Semadeni v. Ohio Dept. of Transp. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Semadeni, Exr., Appellant, v. Ohio Department of Transportation,
Appellee.
[Cite as Semadeni v. Ohio Dept. of Transp. (1996), ______ Ohio St. 3d
________.]
Torts -- Negligence -- Streets and highways -- Death resulting when
chunk of concrete thrown from overpass through automobile
windshield -- Court of Claims -- Pursuant to R.C. 2743.02, Ohio
Department of Transportation not immune from claims of liability,
when.

(No. 94-2356 -- Submitted December 13, 1995 -- Decided March 4,
1996.)
Appeal from the Court of Appeals for Franklin County, No.
93API10-1434.

On March 22, 1990, Pietro B. Semadeni suffered fatal injuries when
a six-pound chunk of concrete approximately eight inches in width
crashed through the windshield of his automobile and struck him in the
head while he was driving on I-71 in Cincinnati. The concrete had been

dropped or thrown by an unidentified person or persons from a four-lane
overpass bridge (the "Blair Avenue overpass").

Semadeni's executor, Brigitte R. Semadeni, filed an action in the
Court of Claims against appellee, Ohio Department of Transportation
("ODOT") alleging that, in or before 1986, ODOT had adopted a policy
which required the Blair Avenue bridge to be equipped with protective
fencing. She claimed that Semadeni's injuries and death were the direct
and proximate result of ODOT's negligent failure to install protective
fencing on the Blair Avenue overpass.

ODOT admitted that it had, by 1986, adopted a policy regarding the
installation of fencing on existing freeway bridges. It further admitted that
no fencing had been installed on the Blair Avenue bridge on the date of
Semadeni's accident in March 1990. ODOT denied, however, that it had
been negligent, and asserted several defenses, including one it
characterized as "the doctrine of discretionary function immunity."

2

Evidence shows that in May 1985 ODOT proposed a new policy
("Policy 1005.1") addressing installation of protective fencing on existing
bridges, and that, on July 30, 1985, ODOT received Federal Highway
Administration approval of the new policy. The purpose of the policy, in
part, was to discourage the throwing or dropping of objects from bridges
onto lower roadways and other property. Included in Policy 1005.1 was a
table which established a system for calculating an index number for
bridges in Ohio based on ten identified criteria, e.g., 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. The policy established
that "[a] total index number of 10 or more shall be considered sufficient
justification for the installation of protective fencing" but that "retrofitting of
bridges which qualify according to the total index number is not
mandatory if adequate justification for not doing so can be furnished."

3

A year later, on August 12, 1986, Wayne H. Kauble, Chief Engineer
of Planning and Design for ODOT, took the first step to implement Policy
1005.1 by notifying ODOT's district deputy directors located throughout
the state of its adoption. Coincidentally, on September 1, 1986, two
young women were raped and murdered in Akron after the murderers
forced their car off the road by throwing concrete from an interstate bridge
(the "Stoner Street bridge"). 1

On September 8, 1986, the acting district planning engineer for
ODOT district eight, which included the city of Cincinnati, asked city
officials to score its bridges pursuant to the criteria of Policy 1005.1.
When, in response, the city of Cincinnati returned its list of scored bridges
to ODOT in November 1986, its cover letter informed ODOT that the city
had received "numerous complaints from citizens and police concerning
objects being thrown from overpasses onto the Interstate Highways
below." Moreover, an interoffice communication between two ODOT
district eight employees in November 1986 demonstrated awareness on

4

their part that "the City of Cincinnati wants to proceed with this program in
their area as quickly as possible" indicating that "[t]here should be no
problem with this." Working independently, both ODOT and Cincinnati
scored the Blair Avenue overpass with twelve index points.

On December 16, 1986, Kauble notified district deputy directors
throughout the state that retrofitting of bridges should not be postponed to
coincide with other planned bridge repair work, as to do so would "not
[be] a suitable response to the growing public concern and the
prolifteration [sic] of incidents involving objects being thrown from
overpasses." Kauble advised the deputy directors that a "positive
program with visible results [is needed] to adequately deal with this very
real problem."

