[Cite as Clark v. Dept. of Transp., 2019-Ohio-3264.]



MICHAEL A. CLARK, Admr.                                Case No. 2015-00099JD

         Plaintiff                                     Judge Patrick M. McGrath

         v.                                            DECISION

OHIO DEPARTMENT OF
TRANSPORTATION

         Defendant


         {¶1} Before the court is defendant Ohio Department of Transportation’s (ODOT)
motion for summary judgment and plaintiff’s 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 plaintiff’s 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
Case No. 2015-00099JD                        -2-                              DECISION


       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
Case No. 2015-00099JD                               -3-                                       DECISION


        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.

Facts
        {¶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

        1The parties, in their briefs, and the witnesses, in their depositions and affidavits, use the terms

bridge and ramp interchangeably. The court does so herein as well.
Case No. 2015-00099JD                         -4-                                DECISION


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 started
on the east side, it would finish on the west side.” He further testified:

          Q. What was the importance of the machine starting on the east side?
          A. Accessibility.
          Q. Did the phrase * * * “maintenance of traffic” ever come into those discussions?
Case No. 2015-00099JD                        -5-                             DECISION


      A. No.
      ***
      Q. So the focus, at least in those meetings that you had, had to do with simply
      getting the machinery over to the east side, working toward the west, so you
      would be able to get it off, correct, sir?
      A. Correct.
      (Schweer depo. p. 88).

      {¶10} After the collapse, Mr. Murray determined that the demolition work should
have started with the center span to accomplish the work safely. (Murray depo. p. 125-
126; 174-175). He testified, “I possibly made an engineering error” by “not starting” in
the center span. (Murray depo. p. 58). Mr. Murray also testified that the lack of a
demolition sequence was an “oversight.”            (Murray depo. p. 219-220).       John
Householder, Kokosing’s vice president, admitted that the sequence in which the crew
removed the deck played a role in the collapse as did the lack of a sequence for
demolition in the demolition plans. (Deposition of John Householder p. 60-61; 86). In
short, the collapse occurred because of the way in which Kokosing demolished the
ramp, i.e. starting on the east end as opposed to starting in the center span. (Affidavit
of Herbert Bill, Jr. ¶ 10-13). Because of the accident, Kokosing now pays a third-party
engineer to review its demolition plans. (Householder depo. p. 124).
      {¶11} Kokosing bore sole responsibility for designing the demolition plan and for
the means and methods used to undertake the work.           This responsibility included
ensuring that the work was done safely. ODOT had no input into the demolition plans
or Mr. Murray’s tie down plan and provided no direction on how Kokosing should
demolish the bridge. In fact, Mr. Murray testified he never spoke with anyone from
ODOT when designing the demolition plans. (Murray depo. p. 24; 33; 229; 239; 244;
271; 273; Wessels depo. p. 80; 81; 123; Stemler depo. p. 59; 76; Tuminello depo. p. 21-
Case No. 2015-00099JD                      -6-                               DECISION


22; 39; 43; 85; 111-112; 119; 121; 134; 440; Ex. 50 thereto; Short depo. p.133; Martini
depo. p. 207).
        {¶12} Christopher Tuminello acted as ODOT’s project engineer for the Hopple
Street project.     (Tuminello depo. p. 20).     He testified that Kokosing engineers
determined “what is required to complete [the] work.” (Tuminello depo. p. 92). He
continued, “[t]he contractor determines how they’re gonna complete the work, when
they’re gonna complete the work and their means and methods to complete that work.”
(Tuminello depo. p. 217). Likewise, Mr. Kelly Wessels, then ODOT’s Hamilton County
resident engineer, testified, “Kokosing has a contract with [ODOT].       They are the
preparer of the demolition plans * * * The contractor determines their means and
methods. They develop a plan to demolition (sic) a bridge.” (Wessels depo. p. 272).
        {¶13} ODOT’s acceptance of the demolition plans was not a contractual
requirement.      (Murray depo. p. 24; 33; 276).    Mr. Tuminello was responsible for
performing a cursory review of demolition drawings, checking to make sure the plans
pertain to the right project, were received within the correct contractual timeframe, and
contained the required stamps of two professional engineers. The demolition plans
bore the required stamps. (Stemler depo. p. 60; 96-98; 102; 179; 181; 191; Wessels
depo. p. 84; 92; 108; 117; 296; 301). However, Mr. Tuminello never saw the revised
demolition plan before the collapse as it was submitted after he left work for the day on
January 16, 2015. (Tuminello depo. p. 122; 250-251).
        {¶14} Though ODOT provides parameters for maintenance of traffic (MOT)
including disincentives and penalties for lane closures, Kokosing bore responsibility for
designing the MOT plan. Kokosing used a third-party firm, GPD, to design the MOT
plan.   (Wessels depo. p. 31; 33; 145-46; Tuminello depo. p. 148-49; 215; 311).
(Deposition of Stephen Mary p. 20, 85; 93; 134; Stemler depo. p. 28; Martini depo. p.
36; 199; 204). Mr. Wessels testified, the traffic closure penalties are not “directing
Kokosing on what lanes will be closed and when they will be closed.” (Wessels depo. p.
Case No. 2015-00099JD                       -7-                                 DECISION


