[Cite as Caruthers v. Univ. of Akron, 2009-Ohio-7149.]

                                      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




ROBERT TODD CARUTHERS

       Plaintiff

       v.

UNIVERSITY OF AKRON

       Defendant

        Case No. 2009-06141-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} Plaintiff, Robert T. Caruthers, filed this action against defendant,
University of Akron (Akron), contending his 2008 GMC Envoy was damaged by a
malfunctioning traffic gate arm while he was attempting to exit a parking lot on
defendant’s campus. Plaintiff recalled he was pulling out of Lot #70 at approximately
5:30 p.m. on June 18, 2009 and used his key card to operate the gate arm at the Lot
#70 exit. Plaintiff related when the gate arm raised, “I started to proceed and all of a
sudden the arm crashed down on the top of the drivers door.” On June 19, 2009,
plaintiff filed an “Accident Report” of the property damage incident with defendant’s
police department.          Plaintiff filed this complaint seeking to recover damages for
automotive repair and car rental expenses in the amount of $408.32.                      Plaintiff
acknowledged in his complaint that he carries insurance coverage for automotive
property damage with a $250.00 deductible provision. Pursuant to R.C. 2743.02(D) and
R.C. 3345.40(B)(2)1, plaintiff’s damage claim is limited to his insurance coverage

        1
            R.C. 2743.02(D) states:
Case No. 2006-03532-AD                               -2-                    MEMORANDUM DECISION

deductible. Plaintiff submitted the $25.00 filing fee and requested reimbursement of that
cost along with his damage claim.
        {¶ 2} Defendant denied liability in this matter based on the contention that no
Akron personnel had any knowledge of a malfunction traffic gate arm at Lot #70 prior to
plaintiff’s stated incident. Defendant denied the gate arm was not properly maintained
and asserted regular inspections are conducted to assure traffic gate arms at all Akron
parking lots operate properly.                Defendant explained the Akron Parking Services
Department, the entity responsible for maintenance and inspection of the traffic gate
arms at parking lots, tested the gate arms at Lot #70 with no resulting gate malfunctions
noted. Defendant stated the Parking Services Department “has had no previous reports
of the exit parking gates not operating properly.” Defendant argued plaintiff has failed to
produce evidence to establish his vehicle was damaged by a malfunctioning gate arm at
a parking lot exit under Akron maintenance responsibility.
        {¶ 3} Defendant submitted an affidavit from James Collinson, the Field Service
Supervisor of the Akron Parking Services Department. Collinson offered an explanation
of the operation of the parking lot exit gates at Lot #70 noting: “[t]he gates on this
parking lot are activated by touch plate cards that once made in contact with a panel (at
least 6 feet in front of the gate) raise the gate arm.” According to Collinson, the gates at
Lot #70 have sensors on the gate and the ground and “[t]he way the system is
configured, the gate arm should only come down when a vehicle has cleared the arm.”
Collinson related he “personally tested the gates” at Lot #70 after plaintiff’s reported


          “(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
apply under those circumstances.”
          R.C. 3345.40(B)(2) states in pertinent part:
          “If a plaintiff receives or is entitled to receive benefits for injuries or loss allegedly incurred from a
policy or policies of insurance or any other source, the benefits shall be disclosed to the court, and the
amount of benefits shall be deducted from any award against the state university or college recovered by
Case No. 2006-03532-AD                    -3-               MEMORANDUM DECISION

