ODOT did maintain the section of State Route 161 where her
damage incident occurred.        Plaintiff further reported she contacted “the City of
Columbus and was told they do not maintain State Route 161 outside of interstate 270,
that it belongs to ODOT.”
       {¶ 4} 4)    On October 12, 2010, defendant filed a reply to plaintiff’s response.
Defendant again asserts the site of plaintiff’s incident was not in defendant’s
maintenance jurisdiction.
                                 CONCLUSIONS OF LAW
       {¶ 5} 1)    R.C. 2743.01(A) provides:
       {¶ 6} “(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 state
instrumentalities of the state. ‘State’ does not include political subdivisions.”
       {¶ 7} 2)    R.C. 2743.02(A)(1) states in pertinent part:
       {¶ 8} “(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.”
       {¶ 9} “3)    R.C. 5501.31 in pertinent part states:
       {¶ 10} “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 . . .”
       {¶ 11} The site of the damage-causing incident was not the maintenance
jurisdiction of defendant. Consequently, plaintiff’s case is dismissed.




                                 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




MARY BIRD

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

       Case No. 2010-09078-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, this case is DISMISSED.
Court costs are assessed against plaintiff.



                                              ________________________________
                                              DANIEL R. BORCHERT
                                              Deputy Clerk

Entry cc:

Mary Bird                                     Jolene M. Molitoris, Director
14284 Douglas Lane                            Department of Transportation
Centerburg, Ohio 43011                        1980 West Broad Street
                                              Columbus, Ohio 43223
RDK/laa
10/14
Filed 11/15/10
Sent to S.C. reporter 2/18/11