180). Rather, the purpose of the MOT plan is “[t]o determine how traffic is going to be
maintained throughout the project.” Among other items, it can address what lanes are
closed or left open and for what times. (Tuminello depo. p. 224).            Mr. Tuminello
testified, “[t]he contractor is to design how they are gonna maintain traffic and how
they’re gonna accomplish the work per the contract.” (Tuminello depo. p. 150). Mr.
Murray did not review the MOT plan when devising his demolition plans. In fact, he was
never provided with the MOT plan. (Murray depo. p. 156-57; 274-275). Certain lanes of
I-75 remained open during demolition, which Mr. Murray testified was typical of such
demolitions.   (Schweer depo. p. 91-92; Murray depo. p. 19-20; 178).            Mr. Martini
testified that, if needed, lanes could have been closed or other options could have been
utilized to remove the center span first which could have been done safely pursuant to
the MOT. (Martini depo. p. 206).


Law and Analysis
       {¶15} In Cafferkey v. Turner Constr. Co., 21 Ohio St.3d 110, ¶ 1 of syllabus
(1986), the Ohio Supreme Court held “[a] general contractor who has not actively
participated in the subcontractor’s work, does not, merely by virtue of its supervisory
capacity, owe a duty of care to employees of the subcontractor who are injured while
engaged in inherently dangerous work.” Although phrased as applicable to general
contractors, this rule applies in general “to those who engage the services of an
independent contractor or subcontractor” including ODOT. Krystalis v. Ohio DOT, 10th
Dist. No. 09AP-112, 2009 Ohio 3481, 2009 Ohio App. Lexis 3024, ¶ 11. As stated in
Krystalis, “[a]ctive participation means to direct ‘activity which resulted in the injury
and/or [to give or deny] permission for the critical acts that led to the employee’s injury,
rather than merely exercising a general supervisory role over the project.’” Id. See
also, Bond v. Howard Corp., 72 Ohio St.3d 332, 337 (1995). In Sopkovich v. Ohio
Edison Co., 81 Ohio St.3d 628, 643 (1998), the Supreme Court stated the rule slightly
Case No. 2015-00099JD                       -8-                                 DECISION


differently, finding “active participation * * * may be found to exist where a property
owner either directs or exercises control over the work activities of the independent
contractor’s employees, or where the owner retains control over a critical variable in the
workplace.”
       {¶16} These cases make clear that ODOT’s supervisory role does not equate to
active participation. Rather, ODOT must have: 1) directed the activity which resulted in
Mr. Carl’s death, 2) given or denied permission for the critical acts that led to Mr. Carl’s
death, and/or 3) retained control over a critical variable in the workplace.        Plaintiff
argues that ODOT retained control over a critical variable. However, the court finds that
ODOT has sustained its burden to demonstrate the absence of any genuine issue of
material fact regarding ODOT’s lack of active participation under all three theories of
recovery.
       {¶17} First, there is no dispute and, therefore, no genuine issue of material fact
regarding ODOT’s complete non-involvement in the means and methods used for
demolition.     ODOT personnel were not involved whatsoever in the design of the
demolition plans or in the actual demolition itself. Rather, per the parties’ contract,
Kokosing bore sole responsibility for design and execution of the demolition plan.
ODOT provided no direction on the equipment to be used, the number of workers
involved, the sequence in which the bridge would be demolished or any other aspect of
the work. All instructions and decisions regarding the demolition came from Kokosing
who directed its own employees, including Mr. Carl, on how to accomplish the work.
There are simply no facts to establish that ODOT directed the work activity which
resulted in Mr. Carl’s death.
       {¶18} Likewise, the court finds there is no genuine issue of material fact
regarding ODOT’s failure to give or deny permission for the critical acts leading to Mr.
Carl’s death.     The bridge collapsed because of the sequence in which it was
demolished. Thus, the critical act leading to Mr. Carl’s death was the failure to include a
Case No. 2015-00099JD                      -9-                                DECISION


