The Ohio Department of Transportation (ODOT) cannot be held liable for the death of a passenger killed when a teen dropped a sandbag from a Toledo bridge where fencing had been removed for bridge reconstruction, the Supreme Court of Ohio ruled today.

The Supreme Court decided that ODOT is immune from the lawsuit brought by the mother of Marquise Byrd, who died while riding in a car traveling on Interstate 75 in December 2017. At the time of the incident, the Indiana Avenue overpass bridge was partially open to pedestrian traffic. A teen dropped a sandbag from the side closed to traffic where vandal-protective fencing had been removed and was adjudicated delinquent for murdering Byrd.

Writing for the Court majority, Chief Justice Sharon L. Kennedy stated that government agencies are immune from lawsuits alleging injuries caused by a policy decision that involves the exercise of a high degree of official judgment or discretion. ODOT policy at the time required vandal-protective fencing on overpass bridges when they were completed, but not while under reconstruction.

“Whether to use temporary vandal-protective fencing during a bridge reconstruction is a basic policy decision that involves a high degree of discretion, and as such, is one for which ODOT is immune from liability,” she wrote.

The Court reversed the Tenth District Court of Appeals, which found ODOT liable for Byrd’s death. The case was remanded to the Ohio Court of Claims with instructions to dismiss the lawsuit brought by Patricia Wilkes, Byrd’s mother.

Justice R. Patrick DeWine, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined Chief Justice Kennedy’s opinion.

In a concurring opinion, Justice Patrick F. Fischer stated he sided with the majority’s conclusion that ODOT is immune in this case because neither party disputed the concept that state law grants “discretionary immunity” to government agencies. He noted this is based on cases stemming from the Supreme Court’s 1984 Reynolds v. State decision. However, Justice Fischer questioned whether those decisions accurately interpret the sovereign immunity statute, R.C. 2743.02, and whether state government decisions are shielded against lawsuits.

In a dissenting opinion, Justice Jennifer Brunner wrote that the discretionary immunity outlined in Reynolds is workable, but does not apply to Byrd’s death. ODOT did not use a high degree of judicial judgment or discretion when deciding not to use temporary protective fencing during reconstruction. Rather, it was a “technical decision” to not follow its already existing policy of shielding the bridge and preventing the type of activity that occurred and caused a death. It was this technical decision not to follow its policy that was negligent or reckless, she concluded.

Bridge Partially Closed for Construction
Reconstruction of the Indiana Avenue bridge started in August 2017. Kokosing Construction Company was selected by ODOT for the job. Kokosing proposed closing the bridge, tearing it down, and rebuilding it all at once. The new bridge was designed to be longer to accommodate future widening of I-75 as it passes beneath the bridge.

ODOT and local officials raised concerns about fully closing the bridge because it is part of a major artery leading to downtown Toledo. ODOT decided the bridge would be reconstructed in phases. During the first phase, Kokosing would demolish and reconstruct the north side of the three-lane bridge, leaving the south side open to vehicular and pedestrian traffic.

Prior to the reconstruction, the Indiana Avenue bridge had protective fencing to prevent vandals from throwing things onto the interstate traffic below. Since the project was essentially replacing the entire bridge, the plan called for removing the bridge beams and deck and the protective fencing from the north side of the bridge. Temporary cement barriers, 42 inches tall, were installed along the bridge to close the north side of it to vehicle and pedestrian traffic.

One lane on the south side of the bridge stayed open to vehicular traffic, and the south side sidewalk was left unobstructed. The existing protective fencing on the south side of the bridge remained in place. Along with the barricades, signs and traffic control devices were placed on the bridge to divert traffic to the south side. ODOT used sandbags to keep barricades and signs in place at construction sites.

Passenger Killed by Sandbag
Byrd was a passenger in a car that crossed underneath the Indiana Avenue bridge. Officers observed that the passenger-side windshield was shattered and found Byrd unconscious and bleeding from the nose. He later died at the hospital from his injuries. Police determined that a sandbag had gone through the window and killed Byrd.

