[Cite as Delta Fuels, Inc. v. DLZ Ohio, Inc., 2016-Ohio-970.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


Delta Fuels, Inc.                                           Court of Appeals No. L-15-1001

        Appellee/Cross-Appellant                            Trial Court No. CI0201303464

v.

DLZ Ohio, Inc.                                              DECISION AND JUDGMENT

        Appellant/Cross-Appellee                            Decided: March 11, 2016

                                                   *****

        Daniel J. Kelly, for appellee/cross-appellant.

        Thomas P. Mannion and Bradley J. Barmen, for appellant/cross-
        appellee.

                                                   *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, DLZ Ohio, Inc. (“DLZ”), appeals the May 14, 2015

judgment of the Lucas County Court of Common Pleas which, following a jury trial

awarded damages to plaintiff-appellee, Delta Fuels, Inc. (“Delta”), for the negligent

design of a storm sewer and relocation of a waterline in conjunction with the Maumee
River Bridge Crossing Project (the project). Delta has filed a cross-appeal challenging the

trial court’s denial of its motion for prejudgment interest.

        {¶ 2} An overview of the facts is set forth in Delta Fuels, Inc. v. Consol.

Environmental Servs., Inc., 6th Dist. Lucas No. L-11-1054, 2012-Ohio-2227, 969 N.E.2d

800, and will be further elaborated herein. Since 1986, Delta owned and maintained a

petroleum fuel storage facility adjacent to the Maumee River consisting of five storage

tanks with two million gallons capacity each. Fuel would be piped into the facility and

held in one of the tanks until moved by truck or rail. Surrounding the tanks is the

secondary containment system (“SCS”) which included an earthen dike approximately

five feet tall, six feet wide, and twenty-five feet at its base.

        {¶ 3} Interstate 280 also runs adjacent to the property. The bridge crossing the

Maumee River was a lift which needed to be opened for lake freighters. In 2000, the Ohio

Department of Transportation (“ODOT”) announced plans for the project which centered

on replacement of the bridge with a span across the river.

        {¶ 4} ODOT contracted with Figg Bridge Engineers to design the new bridge. Figg

subcontracted with DLZ, an engineering design firm, for the design of the sewer drains

adjacent to the on and off ramps. A portion of Delta’s property was taken for the project

and resulted in the need to relocate a waterline. DLZ’s work on the project concluded in

2002.

        {¶ 5} On November 25, 2005, in the early morning after Thanksgiving, Dagen

Gales was working alone at the Delta facility when a pipeline delivery, which generally




2.
lasted six to eight hours, was scheduled to be delivered. During delivery, tank 3

overflowed spilling approximately 100,000 gallons of gasoline which was not held by the

SCS and migrated onto ODOT property. The abatement lasted several months with costs

nearing $10 million.

      {¶ 6} In 2006, Delta sued most of the parties involved in the project, including

DLZ, on the theory that the ramp construction compromised the integrity of its SCS.

Settlements were reached with most parties or pursued in other courts. In January 2013,

Delta voluntarily dismissed the action without prejudice.

      {¶ 7} On June 27, 2013, Delta commenced this refiled action against DLZ alleging

negligence, or negligent design of the reconstruction of the SCS. Specifically, Delta

claimed that DLZ negligently failed to perform a survey or conduct geological testing of

the SCS and negligently reconstructed the SCS, negligently failed to verify the

effectiveness of the SCS post-construction, failed to comply with state and federal

regulations, failed to communicate and warn Delta of the condition of the SCS both prior

to and following construction. Delta also alleged breach of contract as a third-party

beneficiary and signatory to an access agreement. Delta claimed that the work was neither

performed in a workmanlike manner nor in compliance with all applicable laws. Delta

also raised nuisance and interference with groundwater claims.

      {¶ 8} In its September 17, 2014 amended answer, DLZ alleged that Delta’s SCS

was defective and unable to contain a spill prior to the commencement of the ODOT

project. DLZ denied engaging in any construction activity at or near the Delta property.




3.
Further, DLZ denied that it had any obligation to investigate the history, construction or

condition of the SCS. DLZ raised several affirmative defenses including assumption of

the risk, greater contributory fault, lack of privity, failure to mitigate damages, and

apportionment of fault to non-parties.

       {¶ 9} The matter proceeded to a jury trial on October 14, 2014. The following

evidence is relevant to our analysis. On the date of the 2005 spill, Eric Troyer was

employed by DLZ as a civil engineer, project manager of construction services. Troyer

testified that he worked on the construction of the storm drain and relocation of the

waterline for the project. Troyer stated they were given the plan of the design they were

to make. Troyer had no contact with Delta during the project.

       {¶ 10} Regarding the storm drain, Troyer stated that it was approximately six to ten

feet deep to the Maumee River and bedded in a gravel material. As to the waterline,

Troyer stated that the line replaced an old waterline and was closer to Delta’s property.

The center of the line was four feet from the property line with Delta and the buffer

between the trench and the property line was two and one-half feet. Guidelines for the

location of the waterline were given by the project managers in conjunction with the city

of Toledo fire department and ODOT regulations. The line was installed to afford fire

protection to Delta. Troyer stated that the fire hydrants that were placed off the line were

further from Delta’s property than the old line and fire hydrants.

