[Cite as Dalesandro v. Ohio Dept. of Transp., 2010-Ohio-862.]

                                                        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




SUSAN DALESANDRO, et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant
       Case No. 2007-08368

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiffs, Susan Dalesandro, Joseph Conti, and Kingdom Properties, Inc.,
brought this action against defendant, Ohio Department of Transportation (ODOT),
alleging negligence. The case proceeded to trial on the issues of liability and damages.
        {¶ 2} According to Dalesandro and Conti, from 1999 until 2005 they were
shareholders in a business known as Kingdom Properties, Inc.                         As part of their
business, Dalesandro and Conti purchased, renovated, and resold houses for profit. In
November 2001, Kingdom Properties, Inc. bought the home and property located at
7652 Center Street in Mentor, Ohio. At the time, the house was not occupied and was
essentially uninhabitable. The house remained vacant for some time until Dalesandro
and Conti restored the home and Dalesandro moved into the house in March 2005.
Title to the property had been transferred from Kingdom Properties, Inc.1 to Dalesandro
in June 2004 and then in July 2005, both Dalesandro and Conti were listed as owners


        1
         In response to the downturn in the real estate market, Conti and Dalesandro closed the business
on the deed. (Plaintiffs’ Exhibits 3-4.)
           {¶ 3} Dalesandro testified that soon after she moved into the house she noticed
that there was a problem with the sanitary sewer such that waste water was backing up
into the basement. According to Dalesandro, after raw sewage began seeping into a
portion of the basement she immediately contacted Conti and together they began
attempting to discover the cause of the problem. According to Conti, he thought that the
pipe may have been clogged by construction dust and debris.
           {¶ 4} Dalesandro first contacted Paz Plumbing Company on April 16, 2005, to
clear the line. The work was performed on April 23, 2005, and is described as follows:
“Excavated dirt down to main sewer, cut in c/o [clean out] tee for snaking. Could not
clear line because pipe is collapsed 71' (approx.) from c/o tee.” (Plaintiffs’ Exhibit 21.)
Dalesandro next contacted Domenick Electric Sewer Cleaning Co., Inc. on April 26,
2005. According to the notes on the invoice, Dalesandro was informed that after “jetting
main sewer lines from c/o in front of house, got line to drain. * * * I think something is
broke just before the main ‘in the street.’” (Plaintiffs’ Exhibit 21C.) Dalesandro then
sought help from Lake County Sewer Co. on April 28, 2005, requesting “high pressure
water power sewer jetting and mini-cam of 6" sanitary lateral from test tee to main.”
(Plaintiffs’ Exhibit 21B.)     The notes on that invoice document that the equipment
“traveled 76' from c/o riser to main” and revealed a possible damaged pipe at that point.
(Plaintiffs’ Exhibit 21B.)
           {¶ 5} Dalesandro and Conti recalled that during this time period they also
notified the attorney for Kingdom Properties, Inc., Frank Manning, of the situation.
Dalesandro and Conti both acknowledged that they sought the assistance of counsel
specifically to determine the party or parties responsible for causing the damage to the
home.
           {¶ 6} It is undisputed that in 2002, the city of Mentor cooperated with ODOT on
a roadway construction project to widen State Route 615, also identified as Center
Street, from two to four lanes.       New    pavement and storm sewer lines were also
installed. Part of the work was performed on the roadway in front of plaintiffs’ property.
Dalesandro testified that she was aware of the project when it was in progress in that


