Plaintiff was injured when horses
belonging to the defendant municipality escaped onto the public road and
collided with plaintiff’s automobile. The
trial court dismissed the lawsuit on the ground that the defendant, as a
municipality, had sovereign immunity from suit. In this opinion, the Court of Appeals agrees with that
decision and upholds the claim of sovereign immunity.
Amber Bundy and Nicholas Moore
appeal from the order of the Montgomery County Common Pleas Court which
dismissed their complaint against Five River Metroparks (hereinafter Five
The plaintiffs asserted in this
complaint that Moore was a passenger in an automobile driven by Bundy on August
20, 2001, when a group of horses and mules owned by Five Rivers ran onto State
Route 201. They alleged that one of the horses and one of the mules struck
Bundy's automobile causing both Moore and Bundy serious injury. The plaintiffs
alleged that Five Rivers negligently, willfully, wantonly, and recklessly
maintained its animals and failed to properly restrain and control its animals
permitting them to run at large on a public highway in violation of R.C. 951.02.
Five Rivers moved to dismiss the
plaintiffs' complaint alleging it failed to state a claim for which relief could
be granted. Five Rivers argued that the trial court should take judicial notice
that it is a "park district" established pursuant to R.C. 1545.01 and
as a matter of law it was immune from liability for the plaintiffs' claim.
The plaintiffs then amended their
complaint to include a third claim that R.C. Sections 2744.01 through 2744.10
are unconstitutional. They sought a declaratory judgment on this claim and
served the Attorney General of Ohio so she could be heard in defense of the
legislation. The Attorney General has not responded.
In granting the motion to
dismiss, the trial court found Five Rivers' argument persuasive that it was
immune from tort liability under R.C. 2744.02(A)(1) and that the exception to
immunity found at R.C. 2744.02(B)(5) was inapplicable. The court also rejected
the plaintiffs' claim that R.C. 2744.01 et seq. violated several provisions of
In their first assignment of
error, Bundy and Moore argue that the trial court erred in finding that the
exception to sovereign immunity contained in R.C. 2744.02(B)(5) did not apply in
The appellants concede for
purposes of this appeal that the actions alleged to have been exercised by Five
Rivers fall within the "governmental function" as defined by R.C.
2744.01(C)(2)(u). The appellants contend the exception to immunity found at R.C.
2744.02(B)(5) applies to the facts alleged in their complaint. That section
provides that a political subdivision is liable for injury, death, or loss to
person or property when liability is
expressly imposed upon the political subdivision by a section of the Revised
Code. Appellants contend that R.C. 951.02 expressly imposes liability in this
situation. That statute provides that no person who is the owner or keeper of
horses or mules shall permit them to run at large in the public road or highway.
Appellants note that R.C. 951.10 provides civil liability for all damages caused
by a violation of R.C. 951.02 and R.C. 951.99 provides that a violation of R.C.
951.02 is a misdemeanor of the fourth degree.
Appellants argue that the recent
case of Campbell v.. Burton
(2001), 92 Ohio St.3d 336,
2001‑Ohio‑206, is very instructive regarding the express
imposition of liability provided in R.C. 2744.02(B)(5). Appellants note that in
Campbell the Supreme Court held that a political subdivision could be held
liable for its failure to perform a duty expressly imposed by R.C. 2151.421 to
report known or suspected child abuse.
Appellants argue that their case
for liability is even stronger than the facts in Campbell because the legislature imposes both civil and criminal
liability for violation of R.C. 951.02.
In Campbell, Amber Campbell, an eighth grade student, filed an action
through her parents against the Superintendent of Fairborn City Schools, the
Board of Education of Fairborn City Schools, and a Fairborn school teacher for
failing to report Amber's report of sexual abuse to the school teacher.
The trial court in
Campbell granted summary judgment to the defendants on the grounds that they
were immune from liability pursuant to R.C. 2744.02(A)(1). This court affirmed
the trial court and the Ohio Supreme Court reversed our judgment. The Supreme
Court held that R.C. 2151.421 expressly imposed liability because R.C.
2151.421(A) "requires that certain
persons report known or suspected child abuse, to wit, school teachers, school
employees, and school authorities."