On January 15, 1987, the district eight deputy director advised
ODOT's central office in Columbus of all bridges located in the district,
including the Blair Avenue overpass, which scored ten or more Policy
1005.1 index points. Ultimately, a total of four hundred sixty-one bridges

5

throughout Ohio were identified as scoring ten or more index points
pursuant to ODOT's 1985 Policy 1005.1 criteria.

A year later, in January 1988, ODOT established its initial funding
program for fencing bridges in Ohio. The program established funding for
forty-four bridges throughout Ohio, representing ten per cent of the total
number of bridges required to be fenced by Policy 1005.1. All of the
forty-four bridges either scored more than twenty Policy 1005.1 index
points, or were located in the immediate vicinity of a bridge with more
than twenty index points, with one exception: the Stoner Street bridge,
site of the Akron murder incident, was included in the funding program.
That bridge, like the Blair Avenue overpass, was rated at twelve points.
The Blair Avenue overpass was not approved for funding.

By the date of Semadeni's accident on March 22, 1990 (two years
after formulation of the initial funding program, and nearly five years from
the date Policy 1005.1 had been adopted), ODOT had, however, entered
into contracts for only two projects that were solely for the purpose of

6

retrofitting existing bridges with protective fencing. Construction had not
yet begun on one of the two projects. Of the two retrofitting projects, one
involved installation of fencing on six bridges in the Akron area (including
the Stoner Street bridge) and the second involved construction of
protective fencing on five bridges in the Youngstown area.

After Semadeni's death, Kauble advised district eight that the
Department had determined that the bridge fencing program should be
"accelerated." District eight was instructed to install fences within its
district on all bridges that scored ten or more index points and to do so
within eight months. The installation of protective fencing on the Blair
Avenue overpass was completed on March 26, 1992, over six years after
the adoption of Policy 1005.1.

Following trial solely on issues pertaining to liability, the court
rendered judgment in favor of ODOT. The court held that ODOT is not
liable for the criminal misconduct of third parties, and does not have a
duty to provide protection against criminal misconduct. The court further

7

held that ODOT's "decisions regarding the need for and prioritizing of
fences was [sic] discretionary in nature and afforded immunity to the
state." The court further held that "ODOT was not unreasonable in the
amount of time expended in determining when and how protective
fencing would be installed on the appropriate overpasses."

The court of appeals, in a split decision, affirmed the judgment
entered in favor of ODOT.

The cause is now before this court pursuant to the allowance of a
discretionary appeal.

Dinsmore & Shohl, Mark A. Vander Laan, Joel S. Taylor and David
K. Mullen, for appellant.

Betty D. Montgomery, Attorney General, and Teri Jo Finfrock,
Assistant Attorney General, for appellee.
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,

8

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

9

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, 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

10

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

11

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 1005.1 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

12

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 accidents, 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

13

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 per cent 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.

14

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
plaintiff's 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 therefore remand this case to the Court
of Claims for it to determine the amount of damages to be awarded
Semadeni's estate.

15

Judgment
reversed
and
cause
remanded.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur

DOUGLAS, J., concurs in judgment only.

WRIGHT and COOK, JJ., dissent.

FOOTNOTE:

1 See State v. Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895.
Cook, J., dissenting. I respectfully dissent
from the majority decision because I would find that
ODOT is not liable.

A state is immune for "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." Reynolds v. State (1984), 14 Ohio St.3d
68, 14 OBR 506, 471 N.E.2d 776, paragraph one of the

16

syllabus. Once such a discretionary decision is
made, however, the agency must implement its decision
within a "reasonable amount of time" or it may be
subject to tort liability. Garland v. Ohio Dept. of
Transp. (1990), 48 Ohio St.3d 10, 548 N.E.2d 233,
paragraph two of the syllabus.
In
Garland, we extended the state's immunity
beyond the discretionary decision to install a
traffic light at a busy intersection to the decision
regarding the type of traffic signal to install. Id.
at paragraph one of the syllabus. The court
recognized that discretionary decision-making also
included the timing of an installation and decisions
as to funding the installation of the traffic light.

