[Cite as Gallagher v. Cleveland State Univ., 2012-Ohio-3219.]

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

KEVIN GALLAGHER 

 Plaintiff 

 v. 

CLEVELAND STATE UNIVERSITY 

 Defendant 

Case No. 2011-12048-AD 

Deputy Clerk Daniel R. Borchert 

MEMORANDUM DECISION

{¶1} On October 24, 2011, plaintiff, Kevin Gallagher, filed this complaint 

alleging he suffered property damage to his automobile on October 17, 2011, at 

approximately 10:45 a.m., while backing his 2004 Pontiac GTO into a vacant parking 

space located in parking lot “S2” on the campus of defendant, Cleveland State 

University (CSU). Specifically, plaintiff maintained the rear bumper, brackets, side 

molding, and wheel rim on his car were damaged as a result of the rear tire dropping 

into a pothole near a sewer grate adjacent to the curbing at the end of a parking space 

in defendant's parking lot. Plaintiff recalled that, “[w]hen backing up, I heard a loud 

bang, which I saw was the frame of my car hitting the ground. I saw that concealed 

under leaves was a sinkhole of approx. 1.5 ft. in length and over 1 ft. in depth (as the 

pictures show) next to the drain.”1

 Plaintiff further recalled he carefully drove the car 

forward out of the hole, got out of the vehicle, and made a cursory inspection 

discovering damage to the automobile. 

 1 Plaintiff submitted photographs depicting the sunken area of asphalt beside the concrete pad 

where the drain is located. The defect appears to be at least eighteen inches in length and several inches 
{¶2} Plaintiff has contended defendant should be responsible for the cost of 

repairing his car for the property damage suffered on October 17, 2011. Plaintiff 

indicated he has filed a claim with his insurance company, State Farm Insurance, and 

that such claim is pending. Consequently, plaintiff filed this complaint seeking to 

recover $500.00, his stated insurance coverage deductible for automotive damage 

repair. Plaintiff's damage claim for repair expense is limited to his insurance deductible 

pursuant to the statutory directive found in R.C. 3345.40(B)(2). The filing fee was paid. 

{¶3} Defendant denied liability based on the contention that plaintiff failed to 

prove the damage occurred on defendant’s premises. According to defendant, plaintiff 

never reported the incident to CSU’s police department or to CSU’s parking services 

personnel. Defendant acknowledged locating a sewer grate in the S2 lot “with some 

damage to the exterior of the grate.” Nonetheless, defendant contended the defect was 

not as deep as plaintiff described. Defendant included pictures showing an area next to 

the grate where gravel has been added since the date plaintiff’s incident occurred. 

{¶4} From a review of the photographs, the damage depicted on plaintiff’s car 

appears consistent with the vehicle’s bumper and undercarriage dropping onto the 

concrete curbing after plaintiff’s driver’s side rear tire fell into the sinkhole next to the 

drainage grate. In addition, the scraped areas on plaintiff’s bumper and tailpipe 

correspond to the gouges in the curbing behind the grate which is depicted in the 

photographs supplied by defendant. The trier of fact notes that plaintiff’s photographs 

show scratches and body damage consistent with the description of events offered by 

plaintiff in the complaint. In addition, the photographs supplied by defendant document 

a rather extensive rectangular area beside the concrete pad around the grate has been 

repaired and filled with gravel. 

{¶5} On January 30, 2012, plaintiff filed a response stating he notified CSU’s 

parking services and police department of the incident after it happened. Plaintiff 

submitted a copy of a CSU police report dated October 17, 2011, wherein the 

investigating officer met with plaintiff at the S2 lot and recorded that the sinkhole was 

“significant in size and could easily cause damage to another vehicle.” Thus, based 

upon a review of all the evidence presented, the trier of fact finds plaintiff’s car was 

damaged as the result of a pavement defect on defendant’s premises. 

