FiLED
COURT OF CL.tdhS
OF OHIO
COURT OF CLAIMS
STATE OF OHIO

2015 FEB -9 An g: 32.

CA2~.1

SHARON FRYE, Individually
and as Co-Administrator of the Estate
of Brandon William Carl, Deceased,
109 Diamond Ridge Road
Augusta, Kentucky 41002

5-0 0 0 9 9

JUDGE - - - - - - COMPLAINT

and,

CHARLES CARL, Individually
and as Co-Administrator of the Estate
of Brandon William Carl, Deceased,
324 North Bluegrass Road
Brooksville, Kentucky 41 004
PLAINTIFFS,
-vsOHIO DEPARTMENT OF
TRANSPORTATION
1980 West Broad Street
Columbus, Ohio 43223
DEFENDANT.

COUNTl
FIRST CAUSE OF ACTION

Now come Plaintiff, Sharon Frye, in her individual capacity and as Co-Administrator of The
Estate of Brandon William Carl, Deceased, and Charles Carl, in his individual capacity and as
Co-Administrator of the Estate of Brandon William Carl, Deceased, by and through Counsel, and
for their First Count, First Cause of Action, state as follows.

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 1.

Each of them is now, and at all times mentioned herein has been, a resident and

citizen of the Commonwealth of Kentucky. Each of them is a duly appointed Co-Administrator
of the Estate of Brandon William Carl, Deceased, having been appointed by the District/Probate
Court of Bracken County, Commonwealth of Kentucky.
2.

The Defendant, Ohio Department of Transportation, its districts and departments, is

now, and at all times mentioned herein has been, an office of the State of Ohio and as such is
amenable to suit in the Court of Claims for the State of Ohio.
3.

On or about the 19th day of January, 2015, Plaintiffs' Decedent, Brandon William

Carl, was an employee ofKokosing Construction Company, Inc. At all times relevant hereto,
Kokosing Construction Company, Inc. was performing demolition work on the closed Hopple
Street bridge over Interstate 75 in the City of Cincinnati, Hamilton County, State of Ohio.
4.

At the time and place aforementioned, and as Plaintiffs' Decedent was standing on

the aforementioned bridge to carry out his assigned and required duties as an employee of
Kokosing Construction Company, Inc., the aforementioned bridge collapsed, equipment, steel
and concrete fell and hit Plaintiffs' decedent, thus causing Plaintiffs' Decedent to suffer serious
injuries and his ultimate death.
5.

At all times relevant hereto Kokosing Construction Company, Inc. was under

contract with the Ohio Department of Transportation for performance of the hereinbefore and
hereinafter mentioned demolition work at the aforementioned location.
6.

The Defendant herein, pursuant to applicable Ohio Statutes including, but not limited

to, Ohio Revised Code §5501.01 et. seq. and applicable Ohio Administrative Regulations, had
certain powers, duties, obligations and responsibilities with respect to contractors and contractors
employees performing highway work and specifically including, but not limited to, bridge

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 demolition work on bridges in the State of Ohio. These powers, duties, obligations and
responsibilities applied to the contract between Defendant and Kokosing Construction Company,
Inc. with respect to the work being performed by Kokosing Construction Company, Inc. in the
demolition of the above mentioned bridge at the time and place hereinbefore and hereinafter
mentioned.
7.

The powers, duties, obligations and responsibilities mentioned above include, but are

not limited to, approval of contracts for highway and bridge work and specifically bridge
demolition work on highways within the State of Ohio, including any amendments and/or
contractual changes to contracts as hereinbefore and hereinafter mentioned. Further, the powers,
duties, obligations and responsibilities include, but are not limited to, the exercise of control over
bridge demolition work performed by any contractor under contract with the Ohio Department of
Transportation and specifically including control over the method, manner and plan of
demolition and all aspects of safety including specifically safety of personnel involved in bridge
demolition.
8.

The powers, duties, obligations and responsibilities mentioned above further

specifically include, but are not limited to, the duty to review and approve any plan and
calculations for bridge demolition, inspect any bridge demolition project and the duty to take
all steps necessary to see that all aspects of safety are followed by contractors and subcontractors working under contract with Defendant. Specifically, these powers, duties,
obligations and responsibilities mentioned above establish that Defendant retains and
exercises control over critical aspects of safety with respect to employees of contractors and
sub-contractors under contract with Defendant.