demolition sequence in the demolition plans and/or the decision to start work on the
east side of the bridge and move west, neither of which involved decisions by ODOT.
Kokosing engineers alone were responsible for the plan’s lack of a demolition sequence
and the Kokosing construction crew made the decision itself to start on the east side of
the bridge and move west. No one from Kokosing sought permission from ODOT and
ODOT provided no input into these decisions. In fact, Mr. Murray testified that he had
no contact with ODOT personnel when designing the demolition plans. Further, ODOT
personnel were not present at the time of the collapse, had no knowledge of the beams
lifting off the bridge abutment the night before the collapse, and also had no knowledge
of Mr. Murray’s tie-down plan. There is no evidence that anyone from ODOT either
granted or denied permission for any aspect of the sequence in which Kokosing
demolished the bridge.
       {¶19} Finally, the court also finds that ODOT did not retain control over any
critical variable.   Plaintiff points to the MOT plan and contractual provisions which
outlined parameters for traffic control, including penalties and disincentives associated
with lane closures, in arguing that ODOT “exercised control over traffic” and that
“ODOT’s traffic mandate dictated how Kokosing could sequence the demolition of the
bridge.”     However, Mr. Murray testified that he was never provided with the MOT,
which Kokosing itself designed, and Mr. Schweer testified that the MOT played no role
in the crew’s decision to start on the east side of the bridge. Kokosing’ s MOT called for
lanes to remain open during demolition and Mr. Murray and Mr. Schweer both testified
that it was typical to leave lanes of traffic open during demolition work. Mr. Murray
estimated he prepared around 300 demolition plans, 75% of which involved traffic
remaining active while demolition took place. (Murray depo. p. 19-20). In fact, he could
“not recall an interstate closure underneath an overhead bridge.” (Murray depo. p. 178).
       {¶20} Mr. Martini also testified that lane closure or other options could have been
used to remove the center span of the bridge first, both safely and pursuant to the MOT.
Case No. 2015-00099JD                      -10-                                DECISION


For instance, Mr. Martini testified an “up and over” plan, in which vehicles exit and then
re-enter the highway via on and off ramps could have been used. ODOT witnesses
testified that closure penalties do not direct Kokosing on which lanes to close and that
Kokosing decides, through the MOT plan, how to maintain traffic and accomplish the
work pursuant to the contract. No witness, from either Kokosing or ODOT, testified that
the lane closure penalties or MOT plan had any effect whatsoever on the sequence of
demolition. In short, though the contract provided parameters for the maintenance of
traffic and penalties for certain lane closures, these parameters did not result in ODOT
retaining any control over the flow of traffic nor did they influence either the design of
the demolition work or the demolition work itself.       No fact-witness with first-hand
knowledge testified otherwise.
        {¶21} The court finds ODOT sustained its burden to demonstrate an absence of a
genuine issue of material fact regarding its lack of active participation in the demolition
work. The court bases this finding on the numerous depositions of Kokosing and ODOT
employees, cited and summarized supra. These depositions established that Kokosing
bore sole and complete responsibility for all aspects of the demolition work. They also
establish that Kokosing employees designed a demolition plan without a sequence for
demolition and chose to begin demolition on the east side of the bridge instead of the
center. The depositions are consistent in that Kokosing employees chose to continue
with demolition in this manner despite observing the beams rising and falling the night
before the collapse. Finally, the depositions are also consistent regarding ODOT’s role;
ODOT acted in a supervisory capacity only and played no role in Kokosing’s demolition
work.
        {¶22} In seeking to demonstrate the existence of a genuine issue of material fact,
plaintiff points to the affidavits of his expert witnesses, Dr. Herbert Bill, Jr. and
Michael C. Wright. Dr. Bill opines that “the inability to stop traffic * * * for extended
periods dictated that Kokosing start the demolition from the east and move * * * west.”
Case No. 2015-00099JD                       -11-                               DECISION


