Opinion
Case No. 2019-00848AD
01-15-2020
RONALD KAPP Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION, et al. Defendants
MEMORANDUM DECISION
{¶1} Ronald Kapp ("plaintiff") has filed a complaint against defendant, Ohio Department of Transportation ("ODOT"). On ODOT's motion, the court ordered the addition of the Office of Risk Management as a defendant in this matter.
{¶2} Plaintiff asserts that on July 17, 2019, at about 1:30 p.m., an ODOT mower was mowing on the east side of State Route ("SR") 141 and the mower allegedly threw a piece of rebar into the roadway. When plaintiff's wife passed a warning truck, plaintiff's 2010 Chevrolet Silverado ran over the rebar. According to plaintiff, the rebar punctured the vehicle's right front tire. Before plaintiff's wife could stop the vehicle, the tire made several rotations with the rebar hitting the vehicle's fender, bumper, door, and step running board. Plaintiff seeks $2,075.74 in damages. Plaintiff asserts that he has insurance coverage for the damage or loss, that the insurance policy has a $250.00 deductible provision, and that he has not received any insurance payment. Plaintiff supports his claim with documentation, including an estimate in the amount of $2,075.74 for the repair of a front bumper, front door, and the replacement a tire.
{¶3} In order to recover on a claim for roadway damages against ODOT, Ohio law requires that a motorist/plaintiff prove all of the following:
{¶4} That the plaintiff's motor vehicle received damages as a result of coming into contact with a dangerous condition on a road maintained by ODOT.
{¶5} That ODOT knew or should have known about the dangerous road condition.
{¶6} That ODOT, armed with this knowledge, failed to repair or remedy the dangerous condition in a reasonable time.
{¶7} In this claim, the court finds that the plaintiff did prove that his vehicle received damages and that those damages occurred as a result of the plaintiff's vehicle coming into contact with a dangerous condition on a road maintained by ODOT.
{¶8} ODOT has filed an Investigation Report wherein ODOT contends that its investigation indicates that plaintiff's incident occurred on SR 141 at mile marker 9.0 in Gallia County. ODOT concedes that it did have a mower that was mowing in the area, but, according to ODOT, no evidence has been provided that the rebar came from the mower or was propelled by the mower. ODOT maintains that its investigation revealed that within the six months that preceded plaintiff's incident, ODOT had no notice of "debris/rebar" on SR 141 in the area of plaintiff's incident. ODOT reasons that, because ODOT did not have notice of the debris, ODOT "has no way of knowing or determining exactly how long the rebar existed prior to Plaintiff's incident." ODOT maintains that plaintiff has failed to introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not the conduct of ODOT was the cause of plaintiff's incident.
{¶9} Plaintiff did not file a response to ODOT's Investigation Report.
{¶10} Plaintiff's claim sounds in negligence. To establish a cause of action for negligence, a plaintiff "must show (1) the existence of a duty, (2) a breach of duty, and (3) an injury proximately resulting therefrom." Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 8, citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707 (1984). Because this action is civil in nature, plaintiff is required to establish his claim by a preponderance of the evidence. See Weishaar v. Strimbu, 76 Ohio App.3d 276, 282, 601 N.E.2d 587 (8th Dist.1991).
{¶11} Although ODOT is not an insurer of the safety of its highways, ODOT has a duty to maintain its highways in a reasonably safe condition for the motoring public. Knickel v. Ohio Department of Transportation, 49 Ohio App.2d 335, 339, 361 N.E.2d 486 (10th Dist. 1976). Therefore, on the date of plaintiff's incident, ODOT had a duty to maintain SR 141 in a reasonably safe condition for plaintiff's wife and other members of the motoring public.
{¶12} On the trial of a case—either civil or criminal—"the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230, 272 N.E.2d 212, paragraph one of the syllabus. Thus, the court, as the trier of the facts, "may believe or disbelieve any witness or accept part of what a witness says and reject the rest." State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The court finds that plaintiff's claim that a piece of rebar was propelled by an ODOT mower into the roadway, to be credible and that the damage sustained by plaintiff's vehicle proximately resulted from the rebar in the roadway.
