[Cite as Wilkes v. Ohio Dept. of Transp. , 2024

- Ohio

- 558.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} Plaintiff P atricia D. Wilkes, as Personal Representative of the Es tate of
Mar quise Shawndell Byrd, brings a wrongful dea th action against Defendant Ohio Department of Transportation

. After a trial on the merits , the Court holds that Plaintiff has not established her claims by a pr epond erance of the evidence and that judgment shoul d
be ente red in favor of Defendant for reasons that follow

.

I. Background and Procedural History {¶2} Plaintiff ’ s case stems from the death of Plaintiff ’ s son, Marquise Shawndell Byrd
, a resident of Michigan
, who at the time of his death was 22 years old

. O n December 19, 20 17, Byrd wa s a passenger sitting i n the fron t seat of a veh icle that was being driven southbound on Interstate 75 at nighttime in Toledo, Ohio

. Late at night when
the vehicle approached the Indiana Avenue O verp a ss

— a structure that had been und e r

reco n structi on for approximately four months by K o kosing Inc. ( a con tractor hired by the Ohi o Dep artment of Transpor tation ( ODOT) )

— a sandbag t hat weighed between 30

- 50 pounds was dropped from the overp ass. 1 The sandba g was consistent with the type of sandbag use d to secure si gnage during the project

. At the time of the incident, existing vandal fencing wa s in place on the south side of the bridge but , on the n orth side of the

1 In a federal district court Plaintiff sued Kokosing Inc. on a claim of n egligence

. The federal district court granted summary judgment in favor of Kokos ing, Inc., and a federal court of appeals affirmed. Wilkes v. Kokos ing, Inc. , 6th Cir. No. 21

- 3859, 2022 U.S. App. LEXIS 12707 (May 9, 2022)

. PATRICIA D. WILKES, Indv.

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant Case No. 2019

- 00012JD
Judge Lisa L. Sadler

DECISIONCa se N o. 2019

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- DECISION

bridge
, vandal fen c ing had bee n removed duri n g construction as the portion o f the bridge
that s uppo rted the va ndal f encing on th e north side had been removed

. At the time of the
incident , t he north side of the bridge was clo sed for pedestria n traffic
, but the sidewalk on
the s outh side of the br idge remain ed open for pedestrians and th e roadway remained
open for one
- way vehic ular traffic

. {¶3} The sa ndbag that was dropped from the bridge crashed through the vehicle ’ s windshield
, causing Byrd to sustain severe injuries

. Byrd succ um bed to his inju ries a t a nearby hospit al

. Four juven i les were later prosecuted for their act ions associated with
the dropping of the sandba g from the overpass. {¶4} The Court denied Defendant ’ s motion f or a summary judgm ent and the case proceeded to a bench trial on issue s of liability a nd damages

. After Plainti ff p resented
her case
- in

- chief, Defendant moved for a dism iss al under Ci v.R. 41(B)(2) on the ground
that , upon the facts and the law, Pl aintiff had shown no r ight to rel ief. The Court denied
Defendant ’ s Civ.R. 41 (B)(2) mo t ion. D e fendant rested its case without calling a ny wi tne ss es in its de fense

. The Court hear d closin g argu ments and took the matter under

a dvisement.

II. Summary of the P art ies ’ Arguments {¶5} Plaintiff no tes th at , before the Indiana Avenue Overpass underwent
reconstruction
, both side s of the Overpass had vandal fencing. Plaintiff maint ains tha t Defend ant acted negligently (and therefore Defendant should be held liable ) when it failed
to ins truct K okosi ng Inc. to e rect tem porary vandal f encing (or other protecti v e fencing) during the r econstruc tion of the Indiana Avenue Overpass

— notwithstandin g that , at the
time of the incident at issue, ODOT had no policy governing the u se of temporar y v andal
fe ncing when a bridge was being rehabilit ated or re constructed

