[Cite as Dietz v. Ohio Dept. of Transp., 2010-Ohio-6651.]

                                       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




JASON DIETZ

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-07563-AD

Clerk Miles C. Durfey

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Jason Dietz, filed this action against defendant, Department of
Transportation (ODOT), contending that the window on his 2005 Jeep Cherokee was
damaged as a proximate cause of negligence on the part of ODOT in conducting
mowing operations along the berm of Interstate 71 South in Cuyahoga County. Plaintiff
recalled that he was traveling south on Interstate 71 at approximately 8:00 a.m. on May
10, 2010 when he drove onto the Pearl Road exit and noticed “there was lawn mowing
taking place surrounding the traffic light at the off-ramp.” According to plaintiff, his Jeep
Cherokee was damaged when “[a] rock was thrown from the mower which hit and broke
the front, driver’s side window” of the vehicle.            In his complaint, plaintiff requested
damages in the amount of $249.87, the cost of a replacement window. The filing fee
was paid.
        {¶ 2} Defendant explained that mowing operations for “this section of I-71 @
Pearl Road or US 42 was under contract” with ODOT contractor, Thompson Interstate
Mowing, Inc. (Thompson).              Defendant further explained that actual mowing of the
roadway berm area was scheduled to be conducted by Thompson from May 11, 2010 to
October 15, 2010. Defendant denied that any ODOT mowers were operating in the
area on May 10, 2010, the stated date of plaintiff’s described damage incident.
Defendant contended that plaintiff did not offer any evidence to prove that his vehicle
was damaged as a result of any conduct attributable to either ODOT or Thompson.
Defendant suggested that City of Cleveland personnel may have been mowing at the
described area on May 10, 2010. Defendant requested this claim be dismissed due to
the fact that ODOT is not a proper party defendant in this action. Plaintiff did not
produce any evidence to establish his vehicle was damaged by ODOT personnel
conducting mowing operations.      Defendant submitted documentation showing that
ODOT did not perform mowing operations along the particular section of Interstate 71
on May 10, 2010.
      {¶ 3} Defendant has the duty to maintain its highway in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996),
112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67
Ohio App. 3d 723, 588 N.E. 2d 864. Furthermore, the duty to cut grass on highways is
delegable to an independent contractor such as Thompson and consequently, no
liability shall attach to ODOT for damage caused by the negligent acts of the
independent contractor engaged in mowing operations. See Gore v. Ohio Dept. of
Transp., Franklin App. No. 02AP-996, 2003-Ohio-1648; Cwalinski v. Ohio Dept. of
Transp, 2003-06778-AD, 2003-Ohio-5561.
      {¶ 4} When maintenance is performed by ODOT personnel, defendant must
exercise due diligence in conducting such maintenance and repair of highways.
Hennessy v. State of Ohio Highway Department (1985), 85-02071-AD.            This duty
encompasses a duty to exercise reasonable care in conducting its roadside
maintenance activities to protect personal property from the hazards arising out of the
activities. Rush v. Ohio Dept. of Transportation (1992), 91-07526-AD.
      {¶ 5} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his injuries.     Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom the
burden of proof rests to produce evidence which furnishes a reasonable basis for
sustaining his claim. If the evidence so produced furnishes only a basis for a choice
among different possibilities as to any issue in the case, he fails to sustain such
burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
       {¶ 6} Plaintiff has not proven, by a preponderance of the evidence, that
defendant failed to discharge a duty owed to him or that his damage was proximately
caused by defendant’s negligence. Plaintiff has failed to show the damage to his car
was connected to any conduct under the control of defendant, or any negligence on the
part of defendant. Taylor v. Transportation Dept. (1998), 97-10898-AD; Weininger v.
Department of Transportation (1999), 99-10909-AD; Witherell v. Ohio Dept. of
Transportation (2000), 2000-04758-AD.
       {¶ 7} Furthermore, this court does not have jurisdiction to determine claims
arising from the acts of employees of the City of Cleveland.
       {¶ 8} R.C. 2743.01(A) and (B) provide:
       {¶ 9} “(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.
       {¶ 10} “(B) ‘Political subdivisions’ means municipal corporations, townships,
counties, school districts, and all other bodies corporate and politic responsible for
governmental activities only in geographic areas smaller than that of the state to which
the sovereign immunity of the state attaches.”
       {¶ 11} R.C. 2743.02(A)(1) states in pertinent part:
       {¶ 12} “(A)(1) The state hereby waives its immunity from liability . . . 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 ***.”
        {¶ 13} Furthermore, R.C. 2743.03(A)(1) provides in pertinent part:
        {¶ 14} “(A)(1) There is hereby created a court of claims. The court of claims is a
court of record and has exclusive, original jurisdiction of all civil actions against the state
permitted by the waiver of immunity contained in section 2743.02 of the Revised Code
***.”
        {¶ 15} Based on the facts of this claim, plaintiff’s action does not lie against the
state, but rather a political subdivision or an independent contractor. Consequently, the
court does not have jurisdiction over either entity and therefore plaintiff’s claim 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




JASON DIETZ

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-07563-AD

Clerk Miles C. Durfey


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.
                               ________________________________
                               MILES C. DURFEY
                               Clerk

Entry cc:

Jason Dietz                    Jolene M. Molitoris, Director
32117 Lake Road                Department of Transportation
Avon Lake, Ohio 44012          1980 West Broad Street
                               Columbus, Ohio 43223
RDK/laa
10/1
Filed 10/15/10
Sent to S.C. reporter 2/2/11
