ODOT not liable for death caused by sandbag dropped from bridge

Court News Ohio

The Ohio Department of Transportation (ODOT) cannot be held liable for the death of a passenger killed when a teen dropped a sandbag from a Toledo bridge where fencing had been removed for bridge reconstruction, the Supreme Court of Ohio ruled today.

The Supreme Court decided that ODOT is immune from the lawsuit brought by the mother of Marquise Byrd, who died while riding in a car traveling on Interstate 75 in December 2017. At the time of the incident, the Indiana Avenue overpass bridge was partially open to pedestrian traffic. A teen dropped a sandbag from the side closed to traffic where vandal-protective fencing had been removed and was adjudicated delinquent for murdering Byrd.

Writing for the Court majority, Chief Justice Sharon L. Kennedy stated that government agencies are immune from lawsuits alleging injuries caused by a policy decision that involves the exercise of a high degree of official judgment or discretion. ODOT policy at the time required vandal-protective fencing on overpass bridges when they were completed, but not while under reconstruction.

“Whether to use temporary vandal-protective fencing during a bridge reconstruction is a basic policy decision that involves a high degree of discretion, and as such, is one for which ODOT is immune from liability,” she wrote.

The Court reversed the Tenth District Court of Appeals, which found ODOT liable for Byrd’s death. The case was remanded to the Ohio Court of Claims with instructions to dismiss the lawsuit brought by Patricia Wilkes, Byrd’s mother.

Justice R. Patrick DeWine, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined Chief Justice Kennedy’s opinion.

In a concurring opinion, Justice Patrick F. Fischer stated he sided with the majority’s conclusion that ODOT is immune in this case because neither party disputed the concept that state law grants “discretionary immunity” to government agencies. He noted this is based on cases stemming from the Supreme Court’s 1984 Reynolds v. State decision. However, Justice Fischer questioned whether those decisions accurately interpret the sovereign immunity statute, R.C. 2743.02, and whether state government decisions are shielded against lawsuits.

In a dissenting opinion, Justice Jennifer Brunner wrote that the discretionary immunity outlined in Reynolds is workable, but does not apply to Byrd’s death. ODOT did not use a high degree of judicial judgment or discretion when deciding not to use temporary protective fencing during reconstruction. Rather, it was a “technical decision” to not follow its already existing policy of shielding the bridge and preventing the type of activity that occurred and caused a death. It was this technical decision not to follow its policy that was negligent or reckless, she concluded.

••• Publisher's note: A free press is critical to having well-informed voters and citizens. While some news organizations opt for paid websites or costly paywalls, The Highland County Press has maintained a free newspaper and website for the last 27 years for our community. If you would like to contribute to this service – and want it to continue – it would be greatly appreciated. Donations may be made to: The Highland County Press, P.O. Box 849, Hillsboro, Ohio 45133. Please include "for website" on the memo line.