Haas v. Hayslip

Per Curiam. The issue presented for review is whether governmental immunity from tort liability is still available as a defense for political subdivisions of the state in view of the recent enactment by the G-eneral Assembly of the Court of Claims Act, R. C. 2743.01 et seq. Except as otherwise provided by statute, municipal corporations are immune from liability in the performance of their governmental functions. See, e. g., Broughton v. Cleveland (1957), 167 Ohio St. 29. Since 1854, however, this court has consistently held that, oven absent statutory authorization, the defense of immunity is not available to a municipality for negligence in the performance of proprietary, as opposed to governmental, functions. The maintenance and operation of a police department by a municipality is a governmental function. Gabris v. Blake (1967), 9 Ohio St. 2d 71. R. C. 2743.02(A) provides: “The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the Court of Claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter. To the extent that the state has previously consented to be sued, this chapter has no applicability.” In pertinent part, R. C. 2743.01 provides that: “As used in Chapter 2743 of the Revised Code: “(A) ‘State’ means the state of Ohio, including, without limitation, its departments, boards, offices, commissions, — 137 — agencies, institutions, and other instrumentalities. It does not include political subdivisions. “(B) ‘Political subdivisions’ means municipal corporations, townships, counties, school districts,. and all other bodies corporate and politic responsible for governmental activities only in geographic areas smaller than that of the state to which the sovereign immunity of the state attaches.” In the insant cause, the Court of Appeals held that “R. C. Chapter 2743 does not specifically grant the state’s political subdivisions any immunity. Therefore, by virtue of the state’s waiver of its immunity, such immunity can no longer be claimed by a political subdivision.” The Court of Appeals reasoned that “[o]nce the sovereign waives, the judicial doctrine falls because there is no longer a source from which the subdivisions can derive their immunity.” This holding of the Court of Appeals is in error. In 1912, Section 16, Article I, of the Ohio Constitution was amended by adding: “Suits may be brought against the state, in such courts and in such manner, as may be provided by law.” The amendment is not self-executing, and statutory authority is required as a prerequisite to the ■bringing of suits against the state. Raudabaugh v. State (1917), 96 Ohio St. 513. Subsequent cases have interpreted Section 16, Article I, as a technical abrogation of the theretofore judicial doctrine of sovereign immunity, although ineffective without the required legislative consent. Thus, the defense of sovereign immunity has been transformed into the defense of “lack of consent.” See Krause v. State (1972), 31 Ohio St. 2d 132. Further, R. C. 2743.01(A) defines “state” within the context of R. C. Chapter 2743 and carefully excludes “political subdivisions” from that definition. The General Assembly first clearly separated “political subdivisions” from “state” and then used the present tense in R. C. 2743.01(B) in describing, bodies which enjoy sovereign immunity: “sovereign immunity * * * attaches,” This is seem — 138 — ingly contrary to the derivative immunity required by the Court of Appeals. '-The Court of Appeals interpreted R. 0.-2743.01(A) and (B) and 2743.02(A) as “meaning that the state has waived its immunity from liability but declined to permit political subdivisions to be sued in the Court of Claims. If * * *' [political subdivisions] cannot be sued in the Court of Claims, they may be sued in any court of record as any other party might be sued.” The Court of Appeals noted that its construction of the statutes “means, of course, that R. C. 2743.02(B) is merely superfluous legislation as it is embodied in R. C. 2743.02(A).” We reject this reasoning. R. C. 2743.02(A) waives the state’s immunity from liability. There would be little reason for the General Assembly to make a detailed distinction-between “state” and “political subdivision” in R. C. 2743.01 if the effect of 2743.02(A) were to put both the state and political subdivisions on the same plane with regard to waiving sovereign immunity. If the General Assembly intended to do as the Court of Appeals claims, it could have stated unequivocally that both the state and political subdivisions no longer have the defense of sovereign immunity, and then prescribed the procedure for suing the “state” and specifically provided that “political subdivisions” shall be amenable to suit in the ordinary course of law. This the General Assembly chose not to do. Further evidence that the legislative intent was not to waive sovereign immunity as a defense for political subdivisions is contained in R. C. 2743.02(B), which provides, in part, that “ [t]he state hereby waives the immunity from liability of all hospitals owned or operated by * * Apolitical subdivisions and consents for them to be sued * * Since the demise of charitable immunity, any immunity of these hospitals is derived from the immunity afforded to political subdivisions which create, own and operate them. If R. C. 2743.02(A) had already abrogated sovereign , immunity of political subdivisions, then R. C. 2743.02(B) is su — 139 — perfluous. The last sentence of Subdivision (B)1 is a codification of this court’s holding in Sears v. Cincinnati (1972), 31 Ohio St. 2d 157, recognizing that operation of a hospital by a municipal corporation is a proprietary function, and thus immunity is not available to the hospital or municipality. The first sentence of Subdivision (B) is an expansion of Sears and a legislative reversal of Wolf v. Ohio State Univ. Hosp. (1959), 170 Ohio St. 49, and Hyde v. City of Lakewood (1965), 2 Ohio St. 2d 155. If R. 0. Chapter 2743 were intended to . completely abolish immunity to political subdivisions, then, logically, the General Assembly would have repealed R. C. 70L02 (waiving immunity of municipalities for certain acts of policemen and firemen in relation to operating a motor vehicle), R. C. 723.01 (concerning responsibility of municipality for maintenance of nuisance in public streets), R. C. 305.12 (liability of county in repair of bridges or roads.), and several other statutes as superfluous. ' In conclusion, R. C. 2743.01 and 2743.02 are forthright and unambiguous, and permit facile discernment of the legislative intent to preserve the defense of sovereign immunity to political subdivisions except • as otherwise expressed by the General Assembly. Appellees fail to cite- authority that the state may not selectively waive, through the General Assembly, sovereign immunity with regard to political subdivisions. The judgment of the Court of Appeals is reversed. ‘ • Judgment reversed. O’Neill, C. J., Herbert, P. Brown and Locher, XT., concur. Celebrezze, W. Brown and Sweeney, XL, dissent. • . Footnotes [1] R. C. 2743.02(B) reads in full: "The state hereby waives the immunity from liability of all hospitals owned or operated by one or more political subdivisions and consents for them to be sued, and to have their liability determined .in the-.Court of Common Pleas, in accordance with the same rules of law applicable to — 140 — suits between private parties, subject to the limitations set forth in this chapter. This chapter is also applicable to hospitals owned or operated by political subdivisions which have been determined by the Supreme Court to be subject to suit prior to the effective date of this section.”