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Clark v. Ohio Department of Transportation

Court of Claims of Ohio

July 10, 2019

MICHAEL A. CLARK, Admr. Plaintiff

          Sent to S.C. Reporter 8/15/19


          Patrick M. McGrath Judge

         {¶1} 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 summary judgment.

         {¶2} 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 expert witnesses.

         {¶3} 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 party's favor.

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.

         {¶4} 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.

         In 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.


         {¶5} 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.[1] (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).

         {¶6} 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. 103).

         {¶7} 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).

         {¶8} 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).

         {¶9} 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 ...

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