Cincinnati Bell Telephone Co., L.L.C. v. J.K. Meurer Corp.

[Cite as Cincinnati Bell Telephone Co., L.L.C. v. J.K. Meurer Corp., 2022-Ohio-540.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CINCINNATI BELL TELEPHONE : APPEAL NO. C-210139
COMPANY, LLC, TRIAL NO. 20CV-08867
:
Plaintiff-Appellee,
:
vs. O P I N I O N.
:
J.K. MEURER CORPORATION,
:
Defendant-Appellant.
Civil Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 25, 2022
McCaslin, Imbus, & McCaslin and Michael P. Cussen, for Plaintiff-Appellee,
Gary F. Franke Co., LPA, Gary F. Franke and William M. Bristol, for Defendant-
Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant J.K. Meurer Corporation (“J.K. Meurer”) was
repaving a driveway when it sliced underground utility lines belonging to plaintiff-
appellee Cincinnati Bell Telephone Company, LLC (“Cincinnati Bell”). J.K. Meurer
appeals the trial court’s judgment of $10,393.73 in favor of Cincinnati Bell. For the
following reasons, we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} J.K. Meurer is a pavement contractor. In June 2019, J.K. Meurer was
hired to repave a driveway adjoining 2924 and 2920 Burnett Avenue (“Burnett
Driveway”) in Cincinnati, Ohio. Cincinnati Bell provides services to Burnett Avenue
through underground utility cables.
{¶3} On June 24, 2019, Cincinnati Bell received service complaints from
customers on Burnett Avenue. Cincinnati Bell discovered damage to its cables
connected to the Burnett Driveway. Cincinnati Bell replaced the damaged cables and
billed J.K. Meurer for the repair costs. Cincinnati Bell filed negligence claims against
J.K Meurer for allegedly damaging Cincinnati Bell’s underground utility lines during
the excavation and removal of the driveway surface. J.K. Meurer denied the
allegations. The case proceeded to a bench trial.
{¶4} At trial, Cincinnati Bell entered multiple documents into evidence,
including a damage cable report, damage billing records, a repair call log, and a cable
run diagram of the investigation and repair of the damaged utility lines beneath the
Burnett Driveway. Artis Hickman, Cincinnati Bell’s manager who investigated the
damages, testified that he had discovered damage to the utility lines and
photographed a newly paved driveway. According to Hickman, the cables “had to be
replaced because [the Burnett Driveway] was paved over.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Robert Wayne Reid, the J.K. Meurer manager who repaved the
Burnett Driveway, testified that J.K. Meurer did not contact the Ohio Utility
Protection Service (“OUPS”) to locate or mark underground cables. To repave the
driveway, Reid used a Bobcat affixed with a “grinder” to loosen the existing asphalt
and “take it out.” Reid “didn’t think [J.K. Meurer] needed to” call OUPS because J.K.
Meurer “wasn’t going as deep as the wire was supposed to be.” But in the course of
grinding the existing asphalt, his equipment struck an underground cable. Reid
notified a supervisor when he became aware of the damage to the cable.
{¶6} As for damages, Cincinnati Bell entered an invoice into evidence that
identified its expenses incurred repairing the damaged utility line. Tom Paolucci, the
director of accounting for Cincinnati Bell, testified that repair work cost $10,393.73,
calculated under the rules promulgated by the Public Utility Commission of Ohio.
Cincinnati Bell tracked repair costs through a damage billing number. The costs of
repairs included internal labor, material, and charges from a subcontractor.
{¶7} Following the close of Cincinnati Bell’s case, J.K. Meurer moved for a
directed verdict, asserting that Cincinnati Bell failed to prove the elements of
negligence. The trial court deferred ruling on the motion.
{¶8} J.K. Meurer’s vice president, Mitch Meurer, testified that he was
present when Reid struck the cable under the Burnett Driveway. Mr. Meurer was
unaware that the line “was alive because it was buried so shallow.” After his company
damaged the line, Mr. Meurer contacted the owner of the 2924 and 2920 Burnett
Avenue properties to find out which utility companies serviced those buildings and if
any residents experienced any service interruptions. Mr. Meurer tes did not contact
OUPS because he believed it was his customer’s responsibility to report the damage
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OHIO FIRST DISTRICT COURT OF APPEALS
to the cable. When “nobody had reported any problems,” J.K. Meurer paved over the
damaged line.
