Zagorski v. South Euclid-Lyndhurst City School District Board of Education

Per Curiam. The issue presented in this case is whether this court’s holding in Carbone v. Overfield, supra, that the defense of sovereign immunity is no longer available to insulate a board of education from tort liability, is to be applied prospectively only. For the reasons that follow, this court affirms the decision of the court of appeals and holds that Car-bone is not to be limited to prospective application only. In Carbone, at 213-214, this court established the following rule of law: “* * * [B]oards of education are now liable for tortious acts in the same manner as private individuals. <<* * * “* * * [T]he defense of sovereign immunity is not available to a board of education in an action seeking damages for injuries allegedly caused by the negligence of the board’s employees.” Appellant asserts that to permit retroactive application of this holding in Carbone would offend traditional principles of equity and justice, noting in particular that prior to August 10, 1983, school boards were statutorily prohibited from purchasing liability insurance to protect themselves as corporate entities. This court does not find appellant’s argument to be well-taken. First, the injury in Carbone occurred on March 26, 1979. The insurance arguments raised by appellant were also raised by the board of education2 [12] in Carbone. (See appellee’s brief in Carbone at pages 9, 10; appellant’s reply brief in Carbone at page 1; dissenting opinion in Carbone at pages 214, 215.) The majority of this court was unpersuaded by the insurance argument when deciding Carbone, and inasmuch as appellant has failed to raise any new arguments in this regard, this court sees no reason to deviate from its holding in Carbone. It should be stressed that while the availability of insurance has been noted in those cases where this court has abolished sovereign immunity, this factor has never been found to be the sole or overriding justification for the abolition of sovereign immunity. Moreover, there is no language whatsoever in Carbone to suggest that its holding was to be given prospective effect only. Indeed, it was the express intention of this court not to so limit this holding. The Carbone decision in this regard was consistent with a line of cases wherein this court rejected prospective-only application of the abrogation of the doctrine of sovereign immunity over strongly worded arguments of various counsel and vigorous dissent in this court. See, e.g., Dickerhoof v. Canton (1983), 6 Ohio St. 3d 128; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31; Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118; Carbone, supra. In so concluding, we note the case of Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209 [57 O.O. 411], wherein this court addressed the prospective-retroactive application of judicial decisions, at 210, as follows: “* * * The equal protection clause of the federal Constitution does not assure uniformity of judicial decisions. The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law. The one general exception to this rule is where contractual rights have arisen or vested rights have been acquired under the prior decision.” The court of appeals found, and the parties herein do not contest, that the abrogation of the doctrine of sovereign immunity does not fall within the one general exception to this rule, i.e., where contractual or vested rights have been acquired under the prior decision. Hence, the rule of retroactivity applies. For the foregoing reasons, the judgment of the court of appeals is affirmed. Judgment affirmed. Celebrezze, C.J., W. Brown, Sweeney, C. Brown and J. P. Celebrezze, JJ., concur. Locher and Holmes, JJ., dissent. Footnotes [2] The South Euclid-Lyndhurst City School District Board of Education was a named defendant in the Carbone case as well.