[Cite as Sommer v. Ohio Dept. of Transp., 2013-Ohio-5943.]



                                                       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



NICK SOMMER, et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2012-04715

Judge Patrick M. McGrath
Magistrate Anderson M. Renick

ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

        {¶ 1} On July 9, 2013, defendant filed a motion for summary judgment pursuant
to Civ.R. 56(B). On July 26, 2013, plaintiffs filed a response. The motion is now before
the court for a non-oral hearing pursuant to L.C.C.R. 4(D).
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Case No. 2012-04715                         -2-                                  ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
       {¶ 4} According to their complaint, defendant, Ohio Department of Transportation
(ODOT), began a construction project to expand the I-90 “Innerbelt” bridge which is
near plaintiffs’ home in the Tremont neighborhood of Cleveland, Ohio. Plaintiffs, Nick
Sommer and Alyssa Birge, allege that the construction caused noise, vibrations, dirt,
and debris which have substantially interfered with the use of their residence. Plaintiffs
allege that defendant’s actions constitute a temporary taking of their property and both a
private and public nuisance.
       {¶ 5} In support of its motion, defendant submitted the affidavit of Dave Lastovka,
defendant’s project manager who was involved with both the design and construction of
the project. In his affidavit, Lastovka described the project as follows:
       {¶ 6} “4. The project will replace the existing Innerbelt Central Viaduct truss
bridge that was constructed in the 1950s. The bridge will be approximately 135 feet high
and 4,347 feet long when completed.
       {¶ 7} “5. The first step of the project was the Walworth Run Sewer Realignment
Project (WRIR), which started in September 2010 and was completed in July 2011.
ODOT coordinated with Northeast Ohio Regional Sewer District (NEORSD) to relocate
a section of the Walworth Run sanitary interceptor sewer that was in conflict with the
Innerbelt bridge project. The NEORSD managed the project and contracted directly with
a contractor to complete that project. The WRIR project required construction around
Plaintiffs’ home. The WRlR project created unavoidable construction noise and required
lanes of traffic around Plaintiffs’ home to be closed.
       {¶ 8} “6. The construction of the new west-bound lanes of the Innerbelt bridge
required the driving of steel beams, called piles, down 180-200 feet to bedrock, to
support the new bridge. When piles are pounded into the ground it creates a loud
banging sound. The Innerbelt Construction Contract Group 1 for the west-bound bridge
Case No. 2012-04715                        -3-                                    ENTRY

is set to conclude in 2014. The project’s design and construction will cost ODOT $293
million.
       {¶ 9} “7. Since the Innerbelt project started, I have been and continue to be in or
around the project on a bi-weekly basis. In being around the construction project and
surrounding Tremont neighborhood, I have personally experienced the noise, dust, and
vibrations that occur in the Tremont neighborhood.
       {¶ 10} “8. Any person who comes within approximately one-fourth mile of the
project will experience the same noise, vibrations, and restricted access. There is a
restaurant next door to Plaintiffs’ house that is open to the public. The restaurant,
Sokolowskis, is even closer to the highway than Plaintiffs’ house. There is also a whole
neighborhood of houses behind and across the street from Plaintiffs’. The noise, dust
and vibrations can be heard and felt throughout the Tremont neighborhood.”


INVERSE CONDEMNATION
       {¶ 11} Plaintiffs allege inverse condemnation resulting in a taking of their property
as a consequence of the construction project rendering their residence “uninhabitable.”
“As ordinarily understood, the term, ‘taking,’ as used in the Constitution, comprehends
any direct encroachment upon land, which subjects it to a public use that excludes or
restricts the dominion and control of the owner over it.” State ex rel. Fejes v. Akron, 5
Ohio St.2d 47, 49 (1966) quoting Lake Erie & Western Rd. Co. v. Commissioners of
Hancock County, 63 Ohio St. 23, paragraph three of the syllabus. “When there is no
taking altogether or pro tanto, damages consequential * * * to the construction of the
improvement, are not recoverable; under such circumstances, loss suffered by the
owner is damnum absque injuria.” Id. quoting Smith v. Erie Rd. Co., 134 Ohio St. 135
(1938). The word, ‘taken,’ connotes something different from damage to property, proof
that plaintiffs’ property was damaged by a construction project is not in itself enough to
entitle plaintiffs to damages.     Id. at 50.    Construction work which causes only
Case No. 2012-04715                         -4-                                      ENTRY

consequential damage to plaintiffs’ property does not constitute a “taking” of that
property. Id. at 52.
       {¶ 12} Although plaintiffs contend that the construction project has caused great
inconvenience, they acknowledge that they have not been denied access to their
property. Inasmuch as there is no evidence to show that plaintiffs’ dominion and control
over their property has been excluded or restricted, their inverse condemnation claim
must fail as a matter of law.