       {¶ 11} Troyer indicated that nothing in the plans raised any concern that it would

impact Delta’s SCS. He further admitted that there was no other place to put the line.




4.
Troyer testified that he had no idea that Delta was relying on groundwater as part of its

SCS and that he had never heard of such a method.

       {¶ 12} Richard Cast, Delta Toledo terminal manager until 2004, testified that he

was responsible for the scheduling of incoming and outgoing product and ensuring that

there was adequate tank storage. He also visually inspected the tanks for leaks and

maintained the SCS by mowing the grass, removing saplings, and checking the berm for

ground hog holes. Cast stated that he observed pooling of rain water in the SCS from

1992 through 1997, and 2000 to 2004.

       {¶ 13} Cast acknowledged that he was not given a copy of the spill prevention and

control plan when he was hired and was never provided a self-inspection and training and

meeting log. Cast further agreed that there were no monthly safety meetings and that he

received no training in spill prevention, safety procedures, or EPA standards. He also

stated that he was the only employee at the Toledo facility. Cast stated that Delta had an

environmental services company who was responsible for testing the groundwater and

checking the integrity of the SCS.

       {¶ 14} From 2002 through 2004, during the construction phase, Cast acknowledged

that no one asked him whether he had any concerns with the SCS. Cast believed that the

SCS was made of clay; he had never heard of the term “perched water.” Cast admitted

that on one occasion he had to cut through and repair a containment dike, and he believed

the dike to be constructed only of soil. Cast further admitted that even though he was

supposed to he never inspected the dike.




5.
       {¶ 15} Regarding maintenance of the dike, Cast stated that when he cut trees down

he would leave the stump and that there were more than fifty stumps in the dike walls.

Cast further indicated that there were at least as many groundhog holes. Cast was also

questioned about the Environmental Protection Agency’s (“EPA”) September 2003

Facility Response Plan (FRP) review which indicated that Delta was deficient in over

half of the safety items reviewed.

       {¶ 16} Geologist and hydrogeologist Linda Aller testified that her area of expertise

is in water or liquids and how they move through the subsurface. Aller stated that in

evaluating this case, she reviewed several documents provided by counsel, boring logs,

and all publically available information including maps and surveys. She also conducted

a 2013 site visit.

       {¶ 17} Specifically, Aller stated that she reviewed 2000 and 2001 reports of

environmental consultants performed prior to the start of the project. There was no

evidence that any petroleum migrated to the east of the facility where the borings were

located. Reports made in December 2005 and January 2006, following the spill, showed

sand seams east of the site. Aller stated that the seams were discovered using a geoprobe

and drilling several holes.

       {¶ 18} Aller testified that liquids would flow more quickly through the sand versus

soil or clay, i.e. it has a higher permeability, and that the sand seam could act like a

sponge when encapsulated. Aller indicated that if the seam is cut it tends to drain. Aller

specifically testified about the effects of the installation of the storm drain and the water




6.
drain on the SCS. As to the waterline, Aller stated that moving it closer to Delta’s

property created a drain immediately adjacent to the containment area. Aller also stated

that the line cut a three and one-half foot sand seam. As to the storm sewer, Aller opined

that the installation of the storm drain cut the sand seams and created an outlet for the

petroleum to move through. Furthermore, the granular material around the pipe drew the

liquid in and created what Aller termed a “preferential pathway,” likening it to the branch

of a tree.

       {¶ 19} Aller also testified about the approximately 1,500 vertical wick drains that

ran approximately 35 feet below the surface and aided in stabilizing the ground for

constructing the ramp. Aller stated that the wick drains cut sand seams and created

preferential pathways. Regarding the availability of information of the soil conditions

prior to construction, Aller stated that soil surveys were done in 1943 and 1980, and that

soil borings were done in 1995.

       {¶ 20} During cross-examination, Aller acknowledged that she had never heard of

using groundwater as part of a containment system. Aller acknowledged that from 1986,

when Delta purchased the facility, through 2005, Delta did not conduct any soil borings

in the SCS. She further admitted that she could not say where the gas spill would have

migrated absent the ODOT construction but did claim that the construction “exacerbated”

the problem. Aller could not say whether the 103,000 gallons of gas would have

remained on Delta property, but she believed that absent the ground penetrations it would

not have gone as far. Aller agreed that the floor of the SCS was not impermeable clay.




7.
       {¶ 21} Aller was questioned regarding the placement of the new waterline versus

the old waterline. She indicated that what she reviewed showed that it was located

between six and eight feet closer to Delta property than the old waterline. She further

agreed that DLZ designed it only four feet closer than the old waterline and that DLZ had

no responsibly to direct or supervise construction.

       {¶ 22} Aller acknowledged that although the ODOT construction was to the east

of the facility, there was contamination found to the west. Aller further admitted that

following ODOT construction but prior to the spill, there was no evidence that Delta

observed any changes in the operation of the SCS.