{¶9} The trial court found J.K. Meurer negligent and entered judgment for
Cincinnati Bell. The trial court determined that J.K. Meurer was excavating as
defined by R.C. 3781.25(I). The trial court concluded that “R.C. 3781.28 obligated
[J.K. Meurer] to contact OUPS before excavating” and JK Meurer breached that duty
when it failed to contact OUPS. The trial court awarded $10,393.73 to Cincinnati
Bell.
{¶10} J.K. Meurer appeals.
II. Law and Analysis
{¶11} J.K. Meurer raises two assignments of error. First, it contends that
Cincinnati Bell failed to satisfy its burden of proof for the elements of negligence.
{¶12} While J.K. Meurer does not identify a standard of review, we review a
judgment following a bench trial to determine if its judgment is against the manifest
weight of the evidence. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,
972 N.E.2d 517, ¶ 12. Under a manifest-weight standard, “we weigh the evidence and
all reasonable inferences, consider the credibility of the witnesses, and determine
whether in resolving conflicts in the evidence, the trial court clearly lost its way and
created such a manifest miscarriage of justice that its judgment must be reversed and
a new trial ordered.” Id. at ¶ 20.
A. J.K. Meurer Excavated the Burnett Driveway
{¶13} As an initial matter, we must determine whether J.K. Meurer was
excavating when it repaired the Burnett Driveway.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} An excavator is “the contractor or other person who is responsible for
making the excavation.” R.C. 3781.25(J). Excavation means “the use of tools,
powered equipment, or explosives to move earth, rock, or other materials in order to
penetrate or bore or drill into the earth, or to demolish any structure whether or not
it is intended that the demolition will disturb the earth.” R.C. 3781.25(I).
{¶15} J.K. Meurer characterizes its work as “grinding blacktop,” which it
distinguishes from excavation. J.K. Meurer used a “grinder” on the Burnett
Driveway. Its employees testified that the company removed the existing asphalt
from the Burnett Driveway. Thus, J.K. Meurer used powered equipment to remove
materials. The central issue is whether J.K. Meurer’s equipment demolished a
structure.
{¶16} Ohio law has not addressed the contours of the term “excavation”
under the common law or R.C. 3781.25. Our review of the case law has unearthed
only one case discussing a contractor’s removal of a sidewalk as an excavation. GTE
Tel. Operations v. J&H Reinforcing & Structural Erectors, 4th Dist. Scioto No.
01CA2808, 2002-Ohio-2553, ¶ 15 (finding a company’s “preconstruction meeting”
with utility representatives complied with the spirit of R.C. 3781.28(A) and satisfied
the duty to ascertain the location of utility cables).
{¶17} Cincinnati Bell argues that grinding asphalt falls under the statutory
definition of excavating. This raises a question of statutory construction and presents
an issue of law that we review de novo. Vontz v. Miller, 2016-Ohio-8477, 111 N.E.3d
452, ¶ 26 (1st Dist.). We first look to the statutory language to determine its meaning.
Cincinnati Community Kollel v. Testa, 135 Ohio St.3d 219, 2013-Ohio-396, 985
N.E.1236, ¶ 25. If the statute’s meaning is clear, definite, and unambiguous, we apply
the statute as written. WCI, Inc. v. Ohio Liquor Control Comm., 116 Ohio St.3d 547,
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OHIO FIRST DISTRICT COURT OF APPEALS
2008-Ohio-88, 880 N.E.2d 901, ¶ 19. Words and phrases left undefined in a statute
“are to be given their common, ordinary, and accepted meaning.” State v. Black, 142
Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 39, citing Wachendorf v. Shaver,
149 Ohio St. 231, 78 N.E.2d 370 (1948), paragraph five of the syllabus. Statutory
context, rules of grammar, and common usage all guide our interpretation. R.C. 1.42.
{¶18} Following an objective examination of the statute, if “a definitive
meaning proves elusive,” courts may look beyond the statutory language and apply
rules of statutory construction. State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-
3095, 829 N.E.2d 690, ¶ 11. Two common-sense principles of statutory construction
are relevant here. The principle of noscitur a sociis provides that “words grouped in a
list should be given related meaning.” Dole v. United Steelworkers of Am., 494 U.S.
