[Cite as Milenkovich v. Ohio Dept. of Transp., 2011-Ohio-5127.]



                                      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




ELIZABETH MILENKOVICH

       Plaintiff

       v.

OHIO DEPT. OF TRANSPORTATION

       Defendant

        Case No. 2011-06129-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION

                                         FINDINGS OF FACT
        {¶1}    Plaintiff, Elizabeth Milenkovich, filed this action against defendant,
Department of Transportation (ODOT), contending that her 2010 Buick Enclave was
damaged as a proximate result of negligence on the part of ODOT in performing
painting operations in a construction area on Interstate 77 in Cuyahoga County. Plaintiff
requested damages in the amount of $269.37, the cost to repair the damaged areas of
her vehicle. The $25.00 filing fee was paid.
        {¶2}    On June 2, 2011, plaintiff submitted photographs of the damage and
requested they be made a part of her complaint. The request is deemed to be a motion
to add additional evidence and is GRANTED.
        {¶3}    ODOT filed an investigation report requesting that plaintiff’s claim be
dismissed, advising that the claim was paid and settled by ODOT contractor, A&A
Safety, Inc. Defendant provided a copy of check number 53905 issued to plaintiff on
June 3, 2011, by A&A Safety, Inc., in the amount of $269.37. Consequently, defendant
pointed out plaintiff’s entire damage claim was covered by a collateral source and is
        {¶4}    subject to the provisions of R.C. 2743.02(D).1 ODOT stated “[i]n sum,
defendant respectfully requests that the present action be dismissed because plaintiff
has been fully compensated by a collateral source.”                       Defendant did not address
reimbursement of the filing fee paid by plaintiff.
                                           CONCLUSIONS OF LAW
        {¶5}    Plaintiff has the burden of proving, by a preponderance of the evidence,
that she 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}    Defendant has the duty to maintain its highways 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.
        {¶7}    Plaintiff has the burden of proof to show her property damage was the
direct result of failure of defendant’s agents to exercise ordinary care in conducting
roadway painting operations. Brake v. Ohio Department of Transportation (2000), 99-
12545-AD.       In the instant claim, sufficient evidence has been submitted to show
plaintiff’s vehicle was damaged as a result of negligent acts or omissions on the part of
defendant’s agents. However, any damage claim plaintiff is entitled to receive is subject
to the collateral source recovery provision of R.C. 2743.02(D). Therefore, defendant is
not liable for any damages claimed but is liable for the $25.00 filing fee which may be
reimbursed as compensable costs. See Bailey v. Ohio Department of Rehabilitation


        1
            R.C. 2743.02(D)
          “(D) 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 provisions of division (B)(2) of that section
and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 990.




apply under those circumstances.”
                              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




ELIZABETH MILENKOVICH

      Plaintiff

      v.

OHIO DEPT. OF TRANSPORTATION

      Defendant

      Case No. 2011-06129-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 $25.00, which represents the filing fee. Court costs are
assessed against defendant.




                                               DANIEL R. BORCHERT
                                               Deputy Clerk

Entry cc:

Elizabeth Milenkovich                          Jerry Wray, Director
7986 Wright Road                               Department of Transportation
Broadview Hts., Ohio 44147                     1980 West Broad Street
                                               Columbus, Ohio 43223
SJM/laa
6/21
Filed 6/27/11
Sent to S.C. reporter 10/4/11
