[Cite as Gerzina v. Ohio Dept. of Transp., Dist. 4, 2011-Ohio-1952.]

                                       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




ANDREW GERZINA

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

        Defendant

        Case No. 2010-09809-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION


        {¶ 1} Plaintiff, Andrew Gerzina, filed this action against defendant, Department
of Transportation (ODOT), contending his 2005 Acura TL was damaged as a proximate
cause of negligence on the part of ODOT in maintaining a hazardous condition on US
Route 224 in Summit County. Plaintiff related the wheel on his car was damaged when
the vehicle “struck a large bump in the road surface.” Plaintiff further related “[t]his
irregularity in the road occurred 1/4 - 1/8 mile before SR 93” on US Route 224 East.
Plaintiff submitted photographs depicting the particular damage-causing roadway defect
as well as the approximate location of the defect shown by a mile marker sign,
Interstate 277 East 0/6. Plaintiff recalled his described damage incident occurred on
July 25, 2010 at approximately 2:30 a.m. In his complaint, plaintiff requested damages
in the amount of $682.22, the cost of a replacement part and related repair expense.
The filing fee was paid.
        {¶ 2} Defendant filed an investigation report requesting plaintiff’s claim be
dismissed due to the fact the City of Akron and not ODOT bears the maintenance
responsibility for the section of roadway where plaintiff’s incident occurred. In support of
the request to dismiss, ODOT stated, “the City of Akron, and not the defendant is
responsible for maintaining the roadway upon which plaintiff’s incident occurred, that
being eastbound SR 224/I-277 before SR 93, within the City of Akron.” Defendant
advised the maintenance responsibility for this section of roadway was delegated by
contractual agreement between ODOT and the City of Akron. Defendant related: “[o]n
November 6, 2009, the Ohio Department of Transportation entered into an Interstate
Lane Mile and Maintenance Agreement with the City of Akron for maintenance services.
I-277 is part of the Interstate Lane Mile and Maintenance Agreement and US 224
overlaps I-277 in the location of his incident (See Exhibit A and map).”
        {¶ 3} The contract between ODOT and Akron at Section 1.2 states, in pertinent
part:
        {¶ 4} “In the interest of public safety and convenience, it is the desire of the
parties hereto that the CITY shall perform contracted maintenance and repair of the
interstate highway system using its own labor forces, equipment and materials, or by
contracting for these items, with reimbursement from the STATE.”
        {¶ 5} Defendant asserted the contracted maintenance responsibility includes
correcting a bump in the roadway such as plaintiff’s vehicle struck on July 25, 2010.
Defendant contended “the City of Akron assumed the responsibility to maintain and
repair the interstate system within its corporate limits,” and consequently, the City of
Akron should be considered the proper party defendant in this action. The site of the
damage-causing incident was shown to be located within the City of Akron and shown
to be the maintenance responsibility of that political subdivision.
        {¶ 6} R.C. 2743.01(A) provides:
        {¶ 7} “(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.”
        {¶ 8} R.C. 2743.02(A)(1) states in pertinent part:
        {¶ 9} “(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.”
       {¶ 10} Ohio Revised Code Section 5501.31 in pertinent part states:
       {¶ 11} “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, but he may construct,
reconstruct, widen, resurface, maintain, and repair the same with or without the
cooperation of any municipal corporation, or with or without the cooperation of boards of
county commissioners upon each municipal corporation consenting thereto.”
       {¶ 12} The site of the damage-causing incident was not the maintenance
jurisdiction of defendant. Consequently, plaintiff’s case dismissed. See Sandu v. Ohio
Dept. of Transp., Ct. of Cl. No. 2008-02606-AD, 2008-Ohio-6858.




                                 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




ANDREW GERZINA

      Plaintiff

      v.
OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

        Defendant

         Case No. 2010-09809-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 above, plaintiff’s case is DISMISSED. The court shall absorb the court costs of this
case.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Andrew Gerzina                                    Jolene M. Molitoris, Director
238 17th St. NW                                   Department of Transportation
Canton, Ohio 44703                                1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
1/5
Filed 1/28/111
Sent to S.C. reporter 4/15/11
