[Cite as Gilmore v. Ohio Dept. of Transp., 2013-Ohio-5940.]




                                                        Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us



JANICE GILMORE, Exec., etc., et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF TRANSPORTATION

       Defendant

Case No. 2012-02569

Judge Patrick M. McGrath

DECISION

        {¶ 1} On February 7, 2013, plaintiffs filed a motion for partial summary judgment
on the issue of liability pursuant to Civ.R. 56(A). On April 2, 2013, with leave of court,
defendant filed a combined memorandum contra and cross motion for summary
judgment pursuant to Civ.R. 56(B). With leave of court, plaintiffs filed a memorandum
contra on May 24, 2013. The motions are now before the court for a non-oral hearing
pursuant to L.C.C.R. 4(D).
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “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
Case No. 2012-02569                                  -2-                                 ENTRY

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
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
       {¶ 4} This action arises out of a fatal motor vehicle collision that occurred on
eastbound Interstate 80 (I-80), at 1:49 p.m., on May 24, 2010, in Trumbull County, Ohio.
I-80 is a limited access four-lane divided highway with two eastbound lanes. According
to the complaint, defendant was performing a construction project on a portion of I-80
spanning 3.77 miles from Trumbull County straight line mile 8.56 to the Pennsylvania
state line.       The project involved bridge repair, ramp improvements, resurfacing,
guardrail replacement, pavement repair, and structural repairs.
       {¶ 5} As a part of the project, defendant closed the eastbound passing lane to
perform repairs on “bridge 8.57.” According to defendant’s transportation engineer 2,
John Mesmer, the passing lane closed at approximately 5:30 a.m. on Saturday May 22,
2010, and was to be closed through Monday, May 24, 2010.
       {¶ 6} Decedents Shirley Gilmore, Wendy Frost and David Westenfelder were
traveling eastbound on I-80 in the right lane in Gilmore’s 2007 Ford Expedition. Eugene
White was operating a 2005 Peterbilt tractor trailer, both behind and in the same lane as
the Ford Expedition. White’s tractor trailer was loaded with 57,200 pounds of frozen
hamburger. A 2008 Kenworth tractor with two tandem trailers, owned by FedEx Freight
Inc., was in the right lane directly ahead of the Ford Expedition. Jamal Shamoo was
traveling eastbound on I-80 in the left lane.1 Shamoo asserts that he slowed his vehicle
to 15 miles per hour because of stopped traffic ahead and that all other traffic slowed
down in time to stop. Shamoo states that a black tractor trailer “zoomed past” at a “high


       
           Shamoo states in his affidavit that the accident occurred in Findlay, Ohio.
Case No. 2012-02569                         -3-                                     ENTRY

rate of speed” and hit the Ford Expedition. According to the complaint, Gilmore had
stopped her vehicle behind the FedEx tractor trailer and was struck from behind by
White’s tractor trailer, crushing the Ford Expedition between the two tractor trailers.
Gilmore, Frost, and Westenfelder were pronounced dead at the scene by Hubbard
Township emergency responders.
       {¶ 7} According to White, the day of the accident was a clear and sunny day.
White loaded his tractor trailer in North Baltimore, Ohio and began driving to Enfield,
Connecticut via I-80, a route which White had driven two times per week for the
previous eight years. White had previously driven this same route the prior Thursday
and was aware of construction and bridge work in the area. Leading up to the scene of
the accident, White saw a cautionary sign indicating that there was construction ahead.
White did not recall any other cautionary signs leading up to the accident.
       {¶ 8} White explained how the accident occurred as follows: “I was traveling east
and the road curves and there’s an overpass, there’s kind of a blind spot there and right
at about the point where the accident happened the road, the elevation decreases the
road goes downhill, whatever. The traffic was backed up, I guess to that point. I didn’t,
I guess I didn’t really notice that the traffic was backed up until it was too late and I hit
the brakes and tried to go to the left but it was too late by the time I realized that the
traffic was stopped.” Deposition, pages 22-23. White applied the brakes and began
turning to the left but ultimately struck the Ford Expedition, pushing it into the rear of the
FedEx tractor trailer. White was subsequently convicted of three counts of vehicular
homicide.
       {¶ 9} Plaintiffs argue that defendant was negligent in both closing a lane of traffic
on I-80 and in failing to reduce the speed limit in the constructin zone. In support of
Case No. 2012-02569                              -4-                                        ENTRY

