Qualified immunity: How it could impact any lawsuits stemming from U.S. 35 manhole issues

DAYTON — After a 10-year-old girl was seriously injured after a manhole on U.S. 35 was blamed for a crash on Christmas Eve, some have asked whether a lawsuit could be filed because of what happened.

University of Dayton law professor Thomas Hagel said the first step will be to determine which political subdivision had responsibility for maintaining the road.

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“Once that’s determined, the key question is going to be, did they do something wrong in terms of not dealing with the situation,” Hagel said.

The Ohio Department of Transportation has said “once a state or U.S. route enters a municipality it typically becomes their responsibility.”

However, the city of Dayton has argued the accident involving the manhole cover on U.S. Rt. 35 was located within an ODOT construction zone.

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“This was part of an ODOT-administered contract to expand U.S. Rt. 35 from two lanes to three lanes and involved the installation of a storm sewer and associated manhole covers,” City of Dayton spokesman Bryan Taulbee said.

Qualified immunity will be important if a lawsuit is filed since it would involve a person suing a government subdivision. That requires the person suing to prove that the subdivision acted recklessly, Hagel said.

“Apparently, after the officer put the manhole cover on, it happened again, so there’s going to be a question about whether they acted reasonably in dealing with it in its first instance,” Hagel said.

Hagel said it will be incredibly important in terms of the manhole cover and why in the first place it was flipped and out there.

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