NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0191n.06

No. 21-3859

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PATRICIA D. WILKES, as Personal Representative 

of the Estate of Marquise Shawndell Byrd,

Plaintiff-Appellant,

v. 

KOKOSING, INC.,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE SOUTHERN

DISTRICT OF OHIO 

Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Patricia D. Wilkes, as personal 

representative of the estate of her son, Marquise Shawndell Byrd, appeals the district court’s grant 

of summary judgment to Defendant-Appellee, Kokosing, Inc., in this negligence action seeking 

damages for Byrd’s injuries and death. Byrd died tragically after being struck by a sandbag that a 

teenager dropped from a bridge Kokosing was removing and replacing pursuant to a contract with 

the Ohio Department of Transportation. Because the record evidence demonstrates that Kokosing 

followed the contract’s mandated plans and specifications, and there is no evidence that the plans 

and specifications were so obviously defective or dangerous that no reasonable contractor would 

have followed them, the district court properly granted Kokosing summary judgment under Ohio 

law.
Case No. 21-3859, Wilkes v. Kokosing, Inc. 

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I.

In 2017, Defendant-Appellee Kokosing was hired by the Ohio Department of 

Transportation (ODOT) to remove and replace the Indiana Avenue bridge, which spans I-75 in

Toledo, Ohio. Plans for the project were designed by a separate engineering company and were 

approved by ODOT. Under the project plans, the 2016 ODOT Specifications governed the 

construction; the plans also incorporated ODOT Standard Drawings related to construction. The 

contract between Kokosing and ODOT obligated Kokosing to perform its construction work 

according to these plans, specifications, and drawings. 

Prior to construction, the bridge had three lanes of traffic in the center and pedestrian 

sidewalks along the north and south sides that were protected on their outer edges with fencing. 

All of this would be removed and replaced as part of the project. The City of Toledo did not want 

the surrounding neighborhoods to be cut off, so the work was ultimately designed to proceed in 

phases. During Phase 1—the only phase relevant here—the northern portion of the bridge, which 

consisted of two lanes of traffic and a pedestrian sidewalk with protective fencing, was entirely 

removed. The southern portion of the pre-existing bridge remained, consisting of a single traffic 

lane on its northernmost side and a sidewalk with protective fencing on its southernmost side. 

During Phase 1, signs and barricades directed pedestrians to the lone sidewalk on the 

southernmost side of the bridge. Kokosing placed sandbags on the feet of some barricades for 

stability, per ODOT Standard Drawing MT-101.60, as the barricades could not be mounted into 

the ground because of underground utilities. A row of portable concrete barriers lined the outer 

edge of the single traffic lane on the northernmost side of the bridge. The project plans did not 

call for protective fencing to be placed atop the barriers and the drawing that is part of the plans 

does not show protective fencing. An ODOT Standard Drawing described how to install fencing 
Case No. 21-3859, Wilkes v. Kokosing, Inc. 

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on new and existing concrete bridge railings, but said nothing about installing fencing on

temporary, portable concrete barriers during construction. Nor was there an ODOT Specification 

related to temporary fencing. 

ODOT had primary authority over the construction project and carried out inspections to 

ensure that Kokosing was following the mandated plans and specifications. ODOT could suspend 

work if Kokosing failed “to correct conditions that are unsafe for the workers or the general 

public,” failed “to comply with the Contract Documents,” or failed “to comply with [ODOT’s] 

orders.” R. 23-2 PID 214. ODOT was also authorized to suspend the work “if there is a question 

regarding the Contract Documents, use of unapproved material, or safety.” R. 23-2 PID 215. 

According to ODOT’s daily work report, it once instructed Kokosing to install a message 

board on I-75, and then to install object markers and reflectors on portable concrete barriers on I75’s shoulders. Kokosing also reported that ODOT directed it to add traffic-control items at the 

east end of the bridge to warn against wrong-way traffic. ODOT never directed Kokosing to install 

temporary fencing on the portable concrete barriers lining the northernmost edge of the bridge

during Phase 1. 

On December 19, 2017, while Phase 1 was still underway, Marquise Shawndell Byrd was 

a passenger in a vehicle travelling south on 1-75 when the windshield of the vehicle was struck by 

a sandbag. The sandbag broke through the windshield and struck Byrd. Byrd died a few days 

later from blunt force trauma to his head and neck. Police determined that the sandbag had been 

dropped from the live traffic lane of the Indiana Avenue bridge, over the portable concrete barriers 

lining its northernmost edge. 

Plaintiff-Appellant Patricia D. Wilkes filed this action as personal representative of Byrd’s 

estate, alleging that Kokosing was negligent in failing to prevent pedestrians from dropping objects 
Case No. 21-3859, Wilkes v. Kokosing, Inc. 

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off the Indiana Avenue bridge. Kokosing moved for summary judgment, arguing, in part, that it 

could not be held liable under Ohio law because it had followed the plans and specifications 

mandated under its contract with ODOT, and the plans and specifications were not so obviously 

defective or dangerous that no reasonable contractor would have followed them. The district court

granted Kokosing’s summary-judgment motion after determining that Kokosing had presented 

undisputed evidence showing that it carried out the construction according to ODOT plans, 

specifications, and directions. Wilkes timely appealed. 

II.

