[Cite as Fullmore v. Ohio Dept. of Transp., 2010-Ohio-6633.]

                                      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




DAVID W. FULLMORE

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2010-08021-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



                                         FINDINGS OF FACT
        {¶ 1} 1)       Plaintiff, David W. Fullmore, filed this action against defendant,
Department of Transportation (ODOT), alleging the tire on his 2000 Pontiac Grand Am
was damaged as a proximate cause of negligence on the part of ODOT in maintaining a
hazardous condition on the entrance ramp to Interstate 77 South at Wilbeth Road in
Summit County. Plaintiff related he turned left “toward the (Interstate 77) ramp and I hit
a big pot hole that blew the side of my passenger rear tire out.” Plaintiff recalled the
described incident occurred on May 23, 2010 at approximately 2:30 p.m.                       In his
complaint, plaintiff requested damages in the amount of $117.37, the total cost of a
replacement tire. The $25.00 filing fee was paid and plaintiff requested reimbursement
of that cost along with his damage claim.
        {¶ 2} 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 Interstate 77 where plaintiff’s incident occurred.               In
support of the request to dismiss, ODOT stated “[d]efendant’s investigation indicates
that the location of Plaintiff’s incident would be within the municipal boundary of the City
of Akron (See Exhibit A and Map).” ODOT further stated, “[a]s such this section of
roadway is not within the maintenance jurisdiction of the defendant.” Consequently,
defendant contended the City of Akron is the proper party defendant to plaintiff’s action.
The site of the damage-causing incident was located in the City of Akron.
       {¶ 3} 3)     Plaintiff did not respond.
                                  CONCLUSIONS OF LAW
       {¶ 4} 1)     R.C. 2743.01(A) provides:
       {¶ 5} “(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.”
       {¶ 6} 2)     R.C. 2743.02(A)(1) states in pertinent part:
       {¶ 7} “(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.”
       {¶ 8} 3)     R.C. 5501.31 in pertinent part states:
       {¶ 9} “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 . . .”
       {¶ 10} The site of the damage-causing incident was not the maintenance
jurisdiction of defendant. Consequently, plaintiff’s case 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




DAVID W. FULLMORE

      Plaintiff

      v.

OHIO DEPT. OF TRA.

      Defendant

          Case No. 2010-08021-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:

David W. Fullmore                                  Jolene M. Molitoris, Director
540 Princeton Avenue                               Department of Transportation
Barberton, Ohio 44203                              1980 West Broad Street
                                                   Columbus, Ohio 43223
RDK/laa
10/1
Filed 10/12/10
Sent to S.C. reporter 1/21/11
