JEFFREY S. CLEGG Plaintiff
OHIO DEPARTMENT OF TRANSPORTATION Defendant
to S.C. Reporter 12/17/19
SHEETS MAGISTRATE JUDGE
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY
PATRICK M. MCGRATH JUDGE
On August 15, 2019, defendant Ohio Department of
Transportation (ODOT) filed a motion for summary judgment
pursuant to Civ.R. 56(B). Plaintiff did not file a response.
The motion for summary judgment is now before the court for a
non-oral hearing pursuant to L.C.C.R. 4. For the reasons
stated below, the court hereby grants defendant's motion
for summary judgment.
Civ.R. 56(C) states, in part, as follows:
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
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
See also Dresher v. Burt, 75 Ohio St.3d 280, 662
N.E.2d 264 (1996). In Dresher, the Ohio Supreme
Court held, "the moving party bears the initial
responsibility of informing the trial court of the basis for
the motion, and identifying those portions of the record
before the trial court which demonstrate the absence of a
genuine issue of fact on a material element of the nonmoving
party's claim." Id. at 292. A "movant
must be able to point to evidentiary materials of the type
listed in 56(C)." Id.
When the moving party has satisfied its initial burden, Civ.
R. 56(E) imposes a reciprocal burden on the nonmoving party.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit.
Sworn or certified copies of all papers or parts of papers
referred to in an affidavit shall be attached to or served
with the affidavit. The court may permit affidavits to be
supplemented or opposed by depositions or by further
affidavits. When a motion for summary judgment is made
and supported as provided in this rule, an adverse party may
not rest upon mere allegations or denials of his 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. (Emphasis added).
seeking and opposing summary judgment, parties must rely on
admissible evidence. Keaton v. Gordon Biersch Brewery
Rest. Group, 10th Dist. Franklin No. 05AP-110,
2006-Ohio-2438, ¶ 18.
As required, the following facts are stated in a light most
favorable to plaintiff. On March 12, 2018, plaintiff was
driving eastbound on U.S. 224 near Duck Creek in Mahoning
County, Ohio when his vehicle struck a dislodged survey
monument box cover in the roadway. (Complaint, p. 1.)
Plaintiff states that the survey monument box cover damaged
the undercarriage of his vehicle. (Complaint, p. 2.)
Plaintiff went to the emergency room following the incident
and was required to replace his vehicle. (Complaint, p. 2).
ODOT contends that it had no notice of the condition that
caused the accident and that, without notice of any defect,
it cannot be held liable for plaintiffs injuries. In support
of its motion, defendant submitted the affidavit of Brian
Olson, the Area Engineer for District Four. According to
Olson, ODOT learns of issues or hazards in the following
ways: 1) complaints from the traveling public; 2) reports
from law enforcement; 3) reports from surveyors or
contractors working in the roadway; and 4) observations from
its maintenance personnel. (Defendant's Exhibit A, ¶
5). ODOT's "telephone logs, radio logs, complaint
system records, and work history during the six months
preceding Clegg's accident do not reflect any
notifications of any issues or hazards in the area of
Clegg's accident." (Defendant's Exhibit A,
¶ 6). ODOT did not receive any "complaints or
reports from the traveling public, law enforcement,
surveyors, contractors, or its maintenance personnel
regarding any issues or hazards in the roadway in the area of
Clegg's accident during the preceding six months."
(Defendant's Exhibit A, ¶ 8). ODOT was also not
aware of any survey work being performed in the area ...