Lattea v. City of Akron

• Decision Date: 23 December 1982
• Citation: 458 N.E.2d 868,9 Ohio App.3d 118,9 OBR 182
• Parties: , 9 O.B.R. 182 LATTEA, Admr., Appellee, v. CITY OF AKRON, Appellee; John G. Ruhlin Construction Company, Appellant; The State of Ohio, Appellee. *
• Court: Ohio Court of Appeals

Page 118

9 Ohio App.3d 118

458 N.E.2d 868, 9 O.B.R. 182

LATTEA, Admr., Appellee, v. CITY OF AKRON, Appellee John G. Ruhlin Construction Company, Appellant The State of Ohio, Appellee. ^*

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 23, 1982.

Syllabus by the Court

1. Where two parties join in the commission of a negligent tort through the violation of their common duties, one tortfeasor cannot relieve itself of liability to an injured third party by contract with the other tortfeasor. However, contribution or indemnification may be proper as between the joint or concurrent tortfeasors.

2. The right to contribution exists under R.C. 2307.31 where two parties actively participate in the commission of a tort and one tortfeasor has been compelled to pay more than his share of the common liability, with recovery limited to the amount paid by him in excess of his proportionate share. The determination of the proportionate share of each tortfeasor is a question of proximate causation.

3. Only where one tortfeasor is entitled to indemnification from another joint or concurrent tortfeasor is he relieved from responsibility for contribution pursuant to R.C. 2307.31(D).

4. Indemnity is the right of a party whose negligence is passive and who is only secondarily liable to recover from the party who is primarily liable through active negligence or actual knowledge of a dangerous situation and acquiescence in the continuance thereof for complete reimbursement of all proper expenditures paid to a third party injured through the violation of their common duties. However, an employer of an independent contractor is not entitled to indemnification where he both knew of the dangerous situation created by the contractor's work and acquiesced in its continuance or performance.

5. There is no express or implied warranty of the accuracy of plans supplied by a contractee to a contractor; rather, the contractee can only be held liable to a third party injured as a result of defective plans relied upon by the contractor where the contractee was negligent in failing to prepare the plans with due care, or in failing to warn of a dangerous condition within the contractee's knowledge.

6. A loaned servant remains the general servant of the party who loaned him to another for a particular employment, and, therefore, it may be possible for the servant to be acting on behalf of both parties when he commits a tort. The determinative issue for allocating vicarious tort liability between the two employers is on whose behalf the servant was acting when he committed the tort.

Glenn W. Morris, Akron, for appellee Lattea.

Steven D. Bell and Edward J. Riegler, Akron, for appellee Akron.

Buckingham, Doolittle & Burroughs Co., L.P.A., William M. Oldham, Orville L. Reed III and David P. Bertsch, Akron, for appellant.

William J. Brown, Atty. Gen., Robert Tongren and Melvin D. Weinstein, Asst. Attys. Gen., for appellee state of Ohio.

WHITESIDE, Presiding Judge.

This appeal arises from an accident in which the west sidewalk of the Grant Street Bridge in Akron, Ohio, collapsed and fell onto Interstate 76, killing plaintiff's decedents, Rev. and Mrs. John Barrickman. At the time that the sidewalk collapsed, demolition work on the bridge was being carried out by defendant-appellant, John G. Ruhlin Construction Company (hereinafter "Ruhlin"), pursuant to a contract with the state of Ohio, Department of Transportation (hereinafter "State"). The plaintiff-appellee, Emlous Lattea, Administrator of the Estates of Rev. and Mrs. Barrickman, brought a wrongful death action in the Summit County Court of Common Pleas against Ruhlin and the city of Akron (hereinafter "Akron"). Defendant Ruhlin filed a third-party complaint against the state and, pursuant to R.C. 2743.03(E)(1), the action was transferred to the Court of Claims.

Defendant Ruhlin also filed a cross-claim against Akron, as did the state. Akron, in turn, filed cross-claims against the state and Ruhlin.

Defendants Ruhlin and Akron, with the consent of third-party defendant state, admitted negligence as to the claim of the Barrickman estates against defendants Ruhlin and Akron, reserving for future determination any rights and defenses on the various cross-claims and third-party complaints as between defendants and third-party defendant.

A jury trial was held solely on the issue of damages, resulting in a verdict for plaintiff estates of $1,006,864 jointly against Ruhlin and Akron.

