[Cite as Wilkes v. Ohio Dept. of Transp., 2024-Ohio-558.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} Plaintiff Patricia D. Wilkes, as Personal Representative of the Estate of 

Marquise Shawndell Byrd, brings a wrongful death 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 preponderance of the evidence and that judgment should 

be entered 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. On 

December 19, 2017, Byrd was a passenger sitting in the front seat of a vehicle that was 

being driven southbound on Interstate 75 at nighttime in Toledo, Ohio. Late at night when 

the vehicle approached the Indiana Avenue Overpass—a structure that had been under

reconstruction for approximately four months by Kokosing Inc. (a contractor hired by the 

Ohio Department of Transportation (ODOT))—a sandbag that weighed between 30-50 

pounds was dropped from the overpass.1 The sandbag was consistent with the type of 

sandbag used to secure signage during the project. At the time of the incident, existing 

vandal fencing was in place on the south side of the bridge but, on the north side of the 

1

In a federal district court Plaintiff sued Kokosing Inc. on a claim of negligence. The federal district 

court granted summary judgment in favor of Kokosing, Inc., and a federal court of appeals affirmed. Wilkes 

v. Kokosing, 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

DECISION
Case No. 2019-00012JD -2- DECISION

bridge, vandal fencing had been removed during construction as the portion of the bridge

that supported the vandal fencing on the north side had been removed. At the time of the 

incident, the north side of the bridge was closed for pedestrian traffic, but the sidewalk on 

the south side of the bridge remained open for pedestrians and the roadway remained 

open for one-way vehicular traffic.

{¶3} The sandbag that was dropped from the bridge crashed through the vehicle’s 

windshield, causing Byrd to sustain severe injuries. Byrd succumbed to his injuries at a 

nearby hospital. Four juveniles were later prosecuted for their actions associated with

the dropping of the sandbag from the overpass.

{¶4} The Court denied Defendant’s motion for a summary judgment and the case

proceeded to a bench trial on issues of liability and damages. After Plaintiff presented 

her case-in-chief, Defendant moved for a dismissal under Civ.R. 41(B)(2) on the ground 

that, upon the facts and the law, Plaintiff had shown no right to relief. The Court denied 

Defendant’s Civ.R. 41(B)(2) motion. Defendant rested its case without calling any 

witnesses in its defense. The Court heard closing arguments and took the matter under 

advisement.

II. Summary of the Parties’ Arguments

{¶5} Plaintiff notes that, before the Indiana Avenue Overpass underwent 

reconstruction, both sides of the Overpass had vandal fencing. Plaintiff maintains that 

Defendant acted negligently (and therefore Defendant should be held liable) when it failed 

to instruct Kokosing Inc. to erect temporary vandal fencing (or other protective fencing) 

during the reconstruction of the Indiana Avenue Overpass—notwithstanding that, at the 

time of the incident at issue, ODOT had no policy governing the use of temporary vandal 

fencing when a bridge was being rehabilitated or reconstructed. Plaintiff’s Complaint 

alleges that the dropping of objects from the overpass was foreseeable, thus requiring

ODOT to install vandal fencing during reconstruction of the Indiana Avenue Overpass. At

trial Plaintiff focused on ODOT’s Bridge Design Manual (BDM), which required fencing in

certain circumstances, as well as possible measures (e.g., additional lighting at the 

construction site, temporary protective fencing, and using a special duty police officer to 

guard the overpass) that ODOT could have taken to decrease Marquise Shawndell Byrd’s
Case No. 2019-00012JD -3- DECISION

risk of exposure to harm. Plaintiff maintains that Defendant’s claim that ODOT lacked a 

policy governing the use of temporary vandal fencing during the reconstruction of a bridge

conflicts with a statement in Section 305.2 of the BDM, which states, in part: “Fencing 

shall be installed on all bridges over vehicular traffic except as noted herein.” (Emphasis 

added.) (BDM Section 300 Detail Design, July 2016, 3-78.)