. Plaintiff ’ s Complai nt alleges that the dropping of obj ects from the overpass was foreseeab le , thus requ iring ODOT to install v and al fencing during reconstru ction of th e I ndiana Avenue Overpass

. At
trial Plaintiff focus ed on ODOT ’ s Bridge Design Manual ( BDM) , w h ich require d fencing in
certain circumstances, as well as p ossible measures (e.g., additional lighting at the
construction site
, temporary protective fencing, and using a spec ia l duty pol ice officer to guard the overpass ) that ODOT could have taken to decrease Marquise Shawndell Byrd ’ sCa se N o. 2019

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risk of exposure to harm

. Pla intiff maint ains that D efe ndant ’ s claim that ODOT lacked a policy governing the use of tempor ary vandal f encing during the re con s truction of a bridge
conflicts with a statement in Section 305.2 o f th e BDM , which states, in part : “ Fencing shall be installed on all bridges over vehicular traffic except as noted herein. ” (Em phasis added.) (BDM Section 300 Detail D esign, July 2016, 3

- 78.) {¶6} De f en dant contends that the BDM governs the design of new bridges and that
the BDM is inapplicable to a bridge under reconstruction. Defendant a sserts that , at the time of Byrd ’ s death, ODOT had no policy req uiring temp o rary vandal fencing for bridges
under re const ruction , such as the Indiana Avenu e Overpass

. Def e ndant also conte nds
that it is e ntitled to discret i onary immunity f or its lack of a p olicy f or temporary protective fencing during a bridge ’ s reconstruction
, and
, consequ e ntly
, it i s entitled to a judgment in
its favor

. Defendant not es that, despite a recommen datio n f rom Ko kos ing Inc. to close
the Ind iana Ave nue Overpass during demo litio n and r econstructi on, officials fr om the city
of Tol ed o asked to have the ov erpass remain open for vehicles and pedestrians during
the construction project because the ove r pass connecte d c e rtain parts of the c ity to
downtown Toledo. Defendant further notes that , affixed to a barrier, was a sign with an

arrow s tating “ Sidewalk Closed Use Ot her Sid e , ” which informed the pub l ic that a side of the bridge was c losed . Defendant also notes th at there was a three

- and

- a
- half

- foo t
concrete barrier between the roadw ay and the north side of the bridge

. 2 Defendant
argues that, if it is not entitle d to a judgment in its favor based on discreti onary imm unity,
then it nevert heless should prevail in this case b ecause it is not proximately liable for Byrd ’ s death due to the superseding and intervening c rim inal activity of th ird parties.

III. Law and Analysis
A. ODOT ’ s Br idge Design Manual does not expressly apply to a bridge
under going reconstruction based on e vidence presented at trial

. {¶7} Se ction 10 1 (Introduction) of ODOT ’ s Bridg e Design Manual ( BDM)
establishes the scope of the BD M. It prov ides:

2 At trial no expert testimony (or other evi dence) was presented regarding what type of additional precautions should have been taken

.Ca se N o. 2019

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This manual shall be utilized for the design and rating of new non

- buried
br idges; the rating of new b uried bridges; a nd the design of new retaining
walls and noise walls. The ODOT Bridge Design Manual, January 2004 shall be utilized for t he analysis and rating of existing no n
- b uried bridges; the rating of existing buried bridges; the analysis of existing retaining wal ls and noise walls ; and the design of rehabilitations for existing non

- buried bridges, retaining walls
and noise walls. The ODOT Locati on & D esign Manual, Volume 2 shall be utilized for the design of structure types consisting of Type A and T y pe B conduit a s defined in the C MS Item 603. The ODOT Traffic Engineering Manual shall be utilized for the design of sign supports. (BD M, 1

- 1.) Thus, according to Section 101
, the scope of the B ridge D esign Manua l
should not be understood to expressly set forth req uir ements for a brid ge during the
reconstruction of a brid ge

. It is true that Section 305.2 of the BDM s tates, in part: “ Fencing
shall be insta lled on all bridges over vehicular traffic except as noted h erein. ” (BDM Section 300 Detail Design, J uly 2016, 3

- 7 8.) However, when this sta temen t in Sec tion
305.2 is c onsidered in conju nction with Section 101, the Court c oncludes t hat the BDM
did not apply to the Indiana Aven ue Overpass during the process of its reconstruc tion at the time of the incident involving M arq uise Shawndell Byrd

.

