A Cincinnati construction company owes $4 million to the family of a Tennessee couple who slammed into the back of one of its dump trucks hauling loads at night in the fast lane of Interstate 75, a district appeals court ruled.

The Twelfth District Court of Appeals’ ruling Monday upheld the judgment against John R. Jurgensen Co., an Ohio Department of Transportation contractor. It was levied by a Warren County Common Pleas Court jury in 2013. The company was deemed only 25 percent responsible for the accident that led to the death of Nicholas and Amanda Poe in 2009, and the appeals court rejected its effort to overturn the $4 million in damages apportioned to it.

The estates of the Poes sued a number of ODOT contractors, including dump truck driver Timothy Smith, for the accident that happened on a nine-mile stretch of I-75 being widened in Warren County. Over the course of four days, three fatal accidents involving dump trucks occurred in the construction zone.

As part of the construction project, dump trucks would enter from the median to the left lane of the interstate from a dead stop and travel one mile south to dump their loads. The truck would return north traveling on a dirt road within the median that was separated from regular interstate traffic by construction barriers.

Smith had just entered the left lane of I-75 and had traveled about 24 seconds when the Nissan Maxima being driven by Nicholas Poe slammed into the back of the truck. The Poes were not wearing seatbelts and were killed on impact. Ohio State Highway Patrol accident investigators said Nicholas was driving about 79 miles per hour in a 65 mph zone. But while the truck’s lights were working and Smith had the hazard lights flashing, the lights and reflective tape on the back of the truck were covered with mud, making it harder to see. The investigators noted that the closest sign warning that trucks would be entering the highway onto the left lane was nearly two miles from the highway entrance site.

A six-day jury trial considered the families’ wrongful death case against Smith, Jurgensen Co. and others in October 2013. The jury found Nicholas Poe 51 percent liable for the accident, Jergensen Co. 25 percent and ODOT 24 percent. The truck driver was not found to be liable. The jury awarded the estates $16 million, and apportioned $4 million to the Jurgensen Co. The appeals court noted that while ODOT was found to be 24 percent responsible, the Poes’ estates did not seek recovery from the agency in this lawsuit.

Jurgensen sought to overturn the jury verdict arguing that Poe’s speeding was the sole cause that led to the accident. It also sought to lessen the damage awards contending the jury was given faulty instructions on how to calculate how much a parent should be awarded in a child’s wrongful death judgment.

Writing for the Twelfth District, Judge Robin N. Piper said the jury’s verdict “shows sophistication and thorough consideration of the facts and evidence.” He wrote that just because Nicholas Poe was found to be primarily responsible for the accident, it does not mean a jury cannot also find Jurgensen’s negligence was also a cause for the accident.

The court cited numerous measures that the families argued Jurgensen could have taken with or without ODOT’s approval to reduce the chances of an accident occurring. Judge Piper said the testimony of Jurgensen’s own project managers revealed many ways the company could have decreased the danger of doing night roadwork on a busy highway.

While ODOT refused a request by Jurgensen to reduce the speed limit to 55 mph in the zone, the court said the company had a $2 million budget for maintenance of traffic, including $300,000 for the use of law enforcement officers who could have turned on their emergency flashing lights and escorted the trucks onto the highway.

Judge Piper also noted the company had no signage alerting motorists that night construction was occurring and that no sign pointing to where the trucks were entering was close to where they turned onto the highway. A flashing sign indicating that slow moving vehicles were ahead was on the right side of the road, not the left where the vehicles entered.

In addition, Judge Piper said the jury heard evidence that the company could have used the median to travel both to and from the dump site so that trucks would not have to be on the highway, and that ODOT rules requires the truck to have high-intensity strobe lights on the top when working at night, not just the flashing hazards.

“The jury heard evidence that Jurgensen did not address the truck’s dirty condition and obstructed lights. The jury considered the lack of adequate and well-placed signage to further limit the risks, as well as steps Jurgensen could have taken to eliminate the risk altogether such as driving exclusively in the median or using law enforcement to create a temporary acceleration lane for the trucks,” Judge Piper wrote.

As to the calculation of the damages to the families, Jurgensen argued the jury was wrongfully instructed not only to consider the mental anguish the family suffered since the accident, but also for future anguish, which the construction company believed is not permitted by Ohio’s wrongful death statute.

The appeals court said the statute, R.C. 2125.02, provides the courts with the factors that can be considered when determining wrongful death damages, and cited the Ohio Supreme Court’s Gallimore v. Children’s Hosp. Med. Ctr (1993) decision where the high court recognized that “money is a poor substitute for the damages” a parent suffers when a child is harmed.

Jurgensen’s contention was the law is limited to existing experience because the statute uses past-tense terms such as “suffered” and “incurred.” But Judge Piper said the legislature did not overtly limit the recovery to past loss and anguish.

“Once incurred and suffered, the pain and loss associated with the death of a child does not stop being incurred; it continues in perpetuity. We will not limit the ability of a parent to recover for these losses, whether they be past, present or future, where the statute does not expressly require such an interpretation,” he wrote.

Judges Robert P. Ringland and Robert A. Hendrickson concurred in the decision.

Orren v. BWF Corp, 2015-Ohio-62
Opinion: http://sc.ohio.gov/rod/docs/pdf/12/2015/2015-ohio-62.pdf
Civil Appeal From: Warren County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: Jan. 12, 2015

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