COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72481 CYNTHIA BRADLEY, ET AL. : : : Plaintiffs-appellants : : : -vs- : JOURNAL ENTRY : AND OPINION PAULIUS A. KIJAUSKUS, ET AL. : MOTION NO. 92311 Defendants-appellees DATE OF ANNOUNCEMENT MARCH 26, 1998 OF DECISION CHARACTER OF PROCEEDING Civil appeal from Common Case No. 289493 JUDGMENT Affirmed. DATE OF JOURNALIZATION: APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANTS-APPELLEES CON- SOLIDATED RAIL, ET AL. AND PAULIUS A. KIJAUSKUS, ET AL: Daniel J. Ryan, Esq. Forrest A. Norman, Esq. 21270 Lorain Road Gallagher, Sharp, Fulton Fairview Park, Ohio 44126 & Norman 7th Floor Bulkley Bldg 1501 Euclid Avenue Cleveland, Ohio 44115 ATTORNEYS CONTINUED. FOR DEFENDANTS-APPELLEES ALLEGA CEMENT CONTRACTORS, INC.: Joseph Tira, Esq. Quandt, Giffels & Buck -2- 800 Leader Building 526 Superior Avenue, N.E. Cleveland, Ohio 44114 Sheila A. McKeon, Esq. David A. Young, Esq. Todd M. Haemmerle, Esq. 7th Floor Bulkley Bldg. 1501 Euclid Avenue Cleveland, Ohio 44115 -3- MICHAEL J. CORRIGAN, J.: Cynthia Bradley, et al., plaintiffs-appellants, appeal the decision of the Cuyahoga County Court of Common Pleas granting summary judgment for Consolidated Rail Corporation, Anthony Allega Cement Contractors, Inc., and Lake Erie Construction, defendants- appellees. Plaintiffs-appellants assign four errors for review. This court, finding no error, affirms the decision of the trial court. On July 21, 1994, Cynthia Bradley, plaintiff-appellant, picked up her friend, Kevin Bell, from Cleveland Hopkins International Airport at approximately 9:15 p.m. Ms. Bradley was driving east on Route 2 (the Shoreway ) and proceeded to exit at East 72nd Street to see his parents.1 However, Mr. Bell changed his mind because he wanted to see his daughter first who lived further east. For that reason, Ms. Bradley sped up and moved back into the far right lane that was open on the Shoreway. As she moved into the lane, her vehicle collided with a vehicle driven by Paulius Kijauskas, defendant. Ms. Bradley stated in her deposition that she thought the vehicle behind her was attempting to force her off the road. Ms. Bradley remembers spinning out of control, going off the interstate, through the construction lane, over the shoulder of the road, through a fence, 1The Shoreway is a highway divided by a concrete median with four lanes for eastbound traffic and four lanes for westbound traffic. -4- over one set of Conrail railroad tracks and coming to rest on a second set of tracks. Both Ms. Bradley and Mr. Bell were alive and talking at this point. Other motorists who witnessed the accident ran to the vehicle, called 911 and waited for the arrival of police and EMS. However, as this was taking place, a locomotive approached at approximately fifty miles per hour and violently struck the vehicle dragging it over ninety yards. The railroad tracks were owned and operated by Consolidated Rail Corporation ( Conrail ), defendant- appellee. Mr. Bell died of massive injuries and Ms. Bradley suffered severe and permanent injuries. At the time and general location of the accident, the Shoreway was the subject of a construction project pursuant to the State of Ohio Department of Transportation's Project No. 794. The far right lane on the eastbound portion of the Shoreway was closed for five to six miles with motorists being alerted to the lane closure by warning signs and construction barrels. The closed right lane ran parallel to Conrail's railroad tracks. The general contractor for the project was Anthony Allega Cement Contractors ( Allega ), defendant-appellee. As the general contractor, Allega was required to work within and follow the Project's plans and specifications which were designed and prepared by the State of Ohio Department of Transportation ( ODOT ). ODOT's role was to have its project engineer oversee the daily activities of Allega and ensure Allega and its subcontractors were performing the work in accordance with the Project plans and specifications. -5- Part of the project involved the removal and replacement of all guardrails. Ms. Bradley and Mr. Bell drove off the Shoreway where a guardrail had been removed. The guardrails were removed by subcontractor Lake Erie Construction ( Lake Erie ), defendant-appellee, approximately ten hours before the accident. The Public Safety note of the Project's plans set forth certain provisions governing the placement of temporary barricades when a section of guardrail was removed. According to the Public Safety note in ODOT's plans and specifications, when the lane adjacent to the guardrail is closed to traffic, as it was in this case, the following shall apply after one day of its removal: In areas where existing guardrail has been removed or the guardrail is in a partial stage of completion, the contractor shall provide and maintain Type II barricades