B. ODOT is not entitled to discretionary immunity under the fac ts presented
at trial

. {¶8} Discre ti onary immunity is a judicially created doctrine. See Reynolds v. State, Div. of Parole & Community Servs

. , 14 Ohio St.3 d 68, 4 71 N.E.2d 776 (1984) . In
R eynol ds the O hio Supreme Court held : The language in R.C. 2743.02 that “ the s tate ” shall “ have its lia bility
determined * * * in acc ordance with the s ame rules of law a pplicable to suits between private partie s * * * ” means that the state can not be s ued for its legi s lative or judicial functions or the exercise o f an executive or pl anningCa se N o. 2019

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fun ction i nvolvi ng the making of a ba sic policy decision which is characterized by the exercise of a high degree of official judgment or
d i scret i on. However, once the decis ion has been made to engage i n a

ce r tain activity or function, the state may be held liable, in the sa me man ner as private pa rtie s, for the negligenc e of the actions o f its employees and agents in the performa nce of such ac tivities. Reynolds at parag raph one of the s yllabus

. See Risner v. Ohio Dept. of Transp. , 145 Ohio St.3d 55, 2015

- Ohio

- 4443, 46 N.E. 3d 687, ¶ 12 (discus sing “ discretionary

- function
doctrine ” )

. 3 {¶9} In Risner

, supra , at ¶ 24 , the Ohio Su preme Court emphasized that
, alt hough ODOT has immunity for ce rtain d ecision s themselves , O DOT “ is not immune from liability
for damages resulting from neglig ence t hat occurs in impleme n ti ng those decision s. ” Id. The Ohio Supreme Co urt explained : “ [W] hile ODOT is immune from any liability arisi ng f rom t he decis ions mad e purs uant to its discretionary function, immu nity d oes not extend beyond tha t discretio na ry func tion to acts of imp lementation. ODOT has a duty to pro perly impleme nt its discretionary decisions. It may be subjec t t o liability if it fails to abid e by
current con struction standards or otherwise acts negligen tly in exe cuting a decision to impro ve an exis ting highway. ” Id

. {¶10} F or discretionary i mmunity to apply t o Defendant ’ s lac k of a policy for the use of temporary protective fencing durin g the reconst ruction o f the Indiana Avenue Overpass
, Defendant is required to have engaged in “ the exercise of an executi ve or pl anning function in volving the making of a basic policy decision which is characterized
b y the exercise of a high degree of o fficial judgment or discretion. ” Reynolds at par agraph one of the syllabus. Accord F oster v. Ohio Dept. of Rehab. & Corr ection , 10th Dist.
F rank lin No. 12AP

- 50 3, 2013

- Ohio

- 912, ¶ 23 (“ application of the discretionary immunity doctrine require s more th an a f indin g that a state em ployee * * * made a de cision that requir ed the exercise of a high de gree of discretion

— it require s a findi ng of the exercise

3 In Risner v. Ohio D ept. of Transp , 145 Ohio St.3d 55, 2015

- Ohio

- 4443, 46 N.E .3d 687, ¶ 1 2 , t he O hio Supreme C ourt “ adopt [ed] the phrase ‘ discretionary

- function doctrine ’ as shorthand to mean that the state can not be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision that is characterized by the exercise of a high degree of official judgment or discretion. ” (Footnote omitted.)Ca se N o. 2019

