Franks v. Lopez

On April 2, 1997, this court issued a decision and judgment entry in which we discussed the facts and procedure in this case, set forth the assignments of error and ruled that the trial court incorrectly dismissed the entire case on the basis of a ruling on a motion for summary judgment that addressed issues relating to only the Sandusky County Board of Commissioners and the Sandusky County Engineer. This court therefore remanded this case to the Sandusky County Court of Common Pleas to permit the trial court to enter a nunc pro tunc judgment entry if that reflected an original intent of the trial court to certify the issues relating to the commissioners and the engineer for appeal pursuant to Civ. R. 54(B).

On April 4, 1997, the trial court filed a nunc pro tunc entry, and the appeal was returned to this court.¹ This court will not now repeat our recitation of the facts and procedure in this case or the analysis we have already made of some of the assignments of error; instead, we have attached as an appendix to this decision our decision and judgment entry of April 2, 1997. We now consider the remaining assignments of error, which all relate to the rulings that the trial court made to support its conclusion that the commissioners and the engineer were entitled to summary judgment.

The focus of the remaining dispute between the parties in this case is whether the commissioners and the engineer had a duty, pursuant to R.C. 5591.36, to install a guardrail at the location where the accident took place. The version of R.C. 5591.36 in effect when appellants filed their complaint² provided in part:

"The board of county commissioners shall erect and maintain, where not already done, one or more guardrails on each end of a county bridge, viaduct, or culvert more than five feet high and on each side of every approach to a county bridge, viaduct, or culvert, if the approach or embankment is more than six feet high. The board shall also protect, by suitable guardrails, all perpendicular wash banks more than eight feet in height, where such banks have an immediate connection with a public highway other than state highways, or are adjacent thereto in an unprotected condition."

An expert witness for appellants, John E. Pflum, testified by deposition and averred by affidavit that the angle of the wash bank where the accident occurred was sixty-seven to seventy degrees. The testimony and averments provided by Pflum show that he is a registered engineer with over twenty-three years of experience in highway design, traffic engineering, and safety engineering. As part of his engineering training, he studied and performed surveying.

As we previously noted in earlier decisions from this court, the commissioner and the engineer first assailed Pflum's testimony by arguing that even if the measurements he made of the wash bank were accurate, the wash bank could not be considered perpendicular. Following the ruling of this court and of the Supreme Court of Ohio that an angle of sixty-seven or seventy degrees could be considered perpendicular under the provisions of R.C. 5591.36, see Franks v. Lopez (1994), 69 Ohio St. 3d 345,632 N.E.2d 502, the commissioner and the engineer filed a new motion for summary judgment in the trial court. In support of the new motion, they argued that the method used by Pflum to establish his finding that the angle of the wash bank was sixty-seven or seventy degrees was unreliable. The method in question was the use of an inclinometer or a slope meter.

Appellants filed a memorandum in opposition to the motion for summary judgment, with an affidavit from Pflum. The commissioners and the engineer filed a reply. The trial court then issued a judgment entry in which it converted the motion for summary judgment to a motion in limine, and set a hearing date.

A hearing was held on the motion in limine. The commissioners and the engineer called an expert witness, Robert B. Ernsberger, who is a licensed surveyor in Ohio. He testified that he had been hired by the commissioners and the engineer to complete a topographical survey of the riverbank near the site of the accident. He used a "Total Station Method" to conduct the survey. He stated that that is the method used to complete about "eighty percent of the surveys anymore." He took measurements in nine locations, which were approximately twenty feet apart. The results of his survey showed that the average slope of the riverbank was "approximately forty degrees." The maximum slope of the riverbank over a measured drop of eight feet was "approximately 47 degrees."

He testified that he was told that appellants' expert, Pflum, used an instrument referred to as an inclinometer or a slope meter to measure the angle of the riverbank where the accident occurred. He testified that he had never seen or used an inclinometer. He also testified that he did not know of any surveyor who used an inclinometer to complete a topographical survey. When he was asked if the inclinometer is an acceptable and well-recognized method of surveying, he answered: "I don't believe so. I have no way of knowing. It's not used, it's not taught, so I don't believe so, no, sir." He stated that, in his opinion, the inclinometer was not accurate or reliable.

