[Cite as Cann v. Youngstown State Univ., 2012-Ohio-6367.]



                                                       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

ANTHONY J. CANN

       Plaintiff

       v.

YOUNGSTOWN STATE UNIVERSITY

       Defendant

Case No. 2012-01503-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


                                        FINDINGS OF FACT
        {¶1}    1)      On January 27, 2012, plaintiff, Anthony J. Cann, filed a complaint
against defendant, Youngstown State University. Plaintiff asserted on August 19, 2011
at approximately 2:50 p.m., he sustained personal and property damages as the result
of a gate arm located at the defendant’s parking area striking him as he was leaving on
his motorcycle.
        {¶2}    2)      Plaintiff asserts his motorcycle was damaged by defendant’s
personnel after he left the scene of the incident in an ambulance. Plaintiff contends the
motorcycle was “dropped by YSU employees,” whereby causing “multiple scratches,
dents and functional damage.” Plaintiff informed the court he is insured by Progressive
Insurance and has a $500 deductible.

        {¶3}    3)      Plaintiff also contends he sustained physical injury as the result of
the gate arm striking him in the helmet as he sat atop his motorcycle. A “Case History
and Accident Questionnaire” which he attached to his complaint revealed that as the
result of the incident he suffered dull neck pain and stiffness, facial pain, pain around
Case No. 2012-01503-AD                       -2-             MEMORANDUM DECISION


the ribs, mid back pain and stiffness, low back pain and stiffness, as well as “multiple
lacerations to the lower lip/upper mouth and chin.” Plaintiff also related he incurred
ambulance and emergency room charges as well as future expenses for “follow up
doctor and chiropractor bills.” Plaintiff did not include a prayer amount covering his
current or future expenses.
       {¶4}    4)     Defendant submitted an investigation report acknowledging that the
event occurred as plaintiff described in the complaint. However, defendant could not
respond to any allegation concerning personal and property damage since the
complaint was void of any medical bills or motorcycle repair estimates.          Defendant
requests that plaintiff’s claim be transferred to the judicial docket since it appears from
his pleadings that plaintiff’s damages will far exceed the statutory amount of an
Administrative Determination.
       {¶5}    5)     Plaintiff filed a response to defendant’s investigation report.
Plaintiff contended that defendant erroneously stated his motorcycle was damaged by
the gate arm, when in fact his bike was damaged by the negligent actions of
defendant’s agent, Mr. Manning. While plaintiff presented medical reports compiled at
Northbridge Hospital and Trumbull Mahoning Medical Group, he did not submit any
billing statements.
       {¶6}    6)     With respect to damages, plaintiff stated the following:
       {¶7}    “I Anthony J. Cann request that I be awarded the maximum prayer amount
which is allowed by this administrative docket of $2500.00.            This will cover the
deductible and all out of pocket expenses that I have paid to this point. It will also
reimburse my future medical maintenance because of the accident and injury
(chiropractic visits/doctor visits, travel, and fuel).”
       {¶8}    7)     On July 18, 2012, this court issued an entry requiring plaintiff to
submit proof of his damages.
Case No. 2012-01503-AD                      -3-               MEMORANDUM DECISION


       {¶9}   8)     On August 18, 2012, plaintiff submitted a filing in compliance with
this court’s entry. Plaintiff submitted documentation which revealed that plaintiff had a
$500.00 deductible with his insurance carrier, Progressive Insurance. Plaintiff related
that all hospital/emergency room bills were paid in full by his insurance carrier. Plaintiff
asserted he incurred ambulance expenses in the amount of $981.29, of which $528.85
was paid by insurance leaving a balance of $452.44.                Plaintiff contends he was
responsible for the payment of this amount “if medical mutual or rural metro does not
pay.” Plaintiff alleges this future obligation is proved by “(Phone conversation, Billing,
Rural Metro),” however no supporting documentation, other than his handwritten
notation on the billing statement, is contained in the response.
       {¶10} 9)      Plaintiff also seeks reimbursement for medical records, $23.36;
chiropractic expenses incurred at Hafely Chiropractic, Inc. from December 31, 2011
through January 16, 2012 and April 4, 2012 through April 27, 2012, $205.45; two
expenses he characterizes as “Upper GI” in the total amount of $119.89, however, no
billing statements for these services are contained in the claim file; and travel expenses
in the amount of $60.00.
       {¶11} 10)     Finally, plaintiff states:
       {¶12} “As for the necessity of treatments in the future:
       {¶13} “(See Evidence/Proof G [Chart Notes-Christopher M. Hafely} PG. 1-2 See
Assessment & Prognosis;]) Which clearly shows a re-occurrence for flare-ups and the
need for future treatments, due to the injuries incurred onto (Anthony J. Cann) by
Youngstown State University (Physical/Personal injury) on AUGUST 19, 2011.
       {¶14} “The determination for future costs are substantial enough for me to
request that I be awarded the maximum prayer amount of $2500.00. That amount will
help to cover the future costs which will be incurred over the next several years.
(Chiropractic/Medica/Gas/Deductable)         as   mentioned   in     my   response   to   the
Case No. 2012-01503-AD                      -4-                MEMORANDUM DECISION