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of a high degree of official judgment or discretion as to an executiv e or planning funct i on involving the making of a bas i c policy decision ”)

. {¶11} In common u sage, a decision means “ a determina ti on arrived at after
consideration .” https://www.merriam

- web ster.co m/dictio nary/decision (acc essed Oct. 9, 2023). The word “ consider ” may be defi ne d as “ 1 : to think a bout c arefu lly: such as a : t o think of especially with regard to tak ing some action * * * b : to take int o account * * * 2 : to regard or treat in an attenti ve or kindly way

. ” https://www.merriam

webster.com/dictionary/consider (a ccessed Octob e r 19, 2023). {¶12} E v idence adduced at trial shows whether to install temporary v andal fencing (or other te mporary protective fencing) during t h e reconstruction of the Indiana Avenue O verpass was not c arefully considered by ODOT offic ials. At trial, w hen Mark Mondora,
who w as an area engineer fo r the Indiana Avenue O verpass Project, was asked wh ether a temporary meas ure was feasible, Mo nd ora t estified: “ Well, at the time of this incident,

we had no testing, as far as I knew, on putting up vandal protec tive fenc i ng * * * We h ad no testing f or w ind loads, crash ratings, or anything. So we

-- it would not hav e been an option for us at that time

. ” When Mondora wa s asked wh ether there had been any
discussi on about how to “ mitigate the difference ” between the three

- and

- a
- half

- foo t

cem e nt barrier on the north side of the brid ge when the incident oc curred and the former

e ight

- foot vandal protective fence
, Mondora testified : “ There was no discussion. ” {¶13} Th is e vidence doe s not s upport a finding that lac k of a policy for t he use of tempora ry protective f encin g during the reconst ruction of the Indian a Avenue Overpass

wa s the result of considered planning regarding the use of temporary protective f encing

. No evidence was presented that ODOT made a considered decision to not have a policy regarding temporary protective fencing on bridges under construction

. Mondora testified
that he had “ no concerns ” that the fencing on the north side of the bridge had been

r emoved, so he did not instruct O DOT ’s contractor s “ to do a nything a b ove an d beyond
what was in the c ontract. ” Mondora further testified: “ I did not instruct them t o do anything,
as I didn ’ t think that there was a concern on the nort h side. ” Wh en Mondora was ask ed
whether there was a reason why no other fencing had been installed, Mon d ora t estified,

“ There w ou ld be no need for any other ty pe of fencing at that time. We only put up fencing where there was pedestrian traffic, and there was none on the north side. ”Ca se N o. 2019

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- DECISION

{¶14} In t he face of t his evidence, ODOT ’ s lack of a policy was not the resu lt of an executive o r pl anning function that involved the making of a basic policy d ecision that is
character ized by the exercise of a hi gh degree of official judgme n t or di scretion. The Court determines that Defendant is not entitled to discretionary immu nity for its lack of a
p olicy c oncerning the use of temporary fen cing on the north side of the Indiana Avene O verpass during its reconstruction

.

C. Plaintiff has failed to prov e he r claim o f wrong ful de at h b ased on negligence beca use Plaintiff h as fail ed to prove all the eleme nts o f negligence

. {¶15} Under Ohio law Plaintiff is re quired to prove her civil claims by a
p reponderance of the evidence. See Merrick v. Di tzler , 91 Ohio St. 25 6, 260, 110 N .E. 493 (1915) ( “ [ i ] n t h e o r d i n a r y c i v i l c a s e t h e d e g r e e o f p r o o f
, o r t h e q u a l i t y o f p e r s u a s i o n

a s s o m e t e x t

- w r i t e r s c h a r a c t e r i z e i t , i s a m e r e p r e p o n d e r a n c e o f t h e e v i d e n c e ” ) ; Weishaar v. Strimbu , 76 Ohio App. 3d 276, 282, 601 N.E.2d 587 (8th Dist.1991). A pr eponderance
of the evidence “is defined as tha t m e asure o f p roof that convince s th e judge or jury t h a t the existence of the fact so ught to b e prov ed is more likely than i ts nonexiste nce.” State ex rel. Doner v. Zody

