[Cite as Aggarwal v. Ohio Dept. of Transp., Dist. 8, 2011-Ohio-7061.]

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

T. R. AGGARWAL 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DIST. #8 

 Defendant 

Case No. 2011-09586-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} Plaintiff, T. R. Aggarwal, filed this action against defendant, Department of 

Transportation (ODOT), alleging ODOT's negligence proximately caused two basement 

apartments to become flooded with storm water runoff. Plaintiff claimed ODOT was 

negligent in failing to maintain “the main curb drain” which became clogged. According 

to plaintiff, his property has an adequate drainage system to disburse storm water but 

that “it cannot handle a large stream of storm water, running off St. Rt. 125, on to our 

property.” Plaintiff further alleged that defendant “failed to maintain the subject drains, 

along the front of our property.” Plaintiff related that he has made numerous requests 

for ODOT to clean the drains; however ODOT responded that they are awaiting a “vacsystem” from Hamilton County. According to plaintiff, the drains have not been cleaned 

as of the date the complaint was filed, July 19, 2011. 

{¶2} Plaintiff stated the apartments are located at 780 Ohio Pike, Bldg. #2, 

Cincinnati, Ohio. Plaintiff indicated in his complaint that the flooding occurred on June 

17, 2011, at approximately 5:00 p.m., and that the event was witnessed by Mr. Eulah 

Cook, who resides on the premises at 780 Ohio Pike, Bldg. #4, Apt. #5. Plaintiff 
contended defendant had a duty to maintain and repair the drainage basins at the front 

of his property adjacent to State Route 125. Furthermore, plaintiff contended 

defendant’s failure to discharge this maintenance and repair duty proximately caused 

the water damage to his basement apartments. Plaintiff requested damage recovery in 

the amount of $2,416.50, representing the stated cost of clean up of debris, water 

extraction, painting and repairs to walls, cleaning and deodorizing carpet, as well as 

replacement of carpet in one of the apartments. The filing fee was paid. 

{¶3} Defendant filed an investigation report essentially claiming plaintiff’s 

recollection of the events at issue is inaccurate. Although plaintiff listed June 17, 2011, 

as the date of the damage-causing event, defendant noted that the local newspaper 

reported flash flooding occurred on June 21, 2011, and thus, defendant based its 

investigation on data relevant to that date. Defendant pointed out that the area near 

plaintiff’s location received approximately 2.19 inches of rainfall on June 21, 2011, 

between the hours of 4:00 p.m. and 6:00 p.m. Defendant explained ODOT employee, 

Jeff Meyer, a transportation engineer, inspected the property at 780 Ohio Pike on July 

1, 2011. According to defendant, on that date, Meyer consulted with Kevin Pennington, 

who owned a neighboring business, the Crazy Bean Café. Pennington acknowledged 

that there had been a significant rain event but that “there was no flooding that washed 

out his apartment complex.” Pennington stated he recalled seeing some ponding at the 

catch basin in front of his business. 

{¶4} Defendant explained that Larry Weisman, ODOT’s District Eight Highway 

Management Administrator, and Bill Davis, ODOT’s Roadway Services Manager, also 

visited plaintiff’s location in July 2011. Defendant admitted these employees found the 

catch basins to be at least partially blocked with debris. However, defendant contended 

that the depth of the basins, six feet, provides “significant storage for a partially blocked 

basin.” The claim file is devoid of any statement from either Weisman or Davis. 

Defendant pointed out that there is another grassy area that drains into a pipe which 

runs under the driveway in front of the apartment building. Photographs submitted by 

defendant show the pipe opening partially obscured by ground cover and brush. 

(Defendant’s Exhibit D, Photographs 12 and 13.) Nevertheless, defendant posits that 

should the pipe become clogged, the overflow of water would be diverted around the 

driveway’s speed bump and directed toward the southern corner of the apartment 
building where the asphalt paving has been raised in a sloping manner in order to 

protect the basement windows from flowing surface water. (Defendant’s Exhibit D, 

Photographs 7-11.) Defendant further related that the submitted photographs “clearly 

show the catch basin to be located in a depression that provides plenty of capacity for 

ponding.” (Defendant’s Exhibit D, Photographs 1-4.) 

{¶5} Based upon Pennington’s statement, defendant concluded that “no 

flooding occurred.” In the alternative, defendant concluded that plaintiff’s property 

damage stemmed from an “excessive rainfall” which exceeded the capacity of the 

drainage system in place around plaintiff’s property. 

