Judge rules in favor of firm in Marietta River Trail suit
The Ohio River Trail is blocked off as repairs are performed in this photo published on October 4, 2022. (File Photo)
An emergency bypass above the River Trail in Marietta was created after the slip in this photo published on June 8, 2020. (File Photo)
The Ohio River Trail is blocked off as repairs are performed in this photo published on October 4, 2022. (File Photo)
An emergency bypass above the River Trail in Marietta was created after the slip in this photo published on June 8, 2020. (File Photo)
Trending
The City of Marietta has lost its lawsuit effort to recoup money from the firm that did the original geotechnical engineering work on additions to the fifth phase Ohio River Trail for bike and pedestrian traffic.
Judge Mark Kerenyi of the Common Pleas Court of Washington County has granted the summary judgment requested by Professional Service Industries Inc. and its registered trademark entity, Intertek PSI, on the city's claims for breach of contract and professional negligence.
"Summary judgment," in general terms, means a court enters a judgment for one party or the other without a trial. It's based on showing the established facts don't prove there are debatable issues.
Marietta City Council members were going into a previously announced executive session Wednesday night to decide if they would appeal the court order, which was filed with the Washington County Clerk May 17. The city would have to file an appeal within 30 days of the date of the entry of the judgment.
The summary judgment is based on the general conditions of the agreement signed by PSI and the City of Marietta, along with a second agreement signed by the two parties to accommodate Ohio Department of Transportation requirements in order to receive federal grant funds for the project.
Most significant in Kerenyi's finding for a summary judgment is the original agreement's stipulation that PSI was to perform the services more fully described in Exhibit A. That exhibit was PSI's Proposal for Structure Foundation Exploration for Proposed Bridge over Duck Creek and Cut Slope WAS-River Trail Phase V. The proposal states in two places that the services will be conducted in accordance with PSI's general conditions.
The general conditions state that no action or claim may be brought against PSI's work more than two years after the cessation of that work. The city's original contract with PSI began in May 2015. PSI's last work for the city was a report issued in late November 2017. The city filed its complaint against PSI alleging negligence and breach of contract in June 2021.
Furthermore, Kerenyi's finding notes, the additional contract agreement with ODOT was not a standalone replacement for the original agreement, but rather an addition. The city and PSI executed an agreement in June 2015 to incorporate the ODOT requirements.
Phase V of the River Trail started in late November 2018. News reports from that time pegged the cost at nearly $2.6 million, including the bridge across Duck Creek. The city had to come up with $189,000 as its share of funding. The trail opened in late October 2019. The land slip and destruction of the nearby sewer station happened in June 2020. The repairs to date have cost close to $1.7 million, not counting the money to repair the sewer, which had to be diverted.