Following the hearing, the commissioners and the engineer filed an amended motion for summary judgment in which they requested that appellants be required to submit evidence to show that Pflum's testimony was admissible at trial. The commissioners and the engineer again argued that the method used by Pflum to measure the angle of the wash bank was unreliable. They contended that Pflum's testimony was inadmissible. They further argued that the testimony of their own expert showed that the angle of the wash bank was not perpendicular. Finally, they pointed to the deposition testimony of Lawrence F. Wilson, an engineer who served as an expert to appellants. They stated that Wilson's findings supported the findings of their own expert.³

Appellants responded to the amended motion for summary judgment by filing a memorandum in opposition, accompanied by a deposition from an expert, George Oravecz. Oravecz averred that he is a licensed engineer and a registered surveyor in Ohio. He also averred that he had personally examined the inclinometer used by Pflum and that it is "one of several similar instruments that are regularly used to measure angles including angles of depression." He stated that particular statements contained in Pflum's affidavit were "true accurate and complete."

Among the statements made by Pflum which Oravecz reviewed and adopted as true, accurate, and complete were an acknowledgment that there are several methods for measuring a slope or angle and a statement that "an inclinometer or a ``slope meter' is regularly used by surveyors for a number of purposes and is well recognized as being reliable." Oravecz also concurred that "the results obtained by the use of the inclinometer or a ``slope meter' are accurate within one to two degrees."

Oravecz averred that a formal topographical survey "is not usually necessary to determine the slope of a bank or angle. In fact, such a formal topographical survey as performed by [the expert for the commissioners and the engineer] using his ``total station' never directly measures the angle of the river bank. Instead, it measures the distance to a selected point and the elevation of that paint [sic]. The computer then calculates the distance between such points."

He stated that an inclinometer can "yield a more accurate approximation of the effective slope than measuring it because such method in fact measures the average slope over the distance of the straight edge, whereas the method utilized by [the expert for the commissioners and the engineer] only measures the two points and presumes that all of the slope in between is the same."

The trial court concluded that the inclinometer used by appellants' experts, John E. Pflum and Lawrence F. Wilson, to measure the slope of the wash bank at the accident site was not reliable. The trial court initially concluded that the inclinometer is not objectively verifiable when it noted that Pflum and Wilson obtained results that "are at best 7 degrees, and at worst, 15 degrees different." Second, the trial court applied a four-part test it apparently drew from a decision of the Supreme Court of the United States in Daubert v. Merrell DowPharmaceuticals (1993), 509 U.S. 579, 113 S. Ct. 2786,125 L. Ed. 2d 469. The trial court noted that it had no proof that an inclinometer is regularly used by professionals, that the experts have ever used an inclinometer for any purpose except on this occasion, that there were any publications listing information for error rates and control techniques or peer review, or that any expert believed the inclinometer measured anything but the slope of the rod upon which the inclinometer was placed." The trial court therefore ruled that Pflum's testimony regarding the degree of the wash bank slope was not admissible pursuant to Evid. R. 702(C) because it was not based upon a test that was demonstrated to be objectively verifiable or reliable.

The trial court then stated that "when considerating [sic] an eight-foot drop, there is no evidence of a slope greater than fifty degrees." The trial court stated that it concluded that the wash bank was not perpendicular and that the commissioners and the engineer had no obligation, pursuant to R.C. 5591.36, to install a guardrail. The trial court then granted summary judgment to the commissioners and to the engineer as to all claims pending against them.

In support of their first assignment of error, appellants argue that the trial court erred when it ruled that the inclinometer used by their experts to measure the slope of the wash bank was unreliable. Appellants also argue that the trial court erred when it excluded testimony from their experts regarding the slope of the wash bank.

Evid. R. 702 provides:

"A witness may testify as an expert if all of the following apply:

"(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

"(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

"(C) The witness testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:

"(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

"(2) The design of the procedure, test, or experiment reliably implements the theory;

"(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result."

The trial court found that the requirement of Evid. R. 702(A) was met in this case because determining the slope of a wash bank is beyond the common knowledge of laypersons. The trial court ruled by implication that appellants' experts meet the requirements of Evid. R. 702(B). Accordingly, the only question left is whether the trial court abused its discretion when it ruled that the requirements of Evid. R. 702(C) were not met when an instrument called an inclinometer was used to measure the angle of the wash bank slope. See Frank v. Vulcan Materials Co. (1988), 55 Ohio App. 3d 153, 155, 563 N.E.2d 339, 342. After carefully reviewing the statements in the record of all of the experts and considering Ohio law, we conclude that the trial court did abuse its discretion when it ruled that the testimony of appellants' experts was inadmissible pursuant to Evid. R. 702(C).

As the Eighth District Court of Appeals has noted:

"Under Evid. R. 702(C), expert testimony must meet a ``threshold standard of reliability.' Evid. R. 702, Staff Note (July 1, 1994). Under Ohio law, ``* * * reliability is properly determined only by reference to the principles and methods employed by the expert witness, without regard to whether the court regards the witness's conclusions themselves as persuasive or correct.' Id. Although reliability generally goes to the weight of expert testimony rather than to its admissibility, the threshold criteria for the admissibility of reliable expert testimony [are] set forth in Evid. R. 702(C). See, also, State v. Pierce (1992), 64 Ohio St. 3d 490, 498 [597 N.E.2d 107, 113] (absent evidence of deficient testing standards, the court could not find DNA test results unreliable as a matter of law)." McConaughy v. Herholz (Jan. 30, 1997), Cuyahoga App. Nos. 70186, 70258, and 70481, unreported, 1997 WL 37759.