{¶6} Defendant contends that the BDM governs the design of new bridges and that

the BDM is inapplicable to a bridge under reconstruction. Defendant asserts that, at the 

time of Byrd’s death, ODOT had no policy requiring temporary vandal fencing for bridges 

under reconstruction, such as the Indiana Avenue Overpass. Defendant also contends

that it is entitled to discretionary immunity for its lack of a policy for temporary protective 

fencing during a bridge’s reconstruction, and, consequently, it is entitled to a judgment in 

its favor. Defendant notes that, despite a recommendation from Kokosing Inc. to close 

the Indiana Avenue Overpass during demolition and reconstruction, officials from the city 

of Toledo asked to have the overpass remain open for vehicles and pedestrians during 

the construction project because the overpass connected certain parts of the city to 

downtown Toledo. Defendant further notes that, affixed to a barrier, was a sign with an 

arrow stating “Sidewalk Closed Use Other Side,” which informed the public that a side of 

the bridge was closed. Defendant also notes that there was a three-and-a-half-foot 

concrete barrier between the roadway and the north side of the bridge.

2

 Defendant 

argues that, if it is not entitled to a judgment in its favor based on discretionary immunity, 

then it nevertheless should prevail in this case because it is not proximately liable for 

Byrd’s death due to the superseding and intervening criminal activity of third parties.

III. Law and Analysis

A. ODOT’s Bridge Design Manual does not expressly apply to a bridge 

undergoing reconstruction based on evidence presented at trial.

{¶7} Section 101 (Introduction) of ODOT’s Bridge Design Manual (BDM)

establishes the scope of the BDM. It provides:

2 At trial no expert testimony (or other evidence) was presented regarding what type of additional 

precautions should have been taken.
Case No. 2019-00012JD -4- DECISION

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

bridges; the rating of new buried bridges; and the design of new retaining 

walls and noise walls.

The ODOT Bridge Design Manual, January 2004 shall be utilized for the 

analysis and rating of existing non-buried bridges; the rating of existing 

buried bridges; the analysis of existing retaining walls and noise walls; and 

the design of rehabilitations for existing non-buried bridges, retaining walls 

and noise walls.

The ODOT Location & Design Manual, Volume 2 shall be utilized for the 

design of structure types consisting of Type A and Type B conduit as 

defined in the CMS Item 603.

The ODOT Traffic Engineering Manual shall be utilized for the design of 

sign supports.

(BDM, 1-1.) Thus, according to Section 101, the scope of the Bridge Design Manual 

should not be understood to expressly set forth requirements for a bridge during the 

reconstruction of a bridge. It is true that Section 305.2 of the BDM states, in part: “Fencing 

shall be installed on all bridges over vehicular traffic except as noted herein.” (BDM

Section 300 Detail Design, July 2016, 3-78.) However, when this statement in Section 

305.2 is considered in conjunction with Section 101, the Court concludes that the BDM 

did not apply to the Indiana Avenue Overpass during the process of its reconstruction at 

the time of the incident involving Marquise Shawndell Byrd.

B. ODOT is not entitled to discretionary immunity under the facts presented 

at trial.

{¶8} Discretionary immunity is a judicially created doctrine. See Reynolds v. State, 

Div. of Parole & Community Servs., 14 Ohio St.3d 68, 471 N.E.2d 776 (1984). In 

Reynolds the Ohio Supreme Court held:

The language in R.C. 2743.02 that “the state” shall “have its liability

determined * * * in accordance with the same rules of law applicable to suits 

between private parties * * *” means that the state cannot be sued for its 

legislative or judicial functions or the exercise of an executive or planning 
Case No. 2019-00012JD -5- DECISION

function involving the making of a basic policy decision which is 

characterized by the exercise of a high degree of official judgment or 

discretion. However, once the decision has been made 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.

Reynolds at paragraph one of the syllabus. See Risner v. Ohio Dept. of Transp., 145 

Ohio St.3d 55, 2015-Ohio-4443, 46 N.E.3d 687, ¶ 12 (discussing “discretionary-function 

doctrine”).

