Patricia Wilkes v. Kokosing, Inc. ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0191n.06
No. 21-3859
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
PATRICIA D. WILKES, as Personal Representative ) May 09, 2022
of the Estate of Marquise Shawndell Byrd, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
v. )
COURT FOR THE SOUTHERN
)
DISTRICT OF OHIO
KOKOSING, INC., )
)
Defendant-Appellee. )
)
Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Patricia D. Wilkes, as personal
representative of the estate of her son, Marquise Shawndell Byrd, appeals the district court’s grant
of summary judgment to Defendant-Appellee, Kokosing, Inc., in this negligence action seeking
damages for Byrd’s injuries and death. Byrd died tragically after being struck by a sandbag that a
teenager dropped from a bridge Kokosing was removing and replacing pursuant to a contract with
the Ohio Department of Transportation. Because the record evidence demonstrates that Kokosing
followed the contract’s mandated plans and specifications, and there is no evidence that the plans
and specifications were so obviously defective or dangerous that no reasonable contractor would
have followed them, the district court properly granted Kokosing summary judgment under Ohio
law.
Case No. 21-3859, Wilkes v. Kokosing, Inc.
I.
In 2017, Defendant-Appellee Kokosing was hired by the Ohio Department of
Transportation (ODOT) to remove and replace the Indiana Avenue bridge, which spans I-75 in
Toledo, Ohio. Plans for the project were designed by a separate engineering company and were
approved by ODOT. Under the project plans, the 2016 ODOT Specifications governed the
construction; the plans also incorporated ODOT Standard Drawings related to construction. The
contract between Kokosing and ODOT obligated Kokosing to perform its construction work
according to these plans, specifications, and drawings.
Prior to construction, the bridge had three lanes of traffic in the center and pedestrian
sidewalks along the north and south sides that were protected on their outer edges with fencing.
All of this would be removed and replaced as part of the project. The City of Toledo did not want
the surrounding neighborhoods to be cut off, so the work was ultimately designed to proceed in
phases. During Phase 1—the only phase relevant here—the northern portion of the bridge, which
consisted of two lanes of traffic and a pedestrian sidewalk with protective fencing, was entirely
removed. The southern portion of the pre-existing bridge remained, consisting of a single traffic
lane on its northernmost side and a sidewalk with protective fencing on its southernmost side.
During Phase 1, signs and barricades directed pedestrians to the lone sidewalk on the
southernmost side of the bridge. Kokosing placed sandbags on the feet of some barricades for
stability, per ODOT Standard Drawing MT-101.60, as the barricades could not be mounted into
the ground because of underground utilities. A row of portable concrete barriers lined the outer
edge of the single traffic lane on the northernmost side of the bridge. The project plans did not
call for protective fencing to be placed atop the barriers and the drawing that is part of the plans
does not show protective fencing. An ODOT Standard Drawing described how to install fencing
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Case No. 21-3859, Wilkes v. Kokosing, Inc.
on new and existing concrete bridge railings, but said nothing about installing fencing on
temporary, portable concrete barriers during construction. Nor was there an ODOT Specification
related to temporary fencing.
ODOT had primary authority over the construction project and carried out inspections to
ensure that Kokosing was following the mandated plans and specifications. ODOT could suspend
work if Kokosing failed “to correct conditions that are unsafe for the workers or the general
public,” failed “to comply with the Contract Documents,” or failed “to comply with [ODOT’s]
orders.” R. 23-2 PID 214. ODOT was also authorized to suspend the work “if there is a question
regarding the Contract Documents, use of unapproved material, or safety.” R. 23-2 PID 215.
According to ODOT’s daily work report, it once instructed Kokosing to install a message
board on I-75, and then to install object markers and reflectors on portable concrete barriers on I-
75’s shoulders. Kokosing also reported that ODOT directed it to add traffic-control items at the
east end of the bridge to warn against wrong-way traffic. ODOT never directed Kokosing to install
temporary fencing on the portable concrete barriers lining the northernmost edge of the bridge
during Phase 1.
On December 19, 2017, while Phase 1 was still underway, Marquise Shawndell Byrd was
a passenger in a vehicle travelling south on 1-75 when the windshield of the vehicle was struck by
a sandbag. The sandbag broke through the windshield and struck Byrd. Byrd died a few days
later from blunt force trauma to his head and neck. Police determined that the sandbag had been
dropped from the live traffic lane of the Indiana Avenue bridge, over the portable concrete barriers
lining its northernmost edge.
Plaintiff-Appellant Patricia D. Wilkes filed this action as personal representative of Byrd’s
estate, alleging that Kokosing was negligent in failing to prevent pedestrians from dropping objects
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Case No. 21-3859, Wilkes v. Kokosing, Inc.
off the Indiana Avenue bridge. Kokosing moved for summary judgment, arguing, in part, that it
could not be held liable under Ohio law because it had followed the plans and specifications
mandated under its contract with ODOT, and the plans and specifications were not so obviously
defective or dangerous that no reasonable contractor would have followed them. The district court
granted Kokosing’s summary-judgment motion after determining that Kokosing had presented
undisputed evidence showing that it carried out the construction according to ODOT plans,
specifications, and directions. Wilkes timely appealed.
II.