       {¶ 23} Aller was questioned about the term “perched water table” contained in her

report. Aller stated that the term refers to a “zone of saturation” below the ground that

exists because there is something less permeable underneath it. Aller stated that gasoline

reaching the perched water table in the SCS does not mean that the SCS failed; failure

would be where the gasoline migrated off site.

       {¶ 24} Aller did acknowledge, however, that she did not know what the

requirements of an SCS were. Notably she did not know the permeability rating required

for the floor of an SCS. A discussion of permeability ratings revealed that the one to

three feet of fill material was much more permeable than the clays underneath Delta’s

SCS.

       {¶ 25} With a higher elevation, the floor was also designed to flow to the east

which is where the majority of the spilled gasoline migrated. Aller clarified that the




8.
gasoline likely would have migrated off site but that the water and sewer lines permitted

it to flow more quickly.

       {¶ 26} Delta then offered the trial deposition of expert and civil engineer

Christopher Campbell which was played for the jury. Campbell stated that for 40 years

he has designed water mains and storm sewers. Campbell’s involvement in the case

began in 2008, when he was asked to evaluate the documents regarding the 2005 gasoline

spill. In preparing a report, Campbell stated that he reviewed hundreds of documents,

thousands of pages of depositions and reports, reviewed many design drawings and

photographs, visited the spill site, and spoke with Delta’s owner.

       {¶ 27} Campbell stated that ODOT wanted the waterline relocated, so that it was

not under the new entrance ramp and because the risk of a water main freeze was

increased due to the proposed grade changes adjacent to the ramp. The original location

was centered on a 20-foot wide easement east of Delta’s property, and the new location

was approximately two feet from Delta’s east property line. The trench, in which the

waterline sat, encroached onto the property line. Campbell further testified that the six-

foot deep trench, which contained a granular backfill, combined with the sand seams that

were cut created a preferential pathway for the migration of the gasoline.

       {¶ 28} As to the 36-inch storm sewer line, Campbell testified that the manholes

and backfill were interconnected with the waterline backfill. According to Campbell, the

spilled gasoline initially followed the pathway created by the waterline and then

intersected with the storm sewer backfill and ran toward the Maumee River. In addition,




9.
the construction created a draw-down of the water content in the soil and eliminated the

pooling of water in the containment system which had acted as a barrier. Campbell

further testified that in order to place the waterline so close to the property line, a

variance was obtained from the city of Toledo.

       {¶ 29} Campbell opined that due to the cut sand seams and dewatering of the

containment system area, the dry sand seams acted as a “pipe” through the surrounding

clay. Campbell was questioned about the foreseeability of the sand seams and the result

of their being cut; he agreed that a reasonable civil engineer should have foreseen both.

       {¶ 30} Campbell testified regarding the 1,500 wick drains that were installed on

the ODOT property to reduce pressure due to moisture and maintain ground stability.

Later, the court instructed the jury that Campbell was not an expert in wick drains and

that it should consider this fact when reviewing his credibility regarding such testimony.

       {¶ 31} During cross-examination, Campbell acknowledged that he had never

designed a storm sewer for a road or highway project and had only been retained as an

expert in roofing and building systems. Campbell further admitted that he is not an

expert on how fuel moves through soil. Campbell stated that he places 100 percent of the

blame for the migration of the gasoline past Delta’s SCS on ODOT and its project

designers.

       {¶ 32} Campbell admitted that he had no evidence that the SCS held water (which

he alleged acted as a barrier) other than representations made by Delta’s owner and legal

counsel. Campbell testified that perched water is water in the ground above the water




10.
table on top of clay or other material which aids in stopping downward migration. He

admitted that the amount of perched water varies based upon rainfall and evaporation.

Campbell agreed that his opinion that the cutting of the sand seam impacted the level of

perched water was based on the 1986 Groundwater Technology and the 2001 Midwest

Environmental reports done on the property which, he stated, averaged the perched water

level at four to five feet. Campbell admitted, however, that other evidence showed the

water table at 14 feet (well below the storm and sewer drain lines.) Campbell stated that

the soil was markedly different where the old waterline was located and the boring was

done.

        {¶ 33} Campbell was questioned about the fill material that made up the first one

to three feet of the SCS floor. Campbell admitted that he did not test the permeability of

the fill. He agreed that it was possible that such material would not prevent spilled

gasoline from seeping into the ground. Campbell also admitted that there was a dispute

as to how close the relocated waterline was to the property line. Specifically, it was

uncertain whether the line was two feet from the Delta’s property or 4.7 feet. Campbell

further agreed that DLZ had no construction supervision responsibility if the waterline

was designed to be placed at four feet and the contractor installed it at two feet.

Campbell still believed, however, that DLZ violated the standard of care in its design

because the line was designed less than ten feet from the property line. Campbell could

not point to a specific regulation mandating a ten-foot separation.




11.
      {¶ 34} Campbell did not know what the groundwater level was at the time of the

spill or whether it was below the sand seams and could have acted as a preferential

pathway. Campbell indicated that the water contained in the sand seam, the “perched

water,” could also have receded due to dry weather conditions contributing to the

preferential pathway.

