[Cite as Willoby v. Ohio Dept. of Transp., 2013-Ohio-3633.]



                                                         Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us

MARY WILLOBY, Admx., etc.

       Plaintiff

       v.

OHIO DEPARTMENT OF TRANSPORTATION, et al.

       Defendants

Case No. 2009-03037

Judge Patrick M. McGrath
Magistrate Anderson M. Renick

ENTRY GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

        {¶ 1} On January 11, 2013, defendant, Ohio Department of Transportation
(ODOT), filed a motion for summary judgment pursuant to Civ.R. 56(B). On February 4,
2013, plaintiff filed a response. The motion is now before the court for a non-oral
hearing pursuant to Civ.R. 56 and L.C.C.R. 4.
        {¶ 2} Civ.R. 56(C) states, in part, as follows:
        {¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Case No. 2009-03037                        -2-                                    ENTRY

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
       {¶ 4} On March 11, 2007, plaintiff’s decedent Nicholas Brady and Aris Kasotis
were fatally injured when the car they were riding in as passengers was involved in an
accident while traveling southbound on State Route (SR) 98 in Marion County. Plaintiff
Mary Willoby is the administratrix of Nicholas’ estate. The accident occurred when the
intoxicated driver lost control of the vehicle on a curve, causing the car to leave the left
side of the roadway and strike a bridge abutment supporting the U.S. Route (US) 23
overpass.     Plaintiff alleges that ODOT was negligent both in constructing and
maintaining the highway overpass, and failing to install guardrails. According to plaintiff,
defendants’ negligence proximately caused Nicholas’ injuries. ODOT asserts that it
designed and constructed the highway and overpass according to engineering
standards that were in effect at the time of the construction and that it had no duty to
add guardrails or reconstruct the highway.
       {¶ 5} In order for plaintiff to prevail upon his claim of negligence, she must prove
by a preponderance of the evidence that defendants owed her a duty, that defendants’
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused her injuries. Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 81, 2003-Ohio-
2573, citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). ODOT
has a general duty to maintain its highways in a reasonably safe condition. Knickel v.
Ohio Dept. of Transp., 49 Ohio App.2d 335 (10th Dist.1976). However, ODOT is not an
insurer of the safety of its highways. See Rhodus v. Ohio Dept. of Transp., 67 Ohio
App.3d 723 (10th Dist.1990).
       {¶ 6} ODOT’s motion for summary judgment is accompanied by an affidavit of
Maria Ruppe, a Roadway Standards Engineer employed by ODOT, who states in her
affidavit as follows:
Case No. 2009-03037                         -3-                                   ENTRY

       {¶ 7} “3. The US 23 overpass was constructed in 1965, and since that time
there have not been any roadway reconstruction projects that would require the US 23
overpass or State Route 98 below it to be redesigned;
       {¶ 8} “4. Although, US 23 overpass was constructed in 1965, it was designed
under the ODOT’s 1957 Manual of Location and Design (L&D Manual);
       {¶ 9} “5. The 1957 L&D Manual does not define bridge piers as a hazard or
require guardrail to shield bridge piers;
       {¶ 10} “6. The decision whether to install guardrail at a particular site is a matter
of engineering judgment inasmuch as an improperly positioned guardrail can become a
hazard. Thus, whether to install guardrail requires a determination weighing the risk of
harm arising from vehicles striking the guardrail compared to the risk of harm arising
from the vehicles contacting the hazard.” (Defendants’ Exhibit A, ¶ 6.)
       {¶ 11} Absent any evidence that defendants had a duty to redesign or reconstruct
the ramp, plaintiff cannot prevail. The Tenth District Court of Appeals has observed that
“[a] duty to maintain state highways is distinguishable from a duty to redesign or
reconstruct. Maintenance involves only the preservation of existing highway facilities,
rather than the initiation of substantial improvements. * * * ODOT has no duty to
upgrade highways to current design standards when acting in the course of
maintenance.” Wiebelt v. Ohio Dept. of Transp., 10th Dist. No. 93AP-117 (June 24,
1993), citing Lunar v. Ohio Dept. of Transp., 61 Ohio App.3d 143, 149 (10th Dist.1989).
       {¶ 12} Plaintiff has not presented any evidence to show that substantial
improvements have been made to the overpass or adjacent highway since the overpass
was constructed. Indeed, Ruppe stated that her review of ODOT’s records revealed
that there have not been any roadway reconstruction projects since the US 23 overpass
was constructed which would require either the overpass or SR 98 to be redesigned.
“The existence of a duty in a negligence action is a question of law for the court to
determine.” Mussivand v. David, 45 Ohio St.3d 314, 318 (1989), citing Railroad Co. v.
Case No. 2009-03037                          -4-                                 ENTRY

Harvey, 77 Ohio St. 235, 240 (1907). Based upon the evidence submitted, the court
finds that defendants had no duty to reconstruct the roadway or install guardrails.
      {¶ 13} Furthermore, “[t]he language of 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 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 v. State, 14 Ohio St.3d 68, 70 (1984). The
doctrine of discretionary immunity “has been applied to immunize the state from liability
for discretionary decisions such as whether or not to install a traffic signal at an
intersection, [and] what type of traffic signal to install.” (Citations omitted.) Young v.
Univ. of Akron, 10th Dist. No. 06AP-1022, 2007-Ohio-4663, ¶ 14.
      {¶ 14} Ruppe avered that the decision whether to install a guardrail at a particular
site is a matter of engineering judgment inasmuch as an improperly positioned or
installed guardrail can constitute a roadside hazard in and of itself. (Defendants’ Exhibit
A, ¶ 6.)   The court finds that such a decision was an exercise of an executive or
planning function that involved the making of a basic policy decision which was
characterized by the exercise of a high degree of official judgment or discretion.
Consequently, ODOT cannot be held liable to plaintiff for any harm arising from such
exercise of its decision-making authority.
      {¶ 15} In light of the standard of review, the court finds that the only reasonable
conclusion to be drawn from the undisputed evidence is that defendants did not have a
duty either to reconstruct the overpass or to install guardrails in front of the overpass
Case No. 2009-03037                        -5-                                  ENTRY

abutment. Consequently, there are no genuine issues of material fact for trial and
defendants are entitled to judgment as a matter of law.
         {¶ 16} Accordingly, defendants’ motion for summary judgment is GRANTED and
judgment is rendered in favor of defendants.        All previously scheduled events are
VACATED. Court costs are assessed against plaintiff. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.




                                          _____________________________________
                                          PATRICK M. MCGRATH
                                          Judge

cc:


Gina M. Piacentino                            Kristin S. Boggs
198 East Center Street                        Paula Luna Paoletti
Marion, Ohio 43302                            William C. Becker
                                              Assistant Attorneys General
                                              150 East Gay Street, 18th Floor
                                              Columbus, Ohio 43215-3130

Stephen J. Brown
326 North Court Street
Medina, Ohio 44256-1868

004
Filed April 1, 2013
To S.C. Reporter August 22, 2013
