Gorslene v. Ohio Department of Transportation, 113018 OHCOC, 2016-00708JD

Docket Nº:2016-00708JD
Opinion Judge:ROBERT VAN SCHOYCK MAGISTRATE JUDGE
Party Name:REX A. GORSLENE, et al. Plaintiffs v. OHIO DEPARTMENT OF TRANSPORTATION Defendant
Case Date:November 30, 2018
Court:Court of Claims of Ohio
 
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2018-Ohio-4953

REX A. GORSLENE, et al. Plaintiffs

v.

OHIO DEPARTMENT OF TRANSPORTATION Defendant

No. 2016-00708JD

Court of Claims of Ohio

November 30, 2018

Sent to S.C. Reporter 12/10/18

DECISION OF THE MAGISTRATE

ROBERT VAN SCHOYCK MAGISTRATE JUDGE

{¶1} Plaintiff, Rex A. Gorslene (hereinafter referred to as Gorslene), brought this action for negligence arising from a September 29, 2014 accident in which a state-owned vehicle operated by Charles Kiner, an employee of defendant, Ohio Department of Transportation (ODOT), backed into and injured him while he was at work on a highway construction project at the intersection of U.S. Route 42 and Section Line Road in Delaware County, which was being rebuilt and was closed to through traffic. Plaintiff, Connie Gorslene, asserts a derivative loss of consortium claim. The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.

{¶2} Gorslene testified that at the time of the accident he had been employed with Double Z Construction for about ten years, working mainly as an equipment operator but performing various other kinds of work as well. Gorslene, who stated that he was 49 years old at the time of trial, recounted that he previously worked for Decker Construction and in total had worked in asphalt paving and other construction jobs for more than 25 years. On the day of the accident, Gorslene explained, he had been saw-cutting lines in newly-cured concrete pavement, which is done to prevent cracking. Gorslene stated that a chalk box tool he was using to mark the lines ran out of chalk, so he went to get more chalk from a jug stored in a toolbox in his boss's truck. Gorslene testified that once he retrieved the jug, he moved away from the truck and knelt with one knee on the ground. As Gorslene explained, it was better to refill the chalk box while kneeling on the ground because it was easier to control and more shielded from the wind than if he were standing, it takes two hands to produce chalk from the jug, and he wanted to be far enough away from the truck that no chalk would get on it.

{¶3} Gorslene testified that the location where he filled the chalk box was about 5 feet from the side of his boss's truck. About 6 to 10 feet behind him, Gorslene stated, was the rear end of the state vehicle, which was parked 15 feet from the truck in his estimation. Although most of the workers parked their vehicles near a gas station away from the work zone, his boss and another boss kept their trucks nearby because they had tools on them, Gorslene explained. Gorslene, who stated that he had seen Kiner at many work sites over the years but did not know him personally, recounted that while filling the chalk box he saw Kiner along the section of U.S. Route 42 where the concrete work was going on, to the rear of the state vehicle, and heard a worker direct Kiner to move the vehicle so that it would not get sprayed with a curing compound that was about to be applied to the concrete. According to Gorslene, Kiner subsequently walked past him on the way to the state vehicle and they waved or otherwise acknowledged each other. Gorslene stated that he wore a green vest, a green shirt, and a hard hat.

{¶4} The way Gorslene described, there was a lot of activity that day and a dirt access road that construction vehicles were using to reach the site was blocked to the rear of the state vehicle, particularly by the presence of the bosses' trucks. For that reason, Gorslene felt that if Kiner were to move the state vehicle, the only direction Kiner could go was forward, away from Gorslene. Going that direction, Gorslene stated, he thought Kiner could have moved the state vehicle to the lot by the gas station where the workers parked their vehicles. Gorslene admitted that it is important to be aware of one's surroundings at a construction site. But, based upon his feeling that the route behind the state vehicle was blocked, combined with he and Kiner having acknowledged each other, Gorslene explained, he saw no reason to move or watch the vehicle. Gorslene testified that he kept filling the chalk box, remaining down on one knee with his back to the state vehicle. Gorslene stated that there was a lot of construction noise and he never heard the state vehicle's engine or exhaust.

{¶5} Gorslene recalled that he was still working in the same spot, a minute or two after Kiner passed by, when the rear end of the state vehicle struck his back and momentarily kept backing over him. According to Gorslene, the state vehicle then pulled forward and workers yelled at Kiner to stop, which he did some 60 to 70 feet ahead. Gorslene testified that his hard hat was knocked off and he felt pain in his back and elsewhere. Gorslene recalled having help getting up and being sat down on a curb, and he remembered talking to co-workers Dennis Thacker and Carla Meinberg, but he had no recollection of talking to Kiner. Gorslene testified that paramedics came and gave him a shot...

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