(¶ 14). He indicates ODOT “ordered” Kokosing to use this approach. (¶ 15). He opines
that the contract’s parameters and penalties related to lane closures “controlled the
means and methods that Kokosing could use to demolish the bridge and * * * compelled
Kokosing to start demolition at the ends” and “forced Kokosing to start the demolition
from the east end.” (¶ 16). Dr. Bill further opines that lanes needed to be closed to
allow demolition of the center span and that the limited lane closure time permitted by
the contract did not allow “enough time to start the demolition by first removing the
center span.”   (¶¶ 17-18; 20B).     He further opines, “ODOT’s stringent traffic flow
requirements * * * dictated the sequencing of the bridge demolition and, therefore,
ODOT actively and actually participated in the demolition of the bridge and exercised
control over a critical construction/deconstruction variable” and that ODOT “controlled
the means and methods” used to demolish the bridge. (¶ 20C). He states that the
contract’s parameters related to traffic “resulted in demolition * * * of the bridge in the
wrong order.” (¶ 20D).
       {¶23} Mr. Wright opines that ODOT “actively participated in the construction and
demolition project by exerting constant and persistent control over virtually every aspect
of the project” and states “ODOT ordered Kokosing during demolition to keep traffic
flowing beneath the bridge.”     (¶ 8-9).    Pointing to contractual provisions outlining
ODOT’s supervisory authority, Mr. Wright opines that “ODOT, through its contractual
power and daily involvement, actually exercised direction and control of the demolition
and therefore it exercised control of Brandon Carl’s safety.” (¶ 12B). He further opines,
“ODOT * * * determined how Kokosing would complete the work, when Kokosing would
complete the work, and * * * dictated the means and methods that Kokosing could use
to complete the work.” (¶ 12C). The court finds that plaintiff’s experts’ affidavits do not
create a genuine issue of material fact for the following reasons.
       {¶24} First, plaintiff’s experts’ opinions regarding ODOT are conclusory, bare
contradictions unsupported by any evidence and, therefore, they can not demonstrate
Case No. 2015-00099JD                        -12-                                DECISION


the existence of genuine issue of material fact. In White v. Sears, 10th Dist. No. 10AP-
294, 2011-Ohio-204, ¶ 9, the 10th District considered a similar situation. In affirming
summary judgment, the 10th District found, “a non-movant’s own self-serving
assertions, whether made in an affidavit, deposition or interrogatory responses, cannot
defeat a well-supported summary judgment when not corroborated by any outside
evidence.” In White, the court first cited Bell v. Beightler, 10th Dist. No. 02AP-569, 2003
Ohio 88, ¶ 33 wherein it stated:

      Generally, a party’s unsupported and self-serving assertions, offered by
      way of affidavit, standing alone and without corroborating materials under
      Civ.R. 56, will not be sufficient to demonstrate material issues of fact.
      Otherwise,    a      party   could   avoid    summary   judgment   under    all
      circumstances solely by simply submitting such a self-serving affidavit
      containing nothing more than bare contradictions of the evidence offered
      by the moving party.

The White court also cited the following passage from Greaney v. Ohio Turnpike
Comm., 11th Dist. No. 2005-P-0012, 2005 Ohio 5284, ¶16:

       [A] non[-]moving party may not avoid summary judgment by merely
      submitting a self-serving affidavit contradicting the evidence offered by the
      moving party. * * * This rule is based upon judicial economy; [p]ermitting a
      non[-]moving party to avoid summary judgment by asserting nothing more
      than “bald contradictions of the evidence offered by the moving party”
      would necessarily abrogate the utility of the summary judgment exercise.
      * * * Courts would be unable to use Civ.R. 56 as a means of assessing the
      merits of a claim at an early stage of the litigation and unnecessarily dilate
      the civil process.
Case No. 2015-00099JD                       -13-                                  DECISION