A separate trial to the court was then held to determine how the $1,006,864 judgment was to be apportioned between defendant Akron, third-party defendant state and defendant Ruhlin.

Defendant Ruhlin appeals from the resultant trial court's holding that it was liable for the full amount of the judgment and raises six assignments of error, as follows:

"I. The trial court erred as a matter of law in holding that the City of Akron violated no legal duty by reason of having supplied false, inaccurate and misleading blueprints for use in the demolition of the Grant Street bridge.

"II. The trial court erred as a matter of law in holding that the Ohio Department of Transportation violated no legal duty by reason of having supplied false, inaccurate and misleading blueprints for use in the demolition of the Grant Street Bridge.

"III. The trial court erred as a matter of law in holding that the act of Ruhlin in cutting the top level of steel reinforcement bars was the sole proximate cause of the deaths of John and Patricia Barrickman.

"IV. The trial court erred as a matter of law in holding that the project supervisor and project inspector were only agents of the Ohio Department of Transportation.

"V. The trial court erred as a matter of law in failing to hold the City of Akron and the Ohio Department of Transportation liable by reason of their participation in the decision to cut the upper set of steel reinforcement bars.

"VI. The trial court erred as a matter of law in failing to hold the City of Akron jointly liable for the collapse of the bridge by reason of R.C. 723.01."

The Akron Grant Street Bridge runs in a northerly and southerly direction above Interstate 76. It was constructed in 1960-1961 by the National Engineering and Contracting Company pursuant to a contract with the state. As designed and constructed, the bridge had two cantilevered sidewalks on the east and west sides of the bridge. In a cantilevered design, part of each sidewalk rests on the bridge deck or slab, and part of the sidewalk extends out beyond the outermost edge of the bridge deck.

Those portions of the cantilevered sidewalks extending out beyond the edge of the bridge deck were intended to be supported primarily by two sets of steel reinforcing bars placed in each sidewalk, one row above the other. In the west sidewalk, there were also two rows of telephone conduit running through the sidewalk from north to south between the two sets of bars. The construction plans provided that the steel bars should run in a transverse direction from the outermost edge of the western sidewalk to that portion of the sidewalk resting on the bridge deck, one set above the conduit and the other set below the conduit. As constructed, however, the lower level of reinforcing bars was cut off at the point where they were to have passed under the conduits.

Sixteen years after construction, defendant Akron and the state entered into a contract for necessary repairs to the Grant Street Bridge. As part of its share of the cost of the bridge repair, Akron agreed to assume and contribute one hundred percent of the cost of preparing the project plans. The bridge repair itself was, however, a state project.

The state contracted with defendant Ruhlin for the repair of the Grant Street Bridge in accordance with specifications the state prepared and project plans prepared by Akron but approved by the state. This contract provided that defendant Ruhlin was to dismantle and replace the entire bridge deck and sidewalks, although the method of so doing was left up to Ruhlin as was customary in the construction trade.

The plans submitted by Akron to the state and then submitted by the state to Ruhlin were inaccurate in that the plans showed two sets of reinforcing bars running through the west sidewalk. Relying upon the missing lower reinforcement bars to support the sidewalk, Ruhlin, while dismantling the bridge, purposefully cut the upper set of steel reinforcement bars which extended into the cantilevered concrete section of the west sidewalk. No scaffolding or supports were provided by Ruhlin underneath the sidewalk. With no support from the reinforcing bars, the cantilevered portion of the sidewalk fell onto Interstate 76 below, killing plaintiff's decedents.

The decision to cut the top level of reinforcement bars was made on the job site by two Ruhlin employees, with the approval of Randall Monteith, the Project Supervisor. Chuck Dowling, the Project Inspector, was also aware of the decision to cut the bars and observed Ruhlin employees as this aspect of the job progressed.

Monteith and Dowling were at the job site in order to see that the repair to the Grant Street Bridge was done in accordance with the plans and specifications and in a safe manner. Although their exact status was a matter of controversy in the case, the trial court stated in its findings of fact that:

"Randall Allison Monteith and Charles E. Dowling, regular employees of the City of Akron, were assigned to the Grant Street Bridge Project as 'loaned employees' or agents of the Ohio Department of Transportation for the entire period of their service on that project. They were answerable to and received their supervision, instructions and orders from supervisory employees of the Ohio Department of Transportation."

Ruhlin asserts that it is entitled to indemnification, or in the alternative contribution, from Akron and the state because they negligently provided...