in 2005.
she had driven by the area several times during such construction. Dalesandro testified
that, as a result of her research efforts, she learned that Great Lakes Construction
Company (Great Lakes) had been the general contractor for ODOT on the construction
project. She stated that she attempted to have Great Lakes resolve the problem with
the sewer line, but to no avail.
        {¶ 7} David Swiger, the engineer for the city of Mentor testified that ODOT hired
Great Lakes to construct the improvement and that ODOT was the “overseer.” He
estimated that the date of substantial completion was December 20, 2002. According to
Swiger, the city hired CT Consultants to design the project and then ODOT was in
charge of implementing construction through to completion. Swiger noted that other
than having the plans drafted, the city had no contractual involvement in the project.
Swiger recalled that the city designated a liaison to be on-site once a week or more
depending on the nature of complaints raised by residents.
        {¶ 8} According to Dalesandro, she contacted the city of Mentor in May 2005
and spoke with Robert Kovac who had been the project manager during the
construction in order to ascertain whether the city was responsible for the damage to
the sewer line. She acknowledged that she spoke with Kovac by telephone more than
once.
        {¶ 9} Kovac testified that he spoke with Dalesandro on May 17 and 18, 2005.
According to Kovac, Dalesandro communicated to him that she suspected that the
damage to the pipe had occurred during the road construction project.         Defendant
submitted a copy of the typed notations that Kovac made in reference to the telephone
conversations he had with Dalesandro. (Defendant’s Exhibit A.) Kovac testified that he
had instructed Dalesandro to have the pipe repaired and to make a claim against ODOT
for reimbursement. Kovac also stated that he provided Dalesandro with the name and
address of ODOT’s district manager, Ed Bais. (Defendant’s Exhibit A.)
        {¶ 10} Dalesandro confirmed that Kovac provided her with an ODOT contact
person, Ed Bais. Dalesandro testified that she placed a call to Bais in May 2005, but
that she never made contact with him. She testified that she also made several phone
calls to county agencies including the local health department in order to resolve the
matter. Dalesandro explained that within a few weeks of noticing the problem, she was
forced to relocate due to the overwhelming noxious odors as well as the unsanitary
conditions at the residence.             Conti testified that during the next several
months, he and Dalesandro were in contact with the county health department seeking
permission to place a temporary holding tank on the property in order to alleviate the
unsanitary conditions and to allow Dalesandro to return to the residence. According to
Conti, the request was denied.
      {¶ 11} On September 29, 2005, the supervisor of Liquid/Solid Waste & Water
Supply Programs for the Lake County General Health District, Laura Kramer Kuns, sent
a letter to Dalesandro stating that “[i]t is my understanding that you were not living in
your home during the [ODOT] road widening and storm sewer improvement project on
SR 615 that took place approximately two years ago. * * * I have been in contact with
ODOT to request them to access the construction inspection records for the project in
the vicinity of your house. Kevin King was the project manager on that construction
project * * *. Based upon the review of your inspection and service records, it appears
that your blockage and/or breakage of your sanitary lateral may be under the road
pavement.” (Plaintiffs’ Exhibit 16.) The district urged Dalesandro to hire an approved
sewer contractor to repair or replace the sanitary lateral and to contact the city of
Mentor if it became necessary to open the road in order to complete the repairs. A copy
of the letter was also sent to attorney Manning.      Dalesandro testified that in 2006
her financial burden became so great that she stopped making payments on the
mortgages inasmuch as she could not live in the house nor could she sell or rent out the
property due to the presence of raw sewage.              Both Conti and Dalesandro
acknowledged that there was a flood of historic proportions in the Mentor area in June
or July 2006 such that several feet of water flooded the basement, mixing with the raw
sewage and depositing such throughout the entire basement area.
      {¶ 12} In June 2006, the city of Mentor directed a crew to visualize the pipes
starting from the main line located under the street and advancing toward plaintiffs’
property. As a result of that inspection, Dalesandro was notified that the lateral pipe
was completely blocked approximately five feet from the main line and that the blockage
was located underneath an area of pavement on the expanded roadway. In October
2006, the city of Mentor excavated the area and confirmed that during the ODOT
project, a storm sewer had been installed such that it ran through and completely
blocked the lateral line from plaintiffs’ residence.
       {¶ 13} Plaintiffs assert that as a result of ODOT’s negligence, the backup of raw
sewage resulted in significant loss of value to the property.            The property was
foreclosed upon and eventually sold for a loss. Plaintiffs filed their complaint against
ODOT on October 30, 2007, alleging that the storm sewer was improperly installed such
that it transected their home’s lateral sanitary sewer pipe, completely blocking it.
Plaintiffs assert that at the time that ODOT performed the roadway improvements the
dwelling was unoccupied due to renovations which were in progress at the home. Thus,
plaintiffs argue that they were unaware that the sanitary sewer was damaged at the time
construction was ongoing. Indeed, plaintiffs maintain that they did not discover the true
nature of the negligent act until at the earliest either June or October 2006 and that, as
such, the complaint was filed well within the applicable statute of limitations.
       {¶ 14} At the close of plaintiff’s case, defendant moved the court for dismissal of
plaintiffs’ claims pursuant to Civ.R.41 (B)(2) for the following reasons: 1) plaintiffs failed
to file their complaint within the applicable statute of limitations; 2) plaintiffs failed to
establish that ODOT is liable for the negligence of an independent contractor; and 3)
Joseph Conti and Kingdom Properties, Inc. are not proper plaintiffs in this matter
