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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
October 1, 1997
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Ohio Defendants Owed No "Special Duty" When Vandal Dropped Road Construction Debris Off Bridge; Third-Party Criminal Action Was Intervening Cause
Ohio DOT Negligent in Failing to Install Fencing on Freeway Overpass in a Timely Manner
Injured Montana Pedestrian Did Not Show Slippery Metal Cover on Sidewalk Was a Breach of Duty
Louisiana DOT Assigned Some Fault for Injuries to Worker Forced to Cross Highway from Parking Lot to Work

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Ohio Defendants Owed No "Special Duty" When Vandal Dropped Road Construction Debris Off Bridge; Third-Party Criminal Action Was Intervening Cause

Driving through a construction site, Roland Feichtner was forced to the shoulder of the freeway. As Feichtner passed under a bridge, Ronald Jackson dropped a rock from the bridge into the passenger side of Feichtner's vehicle. Feichtner's wife died as a result of this incident. Feichtner sued the city of Cleveland, Ohio (city) and several contractors associated with the freeway construction project and with a nearby project from which Jackson took the rock. The Common Pleas Court of Cuyahoga County granted all defendants summary judgment. When Feichtner appealed, the Court of Appeals affirmed, finding that: "(1) defendants owed no 'special duty' to wife, and (2) motorist was not entitled to extension of time to obtain discovery from new party- defendant."

The Incident

About 11:15 p.m. on April 13, 1991, Roland C. Feichtner traveled south on Interstate 77 (I-77) within the City of Cleveland. Kenmore Construction Company (Kenmore) was resurfacing I-77 and had set up barrels to move traffic right--providing two travel lanes, the extreme right-hand lane and the freeway shoulder (berm). Feichtner drove on the shoulder with the intention of leaving the freeway at the Fleet Avenue exit. When he saw Kenmore had closed that exit, he drove on. As he passed under the Fleet Avenue bridge, a fourteen-pound sandstone rock shattered his windshield on the passenger's side of the vehicle. The rock hit and killed Feichtner's wife.

A police investigation determined that Ronald Jackson dropped the sandstone rock from the northwest end of the Fleet Avenue bridge. The bridge had a six-foot chain-link fence on the north and south sides extending over the normal lanes of travel on the freeway. However, the fence did not continue over the freeway shoulder, and it did not protect Feichtner's vehicle when it traveled on that shoulder.

The police found that Jackson took the rock from a repair and repaving project west of the Fleet Avenue bridge where Crete Road intersected Independence Road. The project involved taking apart original curbing, and the sandstone was a piece of that curbing. Jackson had carried the rock twenty-five to thirty yards.

The court indicted and convicted Ronald Jackson for the murder of Feichtner's wife. On appeal, the appellate court affirmed the conviction.

Meanwhile, Feichtner sued the city, Kenmore, and four other contractors working on the Fleet Avenue bridge and on the Independence Road project.

Trial Court Decisions

Claiming negligence against the city, Feichtner alleged:

(1) Cleveland had violated R.C. 723.01 by failing to keep the Fleet Avenue bridge "in repair and free from nuisance"; (2) with "notice and knowledge that rocks had been thrown from bridges," Cleveland had failed to install fencing along the entire length of the bridge; (3) although it had entered into contracts "for the repair of the Fleet Avenue Bridge, Cleveland had also violated R.C. 723.01 by failing to inspect and remove construction debris "from the surface of the Fleet Avenue bridge"; and (4) Cleveland had violated R.C. 4101.12 by failing to do everything necessary to protect "frequenters" who traveled on 1-77 beneath the Fleet Avenue bridge.

Feichtner's negligence claims against Kenmore alleged that the contractor should have extended the fence on the Fleet Avenue bridge to protect the shoulder lane when traffic was forced to travel there. Moreover, Kenmore neglected to inform other agencies of the need to extend the fence. Finally, Kenmore created a risk by not fencing the bridge over the shoulder lane when the contractor knew or should have known of the "inherent hazard" of not having a fence over a traveled lane. In claims against the contractors working on the Fleet Avenue bridge and on Independence Road, the plaintiff's allegations concerned failure to remove construction debris and the "foreseeability and likelihood that construction debris would be thrown off the bridge and onto traffic" traveling I-77.

In response, Cleveland moved for summary judgment, arguing that maintenance of the Fleet Avenue bridge was not the city's responsibility but the responsibility of the State of Ohio. The contractors contended Feichtner could not prove the existence of duty on their part or proximate cause from their actions.

