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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
October 1, 1997
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Ohio Defendants Owed No "Special Duty" When Vandal Dropped Road Construction Debris Off Bridge; Third-Party Criminal Action Was Intervening Cause
Ohio DOT Negligent in Failing to Install Fencing on Freeway Overpass in a Timely Manner
Injured Montana Pedestrian Did Not Show Slippery Metal Cover on Sidewalk Was a Breach of Duty
Louisiana DOT Assigned Some Fault for Injuries to Worker Forced to Cross Highway from Parking Lot to Work

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Ohio DOT Negligent in Failing to Install Fencing on Freeway Overpass in a Timely Manner

A motorist died because a cement block thrown or dropped off a freeway overpass struck him in the head. The administrator of the motorist's estate sued the Ohio Department of Transportation (ODOT), claiming ODOT owed a duty to the deceased motorist to carry out in a timely manner its policy on fencing overpasses. ODOT had a policy requiring protective fencing for overpasses that scored within a certain range on an instrument to decide which overpasses were appropriate for fencing. The policy had been in place for more than five years, and the overpass at which the motorist died had a score justifying fencing, but ODOT had not installed fencing. The Court of Claims granted immunity to ODOT. The administrator appealed, and the Court of Appeals of Franklin County affirmed the decision for ODOT. On a second appeal, the Supreme Court reversed and found ODOT negligent. The Supreme Court remanded the case for award decision.

THE INCIDENT

Pietro B. Semadeni was driving on Interstate 71 in Cincinnati on March 22, 1990. As he drove under the Blair Avenue overpass, an unidentified person or persons dropped or threw a six-pound piece of concrete about eight inches wide off the overpass. The concrete broke Semadeni's windshield and struck him in the head. His injuries were fatal.

LOWER COURT DECISIONS

Brigitte R. Semadeni, executor for Pietro Semadeni's estate, sued in the Court of Claims, arguing that since 1986 ODOT had had a policy in place requiring that overpasses such as the Blair Avenue bridge have protective fencing to prevent third parties from throwing or dropping dangerous objects off the bridge. The plaintiff claimed ODOT's negligence in failing to install that fencing was the proximate cause of Pietro Semadeni's death.

ODOT acknowledged they had adopted a policy by 1986 regarding the installation of protective fencing on overpasses. Moreover, it acknowledged that no fencing was in place on the Blair Avenue overpass at the time of Semadeni's death. However, ODOT claimed discretionary immunity for its decisions and for the amount of time it was taking to comply with the policy and install overpass fencing. The Court of Claims looked at the time line of events leading up to the fatal incident.

May 1985 ODOT proposed a new policy (Policy 1005.1) for installing protective fencing on existing overpass bridges. The policy intended to "discourage the throwing or dropping of objects from bridges onto lower roadways and other property." To decide which bridges to fence, the policy established ten criteria and a system that calculated an index number for each bridge in Ohio. Criteria included, for example, "whether the overpass is unlighted, whether it had previously been the site of a falling object, or whether it passed over property with high vehicular or pedestrian traffic or damage sensitive property." To require protective fencing, a bridge had to earn a score of ten or higher. Given such a score, installation of fencing was mandatory unless "adequate justification for not doing so can be furnished."

July 30, 1985 ODOT received Federal Highway Administration approval of the proposed policy.

August 12, 1986 Wayne H. Kauble, ODOT's Chief Engineer of Planning and Design, notified the deputy directors of each district that Policy 1005.1 had been adopted.

September 1, 1986 Two young women were forced off the interstate by persons throwing concrete from the Stoner Street overpass in Akron, Ohio. The women were then raped and murdered.

September 8, 1986 The acting planning engineer for district eight asked officials to score Cincinnati's bridges according to the criteria in Policy 1005.1.

November 1986 District eight gave its list of scored bridges to ODOT. The cover letter with the list said the city had "numerous complaints from citizens and police concerning objects being thrown from overpasses onto the Interstate Highways below." During the same month, an interoffice communication between two district eight employees stated that "the City of Cincinnati wants to proceed with this program in their area as quickly as possible." ODOT and district eight employees independently gave the Blair Avenue overpass, where Semadeni died, twelve index points.

December 16, 1986 Kauble let district eight deputy directors know that they were not to postpone installing protective fencing to coordinate the installations with other bridge repair work. Kauble advised that such postponement would "not [be] a suitable response to the growing public concern and the prolifteration [sic] of incidents involving objects being thrown from overpasses."

January 15, 1987 The district eight deputy director informed ODOT's central office in Columbus which bridges in the district scored ten or more according to Policy 1005.1 criteria. (A total of four hundred sixty-one bridges in Ohio received a score of ten or more.)

January 1988 ODOT set up a funding program for installing protective fencing at forty- four bridges, about 10 percent of those identified under the criteria. All the bridges to receive fencing scored more than twenty index points or were close to bridges scoring more than twenty points. The Stoner Street bridge, where the two young women were raped and murdered, was an exception. It scored only twelve points; however, the funding program included fencing for Stoner Street. The Blair Avenue overpass, where Semadeni died, was not on the funded list.

March 22, 1990 By this date of Semadeni's death, ODOT had entered contracts for two projects: one to install fencing on six bridges in the Akron area, including Stoner Street, and the other for five bridges in the Youngstown area.