their position, plaintiffs submitted the affidavits of engineer Joseph Filippino2 and
plaintiffs’ counsel Jean Goeppinger McCoy along with various exhibits attached to the
affidavit. Defendant argues that it acted consistent with applicable Ohio Department of
Transportation (ODOT) policy in setting up the construction zone. Defendant further
argues that White’s failure to maintain an assured clear distance ahead was the sole
proximate cause of the accident. In support of its position, defendant submitted the
affidavits of ODOT engineer Lisa Bose and Jamal Shamoo. The parties also filed the
deposition transcripts of John Mesmer, Lisa Bose, Jeffery Hall, and Eugene White.
         {¶ 10} As an initial matter, Civ.R. 56(E) provides that supporting “affidavits shall
be made on personal knowledge * * * and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit.” Plaintiffs’ counsel’s affidavit
does not meet the requirements of Civ.R.56(E) and will therefore not be considered by
the court. See Ray v. Ramada Inn North, 171 Ohio App.3d 1, 2007-Ohio-1341 (2nd
Dist).
         {¶ 11} Lisa Bose, defendant’s district work zone traffic manager (DWZTM), was
responsible for the analysis and decision to close one lane of traffic on I-80 for the
project on May 24, 2010. Bose explained that she estimated the traffic queue length on
I-80 pursuant to section 640-13.2 of the Traffic Engineering Manual (TEM) entitled
“Queue Length Predictions for Freeways.”3 Bose then looked to defendant’s Permitted
Lane Closure Chart (PLCC), which was created by defendant’s central office, to
determine whether construction work can be completed within the restricted time frames
shown in the chart. Bose then compared the time frames permitted to the amount of
time the contractor would need for the project. On this particular project, the contractor
needed additional time beyond what is permitted on the chart.

         
         Plaintiffs attached Filippino’s affidavit to their memorandum contra. Defendant’s May 31, 2013
motion to strike the affidavit of Joseph Filippino is DENIED.
         
         The TEM is promulgated through defendant’s Office of Traffic Engineering.
Case No. 2012-02569                        -5-                                    ENTRY

       {¶ 12} Bose then performed an in-depth analysis using traffic volumes calculated
to the month the construction work would be completed. To do so, Bose gathered
information from the closest Automatic Traffic Recorder (ATR), which reports actual
traffic flow in an area three to six months after the data is collected. Bose asserted that
such traffic counts were the most current counts available for use at the time. Using a
spreadsheet based on conversion factors provided by defendant, Bose then revised the
traffic counts from a day in August to a day in June because June traffic volumes are
typically higher than traffic volumes in May.
       {¶ 13} Bose calculated a maximum queue of 0.7 miles at 3:00 p.m. on a Monday
in June in the eastbound direction of I-80 by using a “Queue Calculations Worksheet for
One Lane Freeway Work Zones” provided by defendant’s central office. Bose also
obtained two other values for the worksheets as a part of her analysis. Those values
were the capacity of the work zone and the number of queued vehicles in a mile. Bose
asserted that the 0.7 queue calculation was not prohibited by defendant’s Policy on
Traffic Management in Work Zones, policy 516-003(P), which allows a queue of less
than 0.75 miles. Therefore, Bose concluded that because the calculated queue did not
violate defendant’s lane closure policies, the lane closure could be extended past what
was shown on the PLCC.
       {¶ 14} Bose further stated that at the time the project was under construction in
the spring of 2010, variable speeds were not permitted in Ohio by the TEM. Bose
stated that the project’s “longest duration continuous zone” was four days, and that the
work was road resurfacing and repair. As such, Bose asserted that a speed reduction
could not have been used.
       {¶ 15} Plaintiffs submitted the affidavit of their expert Joseph Filippino. According
to Filippino, the PLCM [Permitted Lane Closure Maps] for I-80 between Ohio State
Route 11 and U.S. Route 62 East forbade the closure of a lane of traffic on Mondays
between 1:00 and 2:00 p.m. during the time frame of the construction project. In his
Case No. 2012-02569                        -6-                                   ENTRY