       {¶25} Plaintiff’s experts’ opinions do not explain how they reached their
conclusions despite the undisputed testimony by Mr. Murray that it was an oversight
that the demolition plans contained no demolition sequence and that he did not look at
the MOT plan when designing the demolition. They do not explain their conclusions in
light of the testimony of Mr. Schweer that the Kokosing construction crew chose to start
demolition on the east side of the bridge for accessibility reasons and that the MOT plan
played no role in the crew’s decision. They do not explain how Kokosing was forbidden
from closing lanes despite the contract provisions which spoke only to the length of time
a lane could be closed.       Most importantly, despite the substantial and consistent
testimony by all witnesses that ODOT played no role in Kokosing’s demolition design or
the demolition itself, these experts nonetheless opine that ODOT actively participated in
the demolition.
       {¶26} Without any corroborating evidence, plaintiff’s experts, in the most
conclusory fashion, offer nothing more than bare contradictions of the other evidence in
the case.     Though White and the cases cited therein considered affidavits and
deposition testimony of a party, the court finds the law stated therein applies to the
opinions of plaintiffs’ experts in this case. The character of the evidence plaintiff offers
here is identical to that presented in White and the other cases, i.e. bare and conclusory
contradictions of the factual testimony of every fact witness in the case. In the court’s
view, it would make little sense to allow the plaintiff to perform an end-run around White
and the cases cited therein and create an issue of fact based on expert affidavits
containing the very sort of evidence as that rejected in these cases. Plaintiff cannot
demonstrate a genuine issue of material fact through expert opinions that do nothing
more than contradict the facts to which every deponent consistently testified.
       {¶27} In addition, plaintiff’s experts, in opining that ODOT actively participated in
the demolition, do not present facts but rather offer legal conclusions reflecting plaintiff’s
position on liability.   This court determines whether the facts establish that ODOT
Case No. 2015-00099JD                         -14-                                  DECISION


actively participated in the demolition. In Blair v. City of Columbus Div. of Fire, 10th
Dist. No. 10AP-575, 2011-Ohio-3648, 2011 Ohio App. Lexis 3084, ¶ 33, the 10th
District, in affirming summary judgment, found that an expert’s opinion that appellees’
actions constituted willful or wanton misconduct stated a legal conclusion and did not
create an issue of material fact.        Rather, the court was required to analyze the
underlying facts. See also Hackathorn v. Preisse, 104 Ohio App.3d 768, 771-772 (9th
Dist.1995) (Court first found “[a]n affidavit cannot state legal conclusions” before finding
that two expert affidavits that opined that a person acted “recklessly” stated legal
conclusions and did not create any issues of fact.).          In the present case, plaintiffs’
experts reflect nothing more than plaintiffs’ position regarding liability. However, based
on its review of the evidence, the court has accurately set forth the facts supra.
       {¶28} In short, the court finds that plaintiffs’ experts offer unsupported and bare
contradictions of the evidence in this case and/or legal conclusions which do not
establish the existence of any genuine issue of material fact regarding ODOT’s lack of
active participation.
       {¶29} As ODOT has established an absence of any genuine issue of material fact
regarding its lack of active participation, the court finds that its supervisory role entitles it
to judgment as a matter of law. Kokosing agreed to the contract’s parameters and bore
sole responsibility for the design and execution of all work the contract required
including the demolition of Ramp D and the design of the MOT plan. The contract’s
traffic flow mandates and lane closure penalties do not change the role or duty of the
respective parties. That Kokosing might incur penalties, even severe ones, for closing
lanes does not equate to ODOT assuming more than a supervisory role.                    Instead,
Kokosing bore the responsibility to accomplish the work safely pursuant to the contract’s
parameters and requirements. Kokosing could have designed a plan that included a
demolition sequence. Its crew could have begun demolition on Ramp D’s center span.
Its crew and engineers could have halted work when the bridge’s beams began to rise
Case No. 2015-00099JD                     -15-                                DECISION


and fall the night before the collapse and taken a second and more thorough look at
Ramp D’s construction and Mr. Murray’s demolition plan. Regardless, Kokosing and its
employees were solely responsible for all aspects of the work’s design and execution
while ODOT maintained a supervisory role at all times.
      {¶30} Case law supports the court’s finding that ODOT’s supervisory role entitles
it to summary judgment. In Krystalis, ODOT hired a painting contractor, A & L Painting
LLC, to repaint a bridge. The plaintiff, a worker who sandblasted some of the steel on
the bridge, contracted lead poisoning and sued ODOT for negligence based on its
alleged failure to enforce safety policies and regulations. In upholding summary
judgment for ODOT, the 10th District found that ODOT did not actively participate in the
sandblasting reasoning:

      Only [plaintiff’s] foreman told him what to do, and [plaintiff] reported work
      safety issues to his foreman * * * ODOT does not “tell the contractor how
      to * * * work.” (Bencivengo Depo. 21.) To be sure, ODOT’s inspectors
      gauged A&L’s work for progress, quality, and contract fulfillment.
      However, this monitoring did not transform ODOT’s role to active
      participation, but pertained to ODOT’s general supervisory function.
      ODOT’s contract provisions on worker safety also did not transform
      ODOT’s role to active participation. Instead, ODOT required A&L to
      provide safety equipment for its workers in the containment and placed on
      A&L the responsibility to assure that its workers took proper safety
      precautions.

