Miles v. Kohli & Kaliher Associates, Ltd.

• Decision Date: 22 October 1990
• Docket Number: 89-3605,89-3595,89-3604,Nos. 89-3594,s. 89-3594
• Parties: 14 UCC Rep.Serv.2d 135, Prod.Liab.Rep.(CCH)P 12,664 Janet MILES, etc., et al., Plaintiffs-Appellants (89-3594), Plaintiffs (89-3595/3604/3605), Michael Glass, etc., et al., Plaintiffs-Appellants (89-3595), Plaintiffs (89-3594), Betty S. Underwood, et al., Plaintiffs-Appellants (89-3605), v. KOHLI & KALIHER ASSOCIATES, LTD., Defendants, Paulding County Road Commission (Board of County Commissioners of Paulding County, Ohio), Defendant-Appellant (89-3604), United States Steel Corporation, et al., Defendants-Appellees, Ohio Bridge Corporation, Defendant (89-3594/3604), Defendant-Appellee (89-3594/3605).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 235

917 F.2d 235

14 UCC Rep.Serv.2d 135, Prod.Liab.Rep.(CCH)P 12,664

Janet MILES, etc., et al., Plaintiffs-Appellants (89-3594) Plaintiffs (89-3595/3604/3605) Michael Glass, etc., et al., Plaintiffs-Appellants (89-3595), Plaintiffs (89-3594) Betty S. Underwood, et al., Plaintiffs-Appellants (89-3605), v. KOHLI & KALIHER ASSOCIATES, LTD., Defendants Paulding County Road Commission (Board of County Commissioners of Paulding County, Ohio), Defendant-Appellant (89-3604), United States Steel Corporation, et al., Defendants-Appellees, Ohio Bridge Corporation, Defendant (89-3594/3604), Defendant-Appellee (89-3594/3605).

Nos. 89-3594, 89-3595, 89-3604, 89-3605.

United States Court of Appeals, Sixth Circuit.

Argued May 11, 1990.

Decided Oct. 22, 1990.

William J. Lamping, Bloomfield Hills, Mich., Richard M. Kerger (argued), Marshall & Melhorn, Toledo, Ohio, for plaintiffs-appellants in No. 89-3594.

Jeffrey S. Creamer (argued), David W. Wicklund, Shumaker, Loop & Kendrick, Toledo, Ohio, for defendants-appellees in Nos. 89-3594, 89-3604, 89-3595 and 89-3605.

Martin W. Williams, Williams, Jilek & Lafferty, Toledo, Ohio, Glenn H. Troth, Paulding, Ohio, Richard M. Kerger (argued), Marshall & Melhorn, Toledo, Ohio, for plaintifs-appellants in No. 89-3595.

Richard D. Rogovin, Bricker & Eckler, Columbus, Ohio, for Ohio Bridge Corp. in No. 89-3595 and 89-3605.

Michael J. Malone, Julie A. Davenport, Oxley, Malone, Fitzgerald & Hollister, Findlay, Ohio, for Paulding County Road Com'n in No. 89-3604.

Richard M. Kerger (argued), James H. Irmen, Jessica R. Christy, Marshall & Melhorn, Toledo, Ohio, for Betty S. Underwood in No. 89-3605.

Richard M. Kerger, Ruth A. Meacham, James H. Irmen, Jessica R. Christy, Marshall & Melhorn, Toledo, Ohio, for George William Underwood in No. 89-3605.

Before MARTIN and GUY, Circuit Judges, and GILMORE, District Judge. ^*

RALPH B. GUY, Jr., Circuit Judge.

This is an appeal from summary judgment in favor of three defendants, United States Steel Corporation (USS), American Culvert and Fabricating Company, and Ohio Bridge Corporation, in an action for compensatory and punitive damages stemming from the collapse of the Zuber Creek bridge in Paulding County, Ohio.

Appellants maintain that summary judgment was inappropriate because the record contains facts sufficient to support recovery against USS and American Culvert on the basis of strict liability, negligent failure to warn, breach of the duty to instruct, negligent design, tortious breach of express warranty, and breach of a contractually implied warranty. In addition, they maintain that Ohio Bridge may be held liable for actions performed by American Culvert on an "alter ego" theory. For reasons set forth below, we find that summary judgment in favor of USS and American Culvert on claims of strict liability, negligent failure to warn, and breach of the duty to instruct must be reversed. We affirm the district court's disposition of the remaining issues.

I.

In the spring of 1972, the Paulding County Engineer, Charles Dunakin, in consultation with the County Board of Commissioners, decided to replace the old steel truss bridge carrying County Road 180 over Zuber Creek. Relying on his years of experience as the county's engineer, Dunakin chose a culvert design for the new bridge. Bridges of the culvert design Dunakin selected consist of two essential elements: a metal arch through which water can flow, and earthen "backfill" which surrounds the arch and supports the roadway above. After determining the dimensions of the culvert he would require and consulting a data sheet on arches, Dunakin finally decided to purchase a "bridge kit" manufactured by USS. The kit included interlocking sections of corrugated steel plates along with all hardware necessary to assemble the plates into a semi-cylindrical arch 96 feet long with a 30-foot span and 15-foot one-inch rise. It also contained a set of standardized blueprints and instructions on assembling the arch and backfilling soil around it so as to form a culvert. At no time during the selection process did Dunakin consult with USS regarding the type of arch to use or the specifications he would require.