3

{¶9} In Risner, supra, at ¶ 24, the Ohio Supreme Court emphasized that, although 

ODOT has immunity for certain decisions themselves, ODOT “is not immune from liability 

for damages resulting from negligence that occurs in implementing those decisions.” Id. 

The Ohio Supreme Court explained: “[W]hile ODOT is immune from any liability arising 

from the decisions made pursuant to its discretionary function, immunity does not extend 

beyond that discretionary function to acts of implementation. ODOT has a duty to properly 

implement its discretionary decisions. It may be subject to liability if it fails to abide by 

current construction standards or otherwise acts negligently in executing a decision to 

improve an existing highway.” Id.

{¶10} For discretionary immunity to apply to Defendant’s lack of a policy for the 

use of temporary protective fencing during the reconstruction of the Indiana Avenue 

Overpass, Defendant is required to have engaged in “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 at paragraph 

one of the syllabus. Accord Foster v. Ohio Dept. of Rehab. & Correction, 10th Dist. 

Franklin No. 12AP-503, 2013-Ohio-912, ¶ 23 (“application of the discretionary immunity 

doctrine requires more than a finding that a state employee * * * made a decision that 

required the exercise of a high degree of discretion—it requires a finding of the exercise

3

In Risner v. Ohio Dept. of Transp, 145 Ohio St.3d 55, 2015-Ohio-4443, 46 N.E.3d 687, ¶ 12, the 

Ohio Supreme Court “adopt[ed] the phrase ‘discretionary-function doctrine’ as shorthand to mean that the 

state cannot 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.)
Case No. 2019-00012JD -6- DECISION

of a high degree of official judgment or discretion as to an executive or planning function 

involving the making of a basic policy decision”).

{¶11} In common usage, a decision means “a determination arrived at after 

consideration.” https://www.merriam-webster.com/dictionary/decision (accessed Oct. 9, 

2023). The word “consider” may be defined as “1: to think about carefully: such as a: to 

think of especially with regard to taking some action * * * b: to take into account * * * 2: to 

regard or treat in an attentive or kindly way.” https://www.merriamwebster.com/dictionary/consider (accessed October 19, 2023).

{¶12} Evidence adduced at trial shows whether to install temporary vandal fencing 

(or other temporary protective fencing) during the reconstruction of the Indiana Avenue 

Overpass was not carefully considered by ODOT officials. At trial, when Mark Mondora, 

who was an area engineer for the Indiana Avenue Overpass Project, was asked whether

a temporary measure was feasible, Mondora testified: “Well, at the time of this incident, 

we had no testing, as far as I knew, on putting up vandal protective fencing * * * We had 

no testing for wind loads, crash ratings, or anything. So we -- it would not have been an 

option for us at that time.” When Mondora was asked whether there had been any 

discussion about how to “mitigate the difference” between the three-and-a-half-foot 

cement barrier on the north side of the bridge when the incident occurred and the former 

eight-foot vandal protective fence, Mondora testified: “There was no discussion.” 

{¶13} This evidence does not support a finding that lack of a policy for the use of 

temporary protective fencing during the reconstruction of the Indiana Avenue Overpass

was the result of considered planning regarding the use of temporary protective fencing. 

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 

removed, so he did not instruct ODOT’s contractors “to do anything above and beyond 

what was in the contract.” Mondora further testified: “I did not instruct them to do anything, 

as I didn’t think that there was a concern on the north side.” When Mondora was asked

whether there was a reason why no other fencing had been installed, Mondora testified, 

“There would be no need for any other type of fencing at that time. We only put up fencing 

where there was pedestrian traffic, and there was none on the north side.” 
Case No. 2019-00012JD -7- DECISION

{¶14} In the face of this evidence, ODOT’s lack of a policy was not the result of an 

executive or planning function that involved the making of a basic policy decision that is 

characterized by the exercise of a high degree of official judgment or discretion. The 

Court determines that Defendant is not entitled to discretionary immunity for its lack of a 

policy concerning the use of temporary fencing on the north side of the Indiana Avene 

Overpass during its reconstruction.