      {¶ 35} Campbell stated that in determining whether DLZ breached the standard of

care he relied upon the 1986 groundwater report, the 2001 Mannik & Smith report, and

the 2006 Shaw report. Campbell testified that DLZ could have acquired the former two

reports although the 1986 report was not produced until 2009, and there was no evidence

that the 2001 report was available to DLZ. Campbell noted that it was not

“unreasonable” for DLZ “to anticipate that sand seams would occur.” Campbell was

further questioned:

             Q: Right. In fact, no one at Delta Fuels had any idea that their secondary

      containment system was in any way based on perch [sic] water or sand seams until

      you got involved in this case, right?

             A: Not until the results of the 1986 report were made available in 2009.

             * * *.

             Q: * * *. DLZ did not have the ‘86 ground water report, did not have the

      2001 Midwest report and certainly did not have the 2006 Shaw report when they

      did their plans, you do not believe they violated the standard of care with regard to

      the location of the sewer line or the issues with the sand seams, right?




12.
              A: Yes.

              Q: Okay. So that leaves us with the location of the water line close to the

       toe of the dike, right?

              A: Yes.

       {¶ 36} Regarding the waterline, Campbell agreed that DLZ was not responsible

for deciding its placement. The city of Toledo and the Toledo Fire Department were

directly involved in the location of the new line. Campbell stated that the other option

was to move the entire ramp further east so the line would remain in place. When

questioned, Campbell agreed that Delta owner Knight was presented with the option of

moving the line to the west of the facility but he refused to allow it.

       {¶ 37} Following the 2005 spill and investigation, there was evidence that some of

the fuel migrated to the west of the property (away from the new water/sewer line and

ODOT construction.) Campbell admitted that this demonstrated a “minor” failure of the

SCS system apart from any negligence of DLZ.

       {¶ 38} Campbell testified that he believed that DLZ violated the engineering code

of ethics. However, he could not say what degree of migration would have occurred but

for the ODOT construction. Campbell admitted that Delta did not know about the sand

seams or perched water until after he authored his report. Campbell also admitted that

none of the geological surveys available to DLZ would have revealed the sand seams.

       {¶ 39} Campbell was again questioned about his qualifications as an expert. He

admitted that he is not an expert in fuel containment systems or spill migration, not an




13.
expert in roadway drainage design, and that this is the only highway project he had ever

been involved with. Campbell contended that the knowledge of the dewatering effect of

the storm and waterlines was within the ken of a civil engineer.

       {¶ 40} John DiMartini was general manager and vice-president of Delta from

2002 to 2006. DiMartini worked at the main office for Knight Enterprises in Novi,

Michigan. On the date of the spill, DiMartini arrived on site at approximately 9:30 a.m.

Sometime in the afternoon he was informed that approximately 10,000 gallons spilled.

DiMartini observed puddling in the dike area; there were a few large puddles of

approximately 10 to 20 feet wide. An environmental clean-up company had arrived on

scene with a vacuum truck. DiMartini said that he did not return to the facility because

Delta’s environmental consultant Steven Peach, of Consolidated Environmental Services,

Inc. (“CES”), oversaw the clean-up. On the Tuesday following the Friday spill, ODOT

contacted Delta to inform them that fuel had migrated onto its property.

       {¶ 41} DiMartini was extensively questioned regarding the FRP plan and Delta’s

lack of compliance with federal regulations. In addition, DiMartini admitted that

although Delta had overflow alarms at the Novi, Michigan facility, it did not at the

Toledo facility. Following the spill, Delta received a letter from the United States EPA

requesting information to aid in its investigation. DiMartini testified that Peach drafted

the response, including the attached supporting documents, and that DiMartini signed the

final copy.




14.
        {¶ 42} DiMartini explained the remediation costs and testing done following the

spill. He testified that Steven Peach hired Shaw Environmental which began excavating

in the dike area. DiMartini stated that Shaw uncovered the old waterline that ODOT

abandoned. DiMartini stated that when ODOT installed the new line which was closer to

Delta’s property they replaced “impermeable” clay with a sand and stone fill. DiMartini

denied knowledge of Shaw’s final report which stated that nothing done with regard to

the ODOT construction had any effect on the failure of Delta’s SCS, including the

structural integrity of the dike.

        {¶ 43} Finally, DiMartini was questioned about a May 2006 letter he authored and

sent to the United States EPA informing them that Delta could not specify a date for the

submission of the Toledo facility’s FRP and Spill Prevention Control and Countermeasures

(SPCC) plans. In response, the EPA found the lack of a deadline unacceptable and set it at

July 31, 2006. The EPA chronicled its attempts at receiving compliant plans dating back to

2001.

        {¶ 44} Delta owner Carroll Knight testified that his corporation, Knight

Enterprises, purchased the Toledo facility in 1986. Knight testified that the spill resulted

from a delivery from the Sunoco pipeline.

        {¶ 45} Knight testified that he rejected ODOT’s initial suggestion that he relocate

his waterline to the west of the property because of potential expansion in that area.

Knight stated that he had no idea where ODOT relocated the waterline until after the




15.
spill. Further, no ODOT representative approached him with any questions regarding

Delta’s containment system.

