Zavinski v. Ohio Dep't of Transp.

• Decision Date: 07 May 2019
• Docket Number: No. 18AP-299,18AP-299
• Citation: 135 N.E.3d 1170,2019 Ohio 1735
• Parties: Monique ZAVINSKI, Executrix of the Estate of Dennis Zavinski, deceased, Plaintiff-Appellant/Cross-Appellee, v. OHIO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee/Cross-Appellant.
• Court: Ohio Court of Appeals

135 N.E.3d 1170

2019 Ohio 1735

Monique ZAVINSKI, Executrix of the Estate of Dennis Zavinski, deceased, Plaintiff-Appellant/Cross-Appellee,

v.OHIO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee/Cross-Appellant.

No. 18AP-299

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

Rendered on May 7, 2019

DECISION

LUPER SCHUSTER, J.

{¶ 1} Plaintiff-appellant/cross-appellee, Monique Zavinski, executrix of the estate of Dennis Zavinski, deceased, appeals and defendant-appellee/cross-appellant, the Ohio Department of Transportation ("ODOT"), cross-appeals from a judgment of the Court of Claims of Ohio awarding damages in favor of Monique in her wrongful death action against ODOT. For the following reasons, we affirm in part and reverse in part.

I. Facts and Procedural History

{¶ 2} At approximately 7:40 a.m., on September 10, 2011, Monique's husband Dennis was killed in a motor vehicle accident on State Route 14 ("SR 14") in Streetsboro, Ohio, when a tractor-trailer driven by uninsured motorist Freddie Pampley crossed the center line and struck Dennis' vehicle. In August 2013, Monique, as the executrix of Dennis' estate, initiated a wrongful death action against ODOT, alleging that ODOT's negligence in directing, supervising, and accepting a paving company's resurfacing of SR 14 proximately caused the fatal accident. In September 2013, and in view of a pending connected action Monique filed against the paving company in the Summit County Court of Common Pleas, the Court of Claims stayed the action before it until the final disposition of the connected action. The collateral case settled in November 2014, and soon thereafter the Court of Claims lifted the stay in this matter. The Court of Claims bifurcated the issues of liability and damages for trial. In November 2015, ODOT moved for summary judgment on the basis that it had no notice of the alleged pavement defect and the pavement condition was not the cause of the accident. In December 2015, the Court of Claims denied ODOT's motion for summary judgment. The issue of ODOT's liability was tried before a magistrate of the trial court in February 2016, and, as pertinent to this appeal, the following evidence was adduced at trial.

{¶ 3} Streetsboro Chief of Police, Darin Powers, testified at trial regarding his investigation of the September 10, 2011 fatal accident. At the time of the accident, Dennis' vehicle was traveling eastbound, the tractor-trailer was traveling westbound, and there was a steady rain. At the location of the accident, the speed limit is 50 miles-per-hour, and the roadway is one lane in both directions. After the accident, Chief Powers spoke with Freddie Pampley, the driver of the tractor-trailer, and his passenger, Jermaine Williams. Williams said very little to Chief Powers other than indicating he told Pampley before the accident to "look out," and that they were involved in a crash. (Feb. 8, 2016 Tr. Vol. 1 at 60.) Pampley, an uninsured motorist whose license was under suspension, told Chief Powers that he lost control of the vehicle, but he did not know how or why he lost control. The Ohio State Highway Patrol ("OSHP") was also involved in the investigation, and an investigating patrolman estimated that Pampley was driving the tractor-trailer at 55 miles-per-hour immediately before the collision. It quickly became apparent to the investigators that the collision had been caused when Pampley lost control of his vehicle. Chief Powers knew that SR 14 had been repaved in May 2011, and he began to research the number of accidents at that location when the pavement was wet. Because Chief Powers found that the number of accidents in that area was higher than expected, he voiced concern to ODOT about the roadway. In response to Chief Powers' inquiry, ODOT scheduled friction testing on the roadway for October 3, 2011. ODOT conducted a second test at the location of the accident on October 21, 2011. Chief Powers lacked any knowledge that ODOT was on notice before the accident of any concerns regarding SR 14.

{¶ 4} Brian Schleppi, the highway infrastructure section supervisor for ODOT, testified regarding his role in investigating the road conditions of SR 14. He is one of the top experts at ODOT regarding road surface friction and skid testing, and he authored "ODOT's Guide to Understanding and Interpreting Locked Wheel Friction Data, Ribbed and Smooth Test Tires." ODOT strives to provide sufficient available friction on all of the roadways under its control, and new roadway surfacing should provide that friction well-beyond six months. In determining whether a roadway has sufficient available friction, an evaluator must consider the friction demand based on such factors as travel speeds and any curvatures in the road. Also, to determine sufficiency, evaluators look at wet available friction because if the roadway has sufficient friction when wet, it will have sufficient friction when dry. Thus, the "higher frictional demand, the higher the sufficient level of available wet friction should be." (Feb. 8, 2016 Tr. Vol. 1 at 141.) Based on differences in these demands, sufficient friction for one roadway may not be sufficient friction for another roadway.