After Dunakin decided to purchase the USS bridge kit, Paulding County extended invitations for bids from "retailers" on the price of the kit as delivered to the Zuber Creek site. American Culvert submitted the lowest bid and was awarded the contract in April of 1972. After purchasing the kit from AmBridge, a subdivision of USS, American Culvert delivered it directly to the county in May of 1972.

Paulding County then proceeded to construct the culvert without any direct assistance from USS or American Culvert. A county work crew began construction in the fall of 1973 by sinking concrete footings into channels on the sides of the creek. They then fabricated the arch, bolting together the corrugated steel plates supplied by USS, and placed it in the footings. Headwalls, concrete structures formed to the contour of the arch, were then placed on each of the arch's four corners, and the crew finally began the process of backfilling.

The bridge kit was designed so that the completed culvert would derive most of its stability and capacity to support weight not from the flexible corrugated sectional plates composing the arch, but from the "passive resistance" of the soil surrounding it. In fact, when a culvert bridge of the design employed here has been properly backfilled, virtually the entire weight of any load placed upon it will be deflected into the surrounding soil. The instructions accompanying the bridge kit stated that "it is necessary that backfill be made of good material properly placed and carefully compacted." They also directed that "[s]elected drainable backfill material is preferred, but most local fill material can be used provided it is carefully placed and compacted." In fact, the work crew did use local soil, which, in Paulding County, is composed primarily of clay. Although it appears that some attempt was made to follow the USS instructions on soil compaction, there were numerous significant deviations. After the backfilling was completed, gravel was placed over the culvert to bring it to the height of the road, and a new highway surface consisting of two and one-half inches of asphalt was laid down.

Two years after the culvert was completed, during the summer of 1975, Dunakin inspected the structure and noticed that the arch had deflected slightly inward and had pulled back somewhat from the headwalls. The following year, Daniel Stouffer, who had succeeded Dunakin as Paulding County Engineer, again inspected the bridge. Concerned about the movement of the arch, he informed American Culvert of a potential problem and requested assistance. American Culvert then called William Wells, the USS Product Manager. On August 3, 1976, acting pursuant to a USS policy to follow up on any complaints concerning its products, Wells examined the culvert in the company of a county employee. He noticed that the road surface on both sides of the bridge had been patched, indicating prior subsidence of the backfill. He further observed that the arch appeared to be flattening at the ten o'clock and two o'clock positions.

Following his inspection, Wells returned to the County Engineer's office and apparently informed Stouffer that continued movement of the arch could eventually lead to the collapse of the culvert. ¹ Wells advised Stouffer to take periodic measurements of the culvert, and informed him that if movement continued or the arch began to buckle, the clay backfill would have to be removed, proper arch geometry restored, and more stable backfill properly inserted and compacted. A few days later, Wells memorialized the essence of his observations and instructions in a letter to American Culvert.

Based on Wells' recommendations, county workers took measurements of the bridge in August, October, and November of 1976. When the third measurement deviated only slightly from the second, Stouffer concluded that the structure had stabilized and therefore discontinued the measurements. Apparently Stouffer was incorrect in his conclusion, and the structure continued to shift. ² It now appears that the shifting was due primarily to the use of local clay as backfill.

Beginning in 1978, the engineering firm of Kohli & Kaliher contracted with Paulding County to inspect all of its 210 bridges. In its report for that year, Kohli & Kaliher found the Zuber Creek bridge to be in "good condition--no repair necessary," and noted none of the conditions previously observed by Dunakin, Stouffer, and Wells. The reports for 1979 through 1981 did record some deflection of the arch and gapping between the arch and headwalls. In its 1982 report, Kohli & Kaliher recorded a large crack in the roadway above the center line of the culvert, along with increased movement from the headwalls and buckling of the arch. Following this report, Paulding County contacted a contractor to inquire about the possibility of shoring up the arch with shotcrete. Upon inspection, the contractor observed that the top of the arch had peaked approximately one foot above its original position. Unfortunately, the culvert collapsed before repairs could be made, causing nine motorists travelling along County Road 180 to plunge into the wreckage below.

II.

The plaintiffs in this action consist of four persons who were injured in the collapse and the estates of the remaining five who lost their lives. Each plaintiff filed a separate suit in either the Paulding County Court of Common Pleas or the United States District Court for the Northern District of Ohio. The same five defendants were named in each action: USS; American Culvert; Ohio Bridge, a corporation fully owned by American Culvert's shareholders; Paulding County; and Kohli & Kaliher Associates. Each defendant has filed cross-claims, counterclaims, and/or third-party...