Matthew Sparre, etc. et al., Plaintiffs-Appellants,
Ohio Department of Transportation, Defendant-Appellee.
APPEAL from the Court of Claims of Ohio of Cl. No. 2010-02286
Djordjevic, Casey & Marmaros, LLC, Daniel S. Cody and Michael M. Djordjevic, for appellants.
Michael DeWine, Attorney General, and Eric A. Walker, for appellee.
(¶ 1} Charles K. Sparre died in a motorcycle accident caused by damaged pavement on a state highway. His widow, plaintiff-appellant Bonnie Sparre, and his son, plaintiff-appellant Matthew Sparre, executor of the estate, sued defendant-appellee, the [Ohio] Department of Transportation ("ODOT") in the Court of Claims of Ohio. The matter went to trial and the Court of Claims rendered a decision and judgment in favor of ODOT, rejecting various theories of liability for the road conditions that led to the fatal accident. The Court of Claims found that although the deteriorated roadway caused Charles Sparre's death, ODOT was entitled to judgment in its favor because it did not have notice that the condition had deteriorated to the point of creating a hazard.
(¶ 2} Appellants have timely appealed and bring the following three assignments of error for our review:
[I.] The Trial Court Erred To The Prejudice Of Plaintiffs-Appellants When The Court Precluded Testimony Regarding The Foreseeability Of The Roadway Slip Worsening Over Time.
[II.] The Trial Court Erred When It Determined That There Was No Actual Or Constructive Notice Of The Precise Condition Of The Roadway That Caused Mr. Sparre's Death.
[III.] The Trial Court Failed To Evaluate The Evidence At Trial Under The General Notice Standards.
(¶ 3} Appellants' first assignment of error asserts that the trial court erred when it precluded testimony regarding the foreseeability of existing roadway conditions worsening over time to create a hazardous break in the pavement.
(¶ 4} The generally uncontroverted testimony at trial established that on June 20, 2008, the decedent set out on a recreational motorcycle ride in the company of two friends. While traveling on a winding and hilly section of State Route 536 in Monroe County, Ohio, the group encountered deteriorated road conditions caused by a hillside "slip" distorting the roadway. Post-accident photographs would document large cracks across the traveled portion of the roadway, including one crack with a difference in elevation of over four inches.
(¶ 5} The speed limit in the area was 55 miles per hour. The lead rider, Richard Avery, was travelling at about 30 miles per hour when he came upon and successfully negotiated the raised and fractured area of the asphalt at a point later identified as the 5.9 mile marker of State Route 536. Charles Sparre was the next rider in line, a short distance behind Avery. Charles Sparre was an experienced and prudent motorcycle rider and as was his custom was not riding aggressively on the day in question. After negotiating the slip area, Avery soon noticed that Charles Sparre was no longer following him. Avery returned to the slip area and found Charles Sparre's motorcycle lying in the roadway and Charles Sparre's body under the guardrail.
(¶ 6} The undisputed inference, as accepted by the trial court, was that Charles Sparre, despite his low speed, had failed to negotiate the fractured pavement caused by the slip, been thrown from his motorcycle into the guardrail, and killed by the impact despite wearing his helmet. David Kramer, the third rider in the group, happened upon the scene at about this time as did a passing motorist, who stopped to render assistance. Upon advice from the motorist, who indicated that the remote location would preclude rapid assistance from emergency personnel, the group loaded Charles Sparre's body into the back of the motorist's pickup truck and preceded southbound on State Route 536 toward a hospital. Within approximately three miles, the pickup truck met an ambulance with paramedics dispatched to the accident site. The paramedic crew began examination and treatment of Charles Sparre, and pronounced him dead at the scene. A coroner's report later confirmed negative drug and alcohol test results.
(¶ 7} The appellants allege that ODOT was negligent by failing to maintain State Route 536 in a reasonably safe condition, and that ODOT negligently failed to install signage to warn of the deteriorated pavement. Appellants allege that generally ODOT was aware that this stretch of State Route 536 was subject to land slips because the hilly ground and frequent need for sidehill road construction invited ground subsidence that would make the road surface unstable or uneven. Appellants specifically assert that the slip in question was not only detectable in some form before the ...