[Cite as Elkus v. Ohio Dept. of Transp., 2010-Ohio-6551.]

                                       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




HELENE ELKUS

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-04327-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Helene Elkus, filed this complaint against defendant, Department
of Transportation (ODOT), alleging her 2002 Lexus SC430 was damaged on February
19, 2010 as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on State Route 4 in the Village of Woodlawn, Ohio. Specifically,
plaintiff noted two tires on her automobile were destroyed as a result of striking “a hole
in road so very deep had to be at least 14” deep if not more” in the traveled portion of
the roadway. Plaintiff filed this complaint seeking to recover damages in the amount of
$642.90, representing the cost of replacement parts, towing expense, and car rental
expense. The filing fee was paid.
        {¶ 2} Defendant filed an investigation report asserting the site on State Route 4
where plaintiff’s incident occurred “falls under the maintenance jurisdiction of the Village
of Woodlawn” and consequently, ODOT is not the proper party defendant in this action.
Defendant explained “[a]ny deep, full depth pavement problems are the responsibility of
the Village.” Defendant specifically denied assuming any maintenance responsibility for
the site where the roadway defect was located “between Riddle and CR 761 or
Glendale-Milford Road” in the Village of Woodlawn. Defendant requested the court
dismiss plaintiff’s claim.
       {¶ 3} Defendant submitted a copy of a 1992 Village of Woodlawn Ordinance
which outlines ODOT’s statutory responsibilities for roadway maintenance on State
Route 4 inside the village corporation limits. This Ordinance No. 24 states in pertinent
part that ODOT shall be required to provide “general maintenance of the travelled
roadway surfaces” of State Route 4. Furthermore, Ordinance No. 24 provides:
       {¶ 4} “WHEREAS, This ordinance shall in no manner relieve or discharge said
village from any claim or claims of any nature arising from, or growing out of the work by
the Department of Transportation of the State of Ohio on said highways in said village,
and said Village shall save the State of Ohio harmless from any and all such claims.”
       {¶ 5} Plaintiff advised that defendant should move to have the Village of
Woodlawn joined as a defendant in this action.
       {¶ 6} After reviewing all the evidence submitted in this action, the court
concludes ODOT is not the proper party defendant in this action.              Based on the
language of the Village of Woodlawn Ordinance No. 24 (referenced above), the Village
assumed responsibility for any claims arising from maintenance activity attributable to
ODOT.
       {¶ 7} R.C. 2743.01(A) and (B) provide:
       {¶ 8} “(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.
       {¶ 9} “(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 small than that of the state to which the
sovereign immunity of the state attaches.”
       {¶ 10} R.C. 2743.02(A)(1) states in pertinent part:
       {¶ 11} “(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 ***.”
        {¶ 12} Furthermore, R.C. 2743.03(A)(1) provides in pertinent part:
        {¶ 13} (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
***.”
        {¶ 14} Based on the facts of this claim, plaintiff’s action does not lie against the
state, but rather a political subdivision.       Consequently, the court does not have
jurisdiction over the matter presented 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




HELENE ELKUS

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

        Case No. 2010-04327-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, plaintiff’s claim is DISMISSED.
Court costs are assessed against plaintiff.
                                 ________________________________
                                 DANIEL R. BORCHERT
                                 Deputy Clerk

Entry cc:

Helene Elkus                     Jolene M. Molitoris, Director
191 Brocdorf Drive               Department of Transportation
Cincinnati, Ohio 45215           1980 West Broad Street
                                 Columbus, Ohio 43223
RDK/laa
8/12
Filed 9/15/10
Sent to S.C. reporter 12/29/10