 

deep, although part of the area is obscured by leaves. 
{¶6} Plaintiff was present on defendant’s premises for such purposes which 

would classify him under law as an invitee. Scheibel v. Lipton (1985), 156 Ohio St. 308, 

46 O.O. 177, 102 N.E. 2d 453. Consequently, defendant was under a duty to exercise 

ordinary care for the safety of invitees such as plaintiff and to keep the premises in a 

reasonably safe condition for normal use. Presley v. City of Norwood (1973), 36 Ohio 

St. 2d 29, 65 O.O. 2d 129, 303 N.E. 2d 81. The duty to exercise ordinary care for the 

safety and protection of invitees such as plaintiff includes having the premises in a 

reasonably safe condition and warning of latent or concealed defects or perils which the 

possessor has or should have knowledge. Durst v. VanGundy (1982), 8 Ohio App. 3d 

75, 455 N.E. 2d 1319; Wells v. University Hospital (1985), 85-01392-AD. As a result of 

plaintiff’s status, defendant was also under a duty to exercise ordinary care in providing 

for plaintiff’s safety and warning him of any condition on the premises known by 

defendant to be potentially dangerous. Crabtree v. Shultz (1977), 57 Ohio App. 2d 33, 

11 O.O. 3d 31, 384 N.E. 2d 1294. 

{¶7} Additionally, it has been previously held “the liability of an owner or 

occupant to an invitee for negligence in failing to render the premises reasonably safe 

for the invitee, or in failing to warn him of dangers thereon, must be predicated upon a 

superior knowledge concerning the dangers of the premises to persons going thereon.” 

38 American Jurisprudence, 757, Negligence, Section 97, as cited in Debie v. Cochran 

Pharmacy Berwick, Inc. (1967), 11 Ohio St. 2d 38, 40, 40 O.O. 2d 52, 227 N.E. 2d 603. 

{¶8} “The knowledge of the condition removes the sting of unreasonableness 

from any danger that lies in it, and obviousness may be relied on to supply knowledge. 

Hence the obvious character of the condition is incompatible with negligence in 

maintaining it. If plaintiff happens to be hurt by the condition he is barred from recovery 

by lack of defendant’s negligence towards him, no matter how careful plaintiff himself 

may have been.” 2 Harper and James, Law of Torts (1956), 1491, as cited in Sidle v. 

Humphrey (1968), 13 Ohio St. 2d 45, 48, 42 O.O. 2d 96, 233 N.E. 2d 589. “In short, if 

the condition or circumstances are such that the invitee has knowledge of the condition 

in advance, there is no negligence.” Debie, at 11 Ohio St. 2d 38, 41, 40 O.O. 2d 52, 

227 N.E. 2d 603, 606. 

{¶9} In the instant case, it is not obvious or apparent plaintiff had any 

knowledge of the pavement defect at the rear of the parking space. Considering a 
driver's position in a vehicle, and the position of the sinkhole on the ground partially 

covered with leaves, it is probable the hole was never seen as plaintiff backed in the 

parking space. Therefore, the court finds defendant had superior knowledge of the 

hazardous condition and failed to warn plaintiff of the condition or remove it. See 

Meinking v. E. Fork State Park, Ct. of Cl. No. 2005-10071-AD, 2006-Ohio-1015. 

Consequently, defendant is liable to plaintiff for the property loss claimed, $500.00, plus 

the $25.00 filing fee, which may be reimbursed as compensable damages pursuant to 

the holding in 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 

KEVIN GALLAGHER 

 Plaintiff 

 v. 

CLEVELAND STATE UNIVERSITY 

 Defendant 

Case No. 2011-12048-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 $525.00, which includes the filing fee. Court costs are 

assessed against defendant. 

 

 ________________________________ 

 DANIEL R. BORCHERT 

 Deputy Clerk 

Entry cc: 

Kevin Gallagher Sonali B. Wilson 

17207 Neff Road Cleveland State University 

Cleveland, Ohio 44119 2121 Euclid Avenue 

 Administration Center Suite 327 

 Cleveland, Ohio 44115-2214

011 

Filed 2/15/12 
sent to S.C. Reporter 7/17/12