26, 36, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990). According to this principle, the
meaning of an unclear word may be derived from surrounding words. Wray v. Albi
Holdings, PLL, 1st Dist. Hamilton No. C-200381, 2021-Ohio-3920, ¶ 13, citing
Sunoco, Inc. (R & M) v. Toledo Edison Co., 129 Ohio St.3d 397, 2011-Ohio-2720, 953
N.E.2d 285, ¶ 43. Similarly, the principle of ejusdem generis dictates that, when a
general word follows an enumerated list of specific objects, we interpret the general
word in a manner consistent with the specific objects. Wray at ¶ 14.
{¶19} The statutory context of R.C. Chapter 3781 tells us that the Burnett
Driveway was a “structure.” Under R.C. 3781.25(I), an excavation consists of the
demolition of “any structure whether or not it is intended that the demolition will
disturb the earth.” Elsewhere in the chapter, the Revised Code discusses the duty to
notify OUPS for any project that requires excavation. See R.C. 3781.27(A) and
3781.28(E). A project is “an improvement requiring excavation.” R.C. 3781.25(S).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} An improvement is “any construction, reconstruction, improvement,
enlargement, alteration, or repair of a building, highway, drainage system, water
system, road, street, alley, sewer, ditch, sewage disposal plant, water works, and all
other structures or works of any nature.” R.C. 3781.25(U). Reading the word
“structure” in harmony with “highway,” “water system,” “road,” “street,” “alley,” and
“sewer” indicates that a driveway is a structure as used throughout R.C. Chapter
3781. When we consider the shared characteristics of the words preceding
“structure,” mainly “road,” “street,” and “alley,” it is apparent that “structure” refers
to a private driveway.
{¶21} Therefore, we find that J.K. Meurer’s use of powered equipment to
move materials and demolish the existing driveway constitutes an excavation.
B. Negligence
{¶22} To prove negligence, a party must establish a duty, a breach of that
duty, and an injury caused by that breach. Mussivand v. David, 45 Ohio St.3d 314,
318, 544 N.E.2d 265 (1989), citing Di Gildo v. Caponi, 18 Ohio St.2d 125, 247 N.E.2d
732 (1969). The existence of a legal duty is a question of law for the courts and
reviewed de novo. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-
Ohio-4210, 773 N.E.2d 1018, ¶ 22, citing Mussivand at 318.
{¶23} A legal duty “may be established by common law, by legislative
enactment, or by the particular circumstances of a given case.” Shepherd v. City of
Cincinnati, 168 Ohio App.3d 444, 2006-Ohio-4286, 960 N.E.2d 808, ¶ 14 (1st Dist.),
citing Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 565, 697 N.E.2d 198(1998), citing Eisenhuth v. Moneyhon, 161 Ohio St. 367, 119 N.E.2d 440 (1954),
paragraph one of the syllabus.
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OHIO FIRST DISTRICT COURT OF APPEALS
1. J.K. Meurer was Negligent Per Se
{¶24} Cincinnati Bell argues that J.K. Meurer’s violation of R.C. 3781.28(A)
constitutes per se negligence. When a statute establishes a “ ‘positive and definite
standard of care’ ” and supplants the common law standard of care, “ ‘a violation of
that statute constitutes negligence per se.’ ” Sikora v. Wenzel, 88 Ohio St.3d 493,
496, 727 N.E.2d 1277 (2000), quoting Chambers at 565, quoting Eisenhuth at 374-
375. A statutory violation is negligence per se when the statute’s “positive and
definitive standard of care” can be objectively applied to all who engage in the
particular activity, and the resulting injury is the kind the statute was designed to
prevent. Boyd v. Moore, 184 Ohio App.3d 16, 2009-Ohio-5039, 919 N.E.2d 283, ¶
13-20 (2d Dist.), citing Chambers at 656. The practical effect of a statutory violation
as negligence per se is that a statutory violation satisfies the breach and duty
elements of negligence. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-
Ohio-2495, 909 N.E.2d 120, ¶ 15. A plaintiff must still prove causation and damages.
Sikora at 496, citing Chambers at 565.
{¶25} R.C. 3781.28(A) states, in relevant part, that an “excavator shall notify
[OUPS] of the location of the excavation site and the date on which excavation is
planned to commence.” As discussed, J.K. Meurer excavated the Burnett Driveway
and conceded that it did not notify OUPS before doing so.