{¶6} Plaintiff filed a response disputing defendant’s reliance on the statements 

made by Kevin Pennington. Plaintiff stated, “Mr. Pennington was neither a resident in 

the building nor [did he come] inside the building during or after the flood. He cannot be 

considered an EYE WITNESS to the flooding of the apartments.” Moreover, plaintiff 

noted that defendant’s agents did not contact the building’s resident manager, Eulah 

Cook, who lives on the premises and who was identified in the complaint as an eye 

witness to the damage.1

 In addition, plaintiff contended that “proper investigation by the 

Defendant would have revealed that the flooding of the basement apartments, laundry 

room and hallway steps going down to the basement actually was caused by the body 

of storm water entering through the front entry door, and not through the windows.” 

Plaintiff explained that the property was flooded from water flowing from St. Rt. 125, and 

that the volume of water was greater than normal because the two main catch drains 

were clogged. 

{¶7} Plaintiff related that on October 6, 2011, he spoke with ODOT’s District 

Eight employee, Josh Wallace, who confirmed to him that the catch basins had been 

found to be “clogged up badly” when they were finally cleaned in August 2011. Plaintiff 

opines that the clogged catch basins caused the water to accumulate such that the 

majority of the flowing water was redirected toward the pipe, overflowed onto the 

driveway, and entered the building through the front entry door. Plaintiff suggested that 

the pipe under the driveway was unable to handle the sheer volume of water that 

accumulated due to the clogged catch basins. Plaintiff submitted a receipt dated June 

22, 2011, from Campbell Contracting Co. for $373.50. 
{¶8} Defendant denied liability based on the contention that no ODOT 

personnel had any knowledge of any problem with a clogged catch basin at State Route 

125 prior to the June 21, 2011 incident forming the basis of this claim. Defendant 

explained ODOT was unaware of any flooding problem until plaintiff called ODOT’s 

Lebanon Office. Defendant insisted no ODOT personnel had any knowledge of any 

problem with the drainage system near plaintiff’s property and State Route 125 prior to 

June 21, 2011. Defendant did not reference any catch basin cleaning or maintenance 

schedule and the claim file is devoid of any inspection record. 

{¶9} For plaintiff to prevail on a claim of negligence, he must prove, by a 

preponderance of the evidence, that defendant owed him a duty, that it breached that 

duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy 

Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding 

Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. However, 

“[i]t is the duty of a party on whom the burden of proof rests to produce evidence which 

furnishes a reasonable basis for sustaining his claim. If the evidence so produced 

furnishes only a basis for a choice among different possibilities as to any issue in the 

case, he fails to sustain such burden.” Paragraph three of the syllabus in Steven v. 

Indus. Comm. (1945), 145 Ohio St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and 

followed. 

{¶10} Defendant must exercise due diligence in the maintenance and repair of 

highways. Hennessy v. State of Ohio Highway Department (1985), 85-02071-AD. This 

duty encompasses a duty to exercise reasonable care in conducting its roadside 

maintenance activities to protect property from the hazards arising out of these 

activities. Rush v. Ohio Dept. of Transp. (1992), 91-07526-AD. Defendant is also 

charged with the duty to inspect all roadway facilities on a routine basis and correct 

potential damaging conditions. See Billmaier v. Ohio Dept. of Transp., Ct. of Cl. No. 

2008-02223-AD, 2009-Ohio-3019. Plaintiff claimed the damage event was proximately 

caused by a failure to inspect and maintain roadway draining system on State Route 

125. As a necessary element of this type of claim, plaintiff was required to prove 

proximate cause of his damage by a preponderance of the evidence. See, e.g. Stinson 

v. England, 69 Ohio St. 3d 451, 1994-Ohio-35, 63 N.E. 2d 532. This court, as trier of 

 1 Plaintiff did not submit a statement from Eulah Cook. 
fact, determines questions of proximate causation. Shinaver v. Szymanski (1984), 14 

Ohio St. 3d 51, 14 OBR 446, 471 N.E. 2d 477. 

{¶11} “If an injury is the natural and probable consequence of a negligent act 

and it is such as should have been foreseen in the light of all the attending 

circumstances, the injury is then the proximate result of the negligence. It is not 

necessary that the defendant should have anticipated the particular injury. It is 

sufficient that his act is likely to result in an injury to someone.” Cascone v. Herb Kay 

Co. (1983), 6 Ohio St. 3d 155, 160, 6 OBR 209, 451 N.E. 2d 815, quoting Neff Lumber 

Co. v. First National Bank of St. Clairsville, Admr. (1930), 122 Ohio St. 302, 309, 171 

N.E. 327. 