We review a grant of summary judgment de novo. Int’l Union v. Cummins, Inc., 434 F.3d 

478, 483 (6th Cir. 2006). “The central issue is ‘whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one party must 

prevail as a matter of law.’” Hamad v. Woodcrest Condo. Ass’n., 328 F.3d 224, 234–35 (6th Cir. 

2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)).

III.

Under Ohio law, a contractor is liable to all those who may foreseeably be injured by its 

work when it fails to disclose dangerous conditions known to it and when the work is negligently 

done. Jackson v. City of Franklin, 554 N.E.2d 932, 935 (Ohio Ct. App. 1988). There is, however, 

an important exception: “the contractor is not liable if he has merely carried out carefully the plans, 

specifications and directions given him, since in that case the responsibility is assumed by the 

employer, at least where the plans are not so obviously defective and dangerous that no reasonable 

man would follow them.” Id. (citations omitted); see also Farr v. Safe-Way Barricades, Inc., No. 

L-97-1258, 1998 WL 336315, at *5 (Ohio Ct. App. June 12, 1998) (“[O]nce a contractor has 

agreed to undertake performance of a contract with ODOT, the contractor cannot be held liable for 
Case No. 21-3859, Wilkes v. Kokosing, Inc. 

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negligence unless he does not follow the plans and specifications or unless the plans are so 

obviously defective that no reasonable person would follow them.”). Even if the contractor’s 

experience suggests that another means of construction might be better, a contractor is justified in 

relying on the plans and specifications supplied by an engineer that it contracted to follow, except, 

again, when they are “so obviously defective that a contractor of average skill and ordinary 

prudence would not have attempted the construction according to the plans.” Jackson, 554 N.E.2d

at 936. 

Thus, a contractor seeking summary judgment under this doctrine must identify portions 

of the record that demonstrate it performed according to the plans and specifications it contracted 

to follow and that it was reasonable to follow them. The nonmoving party must then set forth 

specific facts showing that the contractor failed to follow the plans and specifications or that a 

contractor of average skill and ordinary prudence would not have followed them because they were 

so obviously defective or dangerous. Id. at 936–37. If the nonmoving party cannot make this 

showing, the contractor is entitled to judgment as a matter of Ohio law. Id. at 937. 

 Kokosing’s evidence establishes the following facts. An engineering company, not 

Kokosing, planned the Indiana Avenue bridge construction project. The project plans incorporated 

ODOT construction specifications and drawings, and ODOT approved the plans. Kokosing 

entered into a contract with ODOT to remove and replace the bridge according to the project plans, 

which called only for portable concrete barriers without protective fencing on the northernmost

edge of the bridge during Phase 1, and did not require Kokosing to take measures to secure

sandbags or protect against vandalism on the construction site. The ODOT Standard Drawings 

incorporated by the project plans allow sandbags to be placed on the feet of barricades and do not 

call for temporary fencing to be installed on bridges under construction. During the relevant time, 
Case No. 21-3859, Wilkes v. Kokosing, Inc. 

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ODOT inspected Kokosing’s work and never found fault with the absence of temporary fencing 

on the portable concrete barriers or the lack of other safety measures, such as sandbag controls, or 

a guard at the construction site. An ODOT engineer explained that temporary protective fencing 

was not included in Phase 1 because pedestrian access had been eliminated on the northern side of 

the bridge, where only a live traffic lane remained. Finally, before December 19, 2017, Kokosing’s 

regional manager had never used temporary fencing on other projects. 

Wilkes offers a variety of evidence, including police reports, photos of the construction 

site, and news accounts of incidents involving objects thrown from other bridges. However, none 

of this evidence speaks to whether a contractor of average skill and ordinary prudence would have 

considered the plans and specifications mandated by Kokosing’s construction contract—

specifically, placing portable concrete barriers without protective fencing on the northern edge of 

the bridge during Phase 1 and placing unsecured sandbags on the feet of barricades—so obviously 

defective or dangerous that it would not have followed them. Nor does Wilkes’s proffered

evidence show that Kokosing deviated from the plans and specifications that it contracted to 

follow. Wilkes relies on ODOT’s Bridge Design Manual to make this showing, but the Bridge 

Design Manual provides instruction to bridge designers—i.e., engineers, not contractors 

constructing the bridge—and did not form part of the plans and specifications Kokosing was 

obligated to follow under its contract with ODOT. Further, section 305.2 of the Bridge Design 

Manual clearly requires permanent protective fencing on most bridges after they have been 

constructed or fully rehabilitated, but says nothing about temporary fencing on bridges under 

construction.1 

1 After Byrd’s death, ODOT added a new section to the Bridge Design Manual to specifically require 

temporary protective fencing during bridge construction and created a new design data sheet and standard drawing for 

such fencing. 
Case No. 21-3859, Wilkes v. Kokosing, Inc. 

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In sum, evidence submitted by Kokosing demonstrates that it followed the project plans 

and specifications when performing its construction work. The evidence also demonstrates that it 

was not unreasonable in following these plans and specifications: the plans had been designed by 

the project engineer and approved by ODOT; the ODOT specifications and drawings were 

standard for such construction projects; Kokosing’s regional manager had never worked on a 

project that required temporary fencing before; and ODOT never directed Kokosing to install 

temporary fencing or implement any other safety measure after repeatedly inspecting Kokosing’s

work. Wilkes, on the other hand, offers no evidence to show that a genuine dispute remains. Thus, 

reasonable minds could only conclude that Kokosing cannot be liable for negligence under Ohio 

law. 

We AFFIRM.