[Cite as Gaiser v. Ohio Dept. of Transp., 2011-Ohio-6903.]




                                       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
DAVID GAISER

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant


Case No. 2011-05751-AD

Acting Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                          FINDINGS OF FACT
          {¶1}   Plaintiff, David Gaiser, filed this action against defendant, Department of
Transportation (ODOT), alleging the tires on his vehicle were damaged as a proximate
result of negligence on the part of ODOT in maintaining a hazardous condition on State
Route 161.         Plaintiff related he hit a pothole when he changed lanes while driving
westbound on SR 161. Plaintiff recalled the described incident occurred on March 17,
2011, at approximately 8:00 p.m.             In his complaint, plaintiff requested damages in the
amount of $438.84, the total cost of a replacement parts. The $25.00 filing fee was paid.
          {¶2}   Defendant filed an investigation report requesting plaintiff’s claim be
dismissed due to the fact the City of Columbus and not ODOT bears the maintenance
responsibility for the roadway where plaintiff’s incident occurred.                  Consequently,
defendant contended the City of Columbus is the proper party defendant to plaintiff’s
action.
          {¶3}   Plaintiff did not file a response.


                                         CONCLUSIONS OF LAW
       {¶4}    R.C. 2743.01(A) provides:
       {¶5}    “(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
instrumentalities of the state. ‘State’ does not include political subdivisions.”
       {¶6}    R.C. 2743.02(A)(1) states in pertinent part:
       {¶7}    “(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.”
       {¶8}    R.C. 5501.31 in pertinent part states:
       {¶9}    “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 . . .”
       {¶10} 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
DAVID GAISER

        Plaintiff

        v.

OHIO DEPT. OF TRANSPORTATION

        Defendant


Case No. 2011-05751-AD

Acting 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, plaintiff’s claim is DISMISSED.
Court costs are assessed against plaintiff.


                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Acting Clerk

Entry cc:
David Gaiser                                      Jerry Wray, Director
7139 Addington Road                               Department of Transportation
New Albany, Ohio 43054                            1980 West Broad Street
                                                  Columbus, Ohio 43223
8/3
Filed 8/10/11
Sent to S.C. reporter 1/3/12