{¶26} We note that J.K. Meurer argues that “the sole reason for the line
being damaged” was Cincinnati Bell’s “failure to place the line at the required depth
of eighteen inches.” J.K. Meurer presents no rule, case law, or statute that excuses an
excavator’s failure to comply with R.C. 3781.28(A) based on the expected depth of
utility lines.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} In Boyd, the court held that a violation of R.C. 3781.28(A) constitutes
negligence per se. Boyd, 184 Ohio App.3d 16, 2009-Ohio-5039, 919 N.E.2d 283, at ¶
24. The court reasoned that R.C. 3781.28(A) establishes a positive and definitive
standard of care for excavators by requiring excavators to contact OUPS before
excavating. Id. at ¶ 14. Courts can objectively discern violations of that duty. Id. The
court found that the legislature codified R.C. 3781.28(A) to prevent underground
utilities line damage and utility service disruption. Id. at ¶ 23.
{¶28} We agree with the Boyd court—a violation of the duty established by
R.C. 3781.28(A) constitutes negligence per se. J.K. Meurer violated that duty when it
failed to contact OUPS before it excavated the Burnett Driveway and damaged the
utility line. Accordingly, J.K. Meurer’s violation of R.C. 3781.28(A) satisfies the duty
and breach elements of negligence.
2. Causation
{¶29} J.K. Meurer asserts that Cincinnati Bell failed to prove that J.K.
Meurer caused the damage to Cincinnati Bell’s utility lines.
{¶30} A defendant is liable under a theory of negligence only for damages
caused by a breach of its duty. Hester v. Dwivedi, 89 Ohio St.3d 575, 583, 733 N.E.2d
1161 (2000). Specifically, the defendant’s conduct or omission must be both the
actual cause and proximate cause of the harm. Walls v. Durani, 1st Dist. Hamilton
No. C-200167, 2021-Ohio-4329, ¶ 7.
{¶31} The standard test for actual causation is a “but for” test. Anderson v.
St. Francis St. George Hosp., 77 Ohio St.3d 82, 84, 671 N.E.2d 225 (1996).
Accordingly, J.K. Meurer’s conduct is the actual cause of the damage if the damage
would not have occurred but for J.K. Meurer’s conduct. Rieger v. Giant Eagle, Inc.,
157 Ohio St.3d 512, 2019-Ohio-3745, 138 N.E.3d 1121, ¶ 12, citing Anderson at 84-85.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} Next, J.K. Meurer’s conduct must be the proximate cause of the
damage. Proximate causation means “some reasonable connection between the act
or omission of the defendant and the damage the plaintiff has suffered.” Queen City
Terminals v. Gen. Am. Transp. Corp., 73 Ohio St.3d 609, 618, 653 N.E.2d 661(1995), quoting Keeton, Dobbs, Keeton, & Owen, Prosser and Keeton on the Law of
Torts, Section 41, 263 (5th Ed.1984). The harm must be foreseeable, meaning the
harm was the natural and probable consequence of the act. Mussivand, 45 Ohio
St.3d at 321, 544 N.E.2d 265.
{¶33} The trial court found that the costs of repairing the damage to the
utility lines resulted from J.K. Meurer’s negligence. J.K. Meurer contends that proof
of causation requires expert testimony due to the use of machinery and Cincinnati’s
regulation of underground utility lines. Expert testimony is necessary to prove
“causation between a plaintiff’s injuries and the defendant’s conduct” when the
issues of causation involve a scientific inquiry. Clough v. Watkins, 4th Dist.
Washington No. 19CA20, 2020-Ohio-3446, ¶ 32, citing Darnell v. Eastman, 23 Ohio
St.2d 13, 261 N.E.2d 114 (1970), syllabus. But when “the cause and effect relationship
is ‘so apparent as to be matters of common knowledge,’ then expert testimony is
unnecessary.” Clough at ¶ 32, citing Darnell at syllabus.
{¶34} We find that the cause-and-effect relationship between J.K. Meurer’s
conduct and the damage to Cincinnati Bell’s underground utilities is “so apparent”
that it requires no expert testimony. The testimony and documentary evidence
support the trial court’s conclusion that J.K. Meurer’s negligence was the actual
cause of the damage to Cincinnati Bell’s utility lines. Cincinnati Bell presented
testimony that the company was able to identify where the underground cables were
located on Burnett Avenue and mark those locations. Cincinnati Bell introduced a
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OHIO FIRST DISTRICT COURT OF APPEALS
diagram from its database identifying the location of cables buried under Burnett
Avenue. J.K. Meurer employees testified that the company took no precautionary
steps before excavating and subsequently damaging underground utility cables in the
course of its excavation. The damage to Cincinnati Bell’s underground utility cables
was foreseeable.