incident and “[a]t no time during my testing of the gate arm did it malfunction.” Collinson
further related his tests were conducted while driving a vehicle at varying rates of
speed. Collinson denied receiving any prior complaints about a malfunctioning gate
arm at Lot #70 and pointed out the lot is inspected for defects on “a regular basis.”
         {¶ 4} Plaintiff filed a response insisting his 2008 GMC Envoy received body
damage on June 18, 2009 from a malfunctioning gate arm located at the exit of a
parking lot maintained by defendant. Plaintiff reiterated he used his key card to activate
the gate arm, the arm then raised, and as he started to drive out of the parking lot the
gate descended striking his vehicle.
         {¶ 5} Plaintiff asserted two other individuals sustained damage to their vehicles
from malfunctioning gate arms at parking lot exists located on defendant’s premises.
Plaintiff submitted a letter dated September 23, 2009 signed by an individual identified
as Tom Doll who communicated with Jim Stafford, Akron Director of Parking Services.
In this letter Doll referred to the fact his vehicle was dented by a malfunctioning gate
arm seemingly at some parking lot operated by Akron.           Plaintiff maintained Doll’s
vehicular damage incident occurred at Lot #70.        Doll’s letter does not designate a
location, but does reference a conversation between Doll and Jim Stafford regarding a
gate not working. Plaintiff also submitted a copy of an incident report in which an Akron
Professor, identified as Lisa A. Lenhart, reported to the University of Akron Police
Department damage to her 2006 Hyundai Sonata from a malfunctioning traffic gate arm
at an Akron parking lot exit. The incident report filed July 17, 2009 lists the parking lot
location as 135 South Broadway, North Lot.          Plaintiff noted he spoke with Akron
employee Jim Stafford on September 30, 2009, and Stafford admitted there have been
incidents where traffic gate arms at defendant’s parking lots have malfunctioned.
Plaintiff asserted he was told by         Stafford that two other incidents regarding
malfunctioning gates were reported from June 18, 2009 to July 21, 2009.

the plaintiff.”
Case No. 2006-03532-AD                       -4-               MEMORANDUM DECISION

          {¶ 6} Plaintiff submitted photographs depicting the damage to his vehicle and
the traffic gate arm at Lot #70. The photographs of the gate arm show damage in the
form of scratches and gouges. The damage to plaintiff’s vehicle that is depicted is
consisted with damage resulting from the vehicle being struck with a malfunctioning
gate arm.
                                  CONCLUSIONS OF LAW
          {¶ 7} 1)      The traffic gate and the mechanism which governs it is under the
exclusive control of defendant. Thus, defendant will be liable for any malfunction which
causes damage. Han v. Traffic Department, Ohio State University (1981), 81-04575-
AD.
          {¶ 8} 2)      However, plaintiff has the burden of proving, by a preponderance of
the evidence, that the particular traffic gate malfunctioned during normal and intended
use. Saunders v. The Ohio State University (1993), 93-05245-AD. To make such a
showing, plaintiff must produce sufficient evidence or documentation to satisfy the trier
of fact. Saunders.
          {¶ 9} 3) After review of the plaintiff’s complaint, the defendant’s investigation
report and other evidence in the case file, the court makes the following determination.
The court concludes plaintiff has proven his vehicle was damaged by a malfunctioning
traffic    gate   arm   located   on   the   premises   of   the   defendant.   Consortium
Communications, Inc. v. Ohio Department of Youth Services (2002), 2002-01420-AD.
Therefore, defendant is liable to plaintiff for damages of $250.00, plus the $25.00 filing
fee, which may be reimbursed as compensable costs pursuant to R.C. 2335.19. See
Bailey v. Ohio Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19,
587 N.E. 2d 990.
Case No. 2006-03532-AD                  -5-               MEMORANDUM DECISION




                              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




ROBERT TODD CARUTHERS

      Plaintiff

      v.

UNIVERSITY OF AKRON

      Defendant

      Case No. 2009-06141-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 $275.00, which includes the filing fee. Court costs are
assessed against defendant.
Case No. 2006-03532-AD          -6-             MEMORANDUM DECISION


                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

Robert Todd Caruthers           M. Celeste Cook
1643 11th Street                Associate Vice President and
Cuyahoga Falls, Ohio 44221      Assistant General Counsel
                                302 Buchtel Mall
                                Akron, Ohio 44325-4706
RDK/laa
10/21
Filed 11/10/09
Sent to S.C. reporter 2/25/10