{¶ 5} The available friction of a roadway is evaluated in terms of its macrotexture and microtexture. Macrotexture is the texture of the surface that can be seen, and microtexture is the texture of the surface that can be felt but not seen. Macrotexture provides a mechanism for water to "evacuate when the tire comes along such that the rubber of the tire and the microtexture of the surface can make contact" and therefore "reduces the hydroplaning potential." (Pl.'s Ex. 4, ODOT's Guide to Understanding and Interpreting Locked Wheel Friction Data at 1.) "Microtexture is really where the rubber meets the road." (Pl.'s Ex. 4 at 1.) Schleppi explained that hydroplaning occurs when a vehicles' tires are no longer in contact with the road surface and are "entirely riding on a film of water." (Feb. 8, 2016 Tr. Vol. 1 at 156.)

{¶ 6} Schleppi tests the macrotexture and microtexture levels of roadways using an accepted testing mechanism that involves dragging a rubber tire across a roadway in controlled circumstances and evaluating the friction data results. Roadway friction testing is done when there are concerns regarding the performance of a roadway or when a new asphalt mixture is being considered for use. After being contacted by Chief Powers, Schleppi had his staff test SR 14 at the scene of the accident. They first tested the typical wheel path along the roadway, and then they returned to test an area closer to the white fog line that was the actual wheel path for that particular roadway area. As a result of the October 21, 2011 testing, Schleppi determined there was "insufficient available wet friction." (Feb. 8, 2016 Tr. Vol. 1 at 213.) This result alarmed him, and he considered it unreasonably dangerous for users of the roadway. The individual who actually performed the testing on the roadway, Andrew Clouse, had noted to Schleppi that the "surface looked to have been bleeding." (Feb. 8, 2016 Tr. Vol. 1 at 215.)

{¶ 7} Sonya Moyer was driving behind the tractor-trailer before the accident. She estimated her speed at 50 miles-per-hour and the tractor-trailer's at approximately 55-60 miles-per-hour. Immediately before the collision, she saw the trailer cross the center line and go into the oncoming traffic lane. It looked to her like the back of the trailer hydroplaned.

{¶ 8} David Powers, a civil engineer, is the director of ODOT's test lab in the asphalt material section. Powers, who is unrelated to Chief Powers, testified that his lab did not analyze any samples from the SR 14 repaving project, but it did approve the contractor's asphalt "mix design" or "recipe" for the project. (Feb. 9, 2016 Tr. Vol. 2 at 254.) The mix design determines the proportionate attributes of aggregate, air, and asphalt binder in the mix. Typically, Powers' central lab is not involved in sample testing in the field as that task is usually performed at the district level. Samples are typically taken from the plant producing the asphalt mixture for the project, and those samples are tested to confirm compliance with ODOT's required specifications for that project. The mix design for the May 2011 SR 14 repaving project was approved in March 2011.

{¶ 9} After the accident, Schleppi notified Powers about a possible problem with the SR 14 project. Powers contacted the district engineer, Marla Penza, who indicated there was nothing in the quality control records to indicate any problems on the project. However, Powers recalled reviewing an email from Clouse, who had performed the friction testing at Schleppi's direction, wherein he said there was "flushing" on the roadway. (Feb. 9, 2016 Tr. Vol. 2 at 283.) Powers testified that "flushing" or "bleeding" are synonymous terms used to describe an asphalt mix that has excessive asphalt binder. (Feb. 9, 2016 Tr. Vol. 2 at 270.) The excess asphalt binder goes to the surface thereby causing reduced friction. Powers explained that permitting traffic on the roadway before the applied asphalt cooled to a certain temperature can compromise the structure of the asphalt and its texture. Powers agreed that the October 2011 friction testing results were not acceptable for a roadway that had been recently repaved.

{¶ 10} Penza, a civil engineer and manager of ODOT's District 4 testing laboratory, testified that ODOT provides specifications for each project and the asphalt producer submits its formula for approval at the local level or at ODOT's central office. During each project, Penza's lab performs daily testing on the applied asphalt to confirm its conformity to the required specifications. Penza was informed of the October 2011 friction testing and she personally visited the site of the accident.

She did not observe any flushing on the roadway. Penza testified that asphalt applied to a road should last...