Why Suing a County Over a Dangerous Road Edge Is So Hard: Baker v. Wayne County

Published June 2, 2016 · Ohio Supreme Court

Kelli Baker was 17. At 6:28 on a rainy October morning in 2011, before sunrise, she was driving to school on a two-lane county road in Wayne County. The day before, the county had "scratch paved" that stretch, adding an inch of asphalt to level the surface. The result was a drop of four and a half to five inches from the edge of the new pavement to the berm, with no edge lines painted and no berm material added to bring the shoulder level. One of Kelli's tires slipped off that edge. She overcorrected left, then right, left the road again, hit a concrete deer statue and a tree, and died in the fire that followed.

Her parents sued the county. The trial court threw the case out on immunity grounds; the Ninth District Court of Appeals reinstated it. On April 19, 2016, in Baker v. Wayne Cty., 147 Ohio St.3d 51, 2016-Ohio-1566, the Supreme Court of Ohio reversed and ended the case. The county is immune. This post explains why, because the reasoning controls every road-defect case against a city, county or township in Ohio.

The immunity statute and the "public roads" exception

Political subdivisions are generally immune from injury lawsuits under R.C. 2744.02(A). One exception, R.C. 2744.02(B)(3), makes them liable for injuries "caused by their negligent failure to keep public roads in repair" and for negligent failure to remove obstructions. I discussed that exception in a 2013 post about pothole crashes.

The catch is the definition. R.C. 2744.01(H) says "public roads" means roads, highways, streets, avenues, alleys and bridges, and then says it "does not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic control devices are mandated by the Ohio manual of uniform traffic control devices."

The county's argument was simple: the drop-off was at the edge of the pavement, so it was part of the berm or shoulder, which the General Assembly expressly excluded. The family's argument was that the drop-off was created by the county's own paving of the road, during an ongoing repair project, and was therefore part of the road the county was obligated to keep in repair.

What the Court held

Justice Kennedy's lead opinion held that when the legislature supplies a definition, courts must apply it as written. R.C. 2744.01(H) is the exclusive definition of "public road" for every claim alleging a negligent failure to maintain, and it excludes berms and shoulders. Giving "berm" and "shoulder" their ordinary meanings, the Court concluded that when Kelli's tire "traveled off the edge of the pavement, it left the public road and dropped onto the berm or shoulder." The edge drop, therefore, is part of the berm or shoulder, not the road, and the (B)(3) exception does not apply.

The Court also noted that the Ohio Manual of Uniform Traffic Control Devices did not require edge lines on that road, so the absence of painted lines could not support a claim under the traffic-control-device language either.

The opinion is a plurality on its reasoning: the Chief Justice concurred in judgment only, and three justices dissented. Justice Pfeifer wrote that a roadway "has depth; it is not a two-dimensional geometric plane," that the edge of the pavement is made of the same material as the road, and that whether a road with a five-inch unmarked drop was "in repair" should have been a jury question. He pointed to evidence that the county had posted a "Low Shoulder" sign for traffic in the opposite direction but not for Kelli's, and that state specifications called for drums and lights at drops over two inches. Justice O'Neill put it more bluntly: it is "make-believe" to say the five inches of asphalt that caused the crash are not part of the road.

The dissents did not carry the day. The holding is the law.

What the decision means for road-defect cases

I will be direct: Baker makes an already difficult category of case harder. Edge drops are among the most common and most lethal road hazards in rural Montgomery, Greene, Miami, Preble and Darke Counties, and they are frequently created by resurfacing projects exactly as this one was. After Baker, a claim against the county or township based on the drop-off itself will almost certainly be met with a successful immunity motion.

What remains:

• Defects on the traveled surface. Potholes, heaves, crumbling pavement, and sunken utility cuts within the roadway are still "public roads." The traveled lane, not its edge, is where the (B)(3) exception lives.
• Obstructions. The exception also covers negligent failure to remove obstructions from public roads, which has been read to include things like fallen trees and debris in the lane.
• Mandated traffic-control devices. Where the Ohio Manual of Uniform Traffic Control Devices requires a sign, signal or marking and it is missing or defective, the device is within the definition of "public road." Proving what the manual mandates for a particular road requires an engineer, and it is where many surviving claims will be built.
• State highways. Baker construes the political-subdivision statute. Claims against the Ohio Department of Transportation for state and U.S. routes go to the Court of Claims under different rules, as I discussed in this post on the Risner intersection case. ODOT does not enjoy R.C. Chapter 2744 immunity.
• Contractors. If a private paving contractor did the work and left the hazard, the contractor has no governmental immunity at all. Identifying whether county crews or a contractor performed the resurfacing is one of the first questions we ask.
• Other drivers. Many edge-drop crashes involve a second vehicle whose driver crossed the center line or followed too closely during the recovery. Those drivers and their insurers remain fully liable.

This decision came down the same day as the Combs park-mower case, which went the other way for the injured person. Read together, they show the pattern: Ohio's immunity statutes are applied by their precise words, and the outcome often depends on which words describe your facts.

What this means for you

If you or a family member were hurt or killed in a crash involving a road condition, the facts need to be documented immediately and analyzed against these definitions. Photographs of the pavement edge, measurements of any drop, the presence or absence of signs and edge lines, the identity of the paving crew, and the project records all matter, and some of it will be gone the day the county finishes the job. Our claims against the government, wrongful death and car accident practices evaluate road-condition cases with these rules in mind and pursue every responsible party, not only the one with immunity.