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Mentzer v. Ohio Department of Transportation

Court of Claims of Ohio

November 8, 2017

MARK MENTZER, et al. Plaintiffs
v.
OHIO DEPARTMENT OF TRANSPORTATION Defendant ANDMARK MENTZER, et al. Plaintiffs
v.
CITY OF CLEVELAND Defendant/Third-Party Plaintiff and OHIO DEPARTMENT OF TRANSPORTATION Third-Party Defendant

          Sent to S.C. Reporter 12/12/17

          Eric A. Walker Timothy M. Miller Assistant Attorneys General.

          ROBERT VAN SCHOYCK MAGISTRATE JUDGE.

          DECISION

          PATRICK M. MCGRATH JUDGE.

         {¶1} In these consolidated cases, it is undisputed that on February 7, 2014, plaintiff, Mark Mentzer (Mentzer), was injured by a metal object that fell through the windshield of his vehicle as he drove along Interstate Route 90 (I-90) in the City of Rocky River. The parties agree that the accident occurred on a section of I-90 that passes below a bridge known as the Valley View Bridge, and that attached to the underside of the bridge was a water main spanning from end to end. There is no dispute that the water main belonged to the City of Cleveland and that the metal object that injured Mentzer appears, at least possibly, to be a broken segment of a coupling device that joined together two water main pipes.

         {¶2} The procedural history of the litigation began on February 3, 2016, when Mentzer and his wife, Jennifer Mentzer, filed a complaint against both the City of Cleveland and the City of Rocky River in Cuyahoga County Common Pleas Court Case No. CV-16-858423. One day later, on February 4, 2016, the Mentzers filed a complaint against the Ohio Department of Transportation (ODOT) in Court of Claims Case No. 2016-00082.

         {¶3} In the Cuyahoga County proceedings, the City of Rocky River subsequently filed a third-party claim against ODOT for contribution and indemnity, thereby invoking the jurisdiction of the Court of Claims. The Cuyahoga County proceedings were thereafter removed to the Court of Claims pursuant to R.C. 2743.03(E)(1) and identified as Court of Claims Case No. 2016-00320-PR. On June 28, 2016, Court of Claims Case Nos. 2016-00082 and 2016-00320-PR were consolidated for purposes of trial.

         {¶4} On October 18, 2016, the Mentzers voluntarily dismissed the claims against the City of Rocky River in Case No. 2016-00320-PR pursuant to Civ.R. 41(A)(1)(a), which rendered moot the third-party complaint that the City of Rocky River had filed against ODOT in that case. However, on January 24, 2017, the City of Cleveland filed its own third-party complaint against ODOT in Case No. 2016-00320-PR for contribution and indemnity.

         {¶5} On August 15, 2017, ODOT filed a motion for summary judgment pursuant to Civ.R. 56(B) as to the claims asserted by the Mentzers in Case No. 2016-00082. The Mentzers did not file a response.

         {¶6} On August 16, 2017, the City of Cleveland filed a motion for summary judgment pursuant to Civ.R. 56(B) as to the claims asserted by the Mentzers in Case No. 2016-00320-PR. On August 31, 2017, the Mentzers filed a memorandum in opposition. On September 7, 2017, the City of Cleveland filed a motion under L.C.C.R. 4(C) for leave to file a reply, instanter, to which the Mentzers filed a memorandum in opposition on September 11, 2017. Upon review, the motion for leave is DENIED.

         {¶7} On August 15, 2017, ODOT filed a motion for summary judgment pursuant to Civ.R. 56(B) as to the third-party claim filed by the City of Cleveland in Case No. 2016-00320-PR. On August 29, 2017, the City of Cleveland filed a memorandum in opposition.

         {¶8} Additionally, on August 22, 2017, the City of Cleveland filed a motion to take judicial notice, pursuant to Evid.R. 201, of the ODOT Manual of Bridge Inspection. The motion was not opposed and is hereby GRANTED.

         {¶9} The motions for summary judgment are now before the court for a non-oral hearing pursuant to L.C.C.R. 4(D).

         {¶10} Civ.R. 56(C) states, ...


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