C. Plaintiff has failed to prove her claim of wrongful death based on 

negligence because Plaintiff has failed to prove all the elements of 

negligence.

{¶15} Under Ohio law Plaintiff is required to prove her civil claims by a 

preponderance of the evidence. See Merrick v. Ditzler, 91 Ohio St. 256, 260, 110 N.E. 

493 (1915) (“[i]n the ordinary civil case the degree of proof, or the quality of persuasion

as some text-writers characterize it, is a mere preponderance of the evidence”); Weishaar 

v. Strimbu, 76 Ohio App.3d 276, 282, 601 N.E.2d 587 (8th Dist.1991). A preponderance 

of the evidence “is defined as that measure of proof that convinces the judge or jury that 

the existence of the fact sought to be proved is more likely than its nonexistence.” State 

ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 54. 

{¶16} The weight to be given the evidence and the credibility of the witnesses is

primarily for the trier of the facts to determine. State v. DeHass, 10 Ohio St.2d 230, 227 

N.E.2d 212 (1967), paragraph one of the syllabus. The Court, as the trier of fact, therefore 

must give appropriate weight to the evidence presented, as it reviews and evaluates the

evidence. The Court is free to believe all, part, or none of the testimony of any witnesses. 

See State v. Green, 10th Dist. Franklin No. 03AP-813, 2004-Ohio-3697, ¶ 24.

{¶17} Plaintiff has brought, and litigated, a wrongful death action premised on 

negligence. To establish a wrongful death cause of action based on a theory of 

negligence, a plaintiff “must show: “(1) the existence of a duty owing to plaintiff’s 

decedent, i.e., the duty to exercise ordinary care, (2) a breach of that duty, and 

(3) proximate causation between the breach of duty and the death.” (Citation omitted.)”

Meola v. Ohio State Univ., 10th Dist. Franklin No. 23AP-180, 2023-Ohio-3805, ¶ 11, 

quoting Estate of Mehrer v. Walgreens Specialty Pharmacy, 10th Dist. No. 22AP-286, 
Case No. 2019-00012JD -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, citing Thomas v. LSREF3 Bravo (Ohio) 

LLC, 10th Dist. No. 21AP-691, 2022-Ohio-4476, ¶ 15, citing Rieger v. Giant Eagle, Inc., 

157 Ohio St.3d 512, 2019-Ohio-3745, ¶ 10.

{¶18} As set forth below, the Court’s review of the evidence in this case leads the 

Court to conclude that Plaintiff has not established the elements necessary to prevail on 

her wrongful death action premised on negligence. The evidence reveals that Defendant 

owed no special duty toward Marquise Shawndell Byrd and, furthermore, negligence on 

Defendant’s part, if any, was not the proximate cause of Byrd’s death. Rather, the criminal 

activity of third parties was the proximate cause of Byrd’s death.

{¶19} The Ohio Supreme Court has remarked that “there is no common-law duty 

to anticipate or foresee criminal activity.” Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 

45 Ohio St.3d 171, 174, 543 N.E.2d 769 (1989). As stated in 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 special relationship exists, is expressed as an exception

to the general 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 Seasons Racquet Club, 8th Dist. Cuyahoga No. 39147, 1979 Ohio App. 

LEXIS 11901, at *3 (Aug. 9, 1979), quoting W. Prosser, The Law 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 

fashion:

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 unreasonable 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 cause,” or “proximate cause.”

4. Actual loss or damage 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:
Case No. 2019-00012JD -9- DECISION

{¶20} But in Federal Steel & Wire Corporation, supra, at syllabus, the Ohio 

Supreme Court nonetheless held: “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.” 

{¶21} In Federal Steel & Wire Corporation, the Ohio Supreme Court noted:

From the very beginning of the project, Ruhlin was aware of severe 

theft and vandalism problems common to the area. Specifically, both the 

job superintendent, James Knapp, and project manager for the job site, 

Ronald Kurtz, testified that the extraordinary crime problems were obvious 

and known to Ruhlin at least after the first month on the job. The severity 

of the vandalism and theft problems was partially attributed to the inner-city 

location of the project, coupled with the fact that the work site was a bridge.

