[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Risner v. Ohio Dept. of Transp., Slip Opinion No. 2015-Ohio-4443.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2015-OHIO-4443
          RISNER, ADMR., ET AL., APPELLEES, v. OHIO DEPARTMENT OF
                       TRANSPORTATION, APPELLANT, ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as Risner v. Ohio Dept. of Transp., Slip Opinion No.
                                   2015-Ohio-4443.]
Ohio Department of Transportation is immune from liability for damages arising
        from its decisions regarding which portions of a highway it will improve
        and what type of improvement it will make—Ohio Department of
        Transportation’s decision to improve a specific portion of highway does
        not trigger a duty to improve surrounding sections of the highway.
   (No. 2014-0862—Submitted March 25, 2015—Decided October 29, 2015.)
     APPEAL from the Court of Appeals for Franklin County, No. 12AP-828,
                                   2013-Ohio-5698.
                                 _________________
                                SUPREME COURT OF OHIO




                                SYLLABUS OF THE COURT
1. In determining whether to improve an existing highway, the Ohio Department
        of Transportation is immune from liability for damages arising from its
        decisions regarding which portions of a highway it will improve and what
        type of improvement it will make. (Winwood v. Dayton, 37 Ohio St.3d
        282, 525 N.E.2d 808 (1988), and Garland v. Ohio Dept. of Transp., 48
        Ohio St.3d 10, 548 N.E.2d 233 (1990), followed.)
2. The Ohio Department of Transportation’s decision to improve a specific
        portion of highway does not trigger a duty to improve surrounding
        sections of the highway.
3. When the Ohio Department of Transportation decides to improve an existing
        highway, it has a duty to execute that decision in accordance with current
        construction standards.
                                   _________________
        LANZINGER, J.
        {¶ 1} In this case, we are asked to determine whether the Ohio Department
of Transportation (“ODOT”) may be subject to liability arising from its decisions
on improving public-highways.1 We hold that ODOT is immune from liability
with respect to its decisions whether to improve an existing highway, which
portions of the highway to improve, and what type of improvements it will make.
In executing its decisions to improve a highway, however, ODOT has a duty to
ensure that it acts in accordance with current construction standards, and it may be
subject to liability when it fails to meet those standards.




1
  The parties use the terms “highway” and “roadway” interchangeably in their briefs. R.C.
5501.01(A) provides that “ ‘road’ or ‘highway’ includes all appurtenances to the road or highway
* * *.” For ease of discussion, we use “highway” throughout this opinion to refer to both roads
and highways.




                                               2
                                January Term, 2015




                                I. Case Background
        {¶ 2} In September 2009, Amber Risner was a passenger in a vehicle
involved in a collision with a tractor-trailer at the intersection of State Route 220
and State Route 32. Amber was killed in the crash. Although the intersection did
not contain any traffic signals when the highway was first constructed, in
response to safety concerns regarding the intersection ODOT installed advance-
warning signs and red and yellow flashing lights in the intersection in 2002 and
2005.
        {¶ 3} Amber’s parents, appellees Paul and Catherine Risner, filed a
complaint as administrators of Amber’s estate against ODOT alleging negligent
design and maintenance of the intersection. They alleged that drivers could not
properly see oncoming traffic when traveling through the intersection. They also
claimed that ODOT was “negligent in installing and/or using a ‘flashing’ red and
yellow light at the intersection * * * rather than a more appropriate traffic control
device, such as a three-light ‘red, yellow and green’ traffic control light,” and that
ODOT was also “negligent in designing, installing and/or maintaining an
intersection that was unsafe for the motoring public.”
        {¶ 4} In March 2012, ODOT filed a motion for summary judgment,
arguing in part that it had constructed the intersection according to design
standards in effect at the time, that it had no duty to improve or upgrade the
intersection later, and that it is immune from liability for the decisions that it
made regarding the traffic signals at the intersection.       The Court of Claims
granted ODOT’s motion in part, concluding that ODOT was entitled to judgment
as a matter of law on the claim that it was negligent in failing to install a three-
light traffic signal at the intersection. The court found (1) that ODOT had decided
to install red and yellow flashing lights some time after the intersection was
constructed, (2) that ODOT’s Manual of Uniform Traffic Control Devices did not
require ODOT to install a three-light signal when it constructed the intersection,




