2019 Ohio 1735
Ohio Ct. App.2019Background
- In Sept. 2011 a tractor-trailer driven by Freddie Pampley crossed the center line in wet conditions and fatally struck Dennis Zavinski on SR 14; Pampley was uninsured and at times was training a passenger.
- SR 14 had been repaved in May 2011; within months police raised concerns about an unusually high number of wet-weather crashes at that location.
- ODOT conducted friction testing in October 2011 showing "insufficient available wet friction" and observers reported surface "flushing/bleeding"; ODOT later performed diamond grinding.
- Plaintiff (Monique, executrix) sued ODOT in wrongful death alleging negligent resurfacing/maintenance caused the crash; liability and damages were bifurcated.
- Trial court found both ODOT and Pampley proximately caused the death, apportioning fault 50/50; damages awarded included $2,500,000 non-economic and economic damages, reduced for comparative fault and collateral recoveries; on appeal the appellate court affirmed liability/damages in part and reversed the collateral-offset for uninsured motorist proceeds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court applied strict liability to ODOT | Zavinski argued ODOT was negligent in supervising/accepting the resurfacing and breached duty to maintain safe road surface | ODOT contended the court applied a strict-liability standard and should not be liable absent proof of notice or active negligence | Court held liability was based on negligence (duty, breach, proximate cause), not strict liability; evidence supported breach and proximate causation by ODOT |
| Whether Pampley was sole or greater proximate cause | Zavinski argued ODOT's deficient friction materially contributed to the crash | ODOT argued Pampley's use of engine brake/overcorrection was sole or predominant cause | Court found concurrent proximate causes supported; apportioned fault 50% ODOT / 50% Pampley |
| Admissibility of post-accident friction testing | Zavinski relied on October 2011 friction tests to show roadway was dangerous | ODOT argued the tests (and subsequent grinding) were inadmissible as subsequent remedial measures under Evid.R. 407 | Court admitted the friction-testing results (investigation) but excluded evidence of the subsequent remedial diamond grinding; testing was not a remedial measure because it did not alter the hazard |
| Whether non-economic damages were excessive | Zavinski sought substantial non-economic damages for loss of society and severe ongoing mental/physical decline of surviving spouse | ODOT argued $2.5M was excessive and driven by sympathy | Court affirmed $2.5M award as supported by credible evidence and within factfinder discretion; not manifestly excessive |
| Whether uninsured-motorist insurance proceeds are deductible collateral recoveries under R.C. 2743.02(D) | Zavinski argued the $885,000 UM payment compensated for Pampley’s share and could not be matched to the award against ODOT, so it should not reduce recovery from ODOT | ODOT argued R.C. 2743.02(D) mandates reduction of recoveries by all insurance proceeds received by the claimant, including UM proceeds | Court held the trial court erred in deducting the $885,000 from the award against ODOT because the UM payment compensated for Pampley’s share and could not be matched to damages awarded against the state; reversal on that offset issue |
Key Cases Cited
- Comer v. Risko, 106 Ohio St.3d 185 (2005) (discusses strict liability and liability without fault)
- Strother v. Hutchinson, 67 Ohio St.2d 282 (1981) (elements of negligence: duty, breach, proximate cause)
- Buchman v. Bd. of Edn., 73 Ohio St.3d 260 (1995) (collateral-benefit matching requirement for constitutionality of offsets)
- Community Ins. Co. v. Ohio Dept. of Transp., 92 Ohio St.3d 376 (2001) (insurer subrogation and R.C. 2743.02(D) application to medical-insurance payments)
- Nevins v. Ohio Dept. of Transp., 132 Ohio App.3d 6 (10th Dist. 1998) (distinguishing direct payments by joint tortfeasors from collateral recoveries under R.C. 2743.02(D))
- Argabrite v. Neer, 149 Ohio St.3d 349 (2016) (concurrent negligence and indivisible injury principles)