inasmuch as they were not owners of the property at the time that the damage to the
home from raw sewage occurred. The court reserved ruling on defendant’s motion.
       {¶ 15} Defendant contends that the complaint was filed more than two years after
plaintiffs discovered the damage, and that, in addition, the complaint was filed more
than two years after Kovac informed Dalesandro in May 2005 of ODOT’s involvement in
the roadway construction.       Defendant contends that, at the latest, the statute of
limitations began to run once the Lake County Health District informed Dalesandro and
her counsel by letter dated September 29, 2005, to contact ODOT concerning any
damage that was caused during the road construction. Alternatively, defendant argues
that ODOT cannot be held liable for the negligent acts of an independent contractor.
       {¶ 16} R.C. 2743.16 (A), the statute of limitations for commencing actions in this
court, states as follows: “Subject to division (B) of this section, civil actions against the
state permitted by sections 2743.01 to 2743.20 of the Revised Code shall be
commenced no later than two years after the date of accrual of the cause of action or
within any shorter period that is applicable to similar suits between private parties.”
       {¶ 17} The Supreme Court of Ohio has explained that “[t]he rationale underlying
statutes of limitations is fourfold: to ensure fairness to defendant; to encourage prompt
prosecution of causes of action; to suppress stale and fraudulent claims; and to avoid
the inconvenience engendered by delay, specifically the difficulties of proof present in
older cases.” O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 88, citing Harig v.
Johns-Manville Products Corp. (1978), 284 Md. 70, 75.
       {¶ 18} The Tenth District Court of Appeals has discussed the application of R.C.
2743.16 (A) as follows: “[f]or cases involving property damage resulting from negligent
construction, unless damage is immediate, the cause of action does not accrue until
actual injury occurs or damage ensues.” Thompson v. Ohio Dept. of Transp. (Nov. 26,
1996), Franklin App. No. 96API04-497.
       {¶ 19} Generally, a cause of action accrues at the time the wrongful act is
committed. O’Stricker, supra, at 87. Under the discovery rule, the statute of limitations
begins to run when the plaintiff discovers or, through the exercise of reasonable
diligence, should have discovered a possible cause of action. Id. at 90. Ohio courts
have applied the discovery rule to cases involving latent property damage. See Laipply
v. Bates, 166 Ohio App.3d 132, 2006-Ohio-1766, ¶17.
       {¶ 20} As articulated by the Supreme Court in O’Stricker, supra, this “discovery
rule” is a “two-pronged rule requiring both prongs to be satisfied before the statute of
limitations begins to run. First, a plaintiff must know or reasonably should have known
that he has been injured; and second, a plaintiff must know or reasonably should have
known that his injury was proximately caused by conduct of the defendant. Upon actual
knowledge or reasonable cause shown to have knowledge of these factors imputed as
a matter of law, the limitation period * * * begins to run.” Barker v. A.H. Robins Co. (Jan.
17, 1985), Franklin App. No. 84AP-297. Thus, the trier of fact must determine the time
that “plaintiff knew or, by the exercise of reasonable diligence, should have known that
she had been injured by the conduct of defendant.” Id.
       {¶ 21} Upon review of the evidence submitted, the court finds that plaintiffs
discovered, or through the exercise of reasonable diligence should have discovered, the
damage to the residence on or before May 18, 2005, inasmuch as all three sewer
cleaning companies had informed plaintiffs that the pipe was damaged most likely at or
near the connection to the main sewer line; the city of Mentor’s project manager had
identified ODOT as the party who had administered the roadway construction project;
and Kovac had directed Dalesandro to contact ODOT. Indeed, Kovac testified, quite
credibly, that Dalesandro told him during their conversations that she already suspected
that the damage had been caused during the construction project.                   Dalesandro
acknowledged that she was provided with a contact person at ODOT and that she
placed a call to such person in May 2005 in order to resolve the problems with the
sanitary sewer.
       {¶ 22} In Rosendale v. Ohio Dept. of Transp., Franklin App. No. 08AP-378, 2008-
Ohio-4899, the Tenth District Court of Appeals found that plaintiff’s cause of action for
latent property damage accrued when he “was aware that his home may have been
damaged due to possible negligence of [ODOT] in connection with the construction
project near his home.” It is apparent that Dalesandro failed to follow up with ODOT,
despite the fact that she repeatedly spoke with local and county agents of the health
department and others employed with the city of Mentor. Even as late as September
29, 2005, plaintiff and her counsel were directed to contact ODOT for assistance.
Accordingly, the court finds that plaintiffs had until no later than May 18, 2007, to file
their complaint. For the foregoing reasons, the court finds that plaintiffs failed to timely
file their complaint and, accordingly, judgment shall be rendered in favor of defendant.
In light of this decision, defendant’s oral motion to dismiss is DENIED as moot.




                                               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




SUSAN DALESANDRO, et al.
        Plaintiffs

        v.

OHIO DEPARTMENT OF TRANSPORTATION

        Defendant
        Case No. 2007-08368

Judge Joseph T. Clark

JUDGMENT ENTRY




          This case was tried to the court on the issues of liability and damages. The court
has considered the evidence and, for the reasons set forth in the decision filed
concurrently herewith, judgment is rendered in favor of defendant. Court costs are
assessed against plaintiffs.      The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.



                                            _____________________________________
                                            JOSEPH T. CLARK
                                            Judge

cc:


Eric A. Walker                                 Mark A. Ziccarelli
Assistant Attorney General                     8754 Mentor Avenue
150 East Gay Street, 18th Floor                Mentor, Ohio 44060
Columbus, Ohio 43215-3130

SJM/cmd
Filed February 19, 2010
To S.C. reporter March 3, 2010