, 130 Ohio St.3d 446, 2 011

- Ohio

- 6117 , 958 N.E.2d 1235, ¶ 54

. {¶16} The weight to be given the evidence and the credibility of the witne sse s is primarily for the trie r of the fac ts to determine

. State v. DeHass , 1 0 Ohio St.2d 230, 22 7
N.E.2d 212 (1967 ), paragraph one of the syllabu s

. The Court , as the trier of fact, therefo r e
must give appropria t e weight to the evidence presente d, as it review s and evalua tes the
evidence. T he Court is free to believe all, part , or none of the testimony of any witnes ses

. See State v. Gr

een , 10th Dis t. Franklin No . 03AP

- 813, 2004

- Ohio

- 369 7, ¶ 24. {¶17} Plaintiff has br ought, and liti gated, a wrongful death action premised on negligence. To establis h a wrongful death cause of action based on a t heory of negligence, a p laintiff “ must show: “(1) the existen ce of a duty owing to plaintiff’s
de cedent, i.e., the duty to exer c i se ordi n ary care, (2) a breach o f that duty, and (3) proximate causation between the breach of d uty and the death.” (Citation om itted.) ”
Meola v. Ohio State Univ. , 10th Dis t. Fr anklin No. 2 3AP

- 180, 2023

- O hio

- 3805, ¶ 11
, quoti ng Estate of Mehrer v. Walgreens Specialty P harmacy , 10th Dist. No. 22AP

- 286,Ca se N o. 2019

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- 8

- DECISION

2023

- Ohio

- 2070, ¶ 18

. 4 “ Failure to demonstrate any one element is fatal to a plaintiff’s
cause of action for negligence. ” Meola at ¶ 11, ci ting Thomas v. LSREF3 Bravo (Ohio)
L LC , 10th Dist. No. 21AP

- 691, 20 2 2

- Ohio

- 4 476, ¶ 15, citing Rieger v. Giant Eagle, Inc.
, 157 Ohio St.3d 512, 2019

- Ohio

- 3745, ¶ 10. {¶18} As set forth below
, t he Court ’ s review of the evidence in this case leads the C ourt to conclude that Plaintiff has not establish ed the elements necessary to prevail on
her wrongful death action premised on negligence

. The evidence reveals that Defenda nt owed no special duty toward Marquise Shawndell Byrd and, furthermore, negligence on Defenda nt ’ s part , if any, was not the proximate cause of Byrd ’ s death . Ra t her, th e criminal activity of t h ird parties was the proximate cause of Byrd ’ s death

. {¶19} The Ohio Su preme Court has remarked t hat “there is no common

- law duty
to an ticipate or for es ee criminal activ ity.” Fed. Steel & Wire Corp. v. Ruhlin Co nstr. Co.
, 45 Ohio St.3d 171, 17 4, 543 N.E.2d 769 (1989)

. As stated i n Federal Steel & Wire Corporation
, “ the law usually does not require the prudent person to expect the criminal activity of others. As a result, the duty to protect against injury caused by third parties
, which may be imposed where a sp e cial relationship exists, is expressed as an excepti on to the g eneral rule of no liability. ” Id. Accord A.M. v. Miami Univ. , 2017

- Ohio

- 8586, 88 N.E.3d 1013, ¶ 34 (10th Dist.) 5

4 In Constantine v. Four Seaso ns Racquet Club , 8th Dist. Cuyahoga No. 39147, 1979 Ohio App. LEXIS 11901, at *3 (Aug. 9, 1979)
, quoting W. Prosser, Th e L aw of Torts, Section 30 ( 4th Ed. 1971)
, the Eighth District Court of Appeals discussed the elements of the tort of negligence as follows :

One authority has stated the elements for the tort of negligence in the following fashi on:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreaso nable risks.