investigation.” (sic)
         {¶15} 11)      Defendant did not respond to the documentation submitted by
plaintiff.
                                      CONCLUSIONS OF LAW
         {¶16} 1)       The traffic gate and the mechanism which governs it is under the
exclusive control of defendant. Thus, defendant will be liable for any malfunction which
causes damages.         Han v. Traffic Department, Ohio State University, 81-04575-AD
(1981).
         {¶17} 2)       Plaintiff has proven defendant is liable for his personal injury and
property loss. Baisden v. Southern Ohio Correctional Facility, 76-06147-AD (1977);
Stewart v. Ohio National Guard, 78-0342-AD (1979).
         {¶18} 3)       R.C. 2743.02(D) states:
         {¶19} “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 section 3345.40 of the
Revised Code. The collateral benefits provided in division (B)(2) of that section apply
under those circumstances.”
         {¶20} In accordance with this provision, R.C. 3345.40(B)(2) applies to the instant
claim.
         {¶21} 4)       R.C. 3345.40(B)(2) states in relevant part:
         {¶22} “If a plaintiff receives or is entitled to receive benefits for injuries or loss
allegedly incurred from a policy or policies of insurance or any other source, the benefits
shall be disclosed to the court, and the amount of the benefits shall be deducted from
any award against the state university or college recovered by plaintiff.”
         {¶23} 5)       As trier of fact, this court has the power to award reasonable
Case No. 2012-01503-AD                   -5-                MEMORANDUM DECISION


damages based on evidence presented. Sims v. Southern Ohio Correctional Facility,
61 Ohio Misc. 2d 239, 577 N.E. 2d 160 (Ct. of Cl. 1988).
      {¶24} 6)      Damages in a claim such as this are assessed as the natural and
proximate result of defendant’s negligent act. Blank v. Snyder, 33 Ohio Misc. 67, 291
N.E. 2d 796 (M.C. 1972). The assessment of damages is a matter within the province
of the trier of fact. Litchfield v. Morris, 25 Ohio App. 3d 42, 495 N.E. 2d 462 (10th Dist.
1985). Where the existence of damage is established, the evidence need only tend to
show the basis for the computation of damages to a fair degree of probability. Brewer v.
Brothers, 82 Ohio App. 3d 148, 611 N.E. 2d 492 (12th Dist. 1992). Only reasonable
certainty as to the amount of damages is required, which is that degree of certainty of
which the nature of the case admits. Bemmes v. Pub. Emp. Retirement Sys. Of Ohio,
102 Ohio App. 3d 782, 658 N.E. 2d 31 (12th Dist. 1995).            The trier of fact finds
compensable damages in the present claim are represented by plaintiff’s motorcycle
deductible, unreimbursed chiropractic expenses, medical record expenses and travel
expenses for a total award of $788.81.            Plaintiff failed to prove he incurred
unreimbursed ambulance expenses.
      {¶25} 7)      Plaintiff has failed to submit documentation which proves he
incurred “Upper GI” expenses of $119.89.
      {¶26} 8)      Black’s Law Dictionary Sixth Edition (1990) defines preponderance
of the evidence as: “evidence which is of greater weight or more convincing than the
evidence which is offered in opposition to it; that is, evidence which as a whole shows
that the fact sought to be proved is more probable than not.”
      {¶27} 9)      “The general rule on the subject (future damages) is stated, as
follows, in the annotation, 115 A. L. R., 1149, at page 1150:
      {¶28} “* * * That is, [HN1] if the injury is of an objective nature (such as the loss
of an arm, leg, or other member) the jury may draw their conclusions as to future pain
Case No. 2012-01503-AD                   -6-                MEMORANDUM DECISION


and suffering from that fact alone (the permanency of such injury being obvious);
whereas there must be expert evidence as to future pain and suffering or permanency
where the injury is subjective in character. See, also, 15 American Jurisprudence, 815,
Damages, Section 377.
       {¶29} “A leading Ohio case, Tully [***7] v. Mahoning Express, Co., Inc., 161
Ohio St., 457, follows the same reasoning and expresses the [*87] rule that expert
medical testimony is necessary to sustain a verdict for future medical expenses . . .”
Day v. Gulley, 175 Ohio St. 83, 86-87, 191 N.E. 2d 732 (1963).
      {¶30} 10)     With respect to an award for future “medical maintenance” ie.
chiropractic visits, doctor visits, travel and fuel, the only evidence that the plaintiff
provides is the statement of Christopher M. Hafely, D.C., which states:
      {¶31} “Prognosis:
      {¶32} “The future progress of Mr. Cann is undetermined at this time. The nature
of his injury makes in susceptible to these kinds of flare ups and he will likely require
follow up treatment in the future.” However, this statement does not meet the standard
of a reasonable degree of chiropractic certainty to meet the plaintiff’s burden to prove he
is likely to incur future medical maintenance expenses.        See, Batista v. Ameritech
Corp/SBC, 8th Dist. No. 90133, 2008-Ohio-3067.
      {¶33} 11)     Plaintiff is entitled to reimbursement of the $25.00 filing fee
pursuant to Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.
2d 19, 587 N.E. 2d 990 (Ct. of Cl. No. 1990).
[Cite as Cann v. Youngstown State Univ., 2012-Ohio-6367.]


                                                       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




ANTHONY J. CANN

       Plaintiff

       v.

YOUNGSTOWN STATE UNIVERSITY

       Defendant

Case No. 2012-01503-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 $813.81, which includes the filing fee. Court costs are
assessed against defendant.




                                                 DANIEL R. BORCHERT
                                                 Deputy Clerk

Entry cc:

Anthony J. Cann                                  Holly Jacobs, General Counsel
454 Yvonne Drive                                 Youngstown State University
Youngstown, Ohio 44505                           One University Plaza
                                                 Youngstown, Ohio 44555
DRB/laa
filed 12/5/12
sent to S.C. Reporter 1/30/13