The trial court therefore does have a limited gatekeeper function under Evid. R. 702(C), but the trial court in this case exceeded its function and abused its discretion.

Testimony in this case does not establish that Pflum or Wilson used deficient methods to ascertain the angle of the wash bank where the accident occurred. Robert B. Ernsberger, who testified on behalf of the commissioners and the engineer, was not able to explain how the inclinometer was unreliable because he had never examined the inclinometer and was not familiar with its use. Blanket statements that the inclinometer are not generally used by surveyors in Ohio to complete topographical surveys are not sufficient to demonstrate how the results obtained when an inclinometer is used are unreliable. Furthermore, the record shows that the true dispute between the experts is a dispute over which is the best method to ascertain the angle of the wash bank in question. Ernsberger, a surveyor with expertise in completing topographical surveys, testified that the "total station method" is the best method to determine the average slope of an area. Pflum, Wilson and Oravecz, all engineers with training and/or licensing in surveying, testified that a topographical survey is not the best method to determine the angle of a wash bank because it uses averages, and does not identify the exact angle of the location where the accident occurred. Pflum, Wilson and Oravecz all stated that the inclinometer is an appropriate tool to use to determine the angle of a wash bank at the site where an accident occurred and that it is reliable and accurate to within one to two degrees.

Such a dispute calls into question the weight to be assigned to the evidence and is by its very nature an issue of reliability that must be determined by the jury as a trier of fact. SeeMcCubbin v. Michigan Ladder Co. (1996), 112 Ohio App. 3d 639,643-645, 679 N.E.2d 1142, 1144-1145; see, also, Goddard v.Children's Hosp. Med. Ctr. (June 12, 1996), Hamilton App. Nos. C-950278 and C-950295, unreported, 1996 WL 312474 (Gorman, J., concurring). Accordingly, the trial court exceeded its limited role as a gatekeeper and erroneously based its ruling upon its conclusion that the results reached by appellants' experts were not credible. The testimony of appellants' experts is admissible, and a jury question remains to be determined at trial. Appellants' first assignment of error is well taken.

In support of their second and third assignments of error, appellants argue that the trial court did not use proper law when it determined that the slope of the wash bank in question is not perpendicular. The specific portion of the trial court decision that is questioned by appellants provided:

"R.C. 5591.36 requires a board of county commissioners to provide guardrails for ``all perpendicular wash banks more than eight feet in height, where such banks have an immediate connection with a public highway other than state highways, or are adjacent thereto in an unprotected condition.'

"The Sixth District Court of Appeals in this case has held, and the Supreme Court has affirmed, that a perpendicular wash bank can include a 70 degree wash bank. In this case, the only evidence that the wash bank in question had a slope of 70 degrees was as to a less than six-foot drop and from Mr. Pflum after he and Attorney VanGunten made their measurements with the inclinometer. There is no other admissible evidence that the wash bank in question and at the location in question is greater than 56.5 degrees at its steepest places, and the distance over which that slope was calculated from Mr. Wilson's measurements was substantially less than an eight-foot drop. And when conderating[sic] an eight-foot drop, there is no evidence of a slope greater than fifty degrees. Since a trial Court must instruct a jury as to the legal meaning of ambiguous terms, it is important to identify the state of the law in Ohio as to the meaning of such terms. As to what is perpendicular and what is not, when referring to R.C. 5591.36, pursuant to [Board of] Commissioners[of Wyandot County] v. Boucher (1918), 98 Ohio St. 263 [120 N.E. 700] a bank which slopes at forty-five degree [sic] is not perpendicular; and pursuant to Jenkins v. Harrison Twp. Trustees (Oct. 4, 1982), Scioto App. No. 1385, unreported, 1982 WL 3545, a sixty-five to seventy degree drop over eighteen feet is ``perpendicular' within the meaning of the statute. With that limited assistance, this Court then concludes that R.C. 5591.36 does not apply to a wash bank with a slope of 56.5 degrees over less than an eight-foot drop, where all average slopes for the relevant location over an eight-foot drop in evidence are less than fifty degrees."

