Youngstown Daily Legal News

Court sides with ODOT after woman claimed highway was backyard nuisance

JESSICA SHAMBAUGH
Special to the Legal News
Published: June 6, 2013

The 10th District Court of Appeals ruled this week that summary judgment was properly granted to the Ohio Department of Transportation after a woman filed a private nuisance action against it.

Tina Wright filed a complaint against ODOT in April 2012, alleging the department built Interstate 71 so close to her residence that she was unable to enjoy peace and quite at home.

“It became a nuisance to me in July 2011 when a deck was built to my home and I was trying to relax on my deck and saw that no peace could be enjoyed,” Wright stated.

Wright argued that the noise from the interstate had caused her suffering for more than three years and had lead to health problems including anxiety and depression.

She stated the property could not be of use to anyone and would “destroy the minds of anyone living here.”

In response, ODOT argued that I-71 was constructed around 1960 and that its proximity to Wright’s home on Atwood Terrace had not changed in at least three to four years.

The Ohio Court of Claims held that a permanent or continuing private nuisance occurs when the allegedly harmful activity “is ongoing, perpetually generating new violations.”

“Permanent nuisance occurs when the conduct has been completed, but plaintiff continues to experience injury,” Ohio Court of Claims Judge Joseph Clark wrote in his opinion.

The court maintained the highway had been completed and Wright’s action was therefore claiming a permanent nuisance.

It further discovered, however, that the Ohio Revised Code mandates that civil actions against the state must be filed within two years of the cause of action.

“Based upon the undisputed facts contained in (ODOT’s) affidavit and consistent with the allegations of plaintiff’s complaint, the court finds that plaintiff’s nuisance action accrued, at the very latest, more than three years prior to the filing of this action. Therefore, as a matter of law, plaintiff’s claim for private nuisance is barred by the two-year statute of limitation,” Clark wrote.

The court of claims granted summary judgment to ODOT and Wright appealed pro se to the 10th District.

In her appeal, Wright stated she had several health conditions, some of which she claimed were caused by the noise from I-71, that caused her confusion when she was trying to gather evidence for her case.

“It set off my Alzheimer’s and anxiety, depression at such a degree of memory loss, that with the cocktail of medications that I didn’t understand what I was doing,” Wright wrote in her appeal.

The three-judge appellate panel, however, found that her lengthy personal statement was a “gross failure to comply with the court of appeals rules of procedure” but agreed to review the trial court’s rulings.

In a de novo review, the appellate court found that I-71’s proximity to Wright’s house has not changed in at least three years.

It determined that this placed the accrual of Wright’s claim outside of the two-year statute of limitations.

“The fact that appellant may not have realized the extent the noise or pollution affected her until she built the deck, or that she suffered more problems with it than others, does not alter the application of the statute of limitations. Time for bringing action had expired when the claim was filed,” retired 10th District Judge John McCormac wrote for the court.

“If it is any consolation to appellant, the best attorney complying completely with all applicable court rules would not have prevailed given the facts of the case.”

Fellow 10th District judges Gary Tyack and Julia Dorrian joined McCormac in affirming the lower court’s ruling.

The case is cited Wright v. Ohio Dept. of Transp., case No. 2013-Ohio-2162.

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