       {¶ 46} During Knight’s testimony an issue arose regarding the presentation of

expenses specifically occurring due to remediation of the offsite migration of the fuel

versus the sum total of amounts paid. Ultimately, the court permitted the testimony

noting that DLZ had pretrial options to prevent the testimony including a motion to

compel or motion in limine.

       {¶ 47} Knight testified regarding a list of check numbers relating to the spill and

remediation and compiled by the office manager. The invoices totaled $4.9 million.

Knight further testified that there were settlement monies paid to the EPA for the

expenses it incurred for off-site remediation. The first payment had been made with a

schedule for the remaining payments which totaled $1.7 million.

       {¶ 48} During cross-examination, Knight was questioned about the response time

and whether CES, particularly Steven Peach, was negligent in failing to promptly

determine the severity of the spill and begin clean-up. He was also questioned about the

lack of an overflow alarm which he admitted he was aware of prior to the spill. Knight

agreed that he knew of no safety trainings conducted at the Toledo facility.

       {¶ 49} Knight testified that he knew that DLZ was not involved in the relocation

and reconstruction of part of the dike. He was also questioned about a 2001 meeting with

the project manager and ODOT where the plan for the access road and water and sewer




16.
lines was discussed; Knight claimed he did not recall the specifics of the meeting.

Knight denied knowing that they were going to have to relocate the waterline.

        {¶ 50} Knight admitted that when he purchased the property from Citgo in 1986,

he had no information regarding the SCS, did not conduct any testing, and did not make

any improvements. Knight was further questioned about the 1986 report prepared by

John Ranks, P.E., certifying the containment volume of the tanks and SCS. Knight

agreed that he commenced a lawsuit against CES for failing to properly evaluate Delta’s

SCS and discover the “deficiencies or infirmities in the system.”

        {¶ 51} Dirk Mammen, environmental consultant for Delta, testified that he was

hired in July 2006, to supervise the installation of a liner system and the monitoring of

the system in compliance with the EPA. Mammen testified regarding invoices related to

the removal of the contaminated soil and placement of the liner system paid by Delta

through 2009. He was questioned regarding on-site versus off-site expenses that were

paid.

        {¶ 52} At the close of Delta’s case, DLZ moved for a directed verdict. As to the

issue of negligence, DLZ first argued that Delta failed to define the proper standard of

care for a design engineer. DLZ further contended that there was insufficient evidence

presented as to negligence regarding the installation of the storm sewer, including the

standard of care. DLZ stressed that the arguments relative to sand seams and perched

water did not establish negligence, because even Delta had no knowledge of their

potential existence until 2009. Thus, it was not foreseeable by DLZ that any design or




17.
construction could have caused any damages. Further, DLZ had no duty to Delta.

Finally, DLZ contended that the damages evidence was speculative and not properly

apportioned between off and on site. DLZ contended it was entitled to judgment on the

issue of comparative negligence due to a noncompliant SCS and lack of employee

emergency response training.

       {¶ 53} In response, Delta argued that DLZ breached the standard of care by failing

to consider the SCS, failure to warn of any defects it may have found, and defective

design. The court denied DLZ’s motion.

       {¶ 54} DLZ’s first witness was civil engineer Christopher Finley. Finley testified

that he worked as a consultant in the environmental engineering field in remediation,

treatment, and recovery systems for major oil companies. He stated that he was very

familiar with the regulations regarding containment systems and spill response.

       {¶ 55} Regarding containment systems, Finley testified that they are required to be

“sufficiently impermeable.” Finley stated that the determination is based on how long it

would take to evacuate the spill and that the containment would have to hold for that

long. Finley explained that the first thing is to make certain that the volume of the tank is

contained within the elevation of the dike. Next, is the liner which can be made up of

natural products such as clay or soil or plastic or polyurethane, and allows the product to

remain above grade. Finley stated that he had never seen a facility rely solely on existing

land conditions for its SCS and not add any materials.




18.
       {¶ 56} In this case, Finley testified that he reviewed boxes of materials and

authored a report in 2010, and an addendum in 2014. The impact of the 22 groundhogs

that had burrowed and were caught immediately following the spill was discussed. The

large number of trees and the impact of their roots was also discussed. Finley stated that

in his opinion, Delta breached the standard of care in the fuel storage industry and

environmental regulations. Specifically, although the dike walls were high enough, the

floor was not sufficiently impermeable.

       {¶ 57} Finley was questioned about the use of perched or entrapped water as part

of an SCS. Finley stated that this water is, in fact, groundwater and a “receptor” to allow

the gasoline to migrate. He indicated that if gasoline gets to the perched water table it is

a failure of the SCS. Finley found nothing in his review prior to the 2005 spill indicating

that Delta’s SCS relied upon perched water and he had never seen perched water being

used as part of an SCS. Further, as to sand seams, Finley stated that if a spill reaches a

sand seam he would consider it a breach of the SCS. Finley testified that he believed that

Delta’s SCS “was not sufficient to maintain and recover spilled product, and it failed.”

Finley also believed that Delta and its agents breached the duty of care in failing to

comply with federal regulations regarding its FRP and SPCC plans. Finley further

opined that Dagen Gales, the Delta employee directly responsible for the spill, was not

adequately trained. Following the spill, Delta failed to promptly determine the amount

spilled and prevent it from migrating.




