Killed at a Dangerous Intersection: When Can Ohio Families Sue ODOT? (Risner v. ODOT)

Published November 16, 2015 · Ohio Supreme Court

Every community has one: the intersection where everybody knows a crash is coming. Neighbors complain. A flashing light goes up. Then a tractor-trailer comes through and someone's daughter is gone. Two and a half weeks ago, the Supreme Court of Ohio decided Risner v. Ohio Dept. of Transp., 2015-Ohio-4443, a 4-3 decision about whether the State of Ohio can be held responsible when it knows an intersection is dangerous, does something about it, and the something is not enough. The answer is mixed. Families need to understand both halves of it.

Amber Risner's death

In September 2009, Amber Risner was a passenger in a vehicle that collided with a tractor-trailer at the intersection of State Route 32 and State Route 220. She was killed. The intersection had no traffic signals when it was built. In response to safety concerns, ODOT installed advance-warning signs and red and yellow flashing lights in 2002 and 2005. It did not address the sight distance, the ability of a driver stopped at the intersection to see traffic coming, which Amber's parents alleged was inadequate under ODOT's own current design standards.

Her parents sued ODOT in the Court of Claims for negligent design and maintenance of the intersection. They argued that drivers could not properly see oncoming traffic, that flashing lights were the wrong fix when a full red-yellow-green signal was needed, and that by improving the intersection, ODOT took on a duty to bring the whole intersection up to current standards, including sight distance. The Court of Claims ruled for ODOT. The Tenth District Court of Appeals reversed, holding that the flashing lights were an "improvement" rather than "maintenance," which under its prior decisions triggered a duty to upgrade to current design standards. ODOT appealed.

What the Supreme Court held

The majority reversed and ruled for ODOT on the claims as framed. Its three holdings, in plain terms:

1. ODOT is immune for its decisions about whether to improve a highway, which parts to improve, and what kind of improvement to make. These are policy judgments, involving engineering, traffic patterns, and budgets, and courts will not second-guess them. The Court relied on two of its older decisions, including a Dayton case discussed below.

2. Deciding to improve one part of an intersection does not create a duty to improve the rest of it. The Ohio Association for Justice, as a friend of the court, argued that once ODOT touches an intersection it must make the surrounding area safe under current standards. The majority rejected that.

3. When ODOT does decide to make an improvement, it must carry out that decision according to current construction standards, and it can be held liable for negligence in the execution. The Court was explicit that immunity does not extend beyond the decision itself to the acts of implementation.

The majority then characterized the Risners' argument as an attack on ODOT's decision to install flashers rather than a signal, and not as a claim that ODOT installed the flashers negligently. Because the decision itself is immune, the claim failed.

The dissent

Three justices dissented. Justice Pfeifer wrote that the case was not about whether ODOT is immune for its decisions but about the standard ODOT must meet when it acts on them. In his view, ODOT made one decision, to improve the intersection, and that triggered a duty to conform the improvement, including sight distance, to its own Location and Design Manual. He noted that ODOT's own manual says that where adequate sight distance cannot be achieved, additional safety measures such as warning signs, flashers, or reduced speed zones should be provided, and that modest measures, not a full regrading, are often enough. His conclusion: "it is not within the discretion of ODOT to ignore its own standards once it does undertake a highway improvement."

I will say plainly that I think the dissent has the better of the argument. A family that loses a daughter at an intersection the state already knew was dangerous should not be told that the state's choice of the wrong fix is beyond review. But the majority opinion is the law, and the practical question is what remains.

What survives: how to frame these claims now

Risner closes one door and leaves others open. Under the decision, these claims against ODOT remain viable:

• Negligent execution. If ODOT decides to install a signal, add a turn lane, regrade a slope, or resurface a road, and does the work in a way that fails current construction standards, it is liable for the resulting harm. The majority gave the example of negligent construction of an improvement that damages that part of the highway or the surrounding portions.
• Negligent maintenance. The Risner court did not disturb ODOT's duty to maintain what it has built: signals that fail, signs that are missing or obscured, pavement that deteriorates, guardrails that are damaged and not repaired.

The lesson is about how a case is pleaded and proven. "ODOT should have installed a full signal instead of flashers" challenges a protected decision. "ODOT's installation of this improvement failed to meet the construction and design standards that applied to that work" challenges execution, which is not immune. The difference requires a traffic engineer's analysis of the work ODOT actually performed, measured against the manual provisions that governed it, from the beginning of the case.

The Dayton connection: Winwood v. Dayton

One of the two precedents the majority followed is Winwood v. Dayton, a 1988 Supreme Court of Ohio case from our own city. A pedestrian was struck at a Dayton intersection, and the family argued the city was negligent for not installing traffic-control devices there. The Court held that a city's decision whether to install such devices is a discretionary policy choice for which it is immune, but drew the same line Risner now draws for the state: once a city decides to install devices, their design, placement, repair, and maintenance is implementation, and negligence in those tasks is not immune.

Two different systems: the state vs. cities and counties

Claims against ODOT and other state agencies are not filed in the Montgomery County courthouse. Under R.C. 2743.02, the state has waived its immunity and consented to be sued only in the Court of Claims in Columbus, where cases are tried to a judge, not a jury, and must generally be filed within two years under R.C. 2743.16.

Claims against cities, counties, and townships are filed in common pleas court and governed by R.C. Chapter 2744, which makes political subdivisions liable, among other things, for negligent failure to keep public roads in repair under R.C. 2744.02(B)(3). We explained that framework in our post on pothole crashes and city liability. Which government owns the road determines which court, which statute, and which deadline apply, and it is not always obvious; a state route running through a city may be maintained by either.

Do not forget the driver

In nearly every dangerous-intersection case there is also a driver who ran the stop sign, pulled out without looking, or was going too fast for conditions, and often a trucking company behind that driver. Those claims are not affected by Risner at all. In a case like Amber Risner's, the claim against the tractor-trailer's owner and operator may be the primary source of recovery. A thorough investigation of an intersection collision pursues all of them.

What this means for you

If you lost a family member at an intersection with a history of crashes, you may have a claim against the government, but after Risner it must be built on how the state or city carried out its work, not on the wisdom of what it chose to do. That requires the engineering records, the crash history, the design manual that applied, and an expert, and it requires a decision about the Court of Claims versus common pleas court within the first weeks, not the last. The driver's and trucking company's liability must be pursued at the same time. None of this waits.