Semadeni v. Ohio Department of Transportation

Moyer, C.J. In 1975 the state of Ohio enacted R.C. 2743.02, which provides, with certain exceptions not relevant herein, that “[t]he state hereby waives its immunity from liability and consents to be sued, and have its liability determined, * * * in accordance with the same rules of law applicable to suits between private parties * * *.” R.C. 2743.02(A)(1). We have previously recognized that imposition of tort liability upon a private bridge contractor may be justified when damage is caused by third parties who have dropped objects from bridges under the contractor’s control. In Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171, 543 N.E.2d 769, the plaintiff alleged negligence on the part of a private bridge contractor in failing to adopt adequate measures to prevent the dropping of objects from a bridge it was repairing, and which had been the site of similar past incidents. The vandalism caused damage to the property of the plaintiff located below the bridge. We concluded that the trial court erred in directing a verdict in favor of the bridge contractor, holding in the syllabus that “[i]f a person exercises control over real or personal property and such person is aware that the property is subject to repeated third-party vandalism, causing injury to or affecting parties off the controller’s premises, then a special duty may arise, to those parties whose injuries are reasonably foreseeable, to take adequate measures under the circumstances to prevent future vandalism.” We find Ruhlin to be factually analogous to the case at bar. In light of ODOT’s adoption of Policy 1005.1, and applying “the same rules of law applicable to suits between private parties” to the facts before us, we conclude that ODOT possessed a duty to foreseeable travelers such as Semadeni to take adequate measures to timely implement Policy 1005.1. The Court of Claims, however, [132] accepted the state’s contentions that ODOT was immune from liability for Semadeni’s death pursuant to Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776, and its progeny, e.g., Garland v. Ohio Dept. of Transp. (1990), 48 Ohio St.3d 10, 548 N.E.2d 233; Anderson v. Ohio Dept. of Ins. (1991), 58 Ohio St.3d 215, 569 N.E.2d 1042. In Reynolds we held that the state’s consent to be sued pursuant to R.C. 2743.02 in accordance with the rules of law applicable to suits between private parties preserved the state’s immunity “for its legislative or judicial functions, or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.” Id. at paragraph one of the syllabus. Those functions are not engaged in by private parties. We recognized, however, that once such a basic policy decision has been made, and the state has determined to engage in a certain activity or function, “the state may be held liable, in the same manner as private parties, for the negligence of the actions of its employees and agents in the performance, of such activities.” Id. In Garland we reaffirmed Reynolds and further held that “[o]nce a governmental entity has made a discretionary decision, it has a reasonable amount of time to implement that decision without incurring tort liability.” Id. at paragraph two of the syllabus. In Anderson we held in paragraph one of the syllabus that “[w]hen carrying out the mandates of a public employer, the actions of the agents or employees of that employer are distinguishable from the original decision to take action and thus could be actionable.” We there rejected the state’s argument that decisions as to the manner in which a basic policy decision is implemented fall within the scope of the state’s reserved sovereign immunity, even if implementation decisions require state employees to exercise some degree of discretion. Anderson, 58 Ohio St.3d at 217-218, 569 N.E.2d at 1044-1045. Applying this precedent we find that adoption of Policy 1005.Í in 1985 was a “basic policy decision,” and that ODOT failed to implement Policy 1005.1 within a reasonable amount of time. The Court of Claims erred in its legal conclusion that subsequent “time and manner” decisions made to implement Policy 1005.1 were themselves entitled to immunity. When it adopted Policy 1005.1, ODOT determined that the installation of protective fencing was mandatory for all existing bridges in Ohio which scored ten index points or more according to criteria established within the policy, unless “adequate justification for not doing so [could] be furnished.” The policy became effective in July 1985 when it received federal approval. The evidence was uncontroverted that the Blair Avenue overpass at all relevant times justified a score in excess of ten points. However, on the date of Semadeni’s accident, [133] nearly five years later, no fencing had yet been installed on the Blair Avenue bridge. It is clear that ODOT recognized dangers to the traveling public as early as May 1985 when it transmitted Policy 1005.1 to the Federal Highway Administration for approval, and that ODOT was aware in 1985 and 1986 that incidents of debris being dropped from freeway bridges were occurring throughout the state. As early as December 1986, ODOT’s chief engineer characterized the dropping of objects from bridges onto interstates as a “very real problem.” ODOT was informed in November 1986 that the city of Cincinnati had received “numerous complaints from citizens and police concerning objects being thrown from overpasses onto the Interstate Highways below.” In 1986, ODOT officials acknowledged Cincinnati’s concern that fencing on its interstate bridges be implemented quickly. At least as early as January 1988 ODOT was aware of the Akron incident in which two women had been raped and murdered in connection with a dropped object incident. The record discloses, however, no attempt on the part of ODOT to implement Policy 1005.1 for over a year from the date the policy became effective in 1985. ODOT failed to even notify its district deputy directors located throughout the state of the adoption of Policy 1005.1 until August 12, 1986. Despite clear expressions of concern by both Cincinnati and ODOT officials about the problem of dropped objects, it was not until January 1988, well over two years from the time Policy 1005.1 was adopted and approved, that ODOT established funding for any protective fencing anywhere in the state. Even then, the program established funding for only ten percent of the qualifying bridges in Ohio. The Blair Avenue overpass was one of more than four hundred bridges scoring ten index points or more which were not approved for funding. The Blair Avenue bridge justified a score of twelve index points by ODOT’s own criteria, and pursuant to Policy 1005.1, ODOT’s agents and employees were under a mandatory duty to complete its fencing within a reasonable time. In a nearly five-year period, ODOT fenced only a small minority of the bridges which it had itself deemed to be in mandatory need of fencing, including the Blair Avenue overpass. Failure to timely implement Policy 1005.1 as to bridges highest in priority undoubtedly resulted in even greater delay in fencing bridges further down the list of priority, such as the Blair Avenue bridge. We hold that, pursuant to R.C. 2743.02, ODOT is not immune from plaintiffs claims of liability. We conclude on this record that reasonable minds could only find that ODOT was negligent in failing to timely implement Policy 1005.1, and that its negligence was a proximate cause of Pietro Semadeni’s death. We [134] therefore remand this cause to the Court of Claims for it to determine the amount of damages to be awarded Semadeni’s estate. Judgment reversed and cause remanded. Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Douglas, J., concurs in judgment only. Wright and Cook, JJ., dissent.