Zents v. Board of Commissioners

William B. Brown, J. The basic issue presented in this case is whether the doctrine of governmental immunity bars appellants’ suit against Summit County. With the limitations set forth in this opinion, this court holds that the doctrine of governmental immunity will no longer operate to insulate counties from liability for their tortious acts. — 205 — The doctrine of governmental immunity has been much discussed by this court as of late. This court has discussed this doctrine in the context of park districts,1 municipal corporations,2 school boards,3 public libraries,4 and the state5 itself. It is of no surprise, then, that this court is now being asked to consider whether a county may assert governmental immunity as a defense. Indeed, such consideration may be overdue, for as Professor Antieau stated in his treatise, County Government (1982) 38-39, Section 38.04, Ohio is only one of seven states unaffected by either judicial repudiation of county government tort immunities or legislative re-definition of common law. At this point, it is beyond question that governmental immunity, being a judicially created doctrine, may be judicially abolished. See Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 33; Schenkolewski v. Metroparks System (1981), 67 Ohio St. 2d 31, 36 [21 O.O.3d 19]; Sears v. Cincinnati (1972), 31 Ohio St. 2d 157, 161-162 [60 O.O.2d 113]. The justifications underlying the doctrine of governmental immunity have been discussed and much maligned, and, as such, repetition is unwarranted. See, e.g., Enghauser, supra, at 33-34; Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, 29-30. While a recitation of the historical background is unnecessary, a brief summary of the recent developments in this area will help to put the instant issue in its proper perspective. In Schenkolewski v. Metroparks System, supra, this court held that the defense of governmental immunity was not available to a board of commissioners of a park district established pursuant to R.C. Chapter 1545 where liability is alleged to have arisen out of the exercise of a proprietary function. The court reasoned at page 37 as follows: “When a park district’s activities go beyond governmental functions, i.e., when it acts in a proprietary nature, there is little or no justification for extending the benefits of the state’s sovereign immunity to it. As to such activities the conclusion is justified that the park district is more than an arm of the state. Certainly a park district cannot be deemed ‘simply a division of the executive branch’ of the state, nor is it ‘dependent upon funds appropriated by the legislature.’ * * * Having entered into activities ordinarily reserved to the field of private enterprise, a park district should be held to the same responsibilities and liabilities as are private citizens. * * *” (Citations omitted.) — 206 — Subsequent to Schenkolewski, this court was presented with two cases that afforded the opportunity to reconsider the vitality of the governmental-proprietary distinction. In Haverlack v. Portage Homes, Inc., supra, the efficacy of this distinction was seriously questioned, the court repudiating the distinction by noting at page 29 that “ ‘it is impossible to reconcile all of the decisions of this court dealing with the subject of governmental and proprietary functions in relation to a municipality.’ ” Thereafter, in Enghauser Mfg. Co. v. Eriksson Engineering Ltd., supra, this court stated in paragraph one of the syllabus that “* * * municipal corporations [are] subject to suit for damages by individuals injured by the negligence or wrongful acts or omissions of their agents or-employees whether such agents and employees are engaged in proprietary or governmental functions.” (Emphasis added.) It is true that both Haverlack and Enghauser involved municipal corporations. This factor is not dispositive, however, for this court in Schenkolewski applied the governmental-proprietary distinction—a distinction which had previously been applied only to municipalities—to a subdivision of the state. In so doing, this court treated the park district as it did a municipality. Inasmuch as this court has repudiated the governmental-proprietary distinction with respect to municipalities, it necessarily follows that it repudiates it as to political subdivisions of the state as well. In the instant case, this court is also dealing with a political subdivision of the state—the county. The rationale for repudiating the governmental-proprietary distinction and for abrogating governmental immunity as to municipalities applies with equal force to counties.6 The justifications for allowing suit against a tortfeasor are as compelling whether that tortfeasor be a municipality or a county. Treating a county board of commissioners in the same fashion as a municipality is not uncommon. As Professor Reynolds observed in his treatise, Local Government Law (1982) 705-706, Section 197: “* * * ‘public quasi-corporations’ * * * such as counties, townships, and special function districts—are often technically regarded as arms of the state, their tort immunity might logically be governed by the same rules as apply to the state—and certainly the abolition of tort immunity as to the state will, if nothing to the contrary is provided, also terminate the immunity of these governments. But such governments are often, in reality, closer in nature to. municipalities than to the state; and court decisions and statutes abrogating municipal immunity commonly cover such quasi-corporations as counties and school districts.” (Citations omitted.) If this court were to hold that a county is immune from suit, a most in — 207 — congruous situation would result. A person injured by the negligence of a municipality, the state,7 a park district or a school board would be able to seek redress, but if that same individual were to be injured in the same fashion by the negligence of the county, suit would be precluded. It would indeed be invalid to treat counties and municipalities differently with respect to claims arising out of the exercise of the same function. This court’s holding today fills the gap in liability that heretofore existed between the state, municipalities and political subdivisions. By the same token, a county should not be subject to greater liability than a municipality. Applying the standard of liability for municipalities developed in Haverlack and in Enghauser to the instant case, this court holds that no tort action will lie against a county for those acts or omissions involving the exercise of an executive or planning function or involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. However, once the decision has been made to engage in a certain activity or function, a county will be held liable, the same as private corporations and persons, for the negligence of its employees and agents in the performance of their activities. Likewise, a county, as a municipality, will not be held liable for all harm that results from its activities; it is only to those harms which are torts that counties may now be held liable. Simply put, counties are, by this decision, subject to the same rules as private persons or corporations if a duty has been violated and a tort has been committed. Additionally, a county will not be subject to liability where a statute provides immunity. (Cf. Haverlack v. Portage Homes, Inc., supra; Dougherty v. Torrence [1982], 2 Ohio St. 3d 69; King v. Williams [1983], 5 Ohio St. 3d 137.) For the foregoing reasons, the judgment of the court of appeals is reversed. Judgment reversed. Celebrezze, C.J., Sweeney, C. Brown and J. P. Celebrezze, JJ., concur. Locher and Holmes, JJ., dissent. Footnotes [1] Schenkolewski v. Metroparks System (1981), 67 Ohio St. 2d 31 [21 O.O.3d 19]; Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St. 3d 194. [2] Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31; Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118; Dickerhoof v. Canton (1983), 6 Ohio St. 3d 128. [3] Carbone v. Overfield (1983), 6 Ohio St. 3d 212. [4] Mathis v. Cleveland Public Library (1984), 9 Ohio St. 3d 199. [5] Boggs v. State (1983), 8 Ohio St. 3d 15. [6] It is interesting to note that the leading English case establishing tort immunity for local governments—Russel v. Men of Devon (1788), 100 Eng. Rep. 359—and cited similarly by courts in this country, involved a county. [7] Suit against the state would properly be commenced in the Court of Claims pursuant to the Court of Claims Act. R.C. Chapter 2743.