{¶13} Notably, in Gore v. Ohio Dept. of Transp., 119 Ohio Misc.2d 138, 2002-Ohio-4263, 774 N.E.2d 817—a case where an independent contractor hired by ODOT to mow grass in a median "kicked up" rubber that shattered a limousine's window and injured an occupant in the limousine—this court concluded "that mowing grass in a median is not an inherently dangerous activity and that, as a matter of law, such activity does create a peculiar risk of harm to others." Gore at ¶ 9. However, the court did state: "Removing debris from the mower's path is a routine precaution, which any careful contractor could be expected to take in the exercise of ordinary care." Gore at ¶ 11. Similarly, in this instance, the removal of debris from a mower's path is routine precaution that ODOT could be expected to take in the exercise of ordinary care when it, through its employees, mows grass along state roadways.
{¶14} The court holds that plaintiff has shown by a preponderance of the evidence the existence of a duty by ODOT, a breach of that duty by ODOT, and injury proximately resulting from the breach of the duty.
{¶15} Pursuant to R.C. 2743.02(D), recoveries against the state "shall be reduced by the aggregate of insurance proceeds, disability award, or other collateral recovery received by the claimant." Plaintiff has represented that he has not received any payment from his insurer for the incident and that his policy does have a $250.00 deductible provision. In support of plaintiff's claim of damages of $2,075.74, the estimate submitted by plaintiff shows that the amount of $2,075.74 is to be paid by insurance.
{¶16} The Ohio Supreme Court in Community Insurance Company v. Ohio Dept. of Transportation, 92 Ohio St.3d 376, 378-379, 2001-Ohio-208, 750 N.E.2d 573 stated:
"We have previously recognized that the state's purpose in waiving political subdivision immunity was twofold: to compensate uninsured victims while also preserving public resources. The 'state can make the rational determination to permit recovery by an unprotected victim by deny subrogation to insurance carriers who can make actuarial computations and adjust premiums to compensate for payments to policyholders who suffer damage at the hands of a political subdivision.' Menefee v. Queen City Metro, 49 Ohio St.3d 27, 29, 550 N.E.2d 181, 183 (1990).
"Even if it were appropriate in this case to inquire into legislative intent to resolve a statutory ambiguity, we find no support for concluding that the General Assembly intended that subrogation claims against the state should be treated differently from subrogation claims against political subdivisions. Nor do we believe that R.C. 2743.02(D) was intended to operate in such a way as to shift financial risk to the state and away from insurers, such as Community.
"We therefore hold that an insurer who has been granted a right of subrogation
by a person on whose behalf the insurer has paid medical expenses incurred as the result of tortious conduct of the state is subject to R.C. 2743.02(D), which mandates reduction in recoveries against the state by the 'aggregate of insurance proceeds, disability award, or other collateral recovery received by the claimant.'"
{¶17} Accordingly, an insurance carrier cannot be reimbursed for money paid to its insured. The court therefore finds that plaintiff is entitled to the insurance deductible amount of $250.00, plus the amount of the filing fee of $25.00 which may be reimbursed as compensable damages pursuant to the holding in Bailey v. Ohio Department of Rehabilitation and Correction, 62 Ohio Misc.2d 19, 587 N.E.2d 990 (Ct. of Cl. 1990).
{¶18} Accordingly, judgment is rendered in favor of plaintiff in the amount of $275.00. RONALD KAPP Plaintiff
v. OHIO DEPARTMENT OF TRANSPORTATION, et al. Defendants Case No. 2019-00848AD Deputy Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶19} 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 equally against defendants.
/s/_________
DANIEL R. BORCHERT
Deputy Clerk Filed 1/15/20
Sent to S.C. reporter 3/4/20