Opinion
2020-00332AD
09-10-2020
MARY GRIMM Plaintiff v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Sent to S.C. Reporter 10/21/21
MEMORANDUM DECISION
{¶1} Mary Grimm ("plaintiff”) filed this claim against the Ohio Department of Transportation ("ODOT"), to recover damages which occurred when her 2011 Nissan Juke struck a chunk of concrete on May 17, 2020, while she was traveling on State Route ("SR") 7 in Belmont County, Ohio. Plaintiff states that she damaged two tires in the accident but that all four tires had to be replaced for safety reasons because her car is all-wheel drive vehicle. This road is a public road maintained by ODOT. Plaintiffs vehicle sustained damages in the amount of $523.00, including replacement of all four tires, one rim, and towing expenses. Plaintiff submitted the $25.00 filing fee.
{¶2} ODOT submitted an Investigation Report and Motion to reduce prayer amount stating that it is willing to settle this claim for the cost of two tires and one rim but that it is not willing to pay for the other two tires and the towing expenses.
{¶3} Plaintiff filed a response to defendant's Investigation Report stating that her vehicle would not steer or drive right if she did not replace all four tires.
{¶4} ODOT has admitted liability for the damages caused to plaintiff's vehicle. Billups v. Department of Rehabilitation and Correction, 2000-10634-AD, jud. (2001). While defendant denies liability for the towing expenses, this court has found towing expenses to be a compensable expense. Chandler v. Ohio Department of Transportation, Ct. of Cl. No. 2011-09471-AD, 2011-Ohio-1024; Boiano v. Ohio Department of Transportation, Ct. of Cl. No. 2010-02880-AD, 2010-Ohio-4791; and Foster v. Ohio Department of Transportation, Ct. of Cl. No. 2010-05374-AD, 2010-Ohio-4798.
{¶5} Damage assessment is a matter within the function of the trier of fact. Litchfield v. Morris (1985), 25 Ohio App.3d 42, 25 OBR 115, 495 N.E.2d 462. Reasonable certainty as to the amount of damages is required, which is that degree of certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement Sys. Of Ohio (1995), 102 Ohio App.3d 782, 658 N.E.2d 31. Further, the credibility of witnesses and the weight attributable to their testimony are primarily matters for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all or any part of each witness's testimony State v. Antill, 176 Ohio St. 61, 197 N.E.2d 548 (1964). The court finds plaintiffs statements regarding the necessity of replacing all four tires persuasive. See Miller v. Ohio Department of Transportation, 2014-00894AD (2015).
{¶6} Therefore, judgment is rendered in favor of plaintiff in the amount of $523.00, plus $25.00 for reimbursement of the filing fee 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).
ENTRY OF ADMINISTRATIVE DETERMINATION
{¶7} 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 the plaintiff in the amount of $548.00, which includes reimbursement of the $25.00 filing fee. Court costs are assessed against defendant.