The Ohio Supreme Court has agreed to hear the appeal of a lower court ruling in a wrongful death suit filed by the estate of a man killed when a group of teens on a highway bridge dropped a sandbag on the car in which he was travelling.

Solicitor General Elliot Gaiser faulted the Tenth District Court of Appeals’ judgment on the issues of liability and immunity in the case stemming from the death of Marquise Byrd, a passenger in a car travelling beneath a partially incomplete bridge over Interstate 75 in Toledo in December 2017.

“On liability, the Tenth District’s rulings holding the state to a standard higher than equivalent private parties contravenes the statute defining the state’s liability,” Gaiser wrote on behalf of the Ohio Department of Transportation. “On immunity, the Tenth District’s holding that the state forfeits immunity when it does not explicitly consider an option in project planning shortchanges the state’s exemption from liability.”

At the time of the incident, the Indiana Avenue bridge spanning I-75 west of downtown Toledo was under construction, case summary provided.

The structure, however, remained open to one-way traffic and pedestrians on the southern half of the bridge, while the northern portion of the bridge had been removed.

Despite a sign notifying pedestrians to use the other side of the bridge, four teens crossed to the bridge’s north edge and began throwing rocks over a three-and-a-half-foot concrete barrier, onto southbound interstate traffic.

The summary noted that the kids threw two sandbags weighing more than 30 pounds into traffic with one of the sandbags striking the windshield of a car in which Byrd was a passenger.

The impact killed Byrd, and the teens ultimately were judged delinquent of various felonies.

Byrd’s estate sued both the construction company and ODOT, summary continued.

A federal court granted judgment to the construction company on the basis that it had followed the ODOT instructions in designing the project.

At an Ohio Court of Claims bench trial, the court concluded that the state was not immune from the suit due to the absence of fencing on the bridge’s north side.

In addition, the court determined the estate failed to establish the necessary elements to prove negligence and that ODOT owed no duty because the estate had not provided evidence of ongoing vandalism at the construction site nor did it introduce evidence about what precautions ODOT could have taken.

According to the summary, both parties appealed the Court of Claims decision, which resulted in the Tenth District Court of Appeals’ reversal.

The appellate panel found that ODOT owed a duty to the estate because it generally knew that vandals had thrown objects from highway overpasses in other parts of the state yet it took no measures to prevent such behavior.

“On that point, the court refused to hold (the estate) to the burden of identifying the protective measures the state should have taken,” Glaiser wrote.

The appellate panel held that the estate satisfied causation because ODOT did not take any reasonable measures to prevent the actions of the teens, and it rejected the state’s cross appeal on account of ODOT’s failure to make a discretionary policy decision regarding fencing, summary noted.

In the state’s memorandum, Glaiser noted that the state is sometimes compared to “an all-powerful monster.”

“Whatever the force of that analogy, it should not spook courts into bending the law to disfavor the state in litigation,” he continued. “Here, the Tenth District’s judgment effectively holds the state to a higher liability standard than private litigants even though the relevant statute sets the state’s liability by the same rules of law that govern suits between private parties. The (Supreme) Court should take this case to be sure Ohio courts hew to the public-private parity the statute commands.”

He also wrote that the state did not open itself up to liability for the act of governing when it previously relinquished some elements of sovereign immunity.

“So even though a tort plaintiff may hold the state liable for carrying out a non-discretionary function, a tort plaintiff may not hold the state liable for the choices involved in governing itself,” Glaiser added. “And that includes the implicit choices embedded in deciding not to decide.”

Attorneys for the estate argued against the Supreme Court accepting the appeal, asserting ODOT’s failure to accept accountability for the preventable death of Byrd.

“Therefore, this court should not step in and disturb a well-reasoned opinion from the court of appeals that reversed a decision of the lower court that failed to use the framework of legal precedents set forth by this court,” the memorandum read.