The appellants argue that Five
Rivers is not immune from liability because liability is expressly imposed upon them by virtue of their status as a
"person" as provided in R.C. 951.02. Appellants note that R.C. 1.59
provides that a "person" includes a corporation and R.C. 1545.07
provides that a park district board is a body corporate and political.
Five Rivers argues that R.C.
951.02 does not evince a clear intention to impose liability on governmental
entities. Five Rivers notes that the statute neither lists park districts nor
any particular agents of park districts, but is merely a general statute
applying to "all persons." Five Rivers argues that the General
Assembly's failure to include governmental entities or political subdivisions in
the definition of the word "person" leads to the one conclusion that
it did not intend to bring these entities within its application. Secondly, Five
Rivers argues that to constitute an exception to sovereign immunity a statute
must expressly include political subdivisions because statutes of general
application are insufficient. In its support of this argument, Five Rivers cites
the recent Sixth Circuit opinion of Howard
v. City of Beavercreek (6th Cir.2002), 276 F.2d 802, 808. In
Howard, the plaintiff sued Beavercreek for housing discrimination pursuant
to R.C. 4112.99. According to that statute, "whoever violates this chapter
is subject to a civil action for damages." The plaintiff argued that the
statute expressly imposed liability on political subdivisions because it applied
to "whoever." Howard, 276
F.2d at 807‑808. United States Magistrate Judge Michael Merz disagreed and
dismissed plaintiff's claims. The Sixth Circuit affirmed:
4112.99 makes no explicit reference to political subdivisions at all and
Howard fails to cite any Ohio case law interpreting this section as imposing
liability on a municipality. As Magistrate Merz correctly pointed out,
Howard's 'interpretation would essentially swallow up § 2744.02(B)(5) because
it would make municipalities liable for damages, despite the general immunity
sections, whenever any statute provides for liability, whether it mentions
municipalities or not."
sum, the district court correctly dismissed Howard's claims for damages based on
its determination that Beavercreek was entitled to immunity under Ohio Revised
Code § 2744.02(A)(1)." Id. at
808 (Emphasis added).
We find the Sixth Circuit's
reasoning in Howard to be persuasive
but we note that although Campbell was decided four months prior to
Howard, no mention of the Campbell
opinion was made in Howard.
Recently, the Fourth Appellate
District had the occasion to address the meaning of the express liability
exception to immunity found at R.C. 2744.02(B)(5). In Ratcliff v. Darby, Scioto App. Case No. 02‑CA‑2832,
2002‑ Ohio‑6626, the Scioto County Court of Appeals held that
the trial court properly granted summary judgment to the Scioto County
Commissioners and the Scioto County Sheriff in a suit alleging that Darby, a
common pleas bailiff and probation officer had menaced Ratcliff with a handgun.
The plaintiff alleged the
defendants were liable under a theory of respondeat superior, negligent
supervision, and for violation of Ratcliff's civil rights.
In a per curiam opinion, the
court noted the following:
however, that appellant had properly raised this issue in the trial court, we
nevertheless would not be inclined to reverse the trial court's judgment.
Admittedly, appellants make a strong argument for finding an exception to
liability in this case. The supreme court's analysis in Campbell could be
construed, in theory, to support finding political subdivisions liable for an
employee's violation of almost any criminal statute. We must agree, however,
with appellees that Campbell is a 'unique and narrow' decision and we will not
apply its holding any more broadly than the specific facts of that case.
Importantly, we note that the statute in Campbell was not a general criminal
provision, but rather dealt with a very specific duty conferred on certain
professionals to report to children's services agencies their knowledge or
suspicion of child abuse. 92 Ohio St.3d at
340‑341 citing R.C. 2151.421.
A person's failure to make such a report in that instance constitutes a fourth
degree misdemeanor. Id. The Ohio
Supreme Court noted that the Ohio General Assembly enacted the statute to
safeguard children from abuse and that, in many instances, 'only the state and
its political subdivisions can protect children from abuse.'
Id. citing Brodie v. Summit Cty.
Children Serv. Bd. (1990), 51 Ohio St.3d 112, 119, 554 N.E.2d 1301, 1308.
contrast, R.C. 2903.21 imposes a
general prohibition and criminal sanction on everyone. No single group of
individuals (e.g. teachers or school administrators) are specifically identified
for that duty. Moreover, while the state has a general interest to assure that
its citizens are safe from crime, we find no particularized interest in rooting
out the sort of evil at issue in R.C.
