Wayne County cannot claim immunity from a civil lawsuit, but rather a court should determine if the county was negligent in the death of a teen who died when she crashed on a rural road undergoing repaving.

The Ninth District Court of Appeals recently ruled the Wayne County Court of Common Pleas incorrectly relied on past cases granting immunity to local governments when accidents occurred on local highways. It said the events leading up to the death of 17-year-old Kelli Marie Baker present a set of circumstances not previously addressed by Ohio courts.

Investigators surmised Baker was driving on Wayne County Road 44 when her tires went off the right side of the road and she overcorrected eventually sending the car spinning and bursting into flames. At the time the Wayne County Engineer’s Office was doing road maintenance and had “scratch paved” the road, which raised the level of the asphalt and covered the existing center and edge lines. The berms had not yet been banked and there was a nearly 5-inch drop off between the road and the berms.

Ricky and Sharon Baker, Kelli’s parents, sued Wayne County for negligently failing to keep the road in repair. The common pleas court granted Wayne County’s motion of summary judgment based on the immunity local governments are provided under Ohio Revised Code section 2744.02

Writing for the Ninth District Judge Eve Belfance said as a general rule political subdivisions are not liable for damages in civil actions for injury, death or loss to a person or property. She said the code provides four exceptions including one that makes local government liable “by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.”

The court noted that past cases that challenged the negligence of governments regarding keeping the road “in repair” have dealt with roads that were not in the midst of an ongoing maintenance project as was the case with County Road 44. The Baker’s’ argued the common pleas court wrongly relied on Bonace v. Springfield Twp. 179 Ohio App. 3d 736, 2008-Ohio-6364 (7th Dist.) to grant summary judgment to the county.

In Bonace, the courts said governments can use the painting of an edge line as the guide as to what constitutes the public road, and what is considered the berm or shoulder. Ohio court rulings have been consistent in determining berms and shoulders are not the public road and governments are immune from lawsuits where those areas are considered to have contributed to the accident.

While there were no edge lines on the road at the time of the accident, the county argued the lines were on the road prior to the accident and upon its completion and that the berm area with the drop off was outside of the lined area.

But since the lines were not there at the time of the accident, Judge Belfance said the county could not rely on the painted edge line as the boundaries.

“In the context of a road that is subject to repair or maintenance project that extends from day-to-day in various stages of completion, such as the one at issue in this case, we believe the better analysis is to consider a ‘public road’ to be the area under control of the public subdivision, subject to the ongoing repair work, and open to travel by the public,” she wrote.

The appeals court said it now becomes a question to be determined in the common pleas court whether Wayne County was negligent for how the area under its control was maintained when the accident occurred.

Judges Donna Carr and Jennifer Hensal concurred.

Baker v. Wayne County, 2014-Ohio-3529
Opinion: http://sc.ohio.gov/rod/docs/pdf/9/2014/2014-ohio-3529.pdf
Civil Appeal From: Wayne County Court of Common Pleas
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: August 18, 2014

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