{¶12} The credibility of witnesses and the weight attributable to their testimony 

are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 

39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to 

believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964), 

176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. 

{¶13} The trier of fact finds plaintiff’s contentions to be credible and supported by 

the diagrams and photographs supplied by defendant. Specifically, the graphic showing 

the flow of water from State Route 125 (Defendant’s Exhibit C, Photograph 2) supports 

plaintiff’s position in that the flow of water from State Route 125 is directed from the 

highway across 0.8 acres of grassland into a shallow concrete ditch and through a pipe 

that runs underneath the driveway in front of plaintiff’s building. It is clear from this 

graphic and by comparing the photographs of the driveway (Defendant’s Exhibit D, 

Photographs 7, 12-13) that the speed bump is much closer to the southern edge of the 

building whereas the pipe opening appears to be almost directly across from the front 

entrance to the apartment building. 

{¶14} In addition, the court finds no evidence to suggest defendant interviewed 

plaintiff or plaintiff’s listed witness. Indeed, defendant lacked a clear understanding of 

how and where the water entered plaintiff’s premises. Defendant’s argument that the 

depth of the catch basins is adequate to contain any water that may back up from 

partially clogged catch basins is discounted by Pennington’s observation that there was 

ponding of water covering the area around the catch basins . Indeed, the court is 

persuaded that the catch basins in front of the property were almost completely clogged 
with debris such that the surface water flowing from State Route 125 quickly 

accumulated and traveled through the grassy area to the drain pipe which was unable 

to carry the increased volume of water intended to be disbursed through the catch 

basins. 

{¶15} Defendant argued ODOT cannot be liable for plaintiff’s damage due to 

lack of notice either actual or constructive of the problems with clogged catch basins 

and drainage problems on the property adjacent to State Route 125. There is no 

evidence in the claim file that defendant ever inspected the catch basins near plaintiff’s 

property prior to June 21, 2011. Thus, the trier of facts finds that the proximate cause of 

plaintiff’s damage was defendant’s failure to inspect and maintain the drainage system 

for State Route 125. Billmaier. See also S.A. Mason Lease Mgt., LLC v. Ohio Dept. of 

Transp., Ct. of Cl. No. 2009-06401-AD, 2010-Ohio-6618. The trier of fact finds 

defendant has such constructive notice of the condition of the basin condition to invoke 

liability for plaintiff’s damages. See Mason. 

{¶16} Furthermore, proof of notice of a dangerous condition is not necessary 

when defendant’s own agents cause such condition. See Bello v. City of Cleveland

(1922), 106 Ohio St. 94, 138 N.E. 526, at paragraph one of the syllabus; Sexton v. Ohio 

Department of Transportation (1996), 94-13861. Evidence indicates defendant’s 

neglect caused the damage claimed. 

{¶17} Damage assessment is a matter within the function of the trier of fact. 

Litchfield v. Morris (1985), 25 Ohio App. 3d 42, 25 OBR 115, 495 N.E. 2d 462. 

Reasonable certainty as to the amount of damages is required, which is that degree of 

certainty of which the nature of the case admits. Bemmes v. Pub. Emp. Retirement 

Sys. Of Ohio (1995), 102 Ohio App. 3d 782, 658 N.E. 2d 31; Mason. Plaintiff has 

suffered damages in the amount of $2,416.50, plus the $25.00 filing fee, which may be 

reimbursed as compensable costs pursuant to R.C. 2335.19. See Bailey v. Ohio 

Department of Rehabilitation and Correction (1990), 62 Ohio Misc. 2d 19, 587 N.E. 2d 

990. 
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 

T. R. AGGARWAL 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DIST. #8 

 Defendant 

Case No. 2011-09586-AD 

Deputy Clerk Daniel R. Borchert 

ENTRY OF ADMINISTRATIVE

DETERMINATION

 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 plaintiff in the amount of $2,441.50, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

T. R. Aggarwal Jerry Wray, Director 

730 Nordyke Road Department of Transportation 

Cincinnati, Ohio 45255 1980 West Broad Street 

 Columbus, Ohio 43223 

SJM/laa 
10/20 

Filed 11/2/11 

Sent to S.C. reporter 3/30/12