19.
       {¶ 58} During his cross-examination, Finley was questioned as to whether Delta

was provided with the ODOT construction plans and, specifically, the waterline plans.

He answered affirmatively. Finley stated that it was not DLZ’s responsibility to consider

the trench’s proximity to Delta’s SCS but that it would have been appropriate for ODOT

to notify Delta of this fact.

       {¶ 59} Finley did agree that the gasoline got into the granular material of the

waterline. As to the sand seams, Finley denied that an engineer should have been

concerned about cutting into the seams with a waterline trench. He further stated that the

seams were not continuous.

       {¶ 60} DLZ’s expert, hydrogeologist Farrukh Mohsen, testified next. He stated

that he specializes in groundwater movement and specifically how contaminants move in

the sub surface from one area to the next. Mohsen testified that it was his belief that the

SCS was “designed to fail” because “it was not impervious enough to contain large

volumes of liquid.” Mohsen testified that he based his opinion on the hydraulic

conductivity, or permeability of the soil of the SCS in relation to the viscosity of the

fluid. Mohsen was questioned regarding Delta expert Chris Campbell’s opinion that cut

sand seams caused the gasoline to migrate along the relocated waterline. Mohsen stated

that he rejected the theory because the fuel also migrated to the north and west and that

the higher concentration of fuel was below the trench.

       {¶ 61} During cross-examination, Mohsen stated that the gas would have

“virtually” migrated in the same manner without the ODOT construction. Mohsen was




20.
also questioned about the good permeability ratings of several of the soil borings.

Further, he acknowledged that the dike wall was high enough but stated that the gasoline

did not go over the wall, it went through the floor. Mohsen stated that the borings he

based his opinion on, with the highest concentration of gasoline, had poor permeability

ratings.

       {¶ 62} Mohsen did acknowledge that there were sand seams. He further agreed

that the gravel surrounding the relocated waterline could act as a “preferential pathway”

for the gasoline and, in fact, gasoline was found during excavation following the spill.

Mohsen stated, however, that even if there was no sewer or waterline the SCS had

already failed by going beyond the basin floor.

       {¶ 63} Engineering geologist Dr. James Kilburg testified that in late 2005, he was

employed by Shaw Environmental which was contacted by Delta’s environmental

consultants to, pursuant to an EPA removal order, “[i]nvestigate and ensure the structural

stability of Tank # 3 and Tank # 4, the secondary containment dike system, the Enbridge

pipeline the State of Ohio waterline, and the State of Ohio storm sewer system. By

3/31/06.”

       {¶ 64} Kilburg testified that in evaluating the SCS, he first went and walked the

site. Looking at the “health” of the containment system, Kilburg stated that he observed

vegetation and animal burrows within the containment cells. Testing began in January

2006, and Kilburg stated that the permeability results indicated that the SCS did not have

the ability to retain liquids.




21.
        {¶ 65} Kilburg testified that he submitted the report to the EPA on March 31,

2006.    Kilburg specifically found that the soils and permeability were “variable” and

that, in part, caused the SCS to fail. Kilburg stated that ODOT did a “very good job” at

reconstructing the part of the dike system its work impacted and that the SCS would have

failed even if the work had never been done.

        {¶ 66} Bradley Walker, safety specialist for HNTB, contract manager for the

project, testified that on Tuesday, November 29, 2005, he was on site and noticed that the

fuel spill had migrated to the ODOT construction site. He informed Delta of the spill but

testified that there was a “lack of concern” on Delta’s part. Walker ultimately contacted

the EPA regarding the spill.

        {¶ 67} Civil and geotechnical engineer Stephen Pasternack, vice-president of

BBC & M, Inc., an environmental consulting firm, testified that he was hired by DLZ to

review the allegations against it. Pasternack disagreed with the expert opinion of

Christopher Campbell and stated that his opinion was that DLZ did not violate the

standard of care for an engineer performing its contract with Figg, subcontractor of

ODOT, or any duty to investigate the conditions of Delta’s SCS. Specifically, Pasternack

testified that “it isn’t the role of civil engineers within this context to evaluate off

property structures with regard to whether or not they meet code and whether or not they

will operate properly.”

        {¶ 68} Pasternack was questioned extensively about the sand seam or seams

within the SCS. He agreed that the seam would be more pervious than clay. He




22.
disagreed that a seam filled with water would prevent additional liquid from entering.

Pasternack was also questioned about the dewatering of clay and acknowledged that

when it lowers in moisture content, fractures can occur and that liquid can move through

fractured clay.

       {¶ 69} At the close of all the evidence the motion for directed verdict was renewed

and denied. Following deliberations and the completion of the interrogatories and verdict

forms, the jury found that DLZ had a duty of care to Delta and that it breached its duty of

care. The jury further found that DLZ’s breach was the proximate cause of Delta’s

damages. In addition, the jury found that CES and/or Steven Peach breached a duty of

care to Delta and that such breach proximately caused Delta’s damages. The jury then

determined that Delta, under a respondeat superior theory, was responsible for CES’s

breach and causation. The jury then apportioned the negligence as 60 percent attributable

to DLZ and 40 percent attributable to Delta. They then awarded Delta $2.1 million in

damages. Final judgment was entered in the amount of $1,260,000, or 60 percent of the

total verdict.