affidavit, Filippino asserts that there is no evidence that the PLCM had been updated or
reflected current traffic conditions at the time of Bose’s analysis. Filippino also asserts
that there is no evidence that Bose utilized the posted legal speed limit or the most
current traffic volume and truck percentage data. According to Filippino, there is no
evidence that Bose prepared or submitted a Traffic Management Plan or a request for
exceptions for delays that exceed the allowable queue threshold before construction
started.
       {¶ 16} Filippino further faults ODOT for allegedly failing to determine whether the
queue length from the computer model and the actual queues generated by the
construction zone were different as required by ODOT Policy 516-003(P).            Finally,
Filippino asserts that ODOT was required to post signs indicating that traffic fines were
doubled for speeding in the construction zone and that ODOT had the authority to
reduce the speed limit on I-80 eastbound prior to the beginning of the construction
project.
       {¶ 17} “To maintain a wrongful death action on a theory of negligence, a plaintiff
must show (1) the existence of a duty owing to plaintiff's decedent, (2) a breach of that
duty, and (3) proximate causation between the breach of duty and the death.” Littleton
v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92 (1988), citing Bennison v.
Stillpass Transit Co., 5 Ohio St.2d 122 (1966).
       {¶ 18} ODOT is subject to a general duty to exercise ordinary, reasonable care in
maintaining state highways. White v. Ohio Dept. of Transp., 56 Ohio St.3d 39, 42
(1990). Although ODOT is not an insurer of the safety of the state’s highways, ODOT
has a general duty to maintain and repair state highways such that they are free from
unreasonable risk of harm to the motoring public, and this duty is owed both under
normal traffic conditions and during highway construction projects. Roadway Express,
Inc. v. Ohio Dept. of Transp., 10th Dist. No. 00AP-1119 (June 28, 2001). However,
“ODOT cannot guarantee the same level of safety during a highway construction project
Case No. 2012-02569                        -7-                                    ENTRY

as it can under normal traffic conditions. * * * ODOT is, nonetheless, required to provide
the traveling public with a reasonable degree of safety in construction zones * * *. [A]
court must look at the totality of the circumstances in determining whether ODOT acted
sufficiently to render the highway reasonably safe for the traveling public during the
construction project.” Basilone v. Ohio Dept. of Transp., 10th Dist. No. 00AP-811 (Feb.
13, 2001), citing Feichtner v. Ohio Dept. of Transp., 114 Ohio App.3d 346 (10th
Dist.1995).
       {¶ 19} “The scope of ODOT’s duty to ensure the safety of state highways is more
particularly defined by the Ohio Manual of Uniform Traffic Control Devices [OMUTCD],
which mandates certain minimum safety measures.” State Farm Auto. Ins. Co. v. Ohio
Dept. of Transp., 10th Dist. Nos. 98AP-936, 98AP-1028, 98AP-960, 98AP-1536, 98AP-
976, 99AP-48 (June 8, 1999). “[N]ot all portions of the manual are mandatory, thereby
leaving some areas within the discretion and engineering judgment of [defendant.]”
Leskovac v. Ohio Dept. of Transp., 71 Ohio App.3d 22, 27 (10th Dist.1990), citing
Perkins v. Ohio Dept. of Transp., 65 Ohio App.3d 487, 491 (10th Dist.1989). The
parties do not dispute that ODOT’s duties are set forth in the OMUTCD and ODOT’s
TEM.
       {¶ 20} Additionally, the common law of Ohio also imposes a duty of reasonable
care upon motorists, which includes the responsibility to observe the environment in
which one is driving.     Hubner v. Sigall, 47 Ohio App.3d 15, 17 (10th Dist.1988).
“Assured clear distance” is the distance between the car the driver is operating and a
reasonably discernable object in the driver’s path of travel.       A person violates the
assured clear distance statute if “there is evidence that the driver collided with an object
which 1) was ahead of him in his path of travel, 2) was stationary or moving in the same
direction as the driver, 3) did not suddenly appear in the driver’s path, and 4) was
reasonably discernible.” Pond v. Leslein, 72 Ohio St.3d 50, 52 (1995). See also R.C.
4511.21(A).
Case No. 2012-02569                          -8-                                   ENTRY

