Radojcsics v. Ohio State Reformatory , 52 Ohio Misc. 73 ( 1977 )

Laxly, Deputy Clerk.

Plaintiff, Beverly J. Radojcsics, seeks to recover for damage to her automobile which occurred when the car, driven by her daughter, struck one of defendant’s cows on Airport Road, in Mansfield on the night of July 26,1976. Defendant has also filed a counterclaim for the value of the animal.

Under R. C. 2743.03(D), the Rules of Civil Procedure are applicable in the Court of Claims “except insofar as inconsistent with this chapter.” The court has never before had occasion to determine whether the counterclaim provisions of Civ. R. 13 are consistent with the statutory design of the administrative determination process.

Although R. C. 2743.03(A) states that “the court” has “full equity powers in all actions within its jurisdiction and may entertain and determine all counterclaims, cross-claims, and third party claims,” it is our opinion that this language refers solely to the jurisdiction of a judge of the Court of Claims in a conventional civil action, rather than the much more limited jurisdiction of the elerk (or deputy elerk — see R. C. 3.06 and C. C. R. 6) in administrative determinations under R. C. 2743.10..

The nature of the claim against the state which the elerk may decide is considerably different than that of a counterclaim by the state: For instance, although in waiving f sovereign immunity, the legislature could; deny any right to trial by jury against the state (R. C. 2743.11),'the same section recognizes that parties retain the right to a jury-trial'for claim's'“not against the state.” ' Thus, since nothing' involved in filing-an administrative determination amounts ;to an express waiver of., any rights relating-.to a. possible counterclaim, a plaintiff (counterclaim, defendant) could legitimately .demand a jury trial on the counterclaim, a proceeding which is obviously far beyond the intended scope of the clerk’s powers under R. C.'2743.i0.: Similarly, while the state can condition its waiver of sovereign immunity by requiring that some claims against the state be administratively determined (R. C. 2743.10 [A]), the lack of any express waiver'by the plaintiff relating to'the. counterclaim indicates that she retains the right to have it determined, by a judge (a right which, unlike the right to a jury trial, she need not demand). ’" • ' ‘ ■! •

Ñót only does the differing nature of the eounterelaim' and" the original cláim against the state militate .against a conclusion that the clerk may determine-both of them, but' the very nature of the administrative determination process may also do so. This is suggested-by R.;! C. .2743.3.0(E)' which states that an administrative determination against the state is to be processed for payment undeNRi'U 2743.191 “as if if were a judgment” (emphasis added): ‘Therefore,, although the state has consented to pay whén directed !by‘ the clerk- or deputy clerk and although R. C. 2743.10(D) provides that the claimant may nót commeiicé a1 subsequent áctionon the'same, facts in'the Court 'of Claims,1 the: “as if”' language of- R. C: 2743.10(E) implies that ail administrative, determination requiring payment by' an individual1' might not possess the binding íorce'of • a judgment.

Further, the. statute expressly limits the monetary jurisdiction'uf the. clerk for claims against the : state" (R. C.: 2743(10 [AI) • In; light of this, 'if is exceedingly unlikely that the Uéneraí Assembly intended to silently endow him with-unlimited counterclaim jurisdiction. '

With this .absence of jurisdiction in the cléfk, there are two plaúsible alternatives for déaliiig with the- counterclaim: (1); judicial, determination by a judge of the; Court of - Claims or, (2) dismissal. An apparent third alternatiye* determination, by a judge of both the counterclaim and the original damn against the state, is. barred by the fact that, as previously stated, some -claims against the state-.must be administratively determined and because, in;the opinion of the court, R. C. 2743.10 creates a statutory right to-have other claims •within the monetary jurisdiction of the .clerk administratively determined if such an election is timely made. Among the financial and procedural advantages which place this election above the court’s desire for. administrative- ease are the fact that the technical - rules of evidence do. not apply and the statutory requirement-that the procedure involved be “informal and designed- to: aer commodate persons not skilled in the law” (R. C. 2743..1Ó [C]). Further, the statute clearly contemplates an essentially “paper” proceeding which would avoid the often.prohibitive expense of physically defending the action in Columbus. ,

In contrast, to this statutory scheme which evidences: a legislative intent of encouraging the filing of small, claims against the state, the judicial determination of these, counterclaims could often deter such filings since, if the potential claimant, did not. commence an action, in, the Court of •Claims, the state, if it chose to pursue its claim against him, would have to . venue it in accordance with . Civ. R. 3. The claimant, therefore, might well, decide that the value of pursuing a small claim against the state was- outweighed by the potential inconvenience and expense of defending.a: possible counterclaim in a formal judicial proceeding in Columbus. (This, situation is, of course, far different than that of the plaintiff who files a conventional civil action with the Court; of Claims, since he expects a formal-proceeding before a judge in any event.) .;

In addition, this practice would seem inconsistent with the appellate.,process for administrative determinations since the court, could, serve as trier of fact for the counte^-•elaim (when no jury was demanded) and then astfie/sole appellate tribunal for the claim against the state arising from the,same occurrence, or transaction (R. C. 2743.10[D]). While it might he argued that the state’s waiver of sovereign immunity could be so conditioned as to make the normal procedural components of an appeal nothing more than mere gratuities, this departure from conventional notions of the impartiality of the appellate function should not be implied without a much clearer statement of the intent of the legislature.

We, therefore, conclude that sections (A) through (F) and (J) of Civ. E. 18 are inconsistent with' E. C. 2743.10, and that this counterclaim should be dismissed without prejudice to refiling in a court of competent jurisdiction if the Department should so choose. Such a procedure should not be any more likely to produce inconsistent results than judicial determination by the Court of Claims. In each instance, the counterclaim would be subject to trial by jury, and in each instance, the counterclaim and the claim against the state would have different final appellate tribunals (E. C. 2743.10[D] and 2743.20). Thus, this mild departure from modern notions of avoiding a multiplicity of suits on the same subject matter seems justified in light of its value in effectuating the purposes of the administrative determination process.

Although E. C. 951.02 appears to impose strict liability upon the owner of an animal which is permitted to run at large on a public road, it has been interpreted as protecting only against trespasses and trespass-related injuries, Bolton v. Barlcenhurst (1973), 40 Ohio App. 2d 353. Thus, the ordinary negligence standard applies in the present case.

Since plaintiff has not demonstrated that defendant had notice of the escape or of any defect in the fence prior to the accident and since she has failed to show that the fence was improperly maintained or in any way inferior to those in general use for similar purposes, the court must conclude that she has not proved any negligence on the part of the defendant. With this resolution of the negligence issue, the court need not decide whether the driver’s conduct amounted to contributory negligence imputable to plaintiff under E. C. 4507.07.

Complaint and counterclaim dismissed.