       {¶ 70} On November 12, 2014, DLZ filed a motion for set-off of the jury verdict

based upon Delta’s settlement with CES. Similarly, on December 15, 2014, DLZ filed a

Civ.R. 60(B)(5) motion to vacate the jury verdict. DLZ argued that under R.C. 2307.28,

CES and Delta’s 2010 settlement in the amount of $2,757,000 completely offset the

jury’s verdict.




23.
       {¶ 71} On December 30, 2014, DLZ filed a motion for judgment notwithstanding

the verdict (“JNOV”) and/or a new trial. DLZ argued that the claimed damages were not

foreseeable and that Delta failed to establish causation or damages. Specifically, DLZ

argues that Delta failed to provide sufficient evidence of the standard of care and that

DLZ breached the standard, failed to provide proof of damages attributable to DLZ, and

that the negligence attributable to Delta was more than 50 percent.

       {¶ 72} On May 14, 2015, the trial court denied DLZ’s post-trial motions. As to

the motion to reconsider or vacate the verdict, the trial court denied the motion finding

that it was “illogical” because DLZ sought to vacate the judgment while at the same time

using the judgment to set-off the amount based upon the settlement between Delta and

CES.

       {¶ 73} As to the JNOV motion, the court simply stated that it found that

“sufficient, competent evidence was presented for the jury to consider in reaching the

verdict.” As to the motion for a new trial under Civ.R. 59, the court found that there was

no evidence of passion or prejudice which would have influenced the jury’s verdict. The

court further concluded that the verdict did not represent a manifest injustice. The court

also rejected the argument that the verdict was contrary to law as precluded by the

economic loss doctrine. Finally, the court denied DLZ’s motion for set-off finding that

the jury imputed CES’ negligence to Delta and, thus, it was incorporated in the 60/40

apportionment of negligence. This appeal followed.




24.
      {¶ 74} DLZ now raises the following four assignments of error:

             1.) The trial court erred when it entered judgment on the jury’s

      verdict inconsistent with its October 1, 2010 judgment entry in the prior

      proceeding approving plaintiff-appellee Delta Fuels, Inc.’s (“Delta”) prior

      settlement with former co-defendant Consolidated Environmental Services

      (“CES”) and stating that R.C. 2307.28 would apply to reduce the amount

      of Delta Fuels’ claim against all non-settling defendant, including

      defendant-appellant DLZ Ohio, Inc. (“DLZ”) by the amount of the

      settlement, resulting in an impermissible double recovery for Delta.

             2.) The trial court erred in denying DLZ’s post-trial motion for set-off

      when the jury determined that CES was a joint tortfeasor whose negligence

      was a proximate cause of the damages claimed by Delta, and whose prior

      voluntary settlement with Delta exceeded the total amount of damages

      awarded by the jury resulting in an improper double recovery for Delta.

             3.) The trial court erred in denying DLZ’s motions for directed

      verdict and for judgment notwithstanding the verdict because Delta failed to

      establish the essential elements of its negligence claims against DLZ by a

      preponderance of the evidence.

             4.) The trial court erred in denying DLZ’s motion for a new trial

      when the judgment was not sustained by the weight of the evidence and was

      contrary to law.




25.
       {¶ 75} Delta raises the following assignment of error in its cross-appeal:

              I. The trial court erred by denying plaintiff’s motion for prejudgment

       interest.

       {¶ 76} We will first address DLZ’s third and fourth assignments of error as they

are related and dispositive. In its third assignment of error, DLZ contends that the trial

court erred in denying its directed verdict and JNOV motions because Delta failed to

establish DLZ’s negligence by a preponderance of the evidence.

       {¶ 77} Our review of the grant or denial of a motion for directed verdict or a

motion for judgment notwithstanding the verdict is de novo. Kanjuka v. MetroHealth

Med. Ctr., 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920, ¶ 14 (8th Dist.);

Grau v. Kleinschmidt, 31 Ohio St.3d 84, 90, 509 N.E.2d 399 (1987).

       {¶ 78} Civ.R. 50 sets forth the standards for granting a motion for a directed

verdict and a motion for judgment notwithstanding the verdict and provides, in part:

              (A)(4) When a motion for directed verdict has been properly made,

       and the trial court, after construing the evidence most strongly in favor of

       the party against whom the motion is directed, finds that upon any

       determinative issue reasonable minds could come to but one conclusion

       upon the evidence submitted and that conclusion is adverse to such party,

       the court shall sustain the motion and direct a verdict for the moving party as

       to that issue.

              ***




26.
              (B) Whether or not a motion to direct a verdict has been made or

       overruled * * * a party may move to have the verdict and any judgment

       entered thereon set aside and to have judgment entered in accordance with

       his motion; or if a verdict was not returned, such party, * * * may move for

       judgment in accordance with his motion. A motion for a new trial may be

       joined with this motion, or a new trial may be prayed for in the alternative.