The trial court agreed that the plaintiff did not prove the existence of any duty toward Feichtner's wife. In addition, the court called Jackson's throwing the rock off the bridge "an intervening, superseding cause" of the death. Concluding that no negligence by any defendant was the proximate cause of Feichtner's wife's death, the trial court granted summary judgment to the city and the contractors and dismissed the case.

Appeal Court Decisions

"The trial court erred," the plaintiff contended, "in granting summary judgment to defendants . . . because genuine issues of material facts exist relating to these defendants." To support this contention, Feichtner presented ten propositions that restated his arguments made to the trial court.

To establish a basis for reviewing this case, the court defined summary judgment as "a procedural device to terminate litigation and avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615." In moving for summary judgment, the defendants were required to produce evidence to show that "the plaintiff ha[d] not established the elements necessary to maintain his negligence action" (Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, 3 OBR2d, 443 N.E.2d 532). Feichtner's negligence case against the defendants had to establish "the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom" to avoid a summary judgment in favor of the city and contractors.

The court cited Fed. Steel & Wire Corp v. Ruhlin Constr. Co. ((1989), 45 Ohio St.3d 171, 543, N.E.2d 769) in support of the conclusion that Feichtner did not show these defendants had any special duty toward Feichtner's wife. In Ruhlin, a construction contractor was repairing the Lorain-Carnegie bridge in Cleveland. Theft and vandalism plagued the project from the beginning, and vandals repeatedly threw construction materials off the bridge. The contractor put up a chain-link fence and placed security guards at the site. When winter stopped the work, the contractor removed the fence and put up a lesser barricade and a snow fence. They also stopped posting security guards. They did, however, store construction materials on the bridge.

Federal, the plaintiff in Ruhlin, had a building under the Lorain-Carnegie bridge. During the winter, vandals threw construction materials on the building and caused "significant damage." While the trial court found the contractor owed no duty to Federal, the appellate court disagreed and reversed. The appeals court acknowledged that "[o]rdinarily there is no duty to control the conduct of a third person by preventing him or her from causing harm to another . . ." Moreover, "the law usually does not require the prudent person to expect the criminal activity of others." However, a "special duty" exists when the defendant business has knowledge that makes the third-person's criminal acts foreseeable. The court established in Jane Doe v. Sys. Parking, Inc. ((1992), 79 Ohio App.3d 278, 607 N.E.2d 88) that a defendant can be held liable for acts of a third party "when the totality of the circumstances are 'somewhat overwhelming.'"

This court found Ruhlin Construction owed a duty to Federal and was liable for negligence. The rationale for that decision was that:

if a person exercises control over real or personal property and such person is aware that the property is subject to repeated third-party vandalism, causing injury to or affecting parties off the controller's premises, then a special duty may arise to those parties when those injuries are reasonably foreseeable, to take adequate measures to prevent future vandalism. Ruhlin, 45 Ohio St.3d at 177, 543 N.E.2d at 775.

However, the court did not feel such "overwhelming circumstances" existed in the present case. The court found contractors had left no construction debris on the Fleet Avenue bridge as the plaintiff contended; debris was twenty-five to thirty feet away. Neither the city nor the contractors had notice of a potential problem; no documented reports existed of vandals carrying construction debris to the bridge and throwing that debris onto the freeway. Kenmore had met all applicable safety regulations and was not required to extend Fleet Avenue bridge fencing when redirecting traffic onto the shoulder lane. The other contractor-defendants had also met all applicable safety regulations. Finally, the Ohio Department of Transportation had responsibility for the Fleet Avenue bridge; the City of Cleveland and the contractors had no jurisdiction or control over the bridge. This would give the city immunity from liability under R.C. 2744.02(B)(3).

Addressing the issue of the trial court's erring by not granting the plaintiff more time to take discovery from Kenmore, the appellate court noted that the lower court gave Feichtner at least three opportunities to add to his complaints. In seeking this additional extension, the plaintiff supported his affidavit with "only general assumptions of need." The appeals court found no evidence in the affidavit that the trial court abused its discretion in overruling the motion for extension, and, therefore, did not err in its ruling.

Affirming summary judgment for all defendants, the appellate court expressed its understanding of the plaintiff's desire to find fault or explanation for the tragedy of his wife's death. The court maintained, however, that "when the '* * * intervening events are of such a kind that no foresight could have been expected to look out for them, the defendant is not to blame for having failed to do so. * * * Elliott v. Nagy (1986), 22 Ohio St.3d 58, 61, 22 OBR 77, 79, 488 N.E.2d 853, 855.

[For further reference, see Feichtner v. Cleveland et al. (Ohio App.8 Dist. 1994) in West Publishing Vol. 642 North Eastern Reporter, 2d Series, 657]

Copyright © 1997 by TranSafety, Inc.


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