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08-17-06 Lawsuit blames state for flooding

By Nancy Allen

  Another lawsuit against the Ohio Department of Natural Resources about flooding allegedly caused by the West Bank spillway has been filed -- this time in the Ohio Court of Claims.

  Case Leasing & Rental Inc., owner of Breakaway RecPlex on U.S. 127, filed the latest lawsuit on July 1, 2005. A five-day trial to determine whether the state is liable for flood damage to the RecPlex in 2003 has been scheduled Aug. 28 through Sept. 1 in Columbus.

  Representing Case Leasing is the Columbus law firm of Schottenstein, Zox & Dunn and representing the state is Randall Knutti, an assistant attorney general.

  A second trial may be scheduled at a later date to determine damages, documents filed in the Ohio Court of Claims show.

  Thirteen people, including former Mercer County Engineer Keith Earley, who was employed by the county during the design phase of the new spillway, have been subpoened to testify. Most of the other subpoened witnesses work for ODNR.  In the latest lawsuit, Case Leasing demands an unspecified amount of compensation for damage that occurred to the RecPlex during historic flooding in July 2003 following days of persistent, heavy rains. Rainwater overflow exiting Grand Lake via the West Bank spillway flooded Beaver Creek, which lies just to the north of the RecPlex. The entire area around the fitness facility was flooded as was the inside of the building.

  No one was available at Breakaway RecPlex this morning for comment, nor at Schottenstein, Zox & Dunn. No information was available on whether the facility was insured when the flood damage occurred.

  The lawsuit claims that damage to the RecPlex was caused in whole or in part due to actions and omissions by ODNR and that these actions and omissions constitute a breach by ODNR of its duties with respect to Grand Lake and persons and property potentially affected by flooding of Grand Lake and Beaver Creek. The suit also claims that the actions and omissions by ODNR were done recklessly and with a conscious disregard of a known and substantial risk that would result in flooding of the facility.

  In its answer to the suit, the state denied liability for the damage.

  The court of claims hears and determines all civil actions filed against the state of Ohio and its agencies and also hears appeals from decisions made by the Attorney General on claims allowed under the Victims of Crime Act. It typically involves contract disputes, property damage, personal injury, immunity of state officers and employees, discrimination and wrongful imprisonment.

  An earlier lawsuit was filed against ODNR in May 2001 by five local farmers, who allege the new spillway, opened in 1997, worsened flooding of their farmland, damaging 500 acres. That case continues in the Third District Court of Appeals in Lima.

  An official from the Third District Court of Appeals in Lima this morning said the case has been rescheduled for oral arguments at 10:30 a.m. on Aug. 29 at the Sixth U.S. District Court of Appeals in Toledo. The case originally had been scheduled for oral arguments on Monday at the Third District Court of Appeals in Lima, but a new three-member panel of visiting judges from the sixth district court were assigned to hear the oral arguments due to an apparent conflict of interest.

  That case ended up in the appeals court when ODNR in January appealed a ruling in Mercer County Common Pleas Court in favor of the farmers. In that ruling, visiting judge Lawrence Grey ruled there had been an illegal taking of 500 acres of the farmers' land by the state due to recurring flooding caused by the new spillway. He also ruled the farmers were entitled to damages from the state and that the damages should be determined during a jury trial.


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