                                          3
                             SUPREME COURT OF OHIO




and (3) that ODOT’s later decision to install flashing lights rather than a three-
light signal did not violate the manual. The court denied summary judgment on
the Risners’ claim of insufficient sight distance, finding that material issues of
fact existed.
        {¶ 5} ODOT filed a second motion for summary judgment on the
remaining claim in August 2012. The court granted the motion, concluding that
the design of the intersection conformed to the minimum sight-distance standards
set forth in the version of ODOT’s Location and Design Manual in effect when
the intersection was constructed. The court rejected the Risners’ argument that
ODOT had a duty to upgrade the intersection to current design standards when it
installed the flashing lights. The court reasoned that the installation of the lights
constituted highway maintenance, rather than highway improvement. On this
basis, the court held that ODOT did not have a duty to upgrade the intersection to
current design standards pursuant to Estate of Morgan v. Ohio Dept. of Transp.,
10th Dist. Franklin Nos. 10AP-362 and 10AP-382, 2010-Ohio-5969.
        {¶ 6} The Risners appealed, arguing that the Court of Claims erred when it
held that ODOT was performing maintenance when it installed the flashing lights
in the intersection. The Tenth District reversed, holding that the installation of the
flashing lights constituted improvements rather than maintenance, triggering a
duty on behalf of ODOT to upgrade the intersection to current design standards.
The Tenth District also denied ODOT’s application for reconsideration and en
banc review.
        {¶ 7} ODOT appealed to this court, and we accepted jurisdiction over its
proposition of law: “When ODOT makes discrete highway improvements, only
those particular improvements need to meet the current construction standards.”
140 Ohio St.3d 1415, 2014-Ohio-3785, 15 N.E.3d 883.




                                          4
                                January Term, 2015




                                    II. Analysis
       {¶ 8} The Tenth District dedicates the majority of its analysis to whether
ODOT’s actions in installing the flashing lights in this case constitute either
“maintenance” or “improvement” of the highway. This analysis is predicated
upon the Tenth District’s line of cases classifying ODOT actions as one or the
other and determining ODOT’s liability based on the classification. See Hurier v.
Ohio Dept. of Transp., 10th Dist. Franklin No. 01AP-1362, 2002-Ohio-4499;
Rahman v. Ohio Dept. of Transp., 10th Dist. Franklin No. 05AP-439, 2006-Ohio-
3013; Estate of Morgan, 2010-Ohio-5969.          In essence, these cases hold that
ODOT’s duty to maintain does not encompass a duty to redesign or reconstruct
public highways or to upgrade them to current design standards, but when ODOT
engages in improving the public highways, it does have a duty to upgrade them to
current design standards. Estate of Morgan at ¶ 12.
       {¶ 9} The Tenth District Court of Appeals characterized ODOT’s changes
to the intersection as being improvements rather than maintenance and based its
decision on that determination. ODOT does not quarrel with the Tenth District’s
classification but instead asks us to hold that only those particular improvements
that it decided to make must meet current construction standards. We accordingly
will not engage in an analysis of whether ODOT’s changes to the intersection
constitute maintenance or improvements. We also decline to adopt the Tenth
District’s maintenance-or-improvement analysis and will instead focus our
analysis on the specific issue presented to us in this appeal.
       {¶ 10} First is the question of government immunity from suit.
A.   ODOT’s decision to improve the intersection is protected by Ohio’s
discretionary-function doctrine
       {¶ 11} With the enactment of R.C. 2743.02, the state “waive[d] its
immunity from liability * * * and consent[ed] to be sued, and have its liability
determined, in the court of claims * * * in accordance with the same rules of law




                                          5
                                SUPREME COURT OF OHIO




applicable to suits between private parties.”             In interpreting that statutory
language in a case involving the supervision of a furloughed prisoner by the
Division of Parole and Community Services, we stated:


