MICHAEL A. CLARK, Admr. Plaintiff
OHIO DEPARTMENT OF TRANSPORTATION Defendant
to S.C. Reporter 8/15/19
Patrick M. McGrath Judge
Before the court is defendant Ohio Department of
Transportation's (ODOT) motion for summary judgment and
plaintiffs motion for partial summary judgment, which seeks a
determination only as to liability. The motions have been
fully briefed and are based on the same set of facts and
evidence and present the arguments of the parties. The court,
therefore, addresses them collectively herein. For the
following reasons, the court shall grant ODOT's motion
for summary judgment and deny plaintiffs motion for partial
In 2015, ODOT hired Kokosing Construction Company, Inc.
(Kokosing) to perform construction work on the Hopple Street
Bridge over I-75 in Hamilton County. Plaintiffs' claims
are all based on the death of Brandon Carl (Mr. Carl), a
Kokosing employee, who died during demolition work when part
of the bridge collapsed. Plaintiff's complaint asserts
claims for negligence, breach of warranty, survivorship, and
wrongful death. The evidence that the parties submitted
include a substantial amount of deposition testimony,
documentary evidence, and affidavits including those from
Civ.R. 56(C) states, in part, as follows:
Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law. No evidence or stipulation may be considered except
as stated in this rule. A summary judgment shall not be
rendered unless it appears from the evidence or stipulation,
and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary
judgment is made, that party being entitled to have the
evidence or stipulation construed most strongly in the
See also Dresher v. Burt, 1996-Ohio-107, 75 Ohio
St.3d 280 (1996). In Dresher, the Ohio Supreme Court
held, "the moving party bears the initial responsibility
of informing the trial court of the basis for the motion, and
identifying those portions of the record before the trial
court which demonstrate the absence of a genuine issue of
fact on a material element of the nonmoving party's
claim." A "movant must be able to point to
evidentiary materials of the type listed in 56(C)."
Id. at 292.
When the moving party has satisfied its initial burden,
Civ.R. 56(E) imposes a reciprocal burden on the nonmoving
party. It states:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit.
Sworn or certified copies of all papers or parts of papers
referred to in an affidavit shall be attached to or served
with the affidavit. The court may permit affidavits to be
supplemented or opposed by depositions or by further
affidavits. When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not
rest upon mere allegations or denials of his pleadings, but
the party's response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the party does
not so respond, summary judgment, if appropriate, shall be
entered against the party.
seeking and opposing summary judgment, parties must rely on
admissible evidence. Keaton v. Gordon Biersch Brewery
Rest. Group, 10th Dist. No. 05AP-110, 2006-Ohio-2438,
2006 Ohio App. Lexis 2287, ¶18.
Pursuant to a contract with ODOT, Kokosing performed
demolition work on ramp D of the Hopple Street bridge, over
I-75 near Cincinnati on the night of January 19, 2015 when
the ramp collapsed. (Complaint ¶ 3-5; Deposition of
Christopher Tuminello p. 58; Deposition of Michael McMann p.
51; 53-54). At the time, a Kokosing employee, Michael McMann
(Mr. McMann), operated a track hoe to demolish the ramp.
Michael Schweer acted as Kokosing's field engineer and
supervisor. (Deposition of Michael Schweer p. 102). Mr. Carl
stood twenty to twenty-five feet behind the track hoe to act
as a spotter. As the track hoe moved east to west, the ramp
collapsed and fell to the highway below carrying Mr. Carl and
the excavator with it, killing Mr. Carl. (McMann depo. at p.
22; 34; 36; 38-40; 51; 53-54; 58; 85; 90; Schweer depo. p.
181). At the time, no one from ODOT was present. (Deposition
of Timothy Short depo. p. 89).
The night before the collapse, the Kokosing crew halted their
work around midnight after noticing support beams were rising
and lifting off the abutment in a "teetor totter"
type fashion. (McMann depo. p. 42; 44; Schweer depo. p. 103;
107-08; Deposition of Christopher Murray p. 73; 76; Short
depo. p. 73; Deposition of Vince Martini p. 123). Mr. McMann
testified he spoke with Mr. Carl and Mr. Schweer telling
them, "what was going on and that I wasn't
comfortable, that if we went any farther, that the bridge was
going to fall." (McMann depo. p. 43; Schweer depo. p.
Mr. Schweer contacted Bret Murray, one of the Kokosing
engineers who prepared the demolition plans. Mr. Murray
designed a "tie-down" plan which called for
anchoring the beams to prevent them from lifting. The
tie-down work had been completed before Mr. McMann resumed
the demolition shortly before the collapse on January 19,
2015. (McMann depo. p. 49; Murray depo. p. 73; 239; Schweer
depo. p. 64; 70; 106; 182; Martini depo. p. 123).
Prior to the collapse, Mr. Murray helped draft two sets of
demolition plans, an original and revised set. Neither the
original December 19, 2014 demolition plan nor the revised
January 16, 2015 plan contained a sequence for demolition;
they did not indicate where work should begin or in what
order it should proceed. (Schweer depo. p. 84; Tuminello
depo. p. 295; Deposition of Dennis Stemler p. 151-152; Murray
depo. p. 69-70; 175; 212- 213; 216). Likewise, the tie-down
plan did not dictate the sequence in which the sections
should be removed. (Murray depo. p. 82). The demolition plans
also failed to account for the fact that the ramp was
"double hinged." (Murray depo. p. 71).
The Kokosing crew decided on their own volition to begin
demolition on the east and work west. (Deposition of Kelly
Wessels depo. p. 143; 158; Short depo. p. 100; Martini depo.
p. 60). Mr. Schweer testified, "we decided we would
start on the east abutment and work our way to the west
abutment" because "if * * * the excavator ...