Police detained a group of juveniles who had been walking across the bridge. One teen said that another person had said that he was going to throw a sandbag over the bridge and run. Eventually, four juveniles were adjudicated delinquent for vehicular vandalism. One was adjudicated delinquent for murder, and the other three were adjudicated delinquent for involuntary manslaughter.

Wilkes, as the personal representative of Byrd’s estate, sued ODOT in the Court of Claims for wrongful death. ODOT asserted that it was immune and asked the court to dismiss the case. The court rejected ODOT’s immunity defense but found that Wilkes had not proved ODOT was responsible for her son’s death.

Wilkes appealed to the Tenth District, which reversed the trial court’s decision. It concluded that she had established that ODOT was liable.

ODOT appealed the decision to the Supreme Court.

Supreme Court Analyzed Immunity Law
In 1975, the General Assembly enacted R.C. 2743.02, which waives the state’s sovereign immunity and, with some exceptions, allows government bodies to be sued under the same rules of law that apply to lawsuits between private parties.

Chief Justice Kennedy explained that private parties do not engage in “essential acts of government decisionmaking.” In the 1984 Reynolds case, the Court held that R.C. 2743.02 grants the state immunity for its “legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.”

The Court explained that there is a distinction between policymaking, for which the government is immune, and the implementation of that policy, which may be actionable. 

But in this case, the opinion noted, witnesses had testified that there was no ODOT policy requiring fencing on the bridge while it was under construction; rather, ODOT policy required fencing only after the construction was complete.  In the absence of a policy, ODOT’s employees had discretion to decide whether to install vandal-protective fencing. 

An ODOT official indicated that a choice had been made, explaining that there was no need for fencing because there was no pedestrian traffic along the concrete barriers on the north side of the remaining part of the bridge.   

“ODOT exercised its discretion when it chose not to install temporary vandal-protective fencing along the concrete barriers on the north side of the bridge while that side of the bridge was undergoing reconstruction,” the opinion stated.

Because this was a basic policy decision made by ODOT employees exercising a high degree of discretion, the agency has discretionary immunity and cannot be sued by Wilkes, the Court concluded.

The Court noted that “Byrd’s death is tragic.” However, the General Assembly draws the lines regarding which claims may be pursued against the state, and state law grants ODOT immunity in this case, the opinion noted.

Concurrence Questions Scope of Statutory Immunity
Justice Fischer noted that he has previously questioned whether R.C. 2743.02 provides immunity for government decision-making. He maintained that the Reynolds decision may have created the immunity, and that the statute does not explicitly shield the state from liability in circumstances involving a basic policy decision.

“There is absolutely nothing in R.C. 2743.02 that would give the State broad discretionary immunity regarding its basic policy decisions,” he wrote.

But because neither Bryd nor ODOT challenged Reynolds in this case, “a reevaluation of that area of the law is best left for another day,” Justice Fischer wrote.

Immunity Rule Misapplied, Dissent Asserted
Justice Brunner wrote that the Court should not, by its decision, stop people from seeking a remedy when they are hurt by the actions of public officials that are “careless, callous, fraudulent, or negligent.” She criticized the majority opinion for calling what the government officials did in this case as “discretionary decision making” that is exempt from responsibility by the state. She noted that in this and recent decisions, the Court is and has been unable or unwilling to correctly apply Reynolds, but instead shields government officials from liability, calling it “discretionary.”

ODOT’s decision not to use temporary fencing on the bridge was not like that of discretionary decisions made by lawmakers when making laws or judges issuing orders, she wrote. Instead, ODOT made its discretionary decisions before the Indiana Avenue bridge was under reconstruction, when it established criteria for bridge fencing across the state.

The decision not to use the fencing on the bridge was made because ODOT officials did not think vandalism was an issue, and that decision does not qualify ODOT for immunity from Wilkes’ lawsuit, she concluded.

2025-0632. Wilkes v. Ohio Dept. of Transp., Slip Opinion No. 2026-Ohio-3897.

View oral argument video of this case.

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