        [T]he 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, 471 N.E.2d 776 (1984), paragraph one of the
syllabus.
        {¶ 12} In its brief, ODOT notes that the phrase “discretionary-function
doctrine” is commonly used as shorthand for the notion that the state is protected
from suit for making basic policy decisions characterized by the exercise of a high
degree of official judgment or discretion. We agree that this phrase is useful and
accordingly adopt 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.2


2
  We note that the precise definition of the phrase “discretionary-function doctrine” may vary
among jurisdictions. For example, the federal discretionary-function doctrine

        generally arises in the context of the Federal Tort Claims Act, 28 U.S.C. §
        2680(a), (the “FTCA”), where Congress provided that the waiver of sovereign




                                              6
                                    January Term, 2015




        {¶ 13} We      further     elaborated       on   the   principles     underlying    the
discretionary-function doctrine in Reynolds when we explained the difference
between the state’s making a decision—for which there is no liability—and its
performing the activities necessary to implement that decision—for which there
may be liability:


                Under the above standard plaintiffs may not maintain an
        action against the state for its decision to furlough a prisoner.
        However, once such a decision has been made * * *, a cause of
        action can be maintained against the state for personal injuries
        proximately caused by the failure to confine the prisoner during
        non-working hours * * *.


Reynolds at 70.
        {¶ 14} Four years after our decision in Reynolds, we applied the principles
of the discretionary-function doctrine in a case involving a municipality’s claim
of immunity from liability for damages allegedly arising from its decision not to
install particular traffic-control devices at an intersection within the city.
Winwood v. Dayton, 37 Ohio St.3d 282, 525 N.E.2d 808 (1988). In Winwood, the
plaintiff alleged that the city of Dayton was negligent in failing to provide
adequate safeguards for pedestrians attempting to cross at an intersection and
failing to properly maintain traffic-control devices at the intersection. Id. at 283.
In concluding that Dayton was not liable for any damages resulting from its


        immunity by the United States does not extend to “Any claim * * * based upon
        the exercise or performance or the failure to exercise or perform a discretionary
        function or duty on the part of a federal agency or an employee of the
        Government, whether or not the discretion involved be abused.” 28 U.S.C. §
        2680(a).

Mays v. Tennessee Valley Auth., 699 F.Supp.2d 991, 1006 (E.D.Tenn.2010).




                                                7
                              SUPREME COURT OF OHIO




decision, we held, “Where the installation of traffic control devices by a
municipality is discretionary pursuant to the Ohio Manual of Uniform Traffic
Control Devices for Streets and Highways, the municipality is immune from tort
liability for damages allegedly resulting from the absence of such devices.” Id. at
syllabus. We further explained:


        [T]he case before us today concerns a municipal decision requiring
        the consideration of basic policy and the exercise of independent
        judgment. The factors involved in determining the necessity or
        advisability of installing traffic control devices include the
        regulation of traffic patterns and traffic flow at the specific location
        and in surrounding areas, fiscal priorities, safety, and various
        engineering considerations.     Thus, the decision to install or to
        forgo traffic control devices at a particular intersection is a
        planning function, involving basic policy considerations and the
        exercise of a high degree of official discretion.


Id. at 384.
        {¶ 15} We applied these principles from Reynolds and Winwood to
ODOT’s decisions regarding the improvement of public highways in Garland v.
Ohio Dept. of Transp., 48 Ohio St.3d 10, 548 N.E.2d 233 (1990). In Garland, the
plaintiff claimed that ODOT was negligent in delaying the installation of a traffic
signal. Applying our holding in Winwood, we held: “A governmental entity is
immune from tort liability when it makes a decision as to what type of traffic
control signal to install at an intersection.” Id. at paragraph one of the syllabus.
We further held that ODOT’s decision of when to install the traffic signal also
required the exercise of discretion and that ODOT accordingly had a reasonable