{¶35} Therefore, the trial court’s determination that J.K. Meurer’s conduct
actually and proximately caused the damage to Cincinnati Bell’s utility lines was not
against the manifest weight of the evidence.
3. Damages
{¶36} Finally, J.K. Meurer challenges the trial court’s damages finding. The
court explained that Cincinnati Bell “retained a third party to repair the line and the
driveway, incurring expenses totaling $10,393.73.” J.K. Meurer argues that
Cincinnati Bell failed to present evidence that the repair costs were reasonable or
necessary, or that the costs were for the damage to its utility line on Burnett Avenue.
We disagree.
{¶37} The purpose of awarding damages is to make an injured party whole.
MCI Communications Servs. v. Barrett Paving Materials, Inc., 1st Dist. Hamilton
No. C-100806, 2012-Ohio-1700, ¶ 14, citing Pryor v. Webber, 23 Ohio St.2d 104, 263
N.E.2d 235 (1970), paragraph one of the syllabus. Damages include both direct and
indirect costs. Ohio Edison Co. v. Royer, 2018-Ohio-75, 92 N.E.3d 912, ¶ 28 (9th
Dist.). A utility company may be awarded direct and indirect costs “ ‘when the
accuracy of the costs is reasonably established and the indirect costs are calculated in
accordance with the accounting principles mandated by [the Public Utility
Commission of Ohio].’ ” Id., citing State Edison Co. v. Roman, 9th Dist. Lorain No.
97CA006735, 1998 Ohio App. LEXIS 4320, *4-5 (Sept. 16, 1998).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶38} Cincinnati Bell presented testimony that replacing the damaged utility
line was necessary “because it was paved over.” Cincinnati Bell presented an itemized
invoice to show the material, labor, and subcontractor costs for the repairs. Further,
Paolucci, the head of Cincinnati Bell’s accounting department, testified that the
invoice was prepared under the rules established by the Public Utility Commission of
Ohio. According to Paolucci and Hickman, the damage bill and invoice reflected the
costs tracked throughout Cincinnati Bell’s system related to repairing the damaged
utility lines on Burnett Avenue. Paolucci testified that Cincinnati Bell hired a
subcontractor to repair the utility line. Further, Paolucci testified that in-network
managers approved all third-party costs related to the repairs. Considering this
evidence, the costs were reasonably established and consistent with the trial court’s
conclusion that Cincinnati Bell incurred $10,393.73 in damages.
{¶39} In light of the testimony and documentary evidence presented at trial,
the lower court’s judgment was not against the manifest weight of the evidence. We
overrule J.K. Meurer’s first assignment of error.
C. Directed Verdict
{¶40} In its second assignment of error, J.K. Meurer contends the trial court
erred by not granting its motion for a directed verdict. This court reviews a trial
court’s decision to deny a motion for a directed verdict de novo. White v. Leimbach,
131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, ¶ 22, citing Goodyear Tire &
Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769
N.E.2d 835, ¶ 4. A directed verdict is appropriate when, after construing the evidence
most strongly in favor of the nonmoving party, “reasonable minds could come to but
one conclusion,” that no evidence of substantive probative value exists in favor of the
nonmoving party and that the nonmoving party failed to adduce any evidence on the
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OHIO FIRST DISTRICT COURT OF APPEALS
essential elements of the claim. White at ¶ 22, citing Goodyear at ¶ 3, quoting Civ.R.
50(A)(4).
{¶41} J.K. Meurer argues that Cincinnati Bell presented no evidence of a
breach of duty, or that any negligence proximately caused Cincinnati Bell’s damaged
utility lines. But as discussed above, Cincinnati Bell proved that J.K. Meurer
excavated the Burnett Driveway as defined in R.C. 3781.25(I) without notifying
OUPS, damaged a utility line, and proximately caused Cincinnati Bell’s damages. The
trial court appropriately denied J.K. Meurer’s motion for a directed verdict. J.K.
Meurer’s second assignment of error is overruled.
III. Conclusion
{¶42} The evidence produced at trial supported the trial court’s denial of J.K.
Meurer’s motion for a directed verdict and the court’s award of $10,393.73 to
Cincinnati Bell. We therefore overrule J.K. Meurer’s two assignments of error and
affirm the trial court’s judgment.
Judgment affirmed.
CROUSE, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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