2. A failure on his part to conform to the standard required. * * *
3. A reasonable close causal connection between the conduct and the resulting injury. This is what is commonly known as “ legal ca use , ” or “ proximate cause

. ”

4. Actual loss or d amage resulting to the interests of another. * * *
(Emphasis added) (Footnotes omitted).
5 In A.M. v. Miami Univ. , 2017

- Ohio

- 8586, 88 N.E.3d 1013, ¶ 34 (10th Dist.) , the Tenth District Court of Appeals stated:Ca se N o. 2019

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- DECISION

{¶20} But in Federal Steel & Wire Corporation
, supra , at sy lla bus, the Ohio Supreme Court nonetheless held: “ If a person ex erc ises control over real or personal property and such person is aware that the pr operty is subject to repea ted t hird

- party vandalism, causing injury to or affecting parties o ff th e contro ller’s premises, then a

s p ecial duty may arise, to those parties whose injuries are reaso nably foreseeab le, to
take a dequate measures under the ci rcumstances to prevent f uture vandalism .” {¶21} In Federal Steel & Wire Corporation, t he Ohio Supreme Court noted:
Fr om the very beginning of the project, Ruhlin was aware of severe
theft and vandalism problems common to the area. Specifi cally, both the job superintendent , James Knapp, and pro ject manager for the job site, Ronald Kurtz, testified that the ext r aordina ry crime problems were ob vi ous and known to Ruhlin at least after the first month on the job. The severity
of the vand alism and theft problems w as partially attributed t o the inner

- city
locat ion of the proje ct, coupled with the fact that the work site was a bri dge. Specific instances of vandalism and theft were noted by Ruhlin ’ s employees dur ing the course of the project. Of par ticular importance w as the fact th at prior to the acts which caused Federal ’ s damages, separate
instances of vandals thro w ing “ re bar ” and ot her constructi on m aterials off the bridge had been reported to Ruhlin. Other instances of vandalism and

Ordinarily, under Ohio law, there is no duty to prevent a third person from causing harm to another absent a sp ec i al rela tionship between the parties or a duty imposed by statute. Slagle v. White Castle Sys., Inc. , 79 Ohio App.3d 210, 216, 607 N.E.2d 45 (10th Dist.1992) (explaining that, typically, a person has no duty to act affirmatively for the protection of others); Desir v. Mallett
, 10th Dist. No. 14AP

- 766, 2015

- Ohio

- 2124, ¶ 22; Wheeler v. Ohio State Univ. , 10th Dist. No. 11AP

- 289, 2 011

- Ohio

- 6295, ¶ 17. If a special relationship exists by s tatute or common law, then a party may be subjected to liability for har m c aused to another only if the criminal act of the third party was foreseeable. Simpson v. Big Bear Stores Co. , 73 Ohio St. 3d 130, 134, 19 95 Ohio 203, 652 N.E.2d 702 (1995) ( “ [f]oreseeability alone is insufficient to create liability ” ); Wagner v. Ohio State Univ. Med. Ctr. , 18 8 Ohio App. 3d 65, 2010

- Ohio

- 2561, ¶ 24, 934 N.E.2d 394 (10thDist.) ( “ Even if an injury is for eseeable, there may not be a duty to act. ” ); Slagle at 216 ( “ [t]he mere fact that harm to another is a foreseeable consequence of on e ’ s failur e to act does not, in and of itself, impose a duty to [act affirmatively for the protection of others] ” ). “ Furthermore,

‘ [b]ecause crimin al acts are largely unpredictable, the totality of the circumstances must be

“ somewhat overwhelming ” in order to create a duty. ’ ” Wheeler at ¶ 17, quoting Shivers v. Univ. of Cincinnati , 10th Dist. No. 06AP