March 26, 1992 After Semadeni's death, Kauble had told district eight to accelerate the installations and, within eight months, to install fences on bridges that scored ten or more points. On March 26, 1992, protective fencing installation was completed on the Blair Avenue bridge--more than six years after the adoption of Policy 1005.1.

Reviewing this chain of events, the Court of Claims granted summary judgment for ODOT--since they determined that ODOT could not be held liable for the misconduct of third parties. Moreover, the court held ODOT had no duty to provide protection against that criminal misconduct. In addition, the court judged as discretionary and subject to immunity ODOT's decisions regarding the need for fencing and the priority of fencing projects. Finally, the court found the time ODOT had spent deciding when and how to install the protective fencing was not unreasonable.

Accordingly, the court of claims granted ODOT immunity. In a split decision, the court of appeals upheld the judgment in favor of ODOT.

SUPREME COURT DECISION

The Supreme Court cited R.C. 2743.02 which, in Ohio, waives immunity and allows suit against the State "following the same rules of law applicable to suit between private parties" (R.C. 2743.02(A)(1). Referring to Fed. Steel & Wire Corp. V. Ruhlin Constr. Co. ((1989), 45 Ohio St.3d 171, 543, N.E.2d 769), the court pointed out that it had already recognized the liability of a private bridge contractor for failing to adopt adequate measures to prevent debris from being dropped or thrown from a bridge. In Ruhlin, the bridge site had a record of vandalism to the property below. The Supreme Court decided:

If 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.

Finding Ruhlin "factually analogous" to the present case, the court saw ODOT as having a special duty to Semadeni that required it to take timely action to prevent his injuries where he was a foreseeable user of the property.

Moreover, the Supreme Court did not agree with the lower court's finding that ODOT's actions here were immune from liability. In Reynolds v. State ((1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776), the Supreme Court defined the State's immunity for "basic planning functions involving the making of a basic policy decision that is characterized by the exercise of a high degree of official judgment or discretion." The court also stated that once the State made a policy decision, it must implement the policy in "a reasonable amount of time." While the lower court found ODOT's stream of decisions in this case to be discretionary and timely, the Supreme Court found that only the adoption of Policy 1005.1 was discretionary. After making the basic policy decision to adopt 1005.1, the State was not reasonable in the time it took to implement. Therefore, the trial court erred in granting immunity.

The Supreme Court reviewed the evidence. (1) Installing protective fences at qualifying bridges was mandatory after adoption of Policy 1005.1 in 1986. (2) Blair Avenue overpass met the criteria. (4) Evidence showed that ODOT had notice of the hazard to citizens created by objects thrown off overpasses. (4) Despite having acknowledged the hazard and despite a mandatory fencing policy, more than five years after the policy was proposed, ODOT had not yet installed fencing at high-priority sites. The court concluded this failure to begin work anywhere caused even greater delay in fencing lower-priority overpasses, such as Blair Avenue.

Based on this chain of events, the Supreme Court concluded that a reasonable person might find ODOT "negligent in failing to timely implement Policy 1005.1, and that its negligence was a proximate cause of Pietro Semadeni's death." The court remanded the case for determination of the damage award to Semadeni's estate.

DISSENTING OPINION

Justice Cook wrote the dissenting opinion; Justice Wright concurred.

The dissenting justices pointed out that in Garland v. Ohio Dept. Of Transp. ((1990), 48 Ohio St.3d 10, 548 N.E.2d 233) the Supreme Court extended the State's immunity beyond the discretionary decision to install a traffic light and made discretionary the State's decisions on funding priority and installation time line. In Garland, the court found fourteen months was a reasonable time during which to carry out a decision to install a single traffic light. Stressing that the implementation of a decision to install protective fencing involved "multiple steps, several districts, millions of dollars, and numerous decisions which could, and did, take several years," the justices concluded that the two years between the initial funding decision and Semadeni's death should be a reasonable time period during "which to implement a policy to fence more than four hundred bridges across the state at a cost of $26 million."

In addition, the dissenting justices mentioned that the State was not liable unless it owed a "special duty" to the plaintiff beyond the duty owed to members of the general public. Proving special duty requires four elements:

(1) the state must assume an affirmative duty to act on behalf of the injured party; (2) the state must be aware that its inaction would lead to the alleged harm; (3) there must be direct contact between the state and the injured party; and (4) the injured party must justifiably rely upon the state's affirmatively undertaking its promised form of relief.

Reviewing these elements, the dissenting justices concluded ODOT owed a general duty to Semadeni rather than a special duty.

Finally, the justices disagreed with the majority's dependence on Ruhlin. In Ruhlin, a contractor repairing a single bridge that was the site of repeated vandalism was found to have a special duty to the property owner beneath that bridge. ODOT, on the other hand, did not have specific knowledge of the vandalism danger at Blair Avenue. ODOT knew of a statewide danger, knew Cincinnati considered such vandalism a hazard; and knew of the related murders in Akron. Lacking specific knowledge of the hazard at Blair Avenue, ODOT would not be subject to liability for Semadeni's death. Therefore, these justices would have confirmed the decision to grant immunity to ODOT.

[For further reference, see Semadeni v. Ohio Department of Transportation (Ohio 1996) in West Publishing Vol. 661 North Eastern Reporter, 2d Series, 1013.]

Copyright © 1997 by TranSafety, Inc.


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