The opinion
[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 359.]
LADRIGAN ET AL., APPELLANTS, v. CLERMONT COUNTY, OHIO SEWER AND
WATER COMPANY, D.B.A. CLERMONT COUNTY WATERWORKS, APPELLEE.
[Cite as Ladrigan v. Clermont Cty., Ohio Sewer & Water Co., 1998-Ohio-620.]
Torts—Political subdivision liable in damages for injury, death, or loss to persons
or property caused by an act of any of its employees in connection with the
performance of a proprietary function—Establishment, maintenance, and
operation of a municipal water supply system are proprietary functions.
(No. 97-289—Submitted February 3, 1998—Decided April 8, 1998.)
APPEAL from the Court of Appeals for Clermont County, No. CA96-03-035.
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W. Kenneth Zuk, for appellants.
Donald W. White, Clermont County Prosecuting Attorney, and Mary Lynne
Birck, Assistant Prosecuting Attorney, for appellee.
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{¶ 1} The judgment of the court of appeals is reversed, and the cause is
remanded on the authority of Hill v. Urbana (1997), 79 Ohio St.3d 130, 679 N.E.2d
1109. See, also, Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio
St.3d 31, 6 OBR 53, 451 N.E.2d 228; Winwood v. Dayton (1988), 37 Ohio St.3d
282, 525 N.E.2d 808; and Bolding v. Dublin Local School Dist. (June 15, 1995),
Franklin App. No. 94APE09-1307, unreported, 1995 WL 360227.
DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
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SUPREME COURT OF OHIO
COOK, J., dissenting.
{¶ 2} Because this case centers on an issue that was not even discussed let
alone decided by the majority of this court in Hill v. Urbana (1997), 79 Ohio St.3d
130, 679 N.E.2d 1109, I must respectfully dissent.
{¶ 3} This case involves application of a political subdivision’s sovereign
immunity defense under R.C. 2744.03(A)(5). Hill, on the other hand, did not
involve any of the defenses available to political subdivisions under R.C.
2744.03(A); it simply held that a municipality’s installation of water lines
constituted a proprietary function under R.C. 2744.01(G)(2)(c), which brought the
action within R.C. 2744.02(B)(2)’s exception to political subdivision immunity.
{¶ 4} Like this court in Hill, the court of appeals below concluded that “R.C.
2744.01(G)(2)(c) clearly defines ‘[t]he establishment, maintenance, and operation
of a * * * municipal corporation water supply system’ as a proprietary function.
Thus, the proprietary exception to the general grant of immunity set forth in R.C.
2744.02(B)(2) applies to the case at bar.” The court then diverged from the Hill
issues to hold that summary judgment had appropriately been granted under R.C.
2744.03(A)(5). Specifically, the court concluded that “the affidavits attached by
appellee to its motion for summary judgment show that the maintenance of water
meters, including whether a water meter lid needs to be replaced or repaired,
involves the exercise of judgment or discretion set forth in R.C. 2744.03(A)(5).”
{¶ 5} A reading of R.C. Chapter 2744 illustrates that R.C. 2744.02(A)
provides a broad grant of tort immunity to political subdivisions, R.C. 2744.02(B)
provides exceptions to that immunity, and R.C. 2744.03(A) provides defenses to
political subdivisions where an exception to immunity applies. In this case, unlike
Hill, it is the applicability of the R.C. 2744.03(A)(5) defense and not the R.C.
2744.02(B)(2) exclusion that is at issue.
{¶ 6} Moreover, the majority’s citations to Enghauser Mfg. Co. v. Eriksson
Engineering Ltd. (1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228, Winwood v.
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January Term, 1998
Dayton (1988), 37 Ohio St.3d 282, 525 N.E.2d 808, and Bolding v. Dublin Local
School Dist. (June 15, 1995), Franklin App. No. 94APE09-1307, unreported, 1995
WL 360227 do not save its disposition of this case. Neither Supreme Court opinion
analyzes R.C. 2744.03(A)(5). While those opinions, along with Bolding, may be
considered as persuasive authority in determining what should constitute the
exercise of judgment or discretion within the meaning of R.C. 2744.03(A)(5), and
thus prove helpful to a resolution of this case, they do nothing to explain why Hill
should be considered controlling.
{¶ 7} By reversing this case on the authority of Hill, the majority seemingly
refuses to acknowledge that the R.C. 2744.05(A)(5) defense is even potentially
available to Clermont County. This disposition appears to signal that R.C.
2744.03(A)(5) may never serve as a defense to injury resulting from a proprietary
act. With all due deference to my colleagues, that simply cannot be what they
intend.
{¶ 8} Having accepted jurisdiction to review this case, we should decide it
through analysis of the appropriate legal authority. The majority’s failure to do so
is unfortunate.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
dissenting opinion.
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