Alessio v. Ohio Dept. of Transp.
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[Cite as Alessio v. Ohio Dept. of Transp., 2005-Ohio-2888.] IN THE COURT OF CLAIMS OF OHIO MARK PHILLIP ALESSIO : Plaintiff : v. : CASE NO. 2005-02362-AD : MEMORANDUM DECISION OHIO DEPARTMENT OF TRANSPORTATION : Defendant : : : : : : : : : : : : : : : : : FINDINGS OF FACT {¶ 1} 1) On September 4, 2004, or September 3, 2004, or September 7, 2004, plaintiff, Mark Phillip Alessio, was exiting US Route 20 west, at the Oberlin exit in Lorain County, when his automobile struck a pothole on the exit ramp causing substantial damage to the vehicle. {¶ 2} 2) Plaintiff filed this complaint seeking to recover $789.48 for automotive repair costs, filing fees, and other expenses which plaintiff contends he incurred as a result of negligence on the part of defendant, Department of Transportation, in maintaining the roadway. {¶ 3} 3) Submitted photographs of the roadway defect which damaged plaintiff s car depict a deteriorated area well off the traveled portion of the roadway. Additionally, a hand drawn diagram on the crash report of plaintiff s property damage incident clearly shows the pothole defect located off the traveled portion of the US 20 off ramp. CONCLUSIONS OF LAW {¶ 4} 1) This court has previously held that the Department of IN THE COURT OF CLAIMS OF OHIO MARK PHILLIP ALESSIO : Plaintiff : v. : : OHIO DEPARTMENT OF TRANSPORTATION CASE NO. 2005-02362-AD ENTRY OF ADMINISTRATIVE DETERMINATION : Defendant ::::::::::::::::: 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. are assessed against plaintiff. Court costs The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk Transportation is not to be held liable for damages sustained by individuals who used the berm or shoulder of a highway for travel without adequate reasons. Colagrossi v. Department of Transportation (1983), 82-06474-AD. {¶ 5} 2) The shoulder of a highway is designed to serve a purpose which may include travel under emergency circumstances. It is for the trier of fact to determine whether driving on the shoulder is a foreseeable and reasonable use of the shoulder of the highway. Dickerhoff v. City of Canton (1983), 6 Ohio St. 3d 128. In the case at bar, plaintiff has offered no reasonable explanation IN THE COURT OF CLAIMS OF OHIO MARK PHILLIP ALESSIO Plaintiff : : v. : : OHIO DEPARTMENT OF TRANSPORTATION CASE NO. 2005-02362-AD ENTRY OF ADMINISTRATIVE DETERMINATION : Defendant ::::::::::::::::: 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. are assessed against plaintiff. Court costs The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk or excuse for using the berm of the highway. {¶ 6} 3) Plaintiff, in the instant case, has shown no adequate reason for the driver s action of driving on the berm of the highway, consequently, based on the rationale of Colagrossi, supra, this case is denied. If a plaintiff sustains damage because of a defect located off the marked, regularly traveled portion of a roadway, a necessity for leaving the roadway must be shown. v. Jackson (1977), 75-0612-AD. Inadvertent travel Lawson based on inattention is not an adequate reason or necessity for straying from the regularly traveled portion of the roadway. Smith v. Ohio IN THE COURT OF CLAIMS OF OHIO MARK PHILLIP ALESSIO Plaintiff : : v. : : OHIO DEPARTMENT OF TRANSPORTATION CASE NO. 2005-02362-AD ENTRY OF ADMINISTRATIVE DETERMINATION : Defendant ::::::::::::::::: 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. are assessed against plaintiff. Court costs The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal. ________________________________ DANIEL R. BORCHERT Deputy Clerk Department of Transportation (2000), 2000-05151-AD.
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