       {¶ 21} “‘The term “proximate cause,” is often difficult of exact definition as applied
to the facts of a particular case. However, it is generally true that, where an original act
is wrongful or negligent and in a natural and continuous sequence produces a result
which would not have taken place without the act, proximate cause is established, and
the fact that some other act unites with the original act to cause injury does not relieve
the initial offender from liability.’”   Strother v. Hutchinson, 67 Ohio St.2d 282, 287
(1981), quoting Clinger v. Duncan, 166 Ohio St. 216, 223 (1957).
       {¶ 22} “It is because what constitutes a ‘natural and continuous sequence’ is
insusceptible of determination other than in the context of a particular case that the
issue of proximate cause is ordinarily one for determination by the jury.         However,
where reasonable minds could not differ with respect to the matter because the
circumstances clearly indicate an obvious cause and effect relationship, the issue may
be determined as a matter of law.” Ornella v. Robertson, 14 Ohio St.2d 144, 151
(1968). “‘[W]here no facts are alleged justifying any reasonable inference that the acts
or failure of the defendant constitute the proximate cause of the injury, there is nothing
for the [trier of fact] (to decide), and, as a matter of law, judgment must be given for the
defendant.’” Sullivan v. Heritage Lounge, 10th Dist. No. 04AP-1261, 2005-Ohio-4675, ¶
33, quoting Stuller v. Price, 10th Dist. No. 03AP-66, 2004-Ohio-4416, ¶ 70. “It is well
settled that the issue of proximate cause is not subject to speculation and that
conjecture as to whether a breach caused the particular damage is insufficient as a
matter of law.    If the plaintiff’s quantity or quality of evidence on proximate cause
requires speculation and conjecture to determine the cause of the event, the defendant
is entitled to summary judgment as a matter of law.” (Citations omitted.) Mills v. Best
Western Springdale, 10th Dist. No. 08AP-1022, 2009-Ohio-2901, ¶ 20. Accordingly,
summary judgment is appropriate where reasonable minds could not differ as to the
proximate cause.
Case No. 2012-02569                       -9-                                    ENTRY

      {¶ 23} Although the parties dispute whether defendant’s actions complied with the
OUMTCD and TEM, there is no reasonable dispute that the sole proximate cause of the
accident was White’s failure to observe his surroundings and failure to maintain an
assured clear distance ahead.      There is no dispute that plaintiffs’ decedent’s Ford
Expedition was ahead of White’s tractor trailer in the same lane of travel and was
stationary or moving in the same direction. Furthermore, there is no evidence that the
Ford Expedition suddenly appeared or was somehow not reasonably discernible.
Indeed, White had traveled this portion of I-80 on a frequent basis for the previous eight
years and was familiar with the freeway design.       White was aware that there was
construction work and bridge repair in the area and even recalls seeing a cautionary
sign indicating that there was construction work ahead. Moreover, subsequent to the
accident, White received a conviction of three counts of vehicular homicide.
      {¶ 24} Additionally, plaintiffs presented no evidence connecting any alleged
breaches of the standard of care with the proximate cause of the accident. Plaintiffs did
not present any evidence that an alleged failure to reduce the speed in the construction
zone or an allegedly improper lane closure on I-80 in the construction zone proximately
caused the accident. Accordingly, the court concludes that there is no genuine issue of
material fact regarding the sole proximate cause of the accident and that defendant is
entitled to judgment as a matter of law. Therefore, defendant’s motion for summary
judgment shall be granted and judgment shall be rendered in favor of defendant.
Plaintiffs’ motion for partial summary judgment shall be denied.


                                         _____________________________________
                                         PATRICK M. MCGRATH
                                         Judge
Case No. 2012-02569                        - 10 -                                      ENTRY




                                               Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us



JANICE GILMORE, Exec., etc., et al.

      Plaintiffs

      v.

OHIO DEPARTMENT OF TRANSPORTATION

      Defendant

Case No. 2012-02569

Judge Patrick M. McGrath

JUDGMENT ENTRY

       {¶ 25} A non-oral hearing was conducted in this case upon the parties’ cross
motions for summary judgment.         For the reasons set forth in the decision filed
concurrently herewith, defendant’s motion for summary judgment is GRANTED and
judgment is rendered in favor of defendant.         Plaintiffs’ motion for partial summary
judgment is DENIED.      All future events are VACATED.        All remaining motions are
DENIED as moot. Court costs are assessed against plaintiffs. The clerk shall serve
upon all parties notice of this judgment and its date of entry upon the journal.

                                          _____________________________________
                                          PATRICK M. MCGRATH
                                          Judge
Case No. 2012-02569                    - 11 -                       ENTRY


cc:


Craig D. Barclay                         Jean M. McCoy
William C. Becker                        1700 Fourth & Vine Tower
Assistant Attorneys General              One West Fourth Street
150 East Gay Street, 18th Floor          Cincinnati, Ohio 45202
Columbus, Ohio 43215-3130

Louise M. Roselle
119 East Court Street, Suite 530
Cincinnati, Ohio 45202
003
Filed August 26, 2013
Sent to S.C. Reporter April 30, 2014