Here, as in Krystalis, ODOT had inspectors to ensure that Kokosing completed the
bridge work according to contract specifications but none of them engaged in any
conduct that could constitute actual participation in the work being performed.
Likewise, like the contractual safety provisions in Krystalis, the contractual provisions
Case No. 2015-00099JD                       -16-                              DECISION


here related to lane closures did not transform ODOT’s role into active participation;
they simply placed an additional responsibility on Kokosing.      See also Cafferkey v.
Turner Constr. Co., 21 Ohio St.3d 110, 112 (1986) (General contractor’s retention over
safety procedures does not equate to the kind of active participation required to create a
duty of care to independent contractor’s employees).
       {¶31} In contrast, in Hirschbach v. Cincinnati Gas & Electric. Co., 6 Ohio St.3d
206, (1983), an employee of an independent contractor died when a tower arm
collapsed because of a tractor which was positioned too close to the tower.           The
property owner denied permission to the decedent and other employees to move the
tractor prior to the accident. In reversing summary judgment in favor of the property
owner, the Supreme Court found the property owner participated in the work because it
retained and exercised control over the work area. Id. at 208. Likewise, in Sopkovich,
Ohio Edison hired an independent contractor to paint an electric substation. One of the
independent contractor’s employees sustained severe injuries after being electrocuted.
Ohio Edison decided daily which area of the substation would be de-energized to allow
the painting work to be completed and also controlled the process of activating and de-
activating the electricity. In reversing summary judgment for Ohio Edison, the Supreme
Court found Ohio Edison actively participated because it retained and exercised
“exclusive control over a critical variable in the working environment, i.e. the de-
activation of specific electrical conductors in the work area.”
       {¶32} In the present case, ODOT’s role is readily distinguishable from that of the
defendants in Hirschbach and Sopkovich. ODOT did not have any active role in either
the design or the demolition work itself. ODOT had no affirmative role whatsoever. It
did not grant or deny permission to Kokosing as to any aspect of the demolition work, as
in Hirschbach, nor did it take affirmative actions or make daily decisions regarding the
work being performed as in Sopkovich. ODOT retained Kokosing to accomplish all
work on the Hopple Street bridge project and played nothing more than a passive,
Case No. 2015-00099JD                      -17-                              DECISION


supervisory role.   As such, ODOT is entitled to summary judgment on all claims
because it did not actively participate in the work and, therefore, owed no duty to
Mr. Carl or any other Kokosing employee as a matter of law.

Conclusion
      {¶33} Mr. Carl’s death was tragic and regrettable. However, as an employee of
an independent contractor, ODOT owed Mr. Carl no duty absent evidence that it
actively participated in the work.   There is no such evidence.     Rather, ODOT has
pointed to evidence which establishes the absence of any genuine issue of material fact
regarding Kokosing’s responsibility for every aspect of the means and methods of the
demolition work and which further establishes that ODOT acted only in a supervisory
role. Though plaintiff asserted both a negligence based claim and a breach of warranty
claim in his complaint, plaintiff makes no mention of any warranty or of any duty owed to
Mr. Carl apart from arguing that ODOT actively participated in the work. Thus, as a
matter of law, ODOT’s lack of participation means that it owed no duty to Mr. Carl and,
therefore, that it is entitled to summary judgment on all of plaintiff’s claims. For the
reasons stated herein, the court shall grant ODOT’s motion for summary and deny
plaintiff’s motion for partial summary judgment.




                                          PATRICK M. MCGRATH
                                          Judge
[Cite as Clark v. Dept. of Transp., 2019-Ohio-3264.]



MICHAEL A. CLARK, Admr.                                 Case No. 2015-00099JD

         Plaintiff                                      Judge Patrick M. McGrath

         v.                                             JUDGMENT ENTRY

OHIO DEPARTMENT OF
TRANSPORTATION

         Defendant


         {¶34} For the reasons set forth in the decision filed concurrently herewith,
defendant’s motion for summary judgment is GRANTED and plaintiff’s motion for partial
summary judgment is DENIED.                  Judgment is rendered in favor of defendant.   All
previously scheduled events are VACATED. Court costs are assessed against plaintiff.
The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.




                                                       PATRICK M. MCGRATH
                                                       Judge


Filed July 10, 2019
Sent to S.C. Reporter 8/15/19