       {¶ 79} Conversely, an appellate court reviews a court’s ruling on a motion for a

new trial under an abuse of discretion standard. Harris v. Mt. Sinai Med. Ctr., 116 Ohio

St.3d 139, 2007-Ohio-5587, 876 N.E.2d 1201, ¶ 35; Sharp v. Norfolk & W. Ry. Co., 72

Ohio St.3d 307, 312, 649 N.E.2d 1219 (1995). That is, we will not reverse the court’s

decision unless it is arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Civ.R. 59(A)(6) provides that a new

trial may be granted where “[t]he judgment is not sustained by the weight of the

evidence; however, only one new trial may be granted on the weight of the evidence in

the same case[.]”

       {¶ 80} DLZ’s argument as to the court’s denial of its motion for directed

verdict/JNOV centers around the foreseeability of the damages alleged by and awarded to

Delta. DLZ contends it had no actual or constructive notice that Delta’s SCS relied upon

perched water. DLZ further asserts that Delta acknowledged this fact. DLZ argues that

Delta failed to establish the standard of care that it alleged was breached by DLZ’s

engineers.




27.
       {¶ 81} To establish actionable negligence, it is axiomatic that one shows the

existence of a duty. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265

(1989). In Ohio, “[t]he existence of a duty depends on the foreseeability of the injury.

The test for foreseeability is whether a reasonably prudent person would have anticipated

that an injury was likely to result from the performance or nonperformance of an act.”

(Citations omitted.) Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio

St.3d 284, 293, 673 N.E.2d 1311 (1997).

       {¶ 82} Construing the evidence in Delta’s favor, we note that its expert, Campbell,

testified that he based his opinions regarding the cut sand seams allowing the water and

fuel to escape the SCS on reports that were either not conducted until after the spill or not

available to DLZ when it designed the waterline. In fact, during Campbell’s testimony

the following exchange took place:

                Q: It is reasonable to assume that a secondary containment system

       housing 11 million gallons approximately of highly volatile gas and fuel oil

       would base its secondary containment system on sand seams and perched

       water?

                A: I don’t believe that they based it on sand seams and perched

       water.

                Q: Right. In fact, no one at Delta Fuels had any idea that their

       secondary containment system was in any way based on perch[ed] water or

       sand seams until you got involved in this case, right?




28.
               A: Not until the results of the 1986 report were made available in

       2009.

       {¶ 83} Further, Campbell questioned about prior deposition testimony as follows:

               Q: “Question, geological, there are plenty of geological explorations

       all around the Delta Fuels site, right?” Answer, “there are.” Question, “did

       any of those geological explorations that were available to DLZ show what

       you are saying would be discovered by geological exploration?” Your

       answer, “The reports I saw out in the ramp X area would not, they did not

       call out sand seams so they wouldn’t have picked up from that.” Did I read

       that correctly?

               A: I believe you did.

       {¶ 84} Additionally, although DLZ’s own geological assessment revealed the

existence of sand seams, it showed them to be variable, and not continuous. The soil

borings revealed no indication that any of the work being done had any impact on the

Delta site.

       {¶ 85} Finally in addition to lack of foreseeability, there was no substantial,

competent evidence presented establishing a causal connection between the relocation of

the waterline and the migration of the spilled fuel. There was testimony presented

regarding the creation of a “preferential pathway by construction of the waterline;”

however, Delta expert Linda Aller could not say whether it impacted the amount of fuel

that migrated off Delta property.




29.
       {¶ 86} We note that a jury may not reach a verdict based on speculation. Ohio

Bell Tel. Co. v. Columbus, 10th Dist. Franklin No. 09AP-113, 2009-Ohio-5126, ¶ 17,

citing Westinghouse Elec. Corp. v. Dolly Madison Leasing & Furniture Corp., 42 Ohio

St.2d 122, 326 N.E.2d 651 (1975). Accordingly, we find that the evidence was not

sufficient to allow a jury to determine whether DLZ was negligent in its design of the

water or sewer lines.

       {¶ 87} Under DLZ’s fourth assignment of error, we also find that the verdict was

against the weight of the evidence. As stated above, Delta failed to prove that its perched

water cut sand seams fuel-migration theory was foreseeable or that DLZ breached a duty

of care.

       {¶ 88} Based on the foregoing, we find that the jury’s verdict against DLZ was not

supported by sufficient evidence and was against the weight of the evidence. DLZ’s third

and fourth assignments of error are well-taken.

       {¶ 89} Based on our disposition of DLZ’s third and fourth assignments of error,

we find its first and second assignments of error are moot. We further find that Delta’s

cross-assignment of error is moot and not well-taken.

       {¶ 90} On consideration whereof, we find that substantial justice was not done the

.party complaining and the judgment of the Lucas County Court of Common Pleas is

reversed. We remand the matter for the court to enter judgment in favor of DLZ.

Pursuant to App.R. 24, appellee Delta is ordered to pay the costs of this appeal.


                                                                        Judgment reversed.



30.
                                                               Delta Fuels, Inc.
                                                               v. DLZ Ohio, Inc.
                                                               C.A. No. L-15-1001




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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