As in Garland, ODOT's decision-making process in
this case extended from the decision to install
protective fences statewide, to the determination of
which bridges needed to be fenced, when they needed

17

to be fenced and how the project would be funded.
ODOT's decisions required ODOT not only to prioritize
the protective fence program but also to coordinate
the fence project with other highway safety projects,
such as road resurfacing, traffic signals,
intersection improvements, bridge replacements and
new highway construction. Making these decisions was
part of the executive planning stages of Policy
1005.1, for which ODOT was immune from liability.

Without the benefit of expert testimony on the
magnitude of ODOT's undertaking of this as well as
other ODOT projects at the relevant time and without
following or adopting any defined standard of
"reasonableness," the majority determines that ODOT
was negligent in implementing its policy and subject
to liability. The majority measures the
reasonableness of ODOT's actions from July 1985, when
the policy received Federal Highway Administration

18

approval and concludes that the time from federal
approval until the accident was an unreasonable
period in which to implement Policy 1005.1.

However, in January 1988, ODOT made its final
discretionary decision -- the initial funding for
forty-four bridges. From that time ODOT was subject
to liability if it did not implement the policy
within a reasonable period.
In
Garland, this court determined that fourteen
months was a reasonable period of time to implement
the installation of a single traffic light at a
single intersection. 48 Ohio St.3d at 12, 548 N.E.2d
at 235. Here, unlike in Garland, ODOT sought to
install protective fencing on hundreds of bridges
throughout the state. The undertaking involved
multiple steps, several districts, millions of
dollars, and numerous decisions which could, and did,

19

take several years. Semadeni's accident occurred
roughly two years after the initial funding decision.
If fourteen months has been found to be a reasonable
time, as a matter of law, to implement the
installation of a single traffic light, then two
years should be a reasonable period of time in which
to implement a policy to fence more than four
hundered bridges across the state at a cost of $26
million.

Even if ODOT did not implement its policy
decision within a reasonable amount of time, there is
a further legal step before the state may be found
liable. A state is not subject to tort liability
unless the state or agency owed a special duty to
plaintiff that is separate and distinct from the duty
the agency owed to members of the general public.
Anderson v. Ohio Dept. of Ins. (1991), 58 Ohio St.3d
215, 218, 569 N.E.2d 1042, 1045; Sawicki v. Ottawa

20

Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468. The
majority does not consider whether ODOT had a special
duty to Mr. Semadeni. If there is no special duty to
Mr. Semadeni, then ODOT is not liable to him for
breach of its duty to the general public.

Four elements must be proven in order to
establish the existence of a special duty: (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. Anderson, 58 Ohio St.3d at 219, 569 N.E.2d at
1045. Upon review of the record, I would find that
ODOT owed a general duty to the public, rather than a

21

special duty to Mr. Semadeni, to take measures to
prevent vandalism on highway bridges.

The majority relies on Fed. Steel & Wire Corp. v.
Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171, 543
N.E.2d 769, to find that ODOT owed a special duty to
Semadeni take adequate measures to prevent vandalism.
In Ruhlin we held that a construction company,
repairing a single bridge that had been the site of
repeated vandalism, owed a special duty to the
property owner located near the bridge. In
contrast, ODOT was responsible for more than four
hundred bridges that needed to be fenced.

Furthermore, the majority does not cite any facts
which indicate that ODOT was aware that the Blair
Avenue bridge was the subject of repeated vandalism.
Rather, the majority relies on the fact that ODOT
knew vandalism on bridges was a state-wide problem,
knew Cincinnati considered vandalism from bridges a

22

serious problem and knew of the Akron incident. None
of these facts indicates that ODOT had notice that
the Blair Avenue bridge was the subject of repeated
vandalism.

For these reasons, I would find that ODOT was not
subject to liability and would affirm the judgment of
the court of appeals.

WRIGHT, J., concurs in the foregoing dissenting opinion.

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