[Cite as Tomba v. Ohio Dept. of Transp., Dist. 12, 2011-Ohio-2131.]

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

JOE TOMBA 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2010-11315-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶ 1} Plaintiff, Joe Tomba, filed this action against defendant, Department of 

Transportation (ODOT), contending that ODOT should bear responsibility for paint 

damage to his 1996 Dodge Ram 1500. Plaintiff recalled he was traveling on State 

Route 84 in Lake County on September 30, 2010 when his paint damage incident 

occurred. In his complaint, plaintiff offered the following narrative recollection of the 

paint damage occurrence noting he was traveling “at least four cars behind a state 

contracted vehicle that was striping the berm and painting white lines on the road. 

Traffic on RT 84 was extremely heavy and I was forced to remain behind the state 

contracted (vehicle) and hug the yellow line for approximately 8 to 10 miles until I 

reached my residence. Once arriving at my (residence), I parked my vehicle in the 

garage until the next afternoon.” Plaintiff indicated he discovered white paint on the 

right side of his truck when he approached the parked vehicle on October 1, 2010. 

Plaintiff submitted photographs depicting white paint splatter all along the lower right 

side of his truck. Plaintiff requested damages in the amount of $1,416.30, the cost of 
Case No. 2006-03532-AD - 2 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 2 - MEMORANDUM DECISION

removing paint from his truck and car rental expenses. The $25.00 filing fee was paid 

and plaintiff requested reimbursement of that cost along with his damage claim. 

{¶ 2} Defendant explained ODOT contractor, Dura Mark, Inc. was conducting 

operations on State Route 84 on September 30, 2010. Defendant further explained 

white edge lines were painted between mileposts 19.10 to 24.0 with painting operations 

starting at 5:30 p.m. and finishing at approximately 6:30 p.m. In his complaint, plaintiff 

estimated his damage incident occurred at approximately 3:45 p.m. Defendant denied 

operations on State Route 84 in Tuscarawas County on May 13, 2010. Defendant 

denied liability in this matter based on the contention “that neither ODOT nor Dura Mark, 

Inc. had notice of wet paint on SR 84 prior to plaintiff’s incident.” Defendant asserted 

plaintiff failed to offer evidence to prove his property damage was attributable to conduct 

on either the part of ODOT or Dura Mark, Inc. Defendant further asserted plaintiff failed 

to produce evidence to establish ODOT negligently maintained the roadway. 

{¶ 3} Plaintiff filed a response reasserting his property damage was caused by 

painting operations on State Route 84 conducted by Dura Mark, Inc. Plaintiff recalled 

he did not observe any signs posted to advise motorists of the painting operation. 

Plaintiff insisted his property damage incident occurred at approximately 3:45 p.m. on 
Case No. 2006-03532-AD - 3 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 3 - MEMORANDUM DECISION

September 30, 2010. 

{¶ 4} The evidence conclusively shows plaintiff’s vehicle received paint damage 

from paint that had been applied by ODOT contractor Dura Mark, Inc. This court has 

previously held that ODOT cannot be held liable for any alleged negligence on the part 

of a contractor in conducting painting operations on state roadways. ODOT may 

delegate its duty of care in situations where an independent contractor such as Dura 

Mark, Inc. undertakes roadway painting operations. See Henderson v. Ohio Dept. of 

Transp., Ct. of Cl. No. 2003-11496-AD, 2004-Ohio-1839, adopting the rationale of Gore 

v. Ohio Dept. of Transp., Franklin App. No. 02AP-996, 2003-Ohio-1648; also Henning v. 

Dept. of Transp. (2006), 2006-04369-AD; Treadway v. Ohio Dept. of Transp., Ct. of Cl. 

No. 2009-08811-AD, 2010-Ohio-3637; Madison v. Ohio Dept. of Transp., Ct. of Cl. No. 

2009-08616-AD, 2010-Ohio-3636. ODOT is not the proper party defendant in this 

action and therefore, this claim is dismissed. 

Court of Claims of Ohio

The Ohio Judicial Center 
Case No. 2006-03532-AD - 4 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 4 - MEMORANDUM DECISION

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

JOE TOMBA 

 Plaintiff 

 v. 

OHIO DEPARTMENT OF TRANSPORTATION, DISTRICT 12 

 Defendant 

Case No. 2010-11315-AD 

Deputy Clerk Daniel R. Borchert 

ENTRY OF ADMINISTRATIVE DETERMINATION
Case No. 2006-03532-AD - 5 - MEMORANDUM DECISION

Case No. 2006-03532-AD - 5 - MEMORANDUM DECISION

 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 defendant. Court costs are assessed against plaintiff. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Joe Tomba Jerry Wray, Director 

29 Paradise Road Department of Transportation 

Painesville, Ohio 44077 1980 West Broad Street 

 Columbus, Ohio 43223 

RDK/laa 

2/2 

Filed 2/16/11 

Sent to S.C. reporter 4/29/11