                                           8
                                 January Term, 2015




amount of time to implement its decision once it was made. Id. at 12 and
paragraph two of the syllabus.
       {¶ 16} Taken together, Winwood and Garland establish a concrete set of
principles to apply in deciding whether an entity exercised discretion in its
decision regarding improving highways. Winwood establishes that whether to
improve a highway is a protected decision. Under Winwood, both the decision to
improve a highway and the decision not to improve a highway are protected.
Garland adds that the decision of what type of improvement to make is also a
protected decision, as is the decision of when to make the improvement, as long as
it is made within a reasonable time.
       {¶ 17} Based on Winwood and Garland, it is clear that in this case, ODOT
made three decisions protected by the discretionary-function doctrine: (1) its
decision to improve a particular portion of the intersection, (2) its decision not to
improve other portions of the intersection, and (3) its decision regarding what type
of improvement—i.e., advance-warning signs and red and yellow flashing
lights—to make to the intersection. Each of these decisions entailed the exercise
of a planning function involving the making of a basic policy decision
characterized by the exercise of a high degree of official judgment and discretion.
       {¶ 18} ODOT’s expertise in highway design and construction and its
understanding of the vast network of highways throughout the state, together with
the fact that it is statutorily authorized to improve the state’s highways, make it
the foremost authority on the subject of highway improvements. The current
framework of Ohio law prevents the judicial branch from second-guessing
ODOT’s decisions in this regard. We accordingly hold that ODOT is immune
from any liability for damages resulting from those decisions.




                                         9
                              SUPREME COURT OF OHIO




B. ODOT’s decision to improve one portion of a highway does not trigger a duty
to improve surrounding portions of the highway
       {¶ 19} ODOT’s immunity precludes it from liability for damages arising
from its decisions that are characterized by the exercise of a high degree of
official judgment and discretion. The Risners argue, however, that immunity does
not protect ODOT’s actions in this case.
       {¶ 20} The Risners argue that once ODOT decides to improve a portion of
a highway, it is not immune from liability for damages arising from its
determination of how to implement its decision.         Amicus curiae, the Ohio
Association for Justice, builds upon this argument by asserting that after choosing
to improve a portion of a highway, ODOT has a duty to make the highway around
that specific area of improvement safe under current safety standards.
       {¶ 21} The Risners are correct that this court has not held that ODOT’s
determination of how an improvement is implemented is immune from liability.
In Anderson v. Ohio Dept. of Ins., 58 Ohio St.3d 215, 218, 569 N.E.2d 1042
(1991), overruled in part on other grounds by Wallace v. Ohio Dept. of
Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, we held:


       [E]ven though a discretionary decision is immune from suit, the
       implementation of that decision can be carried out in a negligent
       manner. When carrying out the mandates of a public employer,
       the actions of the agents or employees of that employer are
       distinguishable from the original decision to take action and thus
       could be actionable.


We applied Anderson in Semadeni v. Ohio Dept. of Transp., 75 Ohio St.3d 128,
661 N.E.2d 1013 (1996). In Semadeni, ODOT adopted Policy 1005.1, which
provided for the construction of fencing on existing bridges, but its full




                                        10
                              January Term, 2015




implementation of that policy was delayed. Id. at 129-130. In holding that
ODOT was not immune from liability for damages arising from its failure to fully
implement that policy, we explained, “[A]doption of Policy 1005.1 in 1985 was a
‘basic policy decision,’ and * * * 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.” Id. at 132.
       {¶ 22} We declined in Anderson and Semadeni to hold that the state or a
state agency is immune from liability for damages arising from its determination
of how to implement its decision. This does not mean, however, that ODOT is
liable in this case. As we explained, this case does not turn upon how ODOT
chose to implement a decision. Instead, we are concerned with three separate
decisions made by ODOT: its decision to improve one portion of the highway, its
decision not to improve other portions of the highway, and its decision regarding
the type of improvement to make.
       {¶ 23} Although ODOT argues in its brief that it makes policy decisions
when it determines how to remedy a particular stretch of highway, its argument in
support of this assertion echoes Garland’s holding that a governmental entity is
immune from tort liability when it decides what type of improvement to make.
Because Winwood and Garland provide ample guidance for analyzing the issues
present in this case, we decline today to expand our application of the
discretionary-function doctrine to include immunity for ODOT’s determination of
how to implement its decision.       Instead, we reaffirm our prior holdings
establishing ODOT’s immunity from liability for damages arising from its
decisions whether to improve or not to improve certain portions of highway and
what type of highway improvement to make.
       {¶ 24} We emphasize that although ODOT has immunity for the decisions
themselves, Anderson and Semadeni provide that it is not immune from liability