We review a grant of summary judgment de novo. Int’l Union v. Cummins, Inc., 434 F.3d
478, 483 (6th Cir. 2006). “The central issue is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Hamad v. Woodcrest Condo. Ass’n., 328 F.3d 224, 234–35 (6th Cir.
2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)).
III.
Under Ohio law, a contractor is liable to all those who may foreseeably be injured by its
work when it fails to disclose dangerous conditions known to it and when the work is negligently
done. Jackson v. City of Franklin, 554 N.E.2d 932, 935 (Ohio Ct. App. 1988). There is, however,
an important exception: “the contractor is not liable if he has merely carried out carefully the plans,
specifications and directions given him, since in that case the responsibility is assumed by the
employer, at least where the plans are not so obviously defective and dangerous that no reasonable
man would follow them.” Id. (citations omitted); see also Farr v. Safe-Way Barricades, Inc., No.
L-97-1258, 1998 WL 336315, at *5 (Ohio Ct. App. June 12, 1998) (“[O]nce a contractor has
agreed to undertake performance of a contract with ODOT, the contractor cannot be held liable for
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Case No. 21-3859, Wilkes v. Kokosing, Inc.
negligence unless he does not follow the plans and specifications or unless the plans are so
obviously defective that no reasonable person would follow them.”). Even if the contractor’s
experience suggests that another means of construction might be better, a contractor is justified in
relying on the plans and specifications supplied by an engineer that it contracted to follow, except,
again, when they are “so obviously defective that a contractor of average skill and ordinary
prudence would not have attempted the construction according to the plans.” Jackson, 554 N.E.2d
at 936.
Thus, a contractor seeking summary judgment under this doctrine must identify portions
of the record that demonstrate it performed according to the plans and specifications it contracted
to follow and that it was reasonable to follow them. The nonmoving party must then set forth
specific facts showing that the contractor failed to follow the plans and specifications or that a
contractor of average skill and ordinary prudence would not have followed them because they were
so obviously defective or dangerous. Id. at 936–37. If the nonmoving party cannot make this
showing, the contractor is entitled to judgment as a matter of Ohio law. Id. at 937.
Kokosing’s evidence establishes the following facts. An engineering company, not
Kokosing, planned the Indiana Avenue bridge construction project. The project plans incorporated
ODOT construction specifications and drawings, and ODOT approved the plans. Kokosing
entered into a contract with ODOT to remove and replace the bridge according to the project plans,
which called only for portable concrete barriers without protective fencing on the northernmost
edge of the bridge during Phase 1, and did not require Kokosing to take measures to secure
sandbags or protect against vandalism on the construction site. The ODOT Standard Drawings
incorporated by the project plans allow sandbags to be placed on the feet of barricades and do not
call for temporary fencing to be installed on bridges under construction. During the relevant time,
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Case No. 21-3859, Wilkes v. Kokosing, Inc.
ODOT inspected Kokosing’s work and never found fault with the absence of temporary fencing
on the portable concrete barriers or the lack of other safety measures, such as sandbag controls, or
a guard at the construction site. An ODOT engineer explained that temporary protective fencing
was not included in Phase 1 because pedestrian access had been eliminated on the northern side of
the bridge, where only a live traffic lane remained. Finally, before December 19, 2017, Kokosing’s
regional manager had never used temporary fencing on other projects.
Wilkes offers a variety of evidence, including police reports, photos of the construction
site, and news accounts of incidents involving objects thrown from other bridges. However, none
of this evidence speaks to whether a contractor of average skill and ordinary prudence would have
considered the plans and specifications mandated by Kokosing’s construction contract—
specifically, placing portable concrete barriers without protective fencing on the northern edge of
the bridge during Phase 1 and placing unsecured sandbags on the feet of barricades—so obviously
defective or dangerous that it would not have followed them. Nor does Wilkes’s proffered
evidence show that Kokosing deviated from the plans and specifications that it contracted to
follow. Wilkes relies on ODOT’s Bridge Design Manual to make this showing, but the Bridge
Design Manual provides instruction to bridge designers—i.e., engineers, not contractors
constructing the bridge—and did not form part of the plans and specifications Kokosing was
obligated to follow under its contract with ODOT. Further, section 305.2 of the Bridge Design
Manual clearly requires permanent protective fencing on most bridges after they have been
constructed or fully rehabilitated, but says nothing about temporary fencing on bridges under
construction.1
1
After Byrd’s death, ODOT added a new section to the Bridge Design Manual to specifically require
temporary protective fencing during bridge construction and created a new design data sheet and standard drawing for
such fencing.
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Case No. 21-3859, Wilkes v. Kokosing, Inc.
In sum, evidence submitted by Kokosing demonstrates that it followed the project plans
and specifications when performing its construction work. The evidence also demonstrates that it
was not unreasonable in following these plans and specifications: the plans had been designed by
the project engineer and approved by ODOT; the ODOT specifications and drawings were
standard for such construction projects; Kokosing’s regional manager had never worked on a
project that required temporary fencing before; and ODOT never directed Kokosing to install
temporary fencing or implement any other safety measure after repeatedly inspecting Kokosing’s
work. Wilkes, on the other hand, offers no evidence to show that a genuine dispute remains. Thus,
reasonable minds could only conclude that Kokosing cannot be liable for negligence under Ohio
law.
We AFFIRM.
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