Hardin v. Ohio Dept. of Transp. , 2010 Ohio 3224 ( 2010 )


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  • [Cite as Hardin v. Ohio Dept. of Transp., 
    2010-Ohio-3224
    .]
    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
    VINCENT HARDIN, et al.
    Plaintiffs
    v.
    OHIO DEPARTMENT OF TRANSPORTATION
    Defendant
    Case No. 2009-03258
    Judge Clark B. Weaver Sr.
    DECISION
    {¶ 1} On April 19, 2010, defendant filed a motion for summary judgment
    pursuant to Civ.R. 56. Plaintiffs did not respond to the motion. On May 21, 2010, the
    court conducted an oral hearing on the motion. Defendant was present and prepared to
    proceed; however; plaintiffs failed to appear.1
    {¶ 2} Civ.R. 56(C) states, in part, as follows:
    {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
    depositions, answers to interrogatories, written admissions, affidavits, transcripts of
    evidence, and written stipulations of fact, if any, timely filed in the action, show that
    there is no genuine issue as to any material fact and that the moving party is entitled to
    judgment as a matter of law. No evidence or stipulation may be considered except as
    stated in this rule. A summary judgment shall not be rendered unless it appears from
    the evidence or stipulation, and only from the evidence or stipulation, that reasonable
    1
    By way of entries dated March 30, 2010, and May 17, 2010, plaintiffs were advised that further
    failure to participate in scheduled proceedings could result in dismissal of this action pursuant to Civ.R.
    41(B)(1). However, in the interests of justice, the court will address defendant’s motion for summary
    judgment.
    minds can come to but one conclusion and that conclusion is adverse to the party
    against whom the motion for summary judgment is made, that party being entitled to
    have the evidence or stipulation construed most strongly in the party’s favor.” See also
    Gilbert v. Summit County, 
    104 Ohio St.3d 660
    , 
    2004-Ohio-7108
    , citing Temple v. Wean
    United, Inc. (1977), 
    50 Ohio St.2d 317
    .
    {¶ 4} Plaintiffs filed this action alleging that defendant, the Ohio Department of
    Transportation (ODOT), negligently constructed both a retaining wall and drainage ditch
    in connection with a 1999 roadway-widening project on State Route 126 adjacent to
    their home. Plaintiffs assert that the drainage system has not adequately carried water
    away from their property, causing rain water to settle in their backyard and flow into their
    basement. They state that, “for years” their backyard has been increasingly saturated
    with rain water to the point that it has flooded their basement and caused extensive
    damage to the foundation of their home.         Plaintiffs are seeking compensation for
    foundation repair which they allege is necessary as a result of defendant’s negligence.
    {¶ 5} Defendant contends that the ODOT construction work was not the cause
    of the water run-off onto plaintiffs’ property in that the project did not alter the then-
    existing drainage pattern of water. In the alternative, defendant argues that plaintiff’s
    complaint is barred by the statute of limitations. However, inasmuch as defendant did
    not raise the statute of limitations as an affirmative defense in its answer, it cannot be
    asserted for the first time in a motion for summary judgment. Marok v. The Ohio State
    University, Franklin App. No. 07AP-921, 
    2008-Ohio-3170
    .
    {¶ 6} In support of its motion, defendant submitted the affidavit of William R.
    Davis wherein he states:
    {¶ 7} “1)    I am employed by the Ohio Department of Transportation (‘ODOT’)
    as a District 8 Roadway Services Engineer;
    {¶ 8} “2)    I have personal knowledge and I am competent to testify to the facts
    contained in this Affidavit;
    {¶ 9} “3)    I have personal knowledge based on information contained in
    business records for the project at issue. These business records have been maintained
    and kept by ODOT in the usual course of its business, and I have access to these
    records.
    {¶ 10} “4)   The project at issue in this case * * * widened the shoulders along the
    roadway to provide adequate space for disabled vehicles to pull off of the highway, out
    of moving traffic on SR 126.
    {¶ 11} “5)   The [plaintiffs’] property is adjacent to the entrance ramp from Ridge
    Rd. to eastbound SR 126.
    {¶ 12} “6)   The project, in addition to widening the ramp shoulder, also
    lengthened the acceleration lane from this ramp to SR 126.
    {¶ 13} “7)   This longer acceleration lane also required a small amount of
    widening to the existing roadway.
    {¶ 14} “8)   The [plaintiffs’] house sits elevated in relation to SR 126. Because of
    this, a small retaining wall was constructed to minimize the impact of the roadway
    widening to the adjacent properties. The retaining wall also includes a concrete gutter
    on the resident’s side to function as a drainage ditch behind the wall.
    {¶ 15} “9)   The new retaining wall/concrete gutter moved the roadway drainage
    ditch approximately 10 feet closer to the plaintiff than prior to the construction project.
    {¶ 16} “10) This relocated ditch line is still well below the elevation of the
    [plaintiffs’] property, and did not alter the drainage patterns of the [plaintiffs’] property
    that existed prior to construction. Surface runoff still flows away from the [plaintiffs’]
    property, downhill towards the highway.
    {¶ 17} “11) Also shown in the cross sections, is that the highway widening in the
    vicinity of the plaintiff was minimal in regards to how much of the existing hillside
    adjacent to the highway was removed. As stated earlier, the retaining wall minimized
    this aspect.”
    {¶ 18} Upon review, and construing the evidence most strongly in plaintiffs’ favor,
    the court finds that the only reasonable conclusion to be drawn from the unrebutted
    affidavit testimony is that ODOT’s roadway widening project was not the proximate
    cause of the water accumulation and foundation damage on plaintiffs’ property.
    {¶ 19} Moreover, Civ.R. 56(E) provides in pertinent part:
    {¶ 20} “When a motion for summary judgment is made and supported as
    provided in this rule, an adverse party may not rest upon the mere allegations or denials
    of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided
    in this rule, must set forth specific facts showing that there is a genuine issue for trial. If
    the party does not so respond, summary judgment, if appropriate, shall be entered
    against the party.”
    {¶ 21} The court finds that there is no genuine issue as to any material fact and
    that defendant is entitled to judgment as a matter of law.         Defendant’s motion for
    summary judgment shall be granted and judgment shall be rendered in favor of
    defendant.   Defendant’s April 21, 2010 motion to extend the discovery deadline 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
    VINCENT HARDIN, et al.
    Plaintiffs
    v.
    OHIO DEPARTMENT OF TRANSPORTATION
    Defendant
    Case No. 2009-03258
    Judge Clark B. Weaver Sr.
    JUDGMENT ENTRY
    An oral hearing was conducted in this case upon defendant’s motion for
    summary judgment.       For the reasons set forth in the decision filed concurrently
    herewith, defendant’s motion for summary judgment is GRANTED and 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.
    _____________________________________
    CLARK B. WEAVER SR.
    Judge
    cc:
    John P. Reichley                    Teresa Hardin
    Kristin S. Boggs                    Vincent Hardin
    Assistant Attorneys General         3200 Patrisal Court
    150 East Gay Street, 18th Floor     Cincinnati, Ohio 45236
    Columbus, Ohio 43215-3130
    LH/cmd
    Filed June 10, 2010
    To S.C. reporter July 7, 2010
    

Document Info

Docket Number: 2009-03258

Citation Numbers: 2010 Ohio 3224

Judges: Weaver

Filed Date: 6/10/2010

Precedential Status: Precedential

Modified Date: 10/30/2014