                                       11
                             SUPREME COURT OF OHIO




for damages resulting from negligence that occurs in implementing those
decisions. Thus, while 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. For instance, if ODOT
negligently constructs a particular highway improvement or causes damage either
to that portion or surrounding portions of the highway, it may be subject to
liability for failing to execute its decision in a proper manner.
       {¶ 25} In this case, the Risners argue that ODOT made policy decisions to
improve the intersection and that “[t]he manner that ODOT chose to implement
these policies * * * did nothing to improve sight distance or ensure the
intersection complied with its written sight distance standards.” This argument
does not assert that ODOT executed its decision in a negligent manner. Instead, it
attacks the very decision itself. Rather than argue that ODOT acted negligently in
installing the advance-warning signs and red and yellow flashing lights in
violation of its duty to execute its decision in accordance with current standards,
the Risners argue that the decision to install these improvements failed to improve
the safety of the intersection.      Because this argument challenges ODOT’s
discretionary function rather than its duty to execute its decisions in a proper
manner, it is not necessary to apply Anderson or Semadeni to this case.
       {¶ 26} We also decline to adopt the Ohio Association for Justice’s
position that once ODOT decides to improve a specific part of a highway, it has a
duty to improve the areas surrounding it. As Winwood shows, ODOT’s decision
to improve a portion of a highway is a basic policy decision characterized by the
exercise of a high degree of official discretion. Just as this decision to improve a
portion of highway is entitled to immunity, the decision not to improve




                                          12
                                 January Term, 2015




surrounding areas is also entitled to immunity.        Applying the discretionary-
function doctrine, we hold that ODOT is immune from liability for damages
resulting from its decisions at issue in this case.
                                   III. Conclusion
        {¶ 27} In determining whether to improve an existing highway, the Ohio
Department of Transportation is immune from liability for damages arising from
its decisions regarding which portions of a highway it will improve and what type
of improvement it will make. The Ohio Department of Transportation’s decision
to improve a specific portion of highway does not trigger a duty to improve
surrounding sections of the highway.             When the Ohio Department of
Transportation decides to improve an existing highway, it has a duty to execute
that decision in accordance with current construction standards. We reverse the
decision of the court of appeals and remand the cause to the trial court for further
proceedings consistent with this opinion.
                                                                 Judgment reversed
                                                               and cause remanded.
        O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., concur.
        PFEIFER, FRENCH, and O’NEILL, JJ., dissent.
                                _________________
        PFEIFER, J., dissenting.
        {¶ 28} I agree with the majority’s statement that the Ohio Department of
Transportation (“ODOT”) is “the foremost authority on the subject of highway
improvements.” Majority opinion at ¶ 18. This case raises an important question:
In what instances do the citizens of Ohio get the benefit of that expertise? That is,
when does ODOT have a duty to live up to its own standards? The majority
opinion fails to answer that central issue in the case, the issue that formed the
basis of the trial court and appellate court decisions. This case is not about
whether ODOT is immune from the decisions that it makes concerning changes to




                                           13
                            SUPREME COURT OF OHIO




roadways, but instead is about the standards to which ODOT is held in
implementing the decisions it makes. I would hold in this case that when ODOT
undertakes the improvement of an intersection, it must conform that improvement
to its own standards contained in its current Location and Design Manual. ODOT
does not have the discretion to not follow its own standards when improving an
intersection.
       {¶ 29} The Tenth District Court of Appeals, as the court assigned to
review appeals from the Court of Claims, has developed a test to determine what
sort of activity undertaken by ODOT triggers a duty for ODOT to conform a
project to ODOT’s own modern standards. The majority accurately describes the
Tenth District’s test: “ODOT’s duty to maintain does not encompass a duty to
redesign or reconstruct public highways or to upgrade them to current design
standards, but when ODOT engages in improving the public highways, it does
have a duty to upgrade them to current design standards.”          (Emphasis sic.)
Majority opinion at ¶ 8. Thus, for example, in Estate of Morgan v. Ohio Dept. of
Transp., 10th Dist. Franklin Nos. 10AP-362 and 10AP-382, 2010-Ohio-5969, the
court held that ODOT had no ongoing duty to modernize the design of the
roadway at issue beyond how it was originally designed in 1939. The court
concluded that the addition of guardrails—required under current standards—that
might have saved the driver’s life and that of his infant child would have
constituted an improvement rather than simply maintenance and that “[t]he duty
to maintain does not include a duty to institute improvements.” Id. at ¶ 6 and 14.
       {¶ 30} The central issue in the court below was whether ODOT’s addition
of traffic-control devices constituted maintenance or improvement of the
roadway. But the majority chooses not to directly address the Tenth District’s
longstanding test in this case. As the majority relates, ODOT does not quarrel
with the Tenth District’s holding that the project undertaken by ODOT in this
case was an improvement. Majority opinion at ¶ 9.              And the majority