The Fifth District Court of Appeals recently considered the same issue now presented in this appeal. Pittenger v. RichlandCty. Commrs. (Mar. 14, 1996), Richland App. No. 95-CA32-2, unreported, 1996 WL 132410. The court stated:

"Case law has defined perpendicular as used in R.C. 5591.36. In[Board of] Commissioners [of Wyandot County] v. Boucher (1918),98 Ohio St. 263 [120 N.E. 700], the Ohio Supreme Court held: ``* * * a wash bank with an angle approximately 45 degrees is certainly not a perpendicular bank within the plain meaning of the term as used in the section.' Boucher at 265 [120 N.E. at 701]. In Franks v. Lopez (1994), 69 Ohio St. 3d 345, 632 N.E.2d 502, the Supreme Court opined a bank with a slope of 65 degrees or higher may be considered as perpendicular for purposes of the statute. The Franks court cited with approval Jenkins v. Harrison TownshipTrustees (October 4, 1982), Scioto Appellate # 1385, unreported [1982 WL 3545]. Jenkins held that to construe the word perpendicular in its mathematical meaning, namely, 90 degrees, would render the statute almost meaningless, because in a natural condition very few, if any, wash banks are exactly 90 degrees. The Jenkins court noted wash banks generally carry sediment from the top, allowing it to accumulate at the bottom. Over time and in accordance with general principles of erosion, wash banks change their angles. Franks at 350-351 [632 N.E.2d at 505-506] citing Jenkins.

"* * *

"The statute uses the word ``perpendicular' and the mathematical definition of that word is 90 degrees. The Supreme Court has held perpendicular means at least 65 degrees (Franks) but more than 45 degrees (Boucher). Between 45 and 65 is a no man's land where there is no case law and little guidance."

The Pittenger court then concluded that a jury question remained in the case regarding whether the slope of the wash bank, which was measured as never exceeding forty-five degrees, was perpendicular. Id. Likewise, we conclude that reasonable minds could reach different conclusions regarding the measurement of the wash bank in this case, and whether the wash bank is sufficiently perpendicular to impose liability on the county for failing to erect a guardrail. See id.; Paul v. Moore (1995),102 Ohio App. 3d 748, 658 N.E.2d 10 (jury instruction that perpendicular is more than forty-five degrees). Appellants' second and third assignments of error are well taken.

Appellants contend in support of their seventh assignment of error that expert testimony is not needed to establish the slope of the wash bank in question. As we have previously noted, Evid. R. 702(A) provides that an expert should testify if "[t]he witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons."

We believe that the question presented in this case regarding the slope of the wash bank relates to matters beyond the knowledge or experience possessed by lay persons. Accordingly, appellants' seventh assignment of error is not well taken.

In support of their eighth assignment of error, appellants contend that the trial court should not have dismissed their cases against the commissioners and the engineer just because it did not accept the testimony of one of appellants' expert witnesses, Pflum. Appellants argue that their other expert witness, Lawrence Wilson, would present testimony showing that the slope of the wash bank was forty-six to forty-nine degrees. Our review of the trial court's decision shows that the trial court did consider the testimony from Lawrence Wilson before it granted the amended motion for summary judgment. In addition, our ruling on the first assignment of error renders this assignment of error moot.

In support of their ninth and final assignment of error, appellants argue that the trial court should not have dismissed their cases against the commissioners and the engineer on the basis that the inclinometer was unreliable without first allowing appellants to remeasure the slope of the wash bank using an approved method. Once again, our disposition of the first assignment of error renders this assignment of error moot.

In summation, this court has concluded that the trial court abused its discretion when it excluded the testimony from appellants' experts regarding the slope of the wash bank. This court has also concluded that a jury question remains regarding whether the wash bank was sufficiently steep to render the commissioners and the engineer liable for failing to install a guardrail. Therefore, this court reverses the summary judgment granted to the commissioners and the engineer by the trial court and remands this case for further proceedings consistent with this decision. The commissioners and the engineer are ordered to pay the court costs of this appeal.

Judgment reversed and cause remanded.

HANDWORK, GLASSER and SHERCK, JJ., concur.

¹ Following the journalization of the trial court's nunc protunc entry, this court received a motion for modification of that entry and a separate notice of appeal from that entry. However, the dispute that gave rise to the motion and the separate notice of appeal was resolved, and the motion and the separate notice of appeal were dismissed by agreement of the parties and by order of this court.

² The statute has since been amended, effective January 27, 1997. 1996 Am. Sub. H.B. No. 350.

³ The commissioner and the engineer made this argument after discounting the results of measurements made by Wilson using an inclinometer. Wilson used the inclinometer over a nine-foot span and concluded that the angle of the slope of the bank was sixty degrees. Wilson also made topographical measurements of the area, and those were the figures which were cited as supporting the findings of Ernsberger.

APPENDIX Decision and Journal Entry of April 2, 1997