NUISANCE
       {¶ 13} “‘Nuisance’ is a term used to designate ‘the wrongful invasion of a legal
right or interest.’” Hurier v. Ohio Dept. of Transp., 10th Dist. No. 01AP-1362, 2002-
Ohio-4499, ¶ 8, quoting Taylor v. Cincinnati, 143 Ohio St. 426, 432 (1944). “The liability
of the defendant, as well as the plaintiff’s entitlement to relief, will depend upon both the
nature of the alleged nuisance and the conduct of the defendant. Nuisance may be first
designated as ‘private’ or ‘public.’ * * * Both of these types of nuisances may then be
further categorized as ‘absolute nuisance’ (nuisance per se) or ‘qualified nuisance.’” Id.
       {¶ 14} “Put in general terms, a private nuisance involves the invasion of the
private interest in the use and enjoyment of land.” Zang v. Engle, 10th Dist. No. 00AP-
290 (Sept. 19, 2000).       “A public nuisance exists where a neighborhood or any
considerable number of persons are annoyed.” Citizens to Protect the Environment,
Inc. v. Universal Disposal, Inc., 56 Ohio App.3d 45, 52 (10th Dist.1988). Generally,
“private parties may not seek to enjoin or abate a public nuisance unless the injury to
the complaining party is different from that suffered by the public at large.” Id.
       {¶ 15} Although plaintiffs have alleged both private and public nuisance, the court
concludes that the allegations of the complaint sound in public nuisance, which is
defined as “an unreasonable interference with a right common to the general public.”
Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 712 (4th Dist.1993). “To
Case No. 2012-04715                          -5-                                  ENTRY

recover damages under a claim of public nuisance, a plaintiff must first establish an
interference with a public right and second that the plaintiff has suffered an injury
distinct from that suffered by the public at large. * * * The harm suffered by the plaintiff
must be different in kind, rather than in degree, from that suffered by other members of
the public exercising the public right.” Hurier at ¶ 9.
       {¶ 16} “[W]hen a right of way has been dedicated or is taken for a highway, an
abutting owner must accept whatever increased volume of traffic results thereon.”
Widmer v. Fretti, 95 Ohio App. 7, 17 (6th Dist.1952). “Elements of increased noise,
dust, vibration, inconvenience, etc., are not recoverable.” Smith v. Peyatt, 11th Dist.
No. 3759 (May 6, 1988); see also Bigler v. Ohio Valley Coal Co., 8th Dist. No. 60848
(Aug. 6, 1992); Clabaugh v. Harris, 27 Ohio Misc. 153 (C.P.1971).
       {¶ 17} The harm alleged by plaintiffs includes excessive construction noise,
related dirt and debris, and a sudden invasion of “wildlife” on their property, including
groundhogs, birds, rats, mice, and feral cats.            Plaintiffs acknowledge that the
construction project is adjacent to other neighborhood properties, including residences
and a restaurant which is situated next door to plaintiffs’ home. Plaintiffs have failed to
demonstrate how the alleged harm is different in kind from that experienced by the other
property owners who live near the construction project.
       {¶ 18} Furthermore, ODOT is authorized by R.C. 5501.11(A)(1) to “establish state
highways on existing roads, streets, and new locations and construct, reconstruct,
widen, resurface, maintain and repair the state system of highways and bridges and
culverts thereon.” Conduct that is fully authorized by statute or administrative regulation
is generally not actionable as a public nuisance. Hager v. Waste Technologies. Indus.,
7th Dist. No. 2000-CO-45, 2002-Ohio-3466, ¶ 80; Brown at 713.
       {¶ 19} In their depositions, plaintiffs concede that there has not been any physical
damage either to their residence or to their land; that no construction equipment has
come into contact with their property; and that they will be able to use and enjoy their
property in the same manner when the construction has ended.                Plaintiffs have
Case No. 2012-04715                              -6-                                ENTRY

presented no evidence of conduct on the part of defendant that is not authorized by law.
For the foregoing reasons, the only reasonable conclusion to be drawn is that plaintiffs
cannot prevail on their nuisance claim.
          {¶ 20} Accordingly, the court concludes that there is no genuine issue as to
material fact and that defendant is entitled to judgment as a matter of law. Accordingly,
defendant’s motion for summary judgment is GRANTED and judgment is rendered in
favor of defendant. All previously scheduled events are VACATED. Court costs are
assessed against plaintiffs.           The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.



                                               _____________________________________
                                               PATRICK M. MCGRATH
                                               Judge

cc:


Gary A. Ebert                                     Velda K. Hofacker
Jazmyn J. Stover                                  Assistant Attorney General
Thomas G. Haren                                   150 East Gay Street, 18th Floor
26600 Detroit Road, Suite 300                     Columbus, Ohio 43215-3130
Westlake, Ohio 44145-2397

004
Filed August 30, 2013
Sent to S.C. Reporter April 30, 2014