2151.421. In short, we find that R.C.
2151.421 and the Campbell decision that applies it in the context of
R.C. 2744.02(B)(5) distinguishable from the issues in this case."
We agree with the reasoning
employed by the Fourth District in
Ratcliff that importantly the statute imposing express liability in
Campbell was not a general statutory provision but rather dealt with a very
specific duty imposed on certain professionals, namely school personnel.
Accordingly, the trial court did not abuse its discretion or err as a matter of
law when it found the immunity exception in R.C. 2744.02(B)(5) did not apply to
Five River's conduct. The first assignment of error is overruled.
In their second assignment,
appellants contend the trial court abused its discretion in failing to declare
the Political Subdivision Tort Liability Act ("hereinafter PSTLA")
unconstitutional under the Ohio Constitution.
The appellants claim that PSTLA
violates the "Open Courts" provision of the Ohio Constitution, Section
16, Art. I. That provision provides:
courts shall be open, and every person, for an injury done him in his land,
goods, person, or reputation, shall have remedy by due course of law, and shall
have justice administered without denial or delay.
may be brought against the state, in such courts and in such manner, as may be
provided by law."
A regularly enacted statute of
Ohio is presumed to be constitutional and is therefore entitled to the benefit
of every presumption in favor of its constitutionality. State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 147, 128
N.E.2d 59, 63 (1955). To overcome this presumption, the challenger must
establish that a statute is "clearly unconstitutional beyond a reasonable
doubt." Id. State v. Gill, 63
Ohio St.3d 53, 55, 584 N.E.2d 1200, 1201 (1992) ("before a court may
declare the statute unconstitutional, it must appear beyond a reasonable doubt
that the legislation and constitutional provision are clearly incapable of
coexisting"). "This presumption, which can be overcome only in the
most extreme cases, works to protect the domain of the legislature from
encroachment by the judiciary."
Central Ohio Transit Authority v. Transport Workers Union Local 208, 37 Ohio
St.3d 56, 62, 524 N.E.2d 151, 156 (1988).
The Ohio Supreme Court has held
on two occasions that the second clause of Art. I, Sec. 16 grants the General
Assembly constitutional authority to pass legislation granting immunity to
political subdivisions. Fahnbulleh v.
Strahan, (1995), 73 Ohio St.3d 666, 669, 653 N.E.2d 1186, 1189;
Fabrey v. McDonald Village Police Dep't. (1994), 70 Ohio St.3d 351, 355, 639
N.E.2d 31, 34‑35. In Fahnbulleh, plaintiff sued, inter alia, the City of Columbus for
injuries he suffered when a fire truck struck his vehicle and he claimed that
R.C. 2744.02's grant of immunity to political subdivisions was invalid.
Fahnbulleh, 73 Ohio St.3d at 666, 653 N.E.2d at 1187. The Ohio Supreme Court
may well be argued that any grant of immunity necessarily impairs some
individual's right to seek redress in a court of law, and thus treats some
persons harshly. All too frequently, decision making requires difficult
balancing of competing interests and equities. The Ohio Constitution specifies that suits may be brought against the
state 'as provided by law.' This language can only mean that the legislature may
enact statutes to limit suits if it does so in a rational manner calculated to
advance a legitimate state interest." Id. at 669, 653 N.E.2d at 1189. (Emphasis added).
In Fabrey, the plaintiff, a police officer, was injured while rescuing
a prisoner from a fire he had ignited in his prison cell.
Fabrey, 70 Ohio St.3d at 351, 639 N.E.2d at 31. The plaintiff filed suit
against the McDonald Village Police Department to recover for his injuries.
Id. The trial court granted summary judgment in favor of the police
department and the court of appeals affirmed. On appeal, the Supreme Court again
rejected the challenge to political subdivision immunity under the Open Courts
argue that Section 16, Article I endows them with a fundamental right to sue a
political subdivision for damages for the negligence of its employees.