Specific instances of vandalism and theft were noted by Ruhlin’s 

employees during the course of the project. Of particular importance was 

the fact that prior to the acts which caused Federal’s damages, separate 

instances of vandals throwing “rebar” and other construction materials 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 special relationship 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, 2011-Ohio-6295, ¶ 17. If a special 

relationship exists by statute or common law, then a party may be subjected to liability for 

harm caused 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, 1995 Ohio 203, 652 N.E.2d 702 (1995)

(“[f]oreseeability alone is insufficient to create liability”); Wagner v. Ohio State Univ. Med. 

Ctr., 188 Ohio App. 3d 65, 2010-Ohio-2561, ¶ 24, 934 N.E.2d 394 (10thDist.) (“Even if an 

injury is foreseeable, there may not be a duty to act.”); Slagle at 216 (“[t]he mere fact that 

harm to another is a foreseeable consequence of one’s failure to act does not, in and of 

itself, impose a duty to [act affirmatively for the protection of others]”). “Furthermore, 

‘[b]ecause criminal 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).
Case No. 2019-00012JD -10- DECISION

theft were stolen cables, batteries and doors, and broken glass windows, 

paint poured into gas tanks, and punctured tires.

Fed. Steel & Wire Corp at 171-172. The Ohio Supreme Court further noted:

Aware of these problems, Ruhlin took certain security measures by 

posting security guards on the bridge. The guards were on the job site after 

Ruhlin’s workers left for the day and remained on the site until they returned 

the next morning. Knapp testified that when the security personnel were 

posted there was a notable decrease in vandalism and theft on the job site.

In November 1982, Ruhlin ceased work on the project for the winter. 

The project was shut down and work was to resume in the spring of 1983, 

weather permitting. While the project was dormant for the winter, Ruhlin

left building materials on the bridge, which included significant quantities of 

“rebar,” “high chairs” or steel chairs and concrete. However, for security 

reasons and other considerations, Ruhlin did remove its heavy equipment 

from the bridge and vandalism-prone areas to the grounds of Cleveland

Builders Supply. Also, Ruhlin did not post any security guards on the bridge 

during the winter months when the project was dormant, specifically during 

the time when the alleged vandalism against Federal took place. Moreover, 

Ruhlin did not reinstall the barbed wire fences on the west end of the bridge 

during this period. Instead, steel beams were positioned horizontally, thirty 

inches off the ground to block cars and trucks, and a simple snow fence 

was erected.

In mid-December 1982, over one thousand windows were broken on 

Federal’s premises when quantities of construction materials were thrown 

from the bridge onto Federal’s property below. As a consequence of the 

vandalism, Federal’s property allegedly suffered damage and loss of use.

The building materials used to damage Federal’s property were determined 

to be concrete, “rebar,” and “high chairs.”

Fed. Steel & Wire Corp. at 172.

{¶22} The facts underlying Federal Steel & Wire Corporation are dissimilar from 

the facts in this case because, in Federal Steel & Wire Corporation, the contractor, Ruhlin 
Case No. 2019-00012JD -11- DECISION

Construction Company, was aware of repeated vandalism and theft that involved the 

throwing of construction materials off the bridge, which is not the case here based on the 

evidence presented at trial. Nor is there any evidence of “extraordinary crime problems,”

see Federal Steel & Wire Corp. at 172, or evidence that, before this incident, there were 

“separate instances of vandals throwing * * * construction materials off the bridge.” See 

id.

