Bottom line
The Supreme Court of Ohio held that ODOT's decision not to install temporary vandal-protective fencing on a bridge under reconstruction, made with no policy requiring it, was a basic policy decision involving a high degree of discretion. ODOT was immune, the Court of Claims lacked subject-matter jurisdiction, and the wrongful-death action must be dismissed, even though the case had already been tried on the merits.
The question: policy decision or negligent implementation?
In December 2017 a juvenile dropped a sandbag from the Indiana Avenue overpass in Toledo onto southbound I-75. It crashed through a windshield and killed a passenger, Marquise Byrd. During the first phase of the bridge's reconstruction, the north side was closed to vehicles and pedestrians, and its vandal-protective fencing had been removed; the south side stayed open, with its fencing intact. ODOT did not install temporary fencing on the closed north side.
The estate sued ODOT for wrongful death in the Court of Claims. That court denied ODOT's summary judgment motion on discretionary immunity, then entered judgment for ODOT after a trial, finding the estate had not proved its claims by a preponderance of the evidence. The Tenth District reversed: it held that ODOT lacked immunity, found liability established, and remanded for damages. The Supreme Court accepted ODOT's discretionary appeal on two propositions of law. The second asked whether the State's design decisions are reviewable in tort even without evidence that a State actor consciously considered and rejected the design element at issue.
The holding: immune, so no jurisdiction; dismissal ordered
The court reversed and remanded to the Court of Claims with instructions to dismiss the action. Chief Justice Kennedy wrote for the court, joined by Justices DeWine, Deters, Hawkins, and Shanahan. Justice Fischer concurred with a separate opinion. Justice Brunner dissented and would have affirmed the Tenth District.
The majority held that ODOT's decision not to erect temporary vandal-protective fencing during the reconstruction was a basic policy decision involving a high degree of discretion. ODOT was therefore immune, and because the State has not consented to suit on that kind of decision, the Court of Claims lacked subject-matter jurisdiction. Finding the second proposition dispositive, the court did not reach the first.
The reasoning: the line between making policy and carrying it out
Under R.C. 2743.02(A)(1), the State consents to have its liability determined under the rules applicable to private parties, but private parties do not make governmental policy. Relying on Reynolds v. State, 14 Ohio St.3d 68 (1984), and Smith v. Ohio State Univ., 2024-Ohio-764, the court treated discretionary immunity as a limit on the Court of Claims' subject-matter jurisdiction. The limit has a well-known boundary:
“discretionary immunity does not apply when a public employee acts negligently in implementing the policy decision that has been made.” (¶ 3)
The court drew that boundary from Risner v. Ohio Dept. of Transp., 2015-Ohio-4443, and Semadeni v. Ohio Dept. of Transp., 1996-Ohio-199. As the opinion describes Semadeni, ODOT was immune for its decision to require vandal fencing on an overpass but liable for failing to install that fencing within a reasonable time.
Here the record pointed the other way. Witnesses testified that no ODOT policy required vandal fencing on a bridge while it was under reconstruction, and that the bridge-design manual governed new bridges and the permanent condition of a structure. With no policy to implement, the decision itself was the policy choice:
“So in the absence of a policy, ODOT’s employees had discretion to decide whether to install temporary vandal-protective fencing” (¶ 39)
The court added that ODOT's area engineer had in fact made a choice: he testified that temporary fencing was unnecessary because the north side was closed to pedestrians.
Justice Fischer agreed with the majority's application of Reynolds but wrote that Reynolds lacked a proper statutory analysis of R.C. 2743.02 and, in his view, was wrongly decided. Because neither party had challenged it, he concluded that “a reevaluation of that area of the law is best left for another day.” (¶ 51) Justice Brunner would have treated the fencing decision as a technical one, not a discretionary policy choice, and would have held ODOT to its existing bridge-safety policy as in Semadeni.
Why it matters for Ohio appeals
Immunity framed as jurisdiction changes the remedy. ODOT lost on immunity at summary judgment, won on the merits at trial, and lost on both in the court of appeals. The Supreme Court did not reinstate the defense verdict; it ordered dismissal for lack of subject-matter jurisdiction. When discretionary immunity is in play in the Court of Claims, both sides should brief it as a threshold jurisdictional question at every level, not as one merits defense among several.
The record decides which side of the line a case falls on. The outcome turned on testimony about what ODOT's written policies covered and what its engineer decided. A claimant's strongest framing, under Semadeni and Risner as the opinion describes them, is negligent implementation of a policy that already exists. That framing needs a trial record identifying the policy, its scope, and the gap between it and what happened.
Read the holding no more broadly than the court wrote it. The court resolved the case on the second proposition but did not restate that proposition as its holding, and it pointed to testimony that a choice had been made. Practitioners citing Wilkes for the idea that conscious consideration is never required should check the opinion's actual language first.
The concurrence is a signal, not a holding. One justice has now written that Reynolds cannot be squared with the statute, and another criticized how the doctrine is being applied. But Justice Fischer stressed that the parties had not asked the court to revisit Reynolds. The lesson for Supreme Court of Ohio practice is familiar: an argument that is never presented with developed briefing is unlikely to be decided.
Practice pointers
- In Court of Claims cases, treat discretionary immunity as a subject-matter jurisdiction issue. A trial win on the merits does not make it go away, and the remedy if it applies is dismissal.
- Claimants: build the record around a specific existing policy and the State's failure to carry it out. Discovery into what the policy manuals cover, and what they do not, can decide the case.
- The State: develop testimony that no policy governed the decision or that an official weighed the options. The Wilkes record had both.
- If a client's claim depends on narrowing or overruling Reynolds, present that argument expressly and develop it from the first brief, so the question is squarely before the court if the case gets there.
- When drafting propositions of law in a jurisdictional memorandum, expect that the court may decide the case on one of them; make each proposition able to stand on its own.
The opinion
Supreme Court of Ohio · Decided October 6, 2026
Wilkes v. Ohio Dept. of Transp., 2026-Ohio-3897
This analysis is published for Ohio attorneys and is not legal advice. It reflects the opinion as released; slip opinions are subject to formal revision before publication in the Ohio Official Reports. Appellate Ohio was not counsel in this case.