We do not agree. This court has held that the clause permitting suits to be
brought against the state is not self‑executing, and that the state of
Ohio is not subject to suits in tort without the consent of the General
Assembly. Even when this court abrogated the doctrine of sovereign immunity of
political subdivisions for acts of negligence, our holding applied only in the
absence of a statute providing immunity. In
Haverlack, we recognized that the doctrine of sovereign immunity was a
creature of common law, and thus an appropriate subject also for legislative
action. The General Assembly in enacting R.C. Chapter 2744 has used that power
to create a scheme for immunity and liability of political subdivisions. Because
the General Assembly has the power to define the contours of the state's
liability, within the constraints of equal protection and due process, the right
to sue the state is not fundamental. The immunity of the defendants in this case
is not such an infringement of a preexisting right. It is, rather, in accord
with a traditional common‑law principle.
hold, therefore, that R.C. 2744.02(B)(4) does not violate
Section 16, Article I of the Constitution of Ohio."
Id. at 354‑355, 639 N.E.2d at 34. (Emphasis added).
Appellants argue that the second
clause of the Open Courts Provision of the Ohio Constitution cannot provide the
basis of political subdivision immunity because the plain language of R.C.
2744.01 makes it clear that a political subdivision is not the
"state." Appellants note that R.C. 2744.01(F) provides:
'State' means the state of Ohio, including, but not limited to, the general
assembly, the supreme court, the offices of all elected state officers, and all
departments, board, offices, commissions, agencies, colleges and universities,
institutions, and other instrumentalities of the state of Ohio. 'State' does not
include political subdivisions."
Appellants also argue that in the
plurality opinion in Butler v. Jordan,
92 Ohio St.3d 354,
2001‑Ohio‑204, Justices Douglas, Sweeney and Pfeiffer observed
that the state consent clause of the Open Courts Provision applies only to the
"state" and not to "political subdivisions."
Id. at 372. Appellants also point out that Justice Douglas argued in
Butler that the Court of Claims Act effectively waived the immunity of
political subdivisions as well. Id. at
Appellants argue that the Ohio
Supreme Court has never squarely addressed the meaning of "state" in
Section 16, Art. I of the Ohio Constitution. Thus, appellants contend this court
is free to declare that the PSTLA is unconstitutional for the reasons espoused
by Justice Douglas, Sweeney and Pfeiffer. Appellee argues that we are duty bound
to follow Ohio Supreme Court precedent on this question.
Although the consent clause
refers only to the "state," the Supreme Court has consistently held
that a political subdivision is an "arm" of the state. Haverlack v. Portage Homes, Inc.(1982), 2 Ohio St.3d 26. A
municipal corporation has been characterized as being both a subdivision of the
state and also a corporate entity. Id.
at 29. In City of Wooster v. Arbenz
(1927), 116 Ohio St. 281, the Supreme Court held that whether or not a
municipality enjoys immunity depends upon the classification of the action taken
by the municipality‑‑either governmental or proprietary. Chief
Justice Marshall wrote on behalf of the court:
court is for the present committed to the doctrine that there is no liability on
the part of a municipality in actions for tort, if the function exercised by the
municipality at the time of the injury to the plaintiff was a governmental
function. The nonliability for governmental functions is placed upon the ground
that the state is sovereign, that the sovereign cannot be sued without its
consent, and the municipality is the mere agent of the state and therefore
cannot be sued unless the state gives its consent by legislation. Prior to 1912
the state of Ohio was entirely immune from judgments upon any ground, and
although the people at that time made provision by amendment to Section 16 of
the Bill of Rights, whereby suits might be brought against the state, the
provision was not self‑executing, and required legislation, which has
never been enacted.
court is equally committed to the doctrine that if the function being exercised
is proprietary and in pursuit of private and corporate duties, for the
particular benefit of the corporation and its inhabitants, as distinguished from
those things in which the whole state has an interest, the city is liable.
