[Cite as Tomba v. Ohio Dept. of Transp., Dist. 12, 2011-Ohio-2131.]

                                       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




JOE TOMBA

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

       Defendant

Case No. 2010-11315-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Joe Tomba, filed this action against defendant, Department of
Transportation (ODOT), contending that ODOT should bear responsibility for paint
damage to his 1996 Dodge Ram 1500. Plaintiff recalled he was traveling on State
Route 84 in Lake County on September 30, 2010 when his paint damage incident
occurred. In his complaint, plaintiff offered the following narrative recollection of the
paint damage occurrence noting he was traveling “at least four cars behind a state
contracted vehicle that was striping the berm and painting white lines on the road.
Traffic on RT 84 was extremely heavy and I was forced to remain behind the state
contracted (vehicle) and hug the yellow line for approximately 8 to 10 miles until I
reached my residence. Once arriving at my (residence), I parked my vehicle in the
garage until the next afternoon.” Plaintiff indicated he discovered white paint on the
right side of his truck when he approached the parked vehicle on October 1, 2010.
Plaintiff submitted photographs depicting white paint splatter all along the lower right
side of his truck. Plaintiff requested damages in the amount of $1,416.30, the cost of
Case No. 2006-03532-AD                   -2-                MEMORANDUM DECISION




Case No. 2006-03532-AD                   -2-                MEMORANDUM DECISION



removing paint from his truck and car rental expenses. The $25.00 filing fee was paid
and plaintiff requested reimbursement of that cost along with his damage claim.
      {¶ 2} Defendant explained ODOT contractor, Dura Mark, Inc. was conducting
operations on State Route 84 on September 30, 2010. Defendant further explained
white edge lines were painted between mileposts 19.10 to 24.0 with painting operations
starting at 5:30 p.m. and finishing at approximately 6:30 p.m. In his complaint, plaintiff
estimated his damage incident occurred at approximately 3:45 p.m. Defendant denied
operations on State Route 84 in Tuscarawas County on May 13, 2010. Defendant
denied liability in this matter based on the contention “that neither ODOT nor Dura Mark,
Inc. had notice of wet paint on SR 84 prior to plaintiff’s incident.” Defendant asserted
plaintiff failed to offer evidence to prove his property damage was attributable to conduct
on either the part of ODOT or Dura Mark, Inc. Defendant further asserted plaintiff failed
to produce evidence to establish ODOT negligently maintained the roadway.
      {¶ 3} Plaintiff filed a response reasserting his property damage was caused by
painting operations on State Route 84 conducted by Dura Mark, Inc. Plaintiff recalled
he did not observe any signs posted to advise motorists of the painting operation.
Plaintiff insisted his property damage incident occurred at approximately 3:45 p.m. on
Case No. 2006-03532-AD                    -3-            MEMORANDUM DECISION




Case No. 2006-03532-AD                    -3-            MEMORANDUM DECISION



September 30, 2010.
       {¶ 4} The evidence conclusively shows plaintiff’s vehicle received paint damage
from paint that had been applied by ODOT contractor Dura Mark, Inc. This court has
previously held that ODOT cannot be held liable for any alleged negligence on the part
of a contractor in conducting painting operations on state roadways.       ODOT may
delegate its duty of care in situations where an independent contractor such as Dura
Mark, Inc. undertakes roadway painting operations. See Henderson v. Ohio Dept. of
Transp., Ct. of Cl. No. 2003-11496-AD, 2004-Ohio-1839, adopting the rationale of Gore
v. Ohio Dept. of Transp., Franklin App. No. 02AP-996, 2003-Ohio-1648; also Henning v.
Dept. of Transp. (2006), 2006-04369-AD; Treadway v. Ohio Dept. of Transp., Ct. of Cl.
No. 2009-08811-AD, 2010-Ohio-3637; Madison v. Ohio Dept. of Transp., Ct. of Cl. No.
2009-08616-AD, 2010-Ohio-3636.        ODOT is not the proper party defendant in this
action and therefore, this claim is dismissed.




                                Court of Claims of Ohio
                                                                   The Ohio Judicial Center
Case No. 2006-03532-AD            -4-      MEMORANDUM DECISION




Case No. 2006-03532-AD            -4-      MEMORANDUM DECISION



                                                 65 South Front Street, Third Floor
                                                            Columbus, OH 43215
                                                  614.387.9800 or 1.800.824.8263
                                                             www.cco.state.oh.us




JOE TOMBA

      Plaintiff

      v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12

      Defendant

Case No. 2010-11315-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION
Case No. 2006-03532-AD                     -5-               MEMORANDUM DECISION




Case No. 2006-03532-AD                     -5-               MEMORANDUM DECISION



         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:

Joe Tomba                                         Jerry Wray, Director
29 Paradise Road                                  Department of Transportation
Painesville, Ohio 44077                           1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
2/2
Filed 2/16/11
Sent to S.C. reporter 4/29/11