{¶23} Rather, the facts of this case align with Feichtner v. Ohio Dept. of Transp, 

114 Ohio App.3d 346, 683 N.E. 2d 112 (10th Dist. 1995). In Feichtner the Tenth District 

Court of Appeals affirmed this Court’s judgment in favor of the Ohio Department of 

Transportation after a person threw a fourteen-pound sandstone rock from an overpass 

upon a vehicle, which, in turn, crashed through the passenger-side windshield, striking 

the plaintiff’s wife who later succumbed to her injuries. The Tenth District Court of 

Appeals stated in Feichtner that “the foreseeability of criminal acts depends upon the 

knowledge of the defendant, which must be determined from the totality of the 

circumstances; only when the totality of the circumstances are ‘somewhat overwhelming’ 

will a defendant be held liable for the criminal actions of a third party. Feichtner at 358, 

quoting Feichtner v. Cleveland, 95 Ohio App. 3d 388, 396, 642 N.E.2d 657 (8th Dist. 

1994). The Tenth District Court of Appeals determined that “no such overwhelming 

circumstances” existed in Feichtner. Feichtner at 358. The Tenth District Court of 

Appeals noted that two engineers of 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 highways in the state of Ohio, there were no complaints 

of objects ever being thrown from the Fleet Avenue bridge, either prior to or during the 

construction project. Furthermore, Leake stated that he was unaware of any documented 

complaints of increased rock throwing in construction areas where the lanes of traffic had 

been temporarily shifted.” Id. at 358. The Tenth District Court of Appeals’ review of the 

evidence in Feichtner led the court of appeals to conclude that the plaintiff did not 

establish the elements necessary to maintain his negligence action. The Feichtner court

thus held that ODOT owed no special duty to the plaintiff’s wife to anticipate or foresee 

the criminal actions of the wrongdoer. Feichtner at 359.
Case No. 2019-00012JD -12- DECISION

{¶24} Here, similar to Feichtner, the evidence in this case demonstrates that there 

were no prior incidents of objects having been thrown from the Indiana Avenue Overpass

before this tragic event. And similar to Feichtner, whether ODOT may have had 

knowledge of items having been thrown from bridges onto highways in the state of Ohio

in the past, there were no complaints of objects ever being thrown from the Indiana 

Avenue Overpass, either before or during the construction project.6

{¶25} Drawing from Feichtner, the Court therefore finds that Plaintiff has not 

established by a preponderance of the evidence that the reconstruction of the Indiana 

Avenue Overpass was subjected to repeated third-party vandalism, which may have 

required Defendant to take adequate measures to prevent future vandalism and, which, 

in turn, may have occasioned a special duty to arise between Defendant and Plaintiff’s 

decedent. See Federal Steel & Wire Corporation, supra, at syllabus. The Court further

finds that Plaintiff failed to present evidence from which the Court could conclude that an 

exception to the general rule of no liability for criminal actions of third parties had been 

established, see Federal Steel & Wire Corporation at 174, or that the totality of the 

circumstances was “somewhat overwhelming” in order to hold Defendant liable for the 

criminal actions of third parties. See Feichtner, 114 Ohio App.3d at 358, 683 N.E.2d 112 

(10th Dist.1995).

III. Conclusion

{¶26} Upon careful consideration of all the evidence and the arguments of counsel, 

the Court holds that Plaintiff has failed to prove every element of negligence in this 

wrongful death action. Accordingly, Defendant is entitled to a judgment in its favor.

LISA L. SADLER

Judge

6 There was no evidence that there were 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.
Case No. 2019-00012JD -13- DECISION

PATRICIA D. WILKES, Indv.

 Plaintiff

 v. 

OHIO DEPARTMENT OF 

TRANSPORTATION

 Defendant

Case No. 2019-00012JD

Judge Lisa L. Sadler

JUDGMENT ENTRY
Case No. 2019-00012JD -14- DECISION

IN THE COURT OF CLAIMS OF OHIO

{¶1} For reasons stated in the Decision filed concurrently herewith, the Court holds 

that Plaintiff has failed to prove every element of negligence in this wrongful death action. 

Judgment is entered in favor of Defendant. Court costs are assessed to Plaintiff. The

Clerk shall serve upon all parties notice of this judgment and its date of entry upon the 

journal.

LISA L. SADLER

Judge

Filed January 12, 2024

Sent to S.C. Reporter 2/15/24