Ohio state and local governments are immune from lawsuits claiming negligent failure to keep public roads in repair when an accident is based on harm caused by the “edge drop” on the side of the road, the Ohio Supreme Court ruled today.

The Supreme Court ruled that Wayne County cannot be held legally responsible for the death of 17-year-old Kelli Baker, who was driving on a county road that was being repaved and had a 4 ½- to 5-inch drop edge drop from the asphalt to the dirt berm. Writing for the Court majority, Justice Sharon L. Kennedy stated that for the purposes of the “sovereign immunity” law, the road edge is not part of the public road, and the government is not liable for accidents premised on the condition of the edge, berm, shoulder, or right-of-way.

Dissenting justices suggest a jury ought to consider whether the county was negligent because the road was undergoing maintenance and was not in its typical condition.

Baker Died in Early Morning Accident
Baker was driving on County Road 44 around 6:30 a.m. in October 2011 when one of her tires slipped off the edge of the road. She overcorrected to the left to get back on the two-lane road, then overcorrected to the right in an attempt to keep in her lane, but she went off the right side of the road where she struck a concrete deer statue and a tree. Her car caught on fire, and she died.

An Ohio State Highway Patrol investigation determined the driver’s age and inexperience as well as the speed she was traveling on the rainy morning contributed to the accident. The day before the accident, the portion of CR 44 where the accident happened was “scratch paved,” which added an additional inch of asphalt and created a 4 ½- to 5-inch drop from the edge of the pavement to the berm. During the resurfacing there were no painted edge lines or additional berm materials added to make the berm level with the road surface.

Baker’s parents and estate filed a wrongful death lawsuit against Wayne County. The county claimed it was immune from the lawsuit by R.C. 2744.02, and the trial court granted the county summary judgment. The Bakers appealed to the Ninth District Court of Appeals, which reversed the trial court and ruled that the county could be held liable for negligently failing to keep a public road in repair because the area was under the control of the county and open to the traveling public. The county appealed the decision to the Supreme Court, which agreed to hear the case.

Court Defines “Public Road”
State law generally exempts government bodies from being liable for personal injuries, but sets out certain exceptions. R.C. 2744.02(B)(3) permits local governments to be sued for injuries, death, or property damages that are “caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.” Justice Kennedy wrote this is the first time the Court has sought to define “public roads” for this section of the state law.

Citing the Court’s 2008 Howard v. Miami Twp. Fire Div. decision, Justice Kennedy wrote the statute reflects “a deliberate effort to limit political subdivisions’ liability for injuries and death on the roadways.” She explained the Bakers’ case depends on whether the General Assembly’s definition of “public road” includes the edge drop, and if it does, the county may not be able to claim it is shielded from the lawsuit.

The definition of “public roads” in the sovereign immunity statute includes highways, and specifies that shoulders, berms, and rights-of-way are not part of the public road, but does not mention edges. Justice Kennedy noted that in finding the county may be liable, the Ninth District held the public road is the “area under the control of the political subdivision, subject to ongoing repair work and open to travel by the public.” The Court found the Ninth District impermissibly expanded the definition of public road beyond the definition in the statute when it added that provision.

Wayne County argued not only does the Ninth District “area of control” standard not apply, but also the edge drop is part of the road’s berm, not the public road. The county claimed it is immune from lawsuits caused by harm from the berm. The Bakers argued the edge drop is part of the public road and was made higher than normal by the additional layer of asphalt applied by the county.

Citing other Ohio appeals court rulings, Justice Kennedy wrote the “berm” is commonly defined as the “shoulder of the road,” and the “shoulder” is defined as “either edge of a roadway,” and “the part of a roadway outside of the traveled way on which vehicles may be parked in an emergency.”

“Applying those definitions in this case, when Baker’s tire traveled off the edge of the pavement, it left the public road and dropped onto the berm or shoulder. The General Assembly excluded berms and shoulders from the definition of public road,” she wrote. “Therefore, the edge drop must be considered part of the berm or shoulder, not the public road.”

Because the edge drop is not part of the public road, the county is entitled to sovereign immunity and the Bakers’ cannot sue the county for their daughter’s death, the Court concluded.

Justices Judith Ann Lanzinger and Judith L. French joined Justice Kennedy’s opinion. Chief Justice Maureen O’Connor concurred in judgment only.

Dissents Question Road Condition
Separate dissenting opinions were issued by Justices Paul E. Pfeifer and William M. O’Neill. Justice Terrence O’Donnell, did not issue a written opinion, but stated he agreed with the opinion of the Ninth District. Justice Pfeifer wrote the Bakers should be at least entitled to argue at a trial that the severity and depth of the edge of the drop caused the accident.

Justice Pfeifer explained under typical circumstances, the Court would consider the public road to be the space between the painted edge lines, and the shoulder would be the paved part of the road outside of the edge lines. The berm is typically the unpaved surface adjacent to the shoulder. Since the road was under repair, the painted edge lines were painted over and the road could be considered to reach the edge of the pavement. In the lead opinion, Justice Kennedy noted CR 44 was not required to have paved edge lines, and in this case, it had no paved shoulder, just roadway and the unpaved berm.

“The excessive height of the edge of the roadway itself is the issue in this case. A roadway has depth; it is not a two-dimensional geometric plane. Just as the edge of a table is part of a table and not part of the floor below, the edge of the roadway is part of the roadway, not part of the shoulder or the berm,” Justice Pfeifer wrote.

He stated Wayne County is potentially liable because the road lacked edge lines and that county workers acknowledged the edge was higher than normal. He noted an expert witness for the Bakers stated the Ohio Department of Transportation requires that when an edge drop exceeds 2 inches, there should be traffic controls like orange drums and lights to warn motorists, and that there were no such devices on CR 44 when the county was repaving it.

Justice O’Neill joined Justice Pfeifer’s dissent. In his own separate dissent, Justice O’Neill objected to defining the edge as part of the berm.

“It is simply make-believe to suggest that the portion of the asphalt that dropped off five inches to meet the berm on the side of the road is not also part of the road,” he wrote. “It is like saying the period at the end of this sentence is not part of the sentence.”

2014-2079. Baker v. Wayne Cty., Slip Opinion No. 2016-Ohio-1566.

View oral argument video of this case.

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