- 209, 2006

- Ohio

- 5518, ¶ 7, quoting Reitz v. May Co. Dep ’ t Stores , 66 Ohio App. 3d 188, 193

- 94 , 583 N.E.2d 1071 (8th Dist. 1990).Ca se N o. 2019

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thef t were stolen cables, batt eries and doors, and br oken glass windows, pain t poured into ga s tanks, and punctured tires. Fed. Steel & Wire C or

p at 171

- 172 . The Ohio Supreme Court further noted: Aware of these problems, Ruhlin t ook certain security measures by post ing security guards on the bridge. The guards were o n the job site after
Ruhlin ’ s workers left for the day and remained on the site until th ey returned
the ne xt morning. Knapp testified that when the security personn el were posted there was a notabl e decrease in vandalism an d theft on the job sit e. In November 1982, Ruhl in ceased work o n the project for the winter. The project was s hut down and work was to resume in the spring of 1983, weather permitting. While the proje ct was dormant for the winter, Ruhlin left building mater ials on the br idge, which incl uded significant quantities of

“ rebar, ” “ high chairs ” or steel chai r s and c oncrete. Howeve r, for se curity

re asons and other considerations, Ruhlin did remove its h eavy equipment from the bridge and v andalism

- prone areas to th e grounds of Clevel and
Buil ders Supply. Also, R uhlin did not po st any security guards on the bridge
durin g the win ter months when the project was dormant, specifically during the time when the alleged vandalism against Federal took place

. Moreover,
Ruhlin d id not reinsta ll the barbed wire fences on the west end of the bridge during this period. Ins t ead, st eel beams were posi tioned horizontall y, thi rty inches off the ground to block cars and tr ucks, and a simple snow fence
was erect ed.
In mid

- December 1982, over one thousan d windows w ere broken on
Federa l ’ s premises whe n quantities of construction materials w er e t hrown from the bridge onto Federal ’ s property below. As a consequence of the vandalism, Fede ral ’ s property allegedly suffered dam age and loss of use. The building materials used to damage Federal ’ s property were determined to be concrete, “ r ebar, ” and “ high chairs. ”
Fe d. S teel & Wire Co rp

. at 172

. {¶22} The facts underlying Federal Steel & W ire Corporation are dissimilar from
the f acts in this case beca use , in Federal St eel & Wire C o rporation
, the contractor, RuhlinCa se N o. 2019

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- DECISION

Construction Company, was aware of repeate d v andalism and theft that involved the throwing of construction materials off the br idge
, which is not the case h ere based on the evidence presen ted at trial

. Nor is there any evidence of “ extraordinary crime problems
, ”
see Federal Steel & Wir e Cor p. at 172, or evidence that
, before this incid en t , the re were

“ separate instances of vandals throwing * * * construction materials off the bridge. ” See
id. {¶23} Rather
, the fact s of this case ali gn with Feicht ner v. Ohio Dept. of Transp
, 114 Ohio App.3d 346, 683 N.E. 2 d 112 (10th Dist . 1995 ) . In Feichtner the Tenth District Court of Appeals affirmed this Court’s judgment in f av o r of the Ohio De partment of Transportation after a pe rson thre w a fourteen

- pound san dstone rock from an overpass
upon a v ehicle, w hich, i n tu rn, crashed th rough t he passenger

- side windshield, striking the p laintiff’s wife who later succumbed to her injuries

. The T enth District Court of App eals stated in F

eichtner that “the foreseeability of criminal acts depends up on the knowledg e of the def enda n t, which must be determin ed from the totality of the circumstances; only when the totality of the circumstances are ‘somewhat ove rwhelming’

w ill a defendant be held liable fo r the cri minal actions of a third party. Fei chtner at 3 58
, quoti n g Feichtne r v

. Cleveland

, 95 Ohio App. 3d 388, 396, 642 N.E.2d 6 57 (8th Dist. 1994). The Tenth District Court o f Appeals determ ined that “ no such over whel m ing
ci rc umstances ” exi sted in Feichtner