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 SECOND CAUSE OF ACTION

9.

Plaintiffs reallege, reaffirm and incorporate by reference herein each and every

allegation contained in paragraphs one (1) through eight (8) herein, as if fully rewritten herein,
and for their Second Cause of Action, state as follows:
10.

At all times relevant hereto, the Defendant, Ohio Department of Transportation,

actively and actually participated in the performance of work by Plaintiffs' Decedent, Brandon
William Carl, and directed, retained and exercised control over the work activities of Plaintiffs'
Decedent and retained and exercised exclusive control over critical aspects of Plaintiffs'
Decedent's working environment and work, and specifically those related to safety, at the time
and location hereinbefore and hereinafter mentioned.

Defendant's retention and exercise of

control over Plaintiffs' Decedent's work and work environment, including at the time and place
aforementioned, was through means that include, but are not limited to, approval of the plans,
calculations and specifications for demolition of the aforementioned bridge, management of
traffic, control over the decision on how to demolish the bridge and directing the time, method of
work, placement of equipment and personnel and the steps by which the bridge would be
demolished.
11.

The Defendant, Ohio Department of Transportation, owed certain duties to

Plaintiffs' Decedent and those foreseeably upon the job site hereinbefore and hereinafter
mentioned. Those duties include, but are not limited to, the following:
a. a duty to exercise reasonable and ordinary care in directing and/or
exercising control over the work activities of Plaintiffs' Decedent herein
and/or the aspects of Plaintiffs' Decedent's working environment,

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 b. a duty of care to provide a safe place of employment for Plaintiffs'
Decedent in accordance with applicable and generally recognized and
accepted practices and standards and legal requirements including, but not
limited to, regulations ofthe United States Department of Labor,
Occupational Safety and Health Administration,
c. a duty of care to eliminate hazardous conditions on the subject work site
including, but not limited to: improper and unsafe conditions and
specifically including the danger of collapse of the aforementioned bridge
during the demolition process,
d. a duty of care to require and confirm that proper fall protection is in place
for Plaintiffs' Decedent's use at the subject job site,
e. a duty of care to make and/or provide for frequent and regular inspection
for safety purposes on the subject job site where Plaintiffs' Decedent
worked, and to stop any work that is unsafe on the subject job site,
f.

a duty of care to require that proper safety protection existed at the subject
job site in accordance with proper and safe design specifications of a
registered professional engineer and in accordance with a proper and safe
plan of demolition,

g. a duty of care to supervise and/or require and confirm that competent, safe
and qualified supervision is present on the subject job site for purposes of
safety,
h. a duty of care to require and confirm that Kokosing Construction
Company, Inc. is fully qualified to perform work safely for the benefit of

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 employees ofKokosing Construction Company, Inc. including, but not
limited to, Plaintiffs' Decedent,
1.

a duty of care to have in place and enforce on Kokosing Construction
Company, Inc. a basic safety policy that includes, but is not limited to, a
requirement of proper, safe and accessible fall protection and means of
preventing a collapse of the subject bridge during the demolition process
and a duty to remedy all safety hazards on the subject job site including,
but not limited to, improper and unsafe bridge conditions,

J.

a duty of care to carry out and enforce terms of the contract between the
Defendant and Kokosing Construction Company, Inc., and specifically
those terms relating to safety, and

k. a duty of care to warn those foreseeably working on the subject job site
including, but not limited to, Plaintiffs' Decedent, of hazardous and
dangerous conditions existing on the subject job site including, but not
limited to, conditions that would create a danger of collapse of the bridge
during the demolition process, and specifically of conditions that would
create destabilization of the bridge during the demolition process.
12.

At all times relevant hereto, it was foreseeable on the part of the

Defendant that Plaintiffs' Decedent would suffer injury and ultimate death in performing
his assigned work by virtue of the improper and unsafe conditions in existence on the
subject job site as hereinbefore and hereinafter mentioned.
13.

