Brunner
COLUMBUS, Ohio - The State of Ohio can’t be sued over the death of a man who was killed by a sandbag a youth tossed off a highway bridge, the state’s highest court ruled, citing government immunity for official policy decisions.
In this case, policy allowed the Ohio Department of Transportation to temporarily remove protective fencing from the section of the bridge that was being replaced, even though ODOT regulations otherwise required fencing to prevent pedestrians from hurling objects at cars passing below.
The decision drew criticism and a dissent from justices who said the state shouldn’t be granted total immunity from lawsuits over decisions that wind up harming members of the public. In a 1984 decision stemming from the brutal attack on a woman by a prisoner who was on temporary release, the Ohio Supreme Court ruled the government is immune from policy choices involving “the exercise of a high degree of discretion,” although it can be sued over how those choices are carried out.
Marquise Byrd was killed in 2017 when a juvenile threw a sandbag off the Indiana Avenue bridge into traffic on I-75, crashing through the windshield of a car and killing Byrd in the passenger seat. A witness described the boy as saying “I’m going to throw this over the bridge and run because the cops are going to come.”
The juvenile was convicted of murder and Byrd’s mother sued the state in the Court of Claims, claiming negligence for removing the protective fence during construction. ODOT engineers decided to replace the bridge in stages, and left a pedestrian walkway with the protective fencing on the other side.
The trial judge refused the state’s motion to dismiss but the Court of Claims rejected Wilkes’ claims. The Tenth District Court of Appeals reversed the judgment, holding Ohio lacked immunity because it failed to install protective fencing. The state “did not make a discretionary policy decision to take no action,” the court ruled. “It took no action… because it did not perceive a problem.”
The Supreme Court reversed the appeals court and dismissed the case, citing Ohio’s governmental immunity statute and its own interpretation in the landmark Reynolds v. Ohio decision in 1984. The statute says the state is immune from lawsuits “involving the performance or nonperformance of a public duty,” which the court interpreted to mean lawsuits over basic policy decisions, not the implementation of them.
The court rejected a lawsuit claiming the state was negligent for deciding to install flashing lights instead of a stoplight at an intersection, for example. But the state was found liable in another deadly case involving a piece of concrete thrown off a bridge because it failed to installed protective fencing within a reasonable period.
In this case, Chief Justice Sharon Kennedy wrote, “whether to use temporary vandal-protective fencing during a bridge reconstruction is a basic policy decision that involves the exercise of a high degree of discretion and, as such, is one for which ODOT is immune from liability.”
“Byrd’s death is tragic,” she concluded. “However, in deciding whether injured parties should be permitted to sue the State, the General Assembly—the arbiter of public policy—necessarily had to draw lines regarding which claims may be pursued against the State and which claims may not.”
Justice Patrick Fischer concurred, but only because the court was bound by its prior decisions. He said the court itself made up the distinction between policy decisions and their implementation and the majority was wrong to attribute it to the General Assembly.
Justice Jennifer Brunner dissented, saying either way the state should be held liable for failing to install fencing on the bridge.
Not installing fencing on the construction side was “a technical decision,” the justice wrote, as opposed to the basic policy decision to install protective fencing wherever pedestrians could walk.
The Ohio Department of Transportation “may not be sued for adopting its bridge-safety policy,” she concluded. “But having adopted such a policy, ODOT does not have the discretion to disregard it or to implement it in a negligent or reckless manner.”
John E. Breen of Breen Law represented the plaintiffs.