with type C (steady shining) warning lights within the limits of unprotected area. The barricades shall be placed at 50' intervals and offset at least two feet from the edge of the traveled roadway and in close proximity to the construction. The approach end of the partially completed run of guardrail shall be fastened at ground level to a steel drum. On May 15, 1995, this action was filed by Cynthia and her husband, Lyndon Bradley, plaintiffs-appellants, seeking recovery for personal injuries she suffered in the automobile/train accident. Mary Bell, plaintiff-appellant, is the Adminstratrix of the Estate of Kevin Bell and joined in said action for the wrongful death of her husband. All claims were based upon the negligence of defendants-appellees. Defendants-appellees all filed motions for summary judgment. Plaintiffs-appellants filed their corresponding briefs in -6- opposition. On September 30, 1996, the trial court granted Lake Erie's motion for summary judgment. On October 30, 1996, the trial court granted Allega's and Consolidated's motions for summary judgment. With reference to Paulius Kijauskus, the trial court issued an order on December 23, 1996 which stated: Defts counsel informed the court that this case has been dismissed with prejudice subject to receipt of a more definite journal entry (Emphasis added). On May 8, 1997, plaintiffs-appellants filed their voluntary dismissal of Paulius Kijauskus, defendant-appellee. Keeping in mind the dismissal was subject to a more definite journal entry, and the first entry was filed as a result of the defendants, plaintiffs-appellants timely filed their appeal on May 9, 1997.2 Since plaintiffs-appellants' assignments of error contain similar issues of law and fact, this court will consider them concurrently: I. THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT MOTION OF APPELLEE ANTHONY ALLEGA CONTRACTORS, INC. BECAUSE THERE REMAIN MATERIAL ISSUES OF FACT AS TO WHETHER APPELLEE ALLEGA WAS NEGLIGENT AND WHETHER SUCH NEGLIGENCE WAS THE PROXIMATE CAUSE OF APPELLANTS' INJURIES AND WRONGFUL DEATH. II. THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT OF ALLEGA BECAUSE MATERIAL ISSUES OF FACT EXIST AS TO WHETHER ALLEGA'S REFUSAL TO SPEND STATE FUNDS FOR TEMPORARY CONCRETE BARRIERS AND RETENTION OF SAID FUNDS FOR CORPORATE GAIN CONSTITUTED AN INTENTIONAL, RECKLESS, AND/OR WANTON DISREGARD FOR THE RIGHTS AND SAFETY OF OHIO MOTORISTS. III. THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT MOTION OF APPELLEE LAKE ERIE CONSTRUCTION BECAUSE UNDER THE EXPRESS PROVISIONS OF THE SUBCONTRACTOR 2Anthony Allega Cement Contractors, Inc.'s application for reconsideration of its motion to dismiss is hereby denied. -7- AGREEMENT WITH APPELLEE ALLEGA, LAKE ERIE IS A NECESSARY PARTY TO THIS ACTION, AND BECAUSE MATERIAL ISSUES OF FACT EXIST AS TO WHETHER LAKE ERIE BREACHED A DUTY OF REASONABLE CARE IN THE REMOVAL OF THE GUARDRAIL WITHOUT PLACING A TEMPORARY CONCRETE BARRIER IN THE AREA AROUND COMMERCIAL RAILROAD TRACKS. IV. THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT MOTION OF APPELLEE CONRAIL BECAUSE MATERIAL ISSUES OF FACT EXIST AS TO WHETHER THE CONRAIL OPERATORS EXERCISED ORDINARY CARE UNDER THE CIRCUMSTANCES. Civ.R. 56 provides that summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio App.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. V. Catrett (1987), 477 U.S. 317, 330; Mitseff v, Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio State Supreme Court clarified the summary judgment standard as applied in Wing v. Anchor Medina, Ltd. Of Texas (1991), 59 Ohio St.3d 108. Under Dresher, *** the moving party bears the initial responsibility of informing the trial court of the basis for the -8- motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or material element of the nonmoving party's claim. Id. at 296. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. At 293. The nonmoving party must set forth specific facts by the means listed in Civ.R. 56(C) showing that a genuine issue for trial exists. Id. See, also, Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134. While an appellate court's review of the lower court's granting of summary judgment is de novo, see Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, it is nevertheless limited to a review of the trial court's record as presented by the parties. It is elementary that, to establish a cause of action in negligence, a plaintiff must show: (1) a duty on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately resulting from the breach. Huston v. Koncieczny (1990), 52 Ohio St.3d 215, 217; Jeffers v. Olexo (1989), 43 Ohio St.3d 140; Thomas v. Parma (1993), 88 Ohio App.3d 523, 527. The existence of a duty in a negligence action is generally a question of law for the court to determine. Mussivand v. David (1989), 45 Ohio St.3d 314. In this case, after