of all, let us ascertain the tests whereby these distinctions are made. In
performing those duties which are imposed upon the state as obligations of
sovereignty, such as protection from crime, or fires, or contagion, or
preserving the peace and health of citizens and protecting their property, it is
settled that the function is governmental, and if the municipality undertakes
the performance of those functions, whether voluntarily or by legislative
imposition, the municipality becomes an arm of sovereignty and a governmental
agency and is entitled to that immunity from liability which is enjoyed by the
state itself. If, on the other hand, there is no obligation on the part of the
municipality to perform them, but it does in fact do so for the comfort and
convenience of its citizens, for which the city is directly compensated by
levying assessments upon property, or where it is indirectly benefited by growth
and prosperity of the city and its inhabitants, and the city has an election
whether to do or omit to do those acts, the function is private and
proprietary." Id., at
Long ago, the Supreme Court held
that the statutes under which the Cleveland Park Board was established were
enacted under the broad legislative power conferred upon the General Assembly
and in the exercise of the state's general police power. McNabb v. Board of Park Commrs. of Metropolitan Park Dist. in Cleveland
(1923), 108 Ohio St. 497. Park districts are a political subdivision of the
State and perform governmental functions.
Village of Willoughby Hills v. Board of Park Commrs. of Cleveland Metropolitan
Park District (1929), 120 Ohio St. 464. The court in that case noted that
park districts are like counties and are thus mere instrumentalities of the
state, a means in the hands of the legislative power of the state to accomplish
its lawful purposes. Id. at 485. In Schaffer v. Board of Trustees of the Franklin County Veterans Memorial
(1960), 171 Ohio St. 228, the Supreme Court held that a board of trustees of a
veterans memorial appointed by the county commissioners is immune from suit
because counties are immune as agencies or instrumentalities of the state
clothed with the same sovereign immunity from suit. Id. at 231. As a political subdivision, a park district enjoys the
same immunity from suit as the state itself.
Kroger v. Board of Park Commissioners (1980), 17 O.O.3d 158. We are thus not
persuaded that political subdivisions are not included within the meaning of the
"state" in Section 16, Art. I of the Ohio Constitution.
Appellants argue that R.C.
Chapter 2744 violates their right to a jury trial as guaranteed by Section,
Article I of the Ohio Constitution. That section provides that the right to a
jury trial shall be inviolate. Appellants argue that since negligence actions
against political subdivisions were actionable prior to the adoption of the Ohio
Constitution in 1851, sovereign immunity may not be utilized as a device for
defeating their rights to a jury trial. In support of that argument, appellants
refer us to the dissenting opinion of Justice Douglas in Gladon v. Regional Transit Auth. (1996), 75 Ohio St.3d 312, at
The Fourth District in
Ratcliff, supra, also addressed a challenge that PSLTA violates the right to
a jury trial provisions of the Ohio Constitution. That court noted in its
5, Article I, Ohio Constitution, guarantees that the right of trial by jury
'shall be inviolate.' This provision does not guarantee a jury trial in all
cases, Belding v. State, ex rel. Heifner
(1929), 121 Ohio St. 393, 396, 8 Ohio Law Abs. 28, 169 N.E. 301;
Keller v. Stark Elec. Ry. Co. (1921), 102 Ohio St. 114, 116, 130 N.E. 508,
18 Ohio L. Rep. 535. Rather, jury trials are guaranteed in those cases in which
the right existed at the time the Constitution was adopted.
Belding, 121 Ohio St. at 393, paragraph one of the syllabus; Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 421, 633 N.E.2d 504;
Mason v. State ex rel. McCoy (1898), 58 Ohio St. 30, 55, 50 N.E. 6. We
acknowledge, as appellants argue in their brief, that several justices of the
Ohio Supreme Court have opined in dicta that political subdivision immunity
under R.C. Chapter 2744 is an unconstitutional infringement on the right to a
jury trial. See Butler v. Jordan
(2001), 92 Ohio St.3d 354, 372, 750 N.E.2d 554 (Douglas J., with Sweeney &
Pfeiffer, JJ. concurring in opinion) n8; Ryll, supra, 95 Ohio St.3d at ¶ 45
(Douglas with Sweeney, J. Concurring in opinion). However, those views do not
yet command a majority on the Ohio Supreme Court. Until they do, we will not
strike down that legislation as unconstitutional. Accordingly, based upon the
foregoing reasons we overrule appellants' third assignment of error.