                                        14
                                January Term, 2015




acknowledges that when ODOT “decides to improve an existing highway, it has a
duty to execute that decision in accordance with current construction standards.”
Majority opinion at paragraph three of the syllabus. But the majority sees this
case as being about three separate ODOT decisions: “(1) its decision to improve a
particular portion of the intersection, (2) its decision not to improve other portions
of the intersection, and (3) its decision regarding what type of improvement—i.e.,
advance-warning signs and red and yellow flashing lights—to make to the
intersection.” (Emphasis deleted.) Majority opinion at ¶ 17.
       {¶ 31} To the contrary, ODOT made only one decision here: it decided to
improve the intersection. That decision lead to the core issue in this case: To
what standard is ODOT held in implementing that decision? I disagree with the
majority’s determination that ODOT’s decision to improve an intersection can
consist of decisions to improve some aspects of the intersection and not to
improve other aspects of the intersection, to meet safety standards in one regard
but not in another.
       {¶ 32} An intersection necessarily consists of more than one road. An
“intersection” is defined as




       [t]he area embraced within the prolongation or connection of the
       lateral curb lines, or, if none, the lateral boundary lines of the
       roadways of two highways that join one another at, or
       approximately at, right angles, or the area within which vehicles
       traveling upon different highways that join at any other angle
       might come into conflict.




                                         15
                            SUPREME COURT OF OHIO




R.C. 4511.01(KK)(1).        ODOT undertook the project of improving the
intersection, not improving one discrete part of one highway.             The entire
intersection was the object of ODOT’s improvement in this case; ODOT added a
flashing traffic signal that affected travel on both highways (a yellow flashing
light for traffic moving east and west on State Route 32 and a red flashing light
for traffic moving north and south on State Route 220). That improvement
triggered ODOT’s duty to conform the improvement of the intersection to the
requirements of the Location and Design Manual applicable at the time the
improvement was made, including the manual’s requirements on intersection
sight distance. To slightly amend the third syllabus paragraph of the majority
decision, when ODOT decides to improve an existing intersection, it has a duty to
execute that decision in accordance with current construction standards.
       {¶ 33} It should not be assumed that a change in standards in intersection
sight distance necessarily requires a major revamping, such as regrading, of one
or both highways making up an intersection. Much more modest improvements
are acceptable. The current ODOT manual states that “[i]f the intersection sight
distance cannot be attained, additional safety measures should be provided. These
may include, but are not limited to, advance warning signs and flashers and/or
reduced    speed    limit   zones   in   the      vicinity   of   the   intersection.”
https://www.dot.state.oh.us/Divisions/Engineering/Roadway/DesignStandards/roa
dway/Location%20and%20Design%20Manual/Entire_Manual_July_2015.pdf,
Section 201.3, at 2-2 (accessed Oct. 20, 2015).
       {¶ 34} Whether to upgrade an intersection is part of ODOT’s discretionary
function. But it is not within the discretion of ODOT to ignore its own standards
once it does undertake a highway improvement. I would affirm the decision of
the court of appeals.
       FRENCH and O’NEILL, JJ., concur in the foregoing opinion.
                              _________________




                                         16
                               January Term, 2015




       Douglas J. Blue, for appellees.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, William C. Becker, Principal
Assistant Attorney General, and Amy S. Brown, Associate Assistant Attorney
General, for appellant.
       Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for
amicus curiae, the Ohio Association for Justice.
                            ____________________




                                         17
