First District: Proof As to Who is At Fault Required for Slipping Street Plate Accident
As the Wynn family drove through Cincinnati, they crossed over a metal plate in the road that shifted and the car fell into the hole injuring some of the Wynns and damaging the car. They sued the city, county and contractors doing public works in the area, all of who denied owning the plate. Not knowing exactly who was responsible for the plate led a trial court to dismiss the lawsuit and the First District Court of Appeals has upheld the dismissal.
Judge R. Patrick DeWine called the case “A Whodunnit Mystery” in his opinion. He noted Marvin, Parthenia, Jewell and Maria Wynn had some serious bad luck when passing over the metal plate on Winton Road one night in May 2010. The plate slipped and the car fell into the ditch, damaging two tires and the rear axle. Complaining of neck pain, Parthenia and Jewell Wynn were transported to Mercy Hospital and Marvin Wynn complained of back pain.
The Wynns filed a negligence complaint against the City of Cincinnati, Hamilton County, and three contractors doing work in the vicinity: Duke Energy Ohio, Inc. Adleta, Inc. and Howell Construction Co. The Wynns’ theory was one of the five had to be responsible for the metal plate.
The court said the parties conducted limited discovery with written discovery exchanged but the only witnesses deposed were two employees of the city. In their written answers and depositions, all the defendants claimed they were not doing any work in the area where the accident happened, but on other parts of the street or sidewalk further south of where the plate was located.
At the close of discovery, the five defendants moved for summary judgment. In opposing the motion, the court said the Wynns offered no evidence contrary to what the defendants presented and did not seek to conduct additional discovery. “Rather the Wynns argued that all of the defendants were doing work somewhere in the general vicinity of the accident, and though each denied doing work in the specific area, one of them had to be responsible,” Judge DeWine wrote.
The Wynns also moved for partial summary judgment against the city for being negligent in failing to keep the road in good repair. The trial court granted summary judgment to the five defendants and denied the Wynn’s motion.
Judge DeWine said to overcome the motion for summary judgment the Wynns had to put forth some evidence that one or more of the defendants were responsible. “They completely failed to do so.” Citing Allstate Ins. Co. v. Sears & Roebuck Co., 7th Dist. Belmont No. 06 BE 10, 2007-Ohio-4977, the court said “mere speculation or possibility is not enough to defeat a summary judgment motion.”
Additionally, the court said the city cannot be deemed negligent except if there is proof that either the city or its contractors actually created the faulty condition or had notice that it existed. Judge DeWine said the Wynns presented no evidence that the city placed the faulty plate in the road or had any notice about slippage of the plate before the accident.
Judge Lee Hildebrandt concurred in the decision while Judge Sylvia Sieve Hendon concurred with the summary judgment of all parties except the city.
“Because I find disingenuous the city’s assertion that it did not know who was responsible for the placement of the plate at the site of the accident, I would reverse the trial court’s judgment as to the city,” Judge Hendon wrote. “The city should be held responsible for knowing which contractors are doing projects on its streets and where the projects are located.”
Wynn v. Duke Energy Ohio, Inc., 2014-Ohio-3464
Civil Appeal From:Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 13, 2014
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