[Cite as Hulec v. Ohio Dept. of Transp., Dist. 4, 2010-Ohio-4215.]

                                       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




RICHARD F. HULEC

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 4

        Defendant

        Case No. 2009-06150-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} Plaintiff, Richard F. Hulec, filed this complaint against defendant,
Department of Transportation (ODOT), alleging a 2007 Hyundai Sonata he was driving
was damaged on June 1, 2009 as a proximate cause of negligence on the part of
ODOT in maintaining a hazardous condition on State Route 8 in the Village of
Northfield, Ohio. In his complaint, plaintiff described the particular damage incident
noting: “I was driving north on State Route 8 (Northfield Road) in the curb lane when an
animal darted across the road, causing me to steer to the right. The tires on my 2007
Hyundai Sonata rubbed the curb, but due to a storm sewer sticking out approx. eight (8)
inches from the curb, my tires and wheels struck the sharp steel.” The contact with the
storm sewer cover caused tire and wheel damage to plaintiff’s vehicle.                    After the
damage incident, plaintiff filed a “Traffic Crash Report” (copy submitted) on June 2,
2009 with the Village of Northfield Police Department.               According to information
contained in the “Traffic Crash Report,” the damage event occurred at approximately
4:00 p.m. on a straight dry section of roadway as the plaintiff was traveling about 25
mph. Plaintiff filed this complaint seeking to recover damages in the amount of $811.48
representing the total cost of replacement parts and related repair expenses plaintiff
incurred as a result of the 2007 Hyundai Sonata striking “this misaligned sewer” on
State Route 8. The $25.00 filing fee was paid and plaintiff requested reimbursement of
that cost along with his damage claim.
          {¶ 2} Defendant filed an investigation report asserting the site on State Route 8
where plaintiff’s incident occurred “falls under the maintenance jurisdiction of the Village
of Northfield” and consequently, ODOT is not a proper party defendant in this action.
Defendant explained ODOT “only has maintenance responsibilities on the traveled
portion of the road (on State Route 8 within the Village of Northfield), longitudinal
striping, snow and ice removal and installing and maintaining regulatory and warning
signs.”     Defendant specifically denied the storm sewer plaintiff’s vehicle struck was
located on a portion of roadway under the maintenance jurisdiction of ODOT.
Consequently, defendant requested the court dismiss plaintiff’s claim.
          {¶ 3} Defendant submitted a copy of a 1968 Village of Northfield Ordinance
which outlines ODOT’s statutory responsibilities for roadway maintenance on State
Route 8 inside the village corporation limits. This Ordinance No. 1968-83 states in
pertinent part that ODOT shall be required to provide “general maintenance of the
travelled roadway surfaces of the State Highways.” Furthermore, Ordinance No. 1968-
83 provides:
          {¶ 4} “WHEREAS. This ordinance shall in no manner relieve or discharge the
said village from any claim or claims of any nature arising from, or growing out of the
maintenance by the Department of Highways of the State of Ohio of said highways in
said village, and the said village shall save the State of Ohio harmless from any and all
such claims.”
          {¶ 5} Also, Ordinance No. 1968-83 specifically states:
          {¶ 6} “Said village shall save the Department of Highways of the State of Ohio
and the State of Ohio from any and all claims of any nature arising from or growing out
of the maintenance of the highways within said village as aforesaid.”
          {¶ 7} Defendant submitted a photograph depicting the roadway site of State
Route 8 where plaintiff’s described incident occurred. The photograph is undated, The
photograph shows the curb, storm sewer and portion of the roadway of State Route 8
with the focus directed on the storm sewer. From a review of the photograph, it appears
the top of the storm sewer is angled from the curb area with one side of the top of the
sewer protruding from the curbed area perhaps a maximum of two inches. Plaintiff also
submitted multiple photographs (taken June 2, 2009), depicting the storm sewer on the
curb area of State Route 8. From a review of these photographs, it appears to the trier
of fact that the top of the storm sewer protrudes a maximum of two inches from the
curbed area on State Route 8.               Defendant contended, “the Village of Northfield is
responsible for the maintenance of the roadway upon which plaintiff’s incident
occurred.” Defendant based this position on the fact that the damage-causing storm
sewer was located off the traveled portion of State Route 8 and was therefore the
maintenance responsibility of the Village of Northfield and not the statutory1
maintenance responsibility of ODOT.
        {¶ 8} Plaintiff filed a response document insisting the top of the storm sewer
was protruding “at least eight (8) inches” onto the traveled portion of State Route 8 at
the time the vehicle he was driving struck the storm sewer. The trier of fact finds, from
reviewing the photographs submitted, that the storm sewer was protruding
approximately no more than two inches from the curbed area off the traveled portion of
the roadway.         Plaintiff suggested defendant created the protruding storm sewer
condition while conducting snow removal activities on State Route 8 presumedly during
the winter months of 2008-2009. Plaintiff related, “ODOT snow plows are likely to have
caught the sewer while hugging the curb of the highway.” Plaintiff did not submit any
evidence to substantiate his allegation that ODOT snow removal operations caused the
storm sewer “to have been pushed out of alignment.” Plaintiff referenced the Village of
Northfield Ordinance NO. 1968-83, particularly the language stating:
        {¶ 9} “Said Village shall save the Department of Highways of the State of Ohio
and the State of Ohio from any and all claims of any nature arising from or growing out
of the maintenance of the highways within said Village as aforesaid.” (Emphasis added
by plaintiff.)
        {¶ 10} Plaintiff advised that defendant should move to have the Village of


        1
           R.C. 5521.01 provides in pertinent part:
         “The director of transportation, upon the request by and the approval of the legislative authority of
a village, shall maintain, repair, and apply standard longitudinal pavement marking lines as the director
considers appropriate, or may establish, construct, reconstruct, improve, or widen any section of a state
highway within the limits of a village.”
Northfield joined as a defendant in this action.
        {¶ 11} 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 Northfield Ordinance No. 1968-83 (referenced above), the
Village assumed responsibility for any claims arising from maintenance activity
attributable to ODOT.
        {¶ 12} R.C. 2743.01(A) and (B) provide:
        {¶ 13} “(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.
        {¶ 14} “(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.”
        {¶ 15} R.C. 2743.02(A)(1) states in pertinent part:
        {¶ 16} “(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 ***.”
        {¶ 17} Furthermore, R.C. 2743.03(A)(1) provides in pertinent part:
        {¶ 18} (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
***.”
        {¶ 19} 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




RICHARD F. HULEC

        Plaintiff

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant

         Case No. 2009-06150-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 defendant. Court costs are assessed against plaintiff.



                                                  ________________________________
                                                  DANIEL R. BORCHERT
                                                  Deputy Clerk

Entry cc:

Richard F. Hulec                                  Jolene M. Molitoris, Director
11198 Valley View Road                            Department of Transportation
Sagamore Hills, Ohio 44067                        1980 West Broad Street
                                                  Columbus, Ohio 43223
RDK/laa
4/14
Filed 5/5/10
Sent to S.C. reporter 9/2/10
