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Treese v. Delaware6/21/1994
WHITESIDE, Presiding Judge.
Defendant/third-party plaintiff-appellant, city of Delaware, appeals from a judgment of the Ohio Court of Claims and raises the following three assignments of error:
"1. The Court of Claims erred in finding that since the guardrail in question was built before the passage of the Court of Claims Act, the court had no jurisdiction."
"2. The Court of Claims erred in finding that the Ohio Department of Transportation was immune from liability for failing to upgrade the guardrail system at the 42/23 overpass."
"3. The Court of Claims erred in sustaining the summary judgment motion of third-party defendant and remanding the case to Delaware County Common Pleas Court for trial."
Plaintiff Mel A. Treese ("Plaintiff') filed a complaint against the city of Delaware ("Delaware") in the Delaware County Court of Common Pleas, seeking damages for personal injury as a result of a car accident from an alleged defective guardrail system that increased the severity of his injuries. Delaware filed a third-party complaint against the state of Ohio, Department of Transportation ("ODOT"), for indemnification, since the state installed the guardrail. The case was removed to the Court of Claims pursuant to R.C. 2743.03.
The Court of Claims granted ODOT's motion for summary judgment, stating as follows:
"Upon review of the arguments presented, the original design and placement of the guardrail are acts that occurred before the Court of Claims Act and the court is without jurisdiction over these acts. Kristine Miller v. Ohio Dept. of Transportation (1993), Ct. of Claims No. 91-12601, unreported." (Entry, Sept. 22 1993, P. 1-2.)
The Court of Claims then remanded the case to the Delaware County Court of Common Pleas. Delaware timely appealed that judgment.
By the first assignment of error, Delaware contends that the Court of Claims erred in finding that it had no jurisdiction. R.C. 2743.02 establishes that the Court of Claims "has exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02 of the Revised Code." However, the Court of Claims lacks subject-matter jurisdiction over civil claims against the state that are not within the scope of the state's waiver of immunity. See Jones v. Ohio Dept. of Health, Div. of Pub. Health & Laboratories (1990), 69 Ohio App.3d 480, 483, 591 N.E.2d 245, 247, citing Aratari v. Ohio Dept. of Rehab. & Corr. (1976), 48 Ohio App.2d 239, 2 O.O.3d 194, 356 N.E.2d 759. Therefore, the Court of Claims has jurisdiction over claims for which the state has waived its immunity. The state waived its immunity in 1975 when the General Assembly passed the Court of Claims Act (Am.Sub.H.B. No. 800, R.C. Chapter 2743). Consequently, it must be determined whether such a claim for relief may be entertained in that court.
The trial court relied on another Court of Claims decision, Miller v. Ohio Dept. of Transp. (1993), 63 Ohio Misc.2d 363, 629 N.E.2d 1124, as the basis for its determination. Miller involved a plaintiff who alleged that ODOT was negligent in its design and construction of the area in which the plaintiff was involved in a car accident. The area was designed and constructed before the effective date of the Court of Claims Act, but the accident occurred in 1981. The Court of Claims in that case held that it did not have jurisdiction over negligent acts which occurred before the state permitted itself to be sued. The court stated:
"* * * No cause of action accrues unless the act or omission upon which it is premised is within the
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