The Defendant breached its duty of care to Plaintiffs' Decedent, and those

foreseeably on the premises, and furthermore the Defendant was negligent and careless

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 and failed to exercise reasonable and ordinary care in manners that include, but are not
limited to, the following:
a. in failing to exercise reasonable and ordinary care in directing and/or
exercising control over the work activities of Plaintiffs' Decedent
herein and/or the aspects of Plaintiffs' Decedent's work and working
environment,
b. in failing to provide a safe place of employment for Plaintiffs'
Decedent in accordance with applicable and generally recognized and
accepted practices and standards and legal requirements including, but
not limited to, regulations of the United States Department of Labor,
Occupational Safety and Health Administration,
c. in failing to eliminate hazardous conditions on the subject work site
including, but not limited to, an unstable, improperly supported bridge
and improper, unsafe and flawed plans and calculations for demolition
of the bridge and control of traffic,
d. in failing to require and confirm that proper fall protection was in
place for Plaintiffs' Decedent's use at the subject job site,
e. in failing to stop and remedy the unsafe conditions existing at the
subject job site as hereinbefore and hereinafter mentioned,
f.

in failing to properly supervise the job site for purposes of safety,

g. in failing to stop the demolition of the bridge when Defendant knew,
or should have known, that the plan and calculations for demolition of
the bridge were flawed,

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 h. in failing to properly carry out and enforce terms of the contract
between Defendant and Kokosing Construction Company, Inc. and
specifically those terms relating to safety, and
1.

in failing to warn those foreseeably working on the subject job site
including, but not limited to, Plaintiffs' Decedent, of hazardous and
dangerous conditions existing on the subject job site including, but not
limited to, conditions of a dangerous and unsafe bridge and flawed
plans and calculations for demolition of the bridge aforementioned.

14.

The actions hereinbefore and hereinafter described of Defendant were by and

through employees and/or agents of Defendant working within the course and scope of their
employment for the Defendant.
15.

As a direct and proximate result of the aforementioned negligence and

carelessness and failure to exercise reasonable and ordinary care and breach of duties by
Defendant, Plaintiffs, their Decedent, and their Decedent's heirs at law were caused to suffer
those injuries and damages as hereinbefore and hereinafter mentioned.

THIRD CAUSE OF ACTION
16.

Plaintiffs reallege, reaffirm and incorporate by reference herein each and every

allegation contained in paragraphs one (1) through fifteen (15) herein, as if fully rewritten herein,
and for their Third Cause of Action, state as follows:
17.

The Defendant made certain express and implied warranties to Plaintiffs'

Decedent, to wit: that the job site on which he performed his assigned work duties was safe for

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 the purposes intended and for the reasonable expectations of those who would foreseeably work
on or about the job site and specifically, on the bridge aforementioned ..
18.

Defendant breached its warranties, both express and implied, in manners that

include, but are not limited to, the following:
a. failure to provide a safe place of employment for Plaintiffs' Decedent,
b. failure to warn those foreseeably working on the subject job site
herein, including, but not limited to, Plaintiffs' Decedent, of hazardous
and dangerous conditions existing on the subject job site including, but
not limited to, a lack of a stable surface on which to work and work
being performed with flawed calculations, plans and specifications for
demolition of the aforementioned bridge.
19.

As a direct and proximate result of the aforementioned breach of express and

implied warranties by the Defendant, Plaintiffs, their Decedent and their Decedent's heirs at law
were caused to suffer those injuries and damages as hereinbefore and hereinafter mentioned.

FOURTH CAUSE OF ACTION
20.

Plaintiffs reallage, reaffirm and incorporate by reference herein each and every

allegation contained in paragraphs one (1) through nineteen (19) herein, as if fully rewritten
herein, and for their Fourth Cause of Action, state as follows:
21.

The Defendant failed to warn Plaintiffs' Decedent and those reasonably expected

to work at the subject job site hereinbefore and hereinafter mentioned of the hereinbefore and
hereinafter mentioned hazardous and dangerous conditions that existed at the subject job site.
22.

As a direct and proximate result of the aforementioned negligence and

carelessness and failure to exercise reasonable and ordinary care and breach of duty and failure
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 to warn by the Defendant, Plaintiffs, their Decedent and their Decedent's heirs at law were
caused to suffer those injuries and damages as hereinbefore and hereinafter mentioned.