. Feichtner at 358. The Tenth District Court of Appeals n o t ed that two en g ineers o f ODOT

— Gary David Leake and Eric Forsberg

—

“ testified that, although [ODOT] may have been apprised of scattered complaints of items being thrown from bridges onto high ways in the state of Ohio, there were no complaints of objects ever being thrown from the Fleet Aven ue bridge, either prior to or during the construction project. Furthermore, Lea ke stated that h e was unaware of any documen ted

co mplaints of incr eased rock throwing in construction areas where the lanes of traffic had
been temporarily sh i fted. ” I d. at 358. The T enth District Court of Appeals’ review of th e evidence in Feichtner led the court of appeals to conclude that the plaintiff did not
establish the e l ements necessa ry to mainta in his negligence action. The Feichtner c ourt
thus held that ODOT owed no special duty to the plaintiff ’ s wife to anticipate or foresee
the cr iminal act io ns of the wrong doer. Feichtner at 359.Ca se N o. 2019

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- DECISION

{¶24} Her e, si milar to Feichtn er , the evidence in this case demonstrates that t here

were no prior incidents of objects hav ing be en thrown from the Indiana Avenue Overpass before this tragic event

. And similar to Feichtner
, whether ODOT may have had knowledge of i tems having been thrown from brid ges onto highwa ys in the state of Ohio in the past , there were no c o mplaints of objects ever be ing t hrown from the Indiana
A v e nue Overpass , either before or during the const ructio n project. 6 {¶25} Drawing from Feichtner
, the Co urt therefore finds th at Plaintiff has not

es tablished by a preponderance of the evidence that the r econstruction of the Indiana
Avenue O verpass was subject ed to re peated third

- party vandalism
, which may have required Defen dant to take adequate measures t o prevent fu ture vandalism and, wh ich
, in turn, may have occasioned a special duty to arise between D e fen dant and Plaintiff ’ s decedent

. See Federal Steel & Wir e Corporation
, supra , at syllabus

. The Court further
finds that Pl aintiff failed to present evidence from which the C o urt could conclude th at an exception to the general rule of no liability for c rimi nal action s of third parties had been
established
, see Federal Steel & Wire Corporation at 174, or that the totality of the

c ircums tances w as “ somewhat overwhelming ” in order to hold De fen da nt liable for the criminal actions of third parties. See Feic h tner , 114 Ohio App.3d at 358, 68 3 N.E.2d 112 (10th Dist.19 95)

.

III. Conclusion {¶26} Upon careful consideration of all th e evidence an d the arguments of counsel,
the Court holds that Pla intiff has failed to prove every element of negligence in this wrongful death a ction. Accord ingly, Defendant is entitled to a judgment in its favor.

LISA L. SADLER Judge

6 There was no evidence that there w ere any complaints, let alone repeated complaints, of objects being thrown from the bridge either before the reconstruction of the bridge or during the four months of the reconstruction work on the bridge after the fencing had been removed.Ca se N o. 2019

- 00012JD

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- DECISION

PATRICIA D. WILKES, Indv.

Plaintiff

v.

OHIO DEPARTMENT OF TRANSPORTATION

Defendant Case No. 2019

- 00012JD
Judge Lisa L. Sadler

JUDGMENT ENTRYCa se N o. 2019

- 00012JD

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- DECISION

I N THE COURT OF CLAIMS OF OHIO

{¶1} For reasons stated in the D e cision filed concurrently herewith, the Court holds
that Plaintiff has failed to prove every element of negligence in this wrongful death action. Judg ment is entered in favor of Defendant. Court costs are asse ssed to Plaintiff

. The Clerk shall serve upon all part ies noti ce of this judgment and i ts date of entry upon the journal.

LISA L. SADLER Judge

Filed January 12 , 202 4 Sent to S.C. Reporter 2/ 15 /24