note that in Butler Justice Douglas cites two reasons for his conclusion that
the right to a jury trial exists in political subdivision liability cases and
should be held inviolate. First, he cites five nineteenth century Ohio Supreme
Court cases which 'recognized the right to recover against political
subdivisions (municipal corporations) of the state for injuries inflicted on
private individuals.' 92 Ohio St.3d at 372. Those cases include
Goodloe v. Cincinnati (1831), 4 Ohio 500,
Smith v. Cincinnati (1831), 4 Ohio 514;
Rhodes v. Cleveland (1840), 10 Ohio 159;
McCombs v. Town Council of Akron (1846), 15 Ohio 474; and
Town Council of Akron v. McComb (1849), 18 Ohio 229. However, even the
earliest of these five cases (Goodloe) was decided in 1831, which is
twenty‑nine years after our first state constitution was adopted, and
provides no discussion as to the state of the law either at time of statehood or
during the period when the Ohio territory was governed by the Northwest
Ordinance. (The right to jury trial in Section 5, Article I, was set out in
Section 8, Article VIII of the 1802 Constitution). Thus, we question whether
these cases make a compelling argument for that position. The second reason
cited for holding the right to a jury trial inviolate in municipal liability
cases is that the action is based on negligence and 'negligence actions
evolved from the common‑law action of trespass on the case, and there
is no question that the right to trial by jury existed in such actions at the
time the Ohio Constitution was adopted.' (Emphasis added.) 92 Ohio St.3d at 372.
'Evolved' is the key qualifier here. While this sort of action may have evolved
from an old common‑law action, as did many of the legal proceedings with
which we are familiar today, a question arises as to whether that necessarily
means that the action existed at the time the 1802 Constitution was adopted. See
Mason v. McCoy (1898), 58 Ohio St. 30, 55, 50 N.E. 6."
Id., at n. 9.
Five Rivers concedes that if
sovereign immunity did not protect it, appellants would be entitled to a jury
trial under the constitutional provision asserted. Five Rivers argues that a
legislature's abolition of a claim does not however implicate a right to a jury
trial. Mountain Timber Co. v. Washington,
243 U .S. 219, 235 (1917) ("We find nothing in the act that excludes a
trial by jury ... the act abolishes all right of recovery in ordinary cases, and
therefore leaves nothing to be tried by the jury .)" In
Mountain Timber, the United States Supreme Court, in interpreting the
proscription of the Seventh Amendment of the Federal Constitution (preserving
the right to trial by jury in language similar to Ohio's Constitution)
considered challenges made under the Seventh Amendment to the enactment of a
workmen's compensation law abrogating an employee's right at common law to
recover in negligence from his employer. See also,
Winkle v. City of Toledo (July 254, 1998), Lucas App. L‑97‑1335.
In overruling a similar assignment, Judge Knepper in
Winkle noted that "as to appellant's claim that R.C. 2744.02 and
2744.03 violate his right to a trial by jury, appellant has failed to support
his claim that the Ohio Constitution guarantees a trial by jury even in a case
where it has been held that he has no cause of action."
Appellants argue that PSTLA
violates the equal protection and due process provisions of the Ohio and United
States Constitutions. The Supreme Court has held that R.C. 2744.02(B)(4) does
not violate the guarantees of equal protection of the Ohio and United States
Constitutions. Fabrey v. McDonald Police
Department, supra, at syllabus 1. The Court also upheld the Act against a
challenge it violated the due process provisions of these constitutions.
Fabrey, supra, at syllabus 2. The United States Supreme Court has further
elaborated that the Constitution does not forbid the creation of new rights, or
the abolition of old ones recognized by the common law, to attain a permissible
legislative object. Silver v. Silver
(1929), 280 U.S. 117, 122, 50 S.Ct. 57. Rights of property created by the common
law which have vested cannot be taken away without due process. But the law
itself being but a rule of conduct may be changed at the will of the
legislature. The only limitation to prevent such a change would be a
constitutional limitation. Munn v.
Illinois (1876), 94 U.S. 113, 134. The appellants' right to sue in
negligence did not vest before the enactment of PSTLA. They have no
constitutional right to require a particular form of action remain in force to
anticipate their future injury.
In conclusion, we find the trial
court did not abuse its discretion in refusing to find PSTLA unconstitutional
for the reasons asserted by the appellants. This assignment of error is likewise
The judgment of the trial court
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