FIFTH CAUSE OF ACTION

23.

Plaintiffs reallege, reaffirm and incorporate by reference herein, each and every

allegation contained in paragraphs one (1) through twenty-two (22) herein, as if fully rewritten
herein, and for their Fifth Cause of Action, state as follows:
24.

As a direct and proximate result of the negligence and carelessness and failure to

exercise reasonable and ordinary care and breach of duties by Defendant, Plaintiffs' Decedent,
Brandon William Carl, was caused to suffer, prior to his death, great physical pain, trauma,
extreme mental anguish and conscious pain and suffering, all of which occurred prior to and
resulted in Plaintiffs' Decedent's eventual and ultimate death on or about January 19, 2015.
SIXTH CAUSE OF ACTION

25.

Plaintiffs reallege, reaffirm and incorporate by reference herein each and every

allegation contained in paragraphs one (1) through 24 herein, as if fully rewritten herein, and for
their Sixth Cause of Action, state as follows:
26.

As a direct and proximate result of the negligence and carelessness and failure to

exercise reasonable and ordinary care and breach of duties by Defendant, Plaintiffs' Decedent
was caused to suffer serious personal injuries, great physical pain, trauma and extreme pain and
mental suffering and anguish, all of which resulted in his ultimate death.
27.

By reason of the death of Plaintiffs' Decedent, Brandon William Carl, he left

surviving him as next of kin, his minor children, Kennedy B. Carl, Abigail E. Carl, Emma G.
Carl and Ross W. Carl, his mother Sharon Frye, his father Charles Carl, his half-sisters Kimberly

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 Wenzel, Rebecca Kobusch and Theresa Baxter, and his half-brother Alvin Staggs, all on whose
behalf this action is brought.
28.

At the time of his death, Plaintiffs' Decedent, Brandon William Carl, was 35

years of age, in good health, and that as a direct result of his death, each of his aforementioned
next of kin and each heir at law as hereinbefore and hereinafter mentioned was caused to suffer
extreme grief and all other losses and damages as allowed by Ohio law, including Ohio Revised
Code §2125.02 that include, but are not limited to, loss of support from the reasonably expected
earning capacity of the Decedent, loss of support, loss of services of the Decedent, loss of the
society of the Decedent, including losses of companionship, consortium, contribution, care,
assistance, attention, protection, advice, guidance, counsel, instruction, training and education
that would have been derived from Brandon William Carl, loss of prospective inheritance to each
of the Decedent's next of kin and each heir at law as hereinbefore and hereinafter mentioned, and
extreme mental anguish and grief incurred and suffered by each of Brandon William Carl's
surviving children, his mother and father and siblings. Additionally, each of Decedent's next of
kin and each heir at law has been caused to suffer loss of services rendered by the Plaintiffs'·
Decedent as father, son, and brother. Plaintiffs further claim funeral and burial expenses in the
amount of$11,295.50 Dollars, and other expenses incurred by reason of said death. Plaintiffs, in
their individual and administrative/fiduciary capacity as Co-Administrators ofthe Estate of
Brandon William Carl, each seeks damages against the Defendant for an amount in excess of
$25,000.00.

WHEREFORE, Plaintiffs, Sharon Frye and Charles Carl, in their respective individual

capacity and in their capacity as Co-Administrators of the Estate of Brandon William Carl, each

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 herein demand judgment against the Defendant, Ohio Department of Transportation, in an
amount in excess of $25,000.00 in compensatory damages, and all other relief to which they may
be entitled.

D. Arthur abourn 008898)
D. Arthur Rabourn, LLC
Fourth & Vine Tower, 17th Floor
One West 4th Street
Cincinnati, Ohio 45202
Phone: (513) 341-8975
Fax: (513) 341-1899
Email: araboum@raboumlaw.com
TRIAL COUNSEL FOR PLAINTIFFS

OF COUNSEL:
Mark A. Schumacher, Esq.
Edward J. Rudd, Esq.
Rudd & Schumacher
127 West Miami Street
Brooksville, Kentucky 41 004
Phone: (606) 735-2950

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