a review of the record and, in particular, the motions for summary judgment and corresponding briefs in opposition, this court is prohibited from addressing the merits of -9- plaintiffs-appellants' appeal. While we recognize the harshness of our holding, the inadequacies of plaintiffs-appellants' briefs in opposition to summary judgment were insufficient to withstand summary judgment and fatal to this appeal. In their briefs in opposition, plaintiffs-appellants' trial counsel not only ignored many of the issues raised in defendants- appellees' motions for summary judgment thereby waiving said issues on appeal, see Maust v. Meyers Products, Inc. (1989), 64 Ohio App.3d 310, they also failed to respond in any manner, by affidavit or otherwise as provided in Civ.R. 56, demonstrating there is a genuine issue for trial. In Allega's motion for summary judgment, it argues that all of its work was conducted in accordance with the ODOT Project's plans and specifications. Allega did not participate in the planning and/or designing of the project. Since the plans did not require temporary barricades to be installed on the day they were removed, Allega argues it owed no duty to plaintiffs-appellants who were injured approximately ten hours after the guardrails were removed. Therefore, as a matter of law, Allega argues it could not be found negligent and the trial court properly granted its motion as a matter of law. In its brief in opposition, plaintiffs-appellants did not address the issue of whether or not Allega followed the designs and specifications of ODOT. Instead, they merely claimed [w]hen [Allega] undertook this project it was absolutely forseeable that an automobile could drive over the edge of the road and into the -10- railyard below, especially when the guardrails are there permanently for the express purpose of keeping cars from that very fate. Plaintiffs-appellants failed to substantiate their claim in any manner set forth in Civ.R. 56(C). In Lake Erie's motion for summary judgment, it argued it did not owe a duty to plaintiffs-appellants for three reasons: 1) pursuant to its subcontract with Allega, it was only responsible for removing the guardrails and not the installation of a temporary barrier; 2) pursuant to the terms of its subcontract, it was obligated to comply with Allega's instructions and Allega did not instruct it to install the temporary barriers; and 3) no type of temporary barrier was required by the Project's plans and specifications. In its brief in opposition, plaintiffs-appellants argue that under Ohio law, a contractor can be held liable to those who may foreseeably be injured by a hazardous condition created by the contractor. Plaintiffs-appellants argued that a genuine issue of material fact exists as to whether a foreseeable risk of injury was created when Lake Erie removed the protective guardrails. Again, plaintiffs-appellants failed to substantiate their claim in any manner set forth in Civ.R. 56(C). In Conrail's motion for summary judgment, it argued summary judgment was warranted since plaintiffs-appellants claim that the train was traveling at an excessive speed is preempted as a matter of law by Section 434, Title 45, U.S.Code. There is no dispute the train was traveling at less than 60 miles per hour. Furthermore, -11- Conrail argued that Cynthia Bradley and Kevin Bell were trespassers and, as such, they only owed a duty to refrain from willful, wanton and/or reckless acts likely to cause injury. Since the locomotive engineer's uncontroverted testimony was that he put the train into an emergency braking situation when he saw the vehicle on the tracks, Conrail argues plaintiffs-appellants cannot establish willful, wanton and reckless behavior. Plaintiffs-appellants responded that it was abundantly clear that Conrail could forsee that motor vehicles could cross the tracks in situations where the tracks were left unguarded and unprotected. Additionally, plaintiffs-appellants argued that Conrail knew of the construction taking place and had a continuing obligation to integrate its efforts and provide safety at the point of the accident. Again, plaintiffs-appellants failed to substantiate there claim in any manner set forth in Civ.R. 56(C). In this case, once defendants-appellees' motions for summary judgment were filed, plaintiffs-appellants were under an affirmative duty to set forth specific facts by the means listed in Civ.R. 56(C) showing a genuine issue for trial exists. Dresher, supra; Kulch, supra. Due to trial counsel's failure to adequately respond and demonstrate that a genuine issue of fact existed for trial, the trial court properly granted defendants-appellees' motions for summary judgment. Judgment affirmed. -12- It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY MCMONAGLE, P.J., AND LEO SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .