Gladon v. Greater Cleveland Regional Transit Auth.

[This opinion has been published in Ohio Official Reports at 75 Ohio St.3d 312.]

GLADON, APPELLEE AND CROSS-APPELLANT, v. GREATER CLEVELAND

REGIONAL TRANSIT AUTHORITY, APPELLANT AND CROSS-APPELLEE.

[Cite as Gladon v. Greater Cleveland Regional Transit Auth.,

1996-Ohio-137.]

Torts—Negligence—Passenger injured at rapid transit station—Duty of care

owed passenger—Where entrant upon another’s land exceeds scope of

landowner’s invitation, entrant loses status of an invitee and becomes

either a licensee or trespasser.

(No. 94-1063—Submitted September 13, 1995 and December 13, 1995—Decided

March 6, 1996.)

APPEAL and CROSS-APPEAL from the Court of Appeals for Cuyahoga County, No.

64029.

__________________

{¶ 1} Greater Cleveland Regional Transit Authority (“RTA”) appeals from

a jury verdict awarding Robert M. Gladon $2,736,915.35 in damages arising from

RTA’s operation of a rapid transit train.

{¶ 2} Gladon purchased a passenger ticket and boarded an RTA rapid transit

train at Terminal Tower after attending a Cleveland Indians’ night game with

friends. During the baseball game, Gladon consumed about five 16-ounce beers.

He left his friends at the stadium in search of a restroom, and ended up traveling

alone on the RTA trains. Because there were no witnesses, the jury only heard

Gladon’s account of events. According to Gladon, he mistakenly exited the train at

the West 65th Street Station and, once on the platform, was chased and attacked by

two unknown males. Gladon testified that he remembered being “rolled up in a

ball” on the tracks but he could not recall if he had jumped onto the tracks or had

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been pushed onto the tracks. While there, however, he did recall being kicked in

the head.

{¶ 3} While Gladon lay on the tracks with his legs draped over the rail, an

RTA rapid train approached the West 65th Street Station. Mary Bell, the train’s

operator, had the train in braking mode when she observed first a tennis shoe and

then Gladon’s leg on the tracks. The operator pulled the cinestar, or control handle,

back and hit the “mushroom,” or emergency brake. Unfortunately, the train struck

Gladon causing him serious and permanent injuries.

{¶ 4} Gladon sued RTA and the operator alleging negligence in the security

of RTA’s premises and in the operation of the train. Specifically, Gladon alleged

that the operator was negligent by failing to bring the train to a stop “after the point

she perceived or should have perceived the Plaintiff’s peril prior to her striking the

Plaintiff.” The trial court granted RTA summary judgment as to the negligent

security claim and the case proceeded to trial on the negligent operation claim.

{¶ 5} The trial court overruled RTA’s motion for a directed verdict at the

close of Gladon’s case-in-chief. The court instructed the jury that “as a matter of

law that the only evidence produced by either side indicates that the plaintiff was

an invitee.” The court further informed the jury that “the driver of a rapid transit

car with the right of way must use ordinary care. Therefore, to avoid colliding with

a person found on the tracks, the defendant is required to use ordinary care to

discover and to avoid danger.” The jury returned a verdict for Gladon and overruled

RTA’s motion for judgment notwithstanding the verdict. The court of appeals

affirmed.

{¶ 6} This cause is now before this court upon the allowance of a

discretionary appeal and cross-appeal.

__________________

Donald E. Caravona & Associates, Donald E. Caravona and Michael W.

Czack, for appellee and cross-appellant.

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Ulmer & Berne, F. Thomas Vickers and James A. Vollins, for appellant and

cross-appellee.

Wanda Rembert Arnold and Inajo T. Davis, urging reversal for amicus

curiae, Cleveland Board of Education.

John E. Gotherman and Malcolm C. Douglas, urging reversal for amici

curiae, Ohio Municipal League, Ohio Municipal Attorneys Association and Ohio

Municipal Joint Self-Insurance Pool.

R. Todd Hunt, urging reversal for amicus curiae, Ohio Township

Association and Cuyahoga County Law Directors Association.

Malcolm C. Douglas; Ronald J. O’Brien, Columbus City Attorney, Sharon

Sobol Jordan, Cleveland Director of Law, Faye D. Dupuis, Cincinnati City

Solicitor, John H. Mattimoe, Toledo Director of Law, and Mark S. Schmollinger,

Toledo General Counsel, J. Anthony Sawyer, Dayton Director of Law, and Michael

E. Murman, Lakewood Director of Law, urging reversal for amici curiae, cities of

Columbus, Cleveland, Cincinnati, Toledo, Dayton, and Lakewood, Ohio.

Maribeth Deavers and D. Allen Asbury, urging reversal for amicus curiae,

Central Ohio Transit Authority.

Rosplock, Curlson, Perez, Deeb & Ezzone and Donald J. Ezzone, urging

reversal for amicus curiae, Laketran Regional Transit Authority.

Kitchen Deery & Barnhouse, Vincent A. Feudo, Eugene B. Meador and

William F. Schmitz, urging reversal for amicus curiae, Ohio Risk Management

Association.

Means, Bichimer, Burkholder & Baker Co., L.P.A., and Kimball H. Carey,

urging reversal for amicus curiae, Ohio School Boards Association.

Peck, Shaffer & Williams and Thomas A. Luebbers, urging reversal for

amicus curiae, County Commissioners Association of Ohio.

Mark W. Ruf, urging affirmance for amicus curiae, Ohio Academy of Trial

Lawyers.

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__________________

COOK, J.

{¶ 7} Because we find another issue dispositive of this appeal, we fail to

reach the substantial constitutional question regarding R.C. 2744.05(C) that we

otherwise would have reached.1 We determine that the trial court erred in

instructing the jury about plaintiff’s legal status and RTA’s corresponding duty.

The trial court instructed the jury “as a matter of law that *** the plaintiff was an

invitee,” and that as a result RTA was “required to use ordinary care to discover

and to avoid danger.” The trial court did not give the instruction that prior to

discovering Gladon, RTA was obliged to refrain from willful and wanton conduct

which was likely to injure Gladon. Given the evidence presented in the trial of this

case, the erroneous instruction was prejudicial. Accordingly, we reverse the

judgment of the trial court and remand the cause for a new trial.

I.

DUTY CLASSIFICATIONS

{¶ 8} Ohio adheres to the common-law classifications of invitee, licensee,

and trespasser in cases of premises liability. Shump v. First Continental-Robinwood

Assoc. (1994), 71 Ohio St.3d 414, 417, 644 N.E.2d 291, 294; Boydston v. Norfolk

S. Corp. (1991), 73 Ohio App.3d 727, 733, 598 N.E.2d 171, 175. Although there

was a movement in many jurisdictions in the 1970s to abolish these traditional duty

classification schemes, it quite abruptly lost its steam late in that decade. Prosser &

Keaton, Law of Torts (5 Ed.1984) 433, Section 62. Prosser hypothesizes that the

1. Although the parties and amici extensively briefed the issues surrounding the constitutionality of

R.C. 2744.05(C) at the request of this court, our decision to remand this cause for a new trial

precludes a determination of that issue. At the new trial, the jury may not find that the RTA breached

its duty to Gladon or the jury may award Gladon less than $250,000 for pain and suffering.

Consequently, any opinion we would render on the issue of the constitutionality of a cap on an

award for pain and suffering before a jury verdict has been rendered would be advisory in nature.

It is well settled that this court will not indulge in advisory opinions. Egan v. Natl. Distillers &

Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 904, syllabus.

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retreat may reflect a “fundamental dissatisfaction with certain developments in

accident law that accelerated during the 1960s---the reduction of whole systems of

legal principles to a single, perhaps simplistic, standard of reasonable care, the

sometimes blind subordination of other legitimate social objectives to the goals of

accident prevention and compensation, and the commensurate shifting of the

decisional balance of power to the jury from the judge. At least it appears that the

courts are gaining a renewed appreciation for the considerations behind the

traditional duty limitations toward trespassing adults, and that they are acquiring

more generally a healthy skepticism toward invitations to jettison years of

developed jurisprudence in favor of a beguiling legal panacea.” Id. at 433-434.

{¶ 9} In Ohio, the status of the person who enters upon the land of another

(i.e., trespasser, licensee, or invitee) continues to define the scope of the legal duty

that the landowner owes the entrant. Shump, 71 Ohio St. at 417, 644 N.E.2d at 294.

Invitees are persons who rightfully come upon the premises of another by

invitation, express or implied, for some purpose which is beneficial to the owner.

Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 167, 502 N.E.2d

611, 613; Scheibel v. Lipton (1951), 156 Ohio St. 308, 46 O.O. 177, 102 N.E.2d

453, paragraph one of the syllabus.

{¶ 10} The status of an invitee is not absolute but is limited by the

landowner’s invitation. “*** The visitor has the status of an invitee only while he

is on part of the land to which his invitation extends—or in other words, the part of

the land upon which the possessor gives him reason to believe that his presence is

desired for the purpose for which he has come * * * If the invitee goes outside of

the area of his invitation, he becomes a trespasser or a licensee, depending upon

whether he goes there without the consent of the possessor, or with such consent.”

2 Restatement of the Law 2d, Torts (1965) 181-182, Section 332, Comment l.

{¶ 11} In the present case, Gladon was an invitee when he purchased an

RTA ticket, rode the rapid transit train and waited at RTA’s platform. However,

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RTA’s invitation to Gladon to use their premises did not extend to the area on or

near the tracks. In fact, Gladon acknowledged that RTA did not permit the public

in the area on or near the tracks.

{¶ 12} Although the result seems harsh, the common law on this subject is

well grounded and we are not inclined to reject it. Accordingly, we hold that where

an entrant upon another’s land exceeds the scope of the landowner’s invitation, the

entrant will lose the status of an invitee, and become either a licensee or trespasser.

See Clary v. McDonald (1963), 120 Ohio App. 8, 11, 28 O.O.2d 169, 171, 200

N.E.2d 805, 808; Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio App.3d 6, 9, 526

N.E.2d 74, 78. See, also, Restatement of Torts 2d, supra Section 332, Comment l.

{¶ 13} Gladon contends that he retained his invitee status because there was

no evidence that he “intentionally or purposely entered upon the track area.”

{¶ 14} According to the Restatement, “so far as the liability of the possessor

of the land to the intruder is concerned, however, the possessor’s duty, and liability,

will be the same regardless of the manner of entry, so long as the entry itself is not

privileged.” Restatement of Torts 2d, 171-172, supra, Section 329, Comment c.

{¶ 15} In determining whether the person is a trespasser within the meaning

of this section, the question whether his entry has been intentional, negligent or

purely accidental is not material, except as it may bear on the existence of a

privilege. Id. at 171. Without the consent or privilege to enter the area of the tracks,

the law views such entry from the aspect of the landowner whose duties to the

entrant flow from the parameters of his permission to be there. As a result, “the

determining fact is the presence or absence of a privilege to enter or to remain on

the land, and the status of an accidental trespasser is still that of a trespasser.” Id. at

172.

{¶ 16} The illustration employed by the Restatement to explain the duties

owed to a trespasser is remarkably similar to Gladon’s situation. “Without any

negligence on his part A, standing on the platform of a subway station of the X

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Company, slips and falls onto the tracks. While there he is run over by the train of

X Company, and injured. A is a trespasser, and the liability to him is determined

by the rules stated in sections 333 and 336, notwithstanding the accidental character

of his intrusion.” Id. at 171, Illustration 1.2

{¶ 17} Furthermore, whether Gladon was privileged to enter the tracks is

immaterial. A person privileged to enter the land is owed the same duties as a

licensee. Restatement of Torts, supra, at Section 345. Because the duties owed to

a licensee and trespasser are the same, whether Gladon was privileged to enter the

land does not change the standard of care RTA owed to him. Sole v. Ohio Edison

Co. (1945), 144 Ohio St. 373, 29 O.O. 559, 59 N.E.2d 138, paragraph one of the

syllabus.

{¶ 18} Even though his entry may have been unintentional and against

Gladon’s wishes, once on the tracks, Gladon exceeded the scope of his invitation

and lost his status as an invitee. Because Gladon then became either a licensee or

a trespasser for purposes of determining the duty RTA owed to him, the trial court

erred in instructing the jury that he was an invitee as a matter of law.

{¶ 19} We now turn to the duty owed to Gladon by RTA as a result of

Gladon’s change in status from invitee to either licensee or trespasser. A landowner

owes a duty to an invitee to exercise ordinary care for the invitee’s safety and

2. Section 333 states generally that “a possessor of land is not liable to trespassers for physical harm

caused by his failure to exercise reasonable care (a) to put the land in a condition reasonably safe

for their reception, or (b) to carry on his activities so as not to endanger them.” Restatement of Law

2d, Torts (1965) 183, Section 333. Section 336 generally prescribes the duty of ordinary care from

a possessor of land who knows or has reason to know of the presence of another who is trespassing

on the land. Restatement of the Law 2d, supra, at Section 336. Again, the example cited by the

Restatement for this duty is identical to the situation when the train driver saw Gladon and his shoe

on the tracks. “The engineer of the X &Y Railroad Company sees lying upon the track a pile of

clothing such as would give a reasonable man cause to suspect that it might contain a human being.

Under these circumstances the engineer is not entitled to assume that it is not a human being but is

required to keep the engine under control until he is certain that it is not.” Id. at 191-192, Comment

b, Illustration 1.

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protection. Light, 28 Ohio St.3d at 68, 28 OBR at 167, 502 N.E.2d at 613.

Conversely, a landowner owes no duty to a licensee or trespasser except to refrain

from willful, wanton or reckless conduct which is likely to injure him. Sole v. Ohio

Edison Co. (1945), 144 Ohio St. 373, 29 O.O. 559, 59 N.E.2d 138, paragraph one

of the syllabus. See, also, Provencher v. Ohio Dept. of Transp. (1990), 49 Ohio

St.3d 265, 266, 551 N.E.2d 1257, 1258; McKinney v. Hartz & Restle Realtors, Inc.

(1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 450-451, 510 N.E.2d 386, 388;

Brooks v. Norfolk & W. Ry. Co. (1976), 45 Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d

392, paragraph one of the syllabus (“Where the status of a plaintiff is that of a

trespasser on a railroad right-of-way at the time certain injuries were sustained by

him, recovery can only be had against the railroad if the record demonstrates

wanton misconduct on its part in connection with the accident.”). Furthermore, a

railroad owes no duty to anticipate or prevent the presence of licensees or

trespassers. McKinney, 31 Ohio St.3d at 246-247, 31 OBR at 451, 510 N.E.2d at

389; Brooks, 45 Ohio St.2d at 38, 74 O.O.2d at 451, 340 N.E.2d at 394; Cleveland,

A. & C. Ry. Co. v. Workman (1902), 66 Ohio St. 509, 540, 64 N.E. 582, 587 (A

railroad owed a licensee no duty of “active vigilance to especially look out for and

protect him.”); see Mima v. Akron (1986), 31 Ohio App.3d 124, 126, 31 OBR 211,

213, 508 N.E.2d 974, 976.

{¶ 20} When a trespasser or licensee is discovered in a position of peril, a

landowner is required to use ordinary care to avoid injuring him. Cole v. New York

Central RR. Co. (1948), 150 Ohio St. 175, 185, 37 O.O. 459, 463, 80 N.E.2d 854,

860; Cleveland C., C. & St. L. Ry. Co. v. Potter (1925), 113 Ohio St. 591, 600-601,

150 N.E. 44, 47. The duty to exercise ordinary care arises after the landowner

“knows, or from facts within his knowledge should know or believe,” that a

trespasser or licensee is on the land. Restatement of Torts, supra, at Section 336,

Comment d.

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{¶ 21} Having instructed the jury as a matter of law that Gladon was an

invitee, the trial court assigned RTA a duty of ordinary care “to discover and to

avoid danger.” These instructions erred in two respects. First, the instructions

imposed upon RTA a duty to use ordinary care to discover Gladon’s presence. To

the contrary, RTA was under no duty to anticipate trespassers and could only be

liable for injuries resulting from willful or wanton conduct. Second, the instructions

imposed upon RTA a duty to use ordinary care to avoid injuring Gladon prior to

the operator’s discovery of him. Rather, RTA’s duty to use ordinary care to avoid

injuring Gladon did not arise until RTA knew or should have known that Gladon

was on the tracks. Whether the operator knew or should have known a person was

on the tracks upon observing the tennis shoe remains a question for the jury.

{¶ 22} Given that the instructions were erroneous and prejudicial, we

reverse the judgment of the court of appeals and remand this cause for a new trial.

II

MOTIONS FOR DIRECTED VERDICT / JNOV

{¶ 23} Having determined that the duty of care owed to Gladon changed

with his status, we now examine the issue of whether the trial court should have

granted RTA a directed verdict or judgment notwithstanding the verdict. RTA

contends the evidence produced at trial failed to prove that their operator breached

the duty of care owed to Gladon.

{¶ 24} “The test to be applied by a trial court in ruling on a motion for

judgment notwithstanding the verdict is the same test to be applied on a motion for

a directed verdict. The evidence adduced at trial and the facts established by

admissions in the pleadings and in the record must be construed most strongly in

favor of the party against whom the motion is made, and, where there is substantial

evidence to support his side of the case, upon which reasonable minds may reach

different conclusions, the motion must be denied. Neither the weight of the

evidence nor the credibility of the witnesses is for the court's determination in ruling

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upon either of the above motions.” Posin v. A. B. C. Motor Court Hotel, Inc. (1976),

45 Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338, citing McNees

v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 40 O.O. 318, 89 N.E.2d 138;

Ayers v. Woodard (1957), 166 Ohio St. 138, 1 O.O.2d 377, 140 N.E.2d 401; Civ.R.

50(A) and (B).

A

Application of the Willful and Wanton Standard

{¶ 25} RTA owed Gladon no duty except to avoid injuring him by willful

or wanton conduct prior to discovering Gladon on the tracks. See McKinney, 31

Ohio St.3d at 246, 31 OBR at 450-451, 510 N.E.2d at 388. Willful conduct

“‘involves an intent, purpose or design to injure.’” Id. at 246, 31 OBR at 451, 510

N.E.2d at 388-389, quoting Denzer v. Terpstra (1934), 129 Ohio St. 1, 1 O.O. 303,

193 N.E. 647, paragraph two of the syllabus. Wanton conduct involves the failure

to exercise “‘any care whatsoever toward those to whom he owes a duty of care,

and his failure occurs under the circumstances in which there is great probability

that harm will result.’” Id. at 246, 31 OBR at 451, 510 N.E.2d at 389, quoting

Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus.

{¶ 26} At trial, Gladon produced evidence that the tracks were wet when

the operator traveled eastbound toward the West 65th Street platform. The

testimony of the operator indicates that she had the train in braking mode as she

traveled through a dark area near the platform with her high beams on at an

estimated 20 m.p.h. Generally, the speed limit in that area is 25 m.p.h., but when a

train is going to pass rather than stop at a platform, the permitted speed is 5 m.p.h.

{¶ 27} Gladon also presented RTA regulations which require operators to

operate the trains on sight, within the range of vision, at all times, and to anticipate

changes in the range of vision. According to the RTA operator, operators

“constantly run” their trains under “line of sight,” or at a speed which will permit

stopping within one-half of the range of vision or within one-half of the distance to

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an opposing object. Gladon offered evidence that when tracks are wet, an operator

must adjust the train’s speed in light of the weather conditions on the track.

{¶ 28} In McKinney v. Hartz & Restle Realtors, Inc., we determined that a

railroad company was entitled to a directed verdict in the absence of any evidence

of speeding or other wanton misconduct. 31 Ohio St.3d at 247, 31 OBR at 451, 510

N.E.2d at 389. Our precedent has impliedly held that speeding may be evidence of

wanton misconduct. Id.; see, generally, Brooks, 45 Ohio St.3d at 37, 340 N.E.2d at

394.

{¶ 29} Viewing these facts in the light most favorable to Gladon, we find

that in this trial reasonable minds could have reached different conclusions

regarding whether the speed of the train at the time the operator approached the

West 65th platform meets the wanton standard in light of the operator’s duty to

adjust the train’s speed to her range of vision and to the known track conditions.

Therefore, the trial court did not err in overruling RTA’s motions for a directed

verdict or judgment notwithstanding the verdict.

B

Application of the Ordinary Care Standard

{¶ 30} RTA owed Gladon a duty to use reasonable care to avoid injuring

Gladon after the operator discovered Gladon on the tracks. Cole, 150 Ohio St. at

185, 37 O.O. at 463, 80 N.E.2d at 860. Here, again, the RTA contends that Gladon

failed to produce evidence of a breach of that duty.

{¶ 31} Viewing these facts presented in this trial in the light most favorable

to Gladon, reasonable minds could have reached different conclusions as to whether

the operator exercised ordinary care. First, the point at which this duty arose

remains a question for the jury. Reasonable minds could have reached different

conclusions regarding whether the operator should have known a person was on the

tracks when she saw the tennis shoes. Second, when the operator did realize a

person was on the tracks, she was not sure whether she pulled the cinestar all the

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way back to the maximum braking mode before she hit the “mushroom” when she

observed Gladon’s legs on the tracks. Furthermore, the operator testified that she

was not sure whether she hit the “mushroom” before or after the train struck

Gladon.

{¶ 32} While we find that the trial court properly overruled the motions for

directed verdict and for judgment notwithstanding the verdict, we reverse the

judgment of the court of appeals and remand this cause for a new trial based on the

erroneous jury instructions.

Judgment reversed

and cause remanded.

MOYER, C.J., and WRIGHT, J., concur.

WRIGHT, J., concurs separately.

NADER, J., concurs in judgment only.

DOUGLAS, RESNICK and PFEIFER, JJ., dissent.

ROBERT A. NADER, J., of THE Eleventh Appellate District, sitting for F.E.

SWEENEY, J.

__________________

WRIGHT, J., concurring.

{¶ 33} I concur in Justice Cook’s opinion. I write separately to address the

dissent’s analysis of the so-called real issue in this case. Before today, I never

believed I could disagree with an opinion that relies on the Declaration of

Independence. The dissent has risen to that challenge.

{¶ 34} The dissent takes issue with the majority’s refusal to reach the

constitutional question raised by this case. This is surprising, when one recalls the

long-standing principle that we will not address constitutional questions unless

absolutely necessary. Norandex, Inc. v. Limbach (1994), 69 Ohio St.3d 26, 28, 630

N.E.2d 329, 331; Hal Artz Lincoln Mercury, Inc. v. Ford Motor Co. (1986), 28

Ohio St.3d 20, 28, 28 OBR 83, 90, 502 N.E.2d 590, 597, fn. 17; State ex rel.

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Hofstetter v. Kronk (1969), 20 Ohio St.2d 117, 119, 49 O.O.2d 440, 441, 254

N.E.2d 15, 17.

{¶ 35} The dissent attempts to circumvent this consideration by assailing

the majority’s determination that Gladon was not an invitee and by launching an

assault on the common-law duty classifications. In doing so, the dissent fails to

consider the words of Oliver Wendell Holmes that “[t]he life of the law has not

been logic: It has been experience.” Holmes, The Common Law (1881) 1. Instead,

the dissent proposes to abolish the traditional duty categories, which are the result

of generations of accumulated legal thought, simply because their application in

this case does not comport with the dissent’s understanding of “fairness.”

{¶ 36} As far as the real issue in this case is concerned, the dissent has based

its analysis on a mischaracterization of the common-law rights of litigants to a jury

trial. The dissent correctly notes that Section 5, Article I of the Ohio Constitution

guarantees a jury trial only in those instances in which the common law, at the time

of the Ohio Constitution’s adoption, recognized that right. Zoppo v. Homestead

Ins. Co. (1994), 71 Ohio St.3d 552, 556, 644 N.E.2d 397, 401; Sorrell v. Thevenir

(1994), 69 Ohio St.3d 415, 421, 633 N.E.2d 504, 510; Belding v. State ex rel.

Heifner (1929), 121 Ohio St. 393, 169 N.E. 301, paragraph one of the syllabus.

{¶ 37} For whatever reason, however, the dissent seeks to cast the issue in

this case in terms of whether the common law afforded individuals “a right to a jury

trial in a negligence action against a political subdivision of the state at the time the

Ohio Constitution was adopted.” (Emphasis sic.) This narrow characterization

ignores the reality that, regardless of the level of government to which the doctrine

was applied, sovereign immunity did exist at common law. Consequently, where

sovereign immunity operates, a plaintiff has no right to a cause of action, let alone

a trial by jury. Thus, were we to have reached the Section 5, Article I issue, that

issue would have been properly framed as: “Do litigants possess a right to a jury

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trial when the defendant is a governmental entity which enjoys sovereign

immunity?” This query could only have been answered in the negative.

{¶ 38} Admittedly, R.C. 2744.02(B)(2) and prior case law have refused to

apply municipal sovereign immunity when the injury to the plaintiff is the result of

the municipality’s exercise of “proprietary” functions. Indeed, it is precisely this

limitation on sovereign immunity which enabled Gladon to bring his claim against

GCRTA.3 However, our case law has consistently stated that, because of its origins

in the common law, the contours of municipal sovereign immunity are open to

legislative reversal or modification. Haverlack v. Portage Homes, Inc. (1982), 2

Ohio St.3d 26, 30, 2 OBR 572, 575, 442 N.E.2d 749, 752; Haas v. Hayslip (1977),

51 Ohio St.2d 135, 136, 5 O.O.3d 110, 111, 364 N.E.2d 1376, 1377; Hack v. Salem

(1963), 174 Ohio St. 383, 384, 23 O.O.3d 34, 189 N.E.2d 857, 858; Broughton v.

Cleveland (1957), 167 Ohio St. 29, 31, 4 O.O.2d 1, 2, 146 N.E.2d 301, 303. Indeed,

in Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181, 182,

we noted that the General Assembly could “extend[] sovereign immunity to all

claims against a political subdivision.” (Emphasis sic.) In light of this

consideration, the cap that R.C. 2744.05(C) places on pain and suffering awards

cannot be rationally regarded as an unconstitutional infringement on the province

of the jury.

__________________

NADER, J., concurring in judgment only.

{¶ 39} I agree that Ohio maintains its traditional duty classifications in

cases of premises liability and that one’s status is determined at entry in accordance

with the landowner’s invitation.

3. R.C. 2744.01(G)(2) states that “[a] ‘proprietary function’ includes *** (c) [t]he establishment,

maintenance, and operation of *** a railroad, a busline or other transit company ***.”

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{¶ 40} Gladon quite clearly entered appellant’s property as an invitee. The

cases cited affirm that one can change that status by exceeding the terms of the

admission. All these cases, however, show intentional divergence; and while the

theories propounded by Prosser and the Restatement of Torts 2d support each other,

neither authority convinces me nor compels the conclusion that Gladon’s

apparently involuntary and unexplained presence upon appellant’s tracks

automatically transmuted his status to that of a trespasser.

{¶ 41} The evidence, in this case, is not so determinative of status by

location or purpose as to support a finding of invitee or trespasser, as a matter of

law, and the trial court erred in not submitting that issue to the jury, as presented.

While appreciating the practical concern in limiting a landowner’s duty to

trespassers, it is similarly difficult for me to accept the forfeiture of that duty, by an

invitee, for an involuntary action.

{¶ 42} I believe the trial court should have accommodated this peculiar

situation by crafting an appropriate instruction permitting the jury to consider the

status-duty enigma fairly, upon the facts presented.

{¶ 43} A less forceful approach to conform irregular facts to a standard

charge may not have been in error, or may have been harmless error, so this matter

could have proceeded on its most contentious issue, the constitutionality of R.C.

2744.05(C).

__________________

DOUGLAS, J., dissenting.

{¶ 44} The real issue in this case is whether any application of R.C

2744.05(C) to reduce or “cap” a jury award in a negligence action against a political

subdivision of the state violates the right to trial by jury. Resolution of this issue

involves the question whether there exists a common-law right to a jury trial in a

negligence action against a corporate political subdivision of the state or,

conversely, whether corporate political subdivisions were historically protected

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from liability under the doctrine of sovereign immunity. However, the majority has

completely avoided this issue by focusing instead on issues of jury instructions and

by relying on the archaic common-law entrant classification system to determine

the duty owed by a landowner to entrants upon the landowner’s premises. In my

judgment, the manner in which the majority has adroitly avoided the real issue in

this case is, at the least, unfortunate.

{¶ 45} The plurality opinion says in footnote one that the parties and amici

have extensively briefed the issues surrounding the constitutionality of R.C.

2744.05(C) “at the request of this court.” (Emphasis added.) This statement

implies that the question whether R.C. 2744.05(C) is constitutional has nothing to

do with this case, and that the parties and amici have addressed the question solely

at our urging. However, that is not accurate. Both the trial court and the court of

appeals found that R.C. 2744.05(C) is an unconstitutional exercise of legislative

authority. The parties and amici extensively briefed the issues concerning the

constitutionality of R.C. 2744.05(C) because those issues are what brought this case

to this court. Only after the parties and amici filed their briefs in this court, and

after we heard oral arguments in this case, did we specifically request that the

parties submit supplemental briefing on the issues concerning the constitutionality

of R.C 2744.05(C). We asked for additional briefing on these issues because we

too recognized the importance of deciding the significant constitutional questions

in this case. Further, we knew at that time that the issue concerning the

constitutionality of R.C. 2744.05(C) was the only issue that had been raised in

appellant’s appeal that had any possible merit.

{¶ 46} Obviously, this court did not accept jurisdiction in this case to

perpetuate the artificial common-law classification system for determining the duty

owed by a landowner to the entrants upon the landowner’s property, and we

certainly did not accept jurisdiction to avoid deciding whether R.C. 2744.05(C) is

constitutional. The parties and amici have specifically asked us to determine

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whether R.C. 2744.05(C) is constitutional, and that issue is ripe for our

determination. Unfortunately, today’s plurality has gone to great lengths not to

decide the important constitutional questions by holding that the intervening

criminal acts of third parties can magically change the legal status of a business

invitee. Because that proposition has no basis in law, I must respectfully but

vigorously dissent.

{¶ 47} I write this dissenting opinion not so much to persuade as to point

out the flaws in the majority’s rationale and to spark critical thinking and scholarly

debate and writing concerning the constitutionality of R.C. 2744.05(C). The

question whether R.C. 2744.05(C) is a constitutional exercise of legislative

authority is almost certain to come before this court on another occasion. Indeed,

the Court of Appeals for the Eighth Appellate District decided in this case that the

R.C. 2744.05(C) cap on damages is unconstitutional. Today’s majority opinion

reverses the judgment of the court of appeals on different grounds. Thus, if any

other appellate district court of appeals reaches the opposite conclusion, that R.C.

2744.05(C) is constitutional, that court will almost certainly certify the issue to this

court for review and final determination pursuant to Section 3(B)(4), Article IV of

the Ohio Constitution.

I

The Facts

{¶ 48} The facts of this case are not in dispute. On April 27, 1988, Robert

M. Gladon, appellee and cross-appellant, attended a Cleveland Indians baseball

game at Cleveland Stadium. After the game, Gladon proceeded to the Terminal

Tower station of the Greater Cleveland Regional Transit Authority (“GCRTA”),

appellant and cross-appellee, and paid his fare to ride a rapid transit train to the near

west side of Cleveland. At that time, Gladon also obtained a transfer ticket allowing

him to ride a bus to his home in Lakewood once he left the train. Gladon rode the

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rapid transit train to the West 65th Street station. Upon leaving the train, Gladon

was approached and assaulted by two unidentified males.

{¶ 49} Gladon’s assailants left him lying on the tracks at the West 65th

Street station. Meanwhile, a GCRTA rapid transit train operated by Mary Bell was

quickly approaching the West 65th Street station. Bell was on her last run for the

evening and was traveling at a high rate of speed. She had been running late on her

route and was trying to “make up some time.” The tracks were wet and slippery.

The weather was a combination of snow, sleet, and rain.

{¶ 50} As Bell approached the West 65th Street station with her high beam

lights illuminated, she saw a peculiar object on the tracks. As the train continued

forward, Bell realized that the object on the tracks was a tennis shoe. As the train

moved even closer, Bell realized that there was a leg attached to the tennis shoe.

At that time, Bell attempted to stop the train by pulling the control handle back.

She then hit the “mushroom,” which was designed to put the train into maximum

braking mode. Bell was unsure whether she hit the mushroom before or after

running over Gladon. In any event, the train did not stop in time, apparently due to

the wet conditions of the tracks. The train struck Gladon, causing him severe and

permanent injuries.

{¶ 51} Gladon sued GCRTA for negligence arising out of the operation of

the rapid transit train. This claim proceeded to trial before a jury. At the close of

the evidence, the trial court instructed the jury, in part, as follows:

“[W]e have heard a great deal of conversation during the evidence in this

case about the question of whether or not the plaintiff was a trespasser, or an invitee

on the property of RTA at the time he was injured.

“When one is on the property of another, he is normally an invitee, a

licensee or a trespasser, depending upon the evidence, and different standards of

care apply to each of those three different categories.

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“Sometimes that’s a matter for the jury to determine based upon the

evidence. In this case the Court is instructing you as a matter of law that the only

evidence produced by either side indicates that the plaintiff was an invitee. The

only evidence we have heard with regard to how he got on the ground was his

recollection that he bought a transfer at Tower City, got off the train at the platform

of West 65th Street, and he saw two strangers, that he was frightened and

remembered nothing until much later.

“There being no contrary evidence to that testimony, you are instructed that

plaintiff was an invitee, and the standard of care with respect to an invitee applies

to this case * * *.

“Plaintiff has the burden of proving the elements of negligence by a

preponderance of evidence.

“Negligence is an act or omission in violation of a duty owed to persons

sustaining injury. Everyone has a general legal duty to exercise ordinary care to

avoid injuring someone else.

“So, negligence is simply a failure to use ordinary care. What is that?

Ordinary care is that degree of care which a reasonably prudent person would have

used, taking into consideration all of the facts, circumstances and conditions in

which such a person was placed in at the time of the happening in question.

“In determining whether ordinary care was used, you will consider whether

the defendant ought to have foreseen under the attending circumstances that the

natural and probably [sic, probable] result of its acts or omissions would cause

someone injury.

“* * *

“The test [for forseeability] is whether in light of all the circumstances a

reasonably prudent person would have anticipated that injury and damage was

likely to result to someone from the performance or from the non-performance of

an act.

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“If the defendant by the use of ordinary care should have foreseen some

injury, and either would not have acted, or if it did act, would have taken precaution

to say avoid the result, then in the performance of the acts or the failure to take such

precautions may constitute negligence.

“The driver of a rapid transit car with the right of way must use ordinary

care. Therefore, to avoid colliding with a person found on the tracks, the defendant

is required to use ordinary care to discover and to avoid danger.”

{¶ 52} The jury found GCRTA negligent, and awarded Gladon

$2,736,915.35 in damages. The total jury award of $2,736,915.35 represented

$52,800 in lost wages, $206,565.35 in past medical expenses, $43,000 in future

medical expenses, and $2,434,550 for pain and suffering. Thus, most of the jury’s

damage award was attributable to pain and suffering (i.e., noneconomic losses).

The trial court reduced the jury’s $2.7 million verdict to $2.5 million to conform

with Gladon’s amended prayer for relief. Further, pursuant to R.C. 2744.05(B), the

trial court trimmed the jury award by an additional $115,544.23 in benefits Gladon

had received from collateral sources. GCRTA also requested the trial court to

reduce the award for pain and suffering to $250,000 pursuant to R.C. 2744.05(C).

The trial court refused, finding that R.C. 2744.05(C) is unconstitutional. On appeal,

the court of appeals affirmed the judgment of the trial court. The cause is now

before this court pursuant to a discretionary appeal and cross-appeal.

II

The Majority’s Analysis

{¶ 53} The majority has chosen to decide this case on the basis of a

questionable analysis of the common-law classifications of invitee, licensee and

trespasser. These artificial common-law categories have traditionally been used to

determine the scope of the duty owed to an entrant upon a landowner’s premises.

A question remains, however, whether this court should continue to blindly adhere

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to this artificial classification system, particularly in light of decisions like the one

the majority makes in the case now before us.

{¶ 54} A business invitee is a person who comes upon the premises of

another by invitation, express or implied, for some purpose which is beneficial to

the owner. See Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165,

167, 502 N.E.2d 611, 613. The landowner owes the invitee a duty to exercise

reasonable care and to protect the invitee by maintaining the premises in a safe

condition. Id. Conversely, a person who enters the premises of another by

permission or acquiescence, for the entrant’s own pleasure or benefit, and not by

invitation, is a licensee. Id. The licensor/landowner owes the licensee no duty

except to refrain from willfully and wantonly causing injury. Id. A trespasser is a

person who enters or remains upon the premises of another without a privilege to

do so created by the possessor’s consent or otherwise. As in the case of a licensee,

the owner or occupier of land owes no duty to a trespasser except to refrain from

willfully and wantonly causing injury.

{¶ 55} The majority concedes that Gladon was a business invitee at the time

he left the rapid transit train at the West 65th Street platform. However, three

members of the majority find that Gladon lost his status as an invitee when he was

attacked by two assailants and left on the tracks in or near a state of

unconsciousness, and a fourth finds it to be a jury question. Thus, the majority

finds that the trial court erred by instructing the jury that Gladon was an invitee at

the time of the accident. This conclusion of the majority is clearly in error.

{¶ 56} It is interesting that the plurality does not say whether Gladon was a

licensee or a trespasser while he was lying on the tracks. The reason the plurality

fails to classify Gladon as either a licensee or trespasser should be obvious. Gladon

did not enter the track area or remain there for his own pleasure or benefit.

Therefore, he could not be considered a licensee. Nor did Gladon lose any privilege

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to be on GCRTA’s premises simply because he was beaten and placed on the tracks

by his assailants. Thus, he could not have been a trespasser.

{¶ 57} Nevertheless, the plurality holds that “[w]here an entrant upon

another’s land exceeds the scope of the landowner’s invitation, the entrant will lose

the status of an invitee, and become either a licensee or a trespasser.” That may be

true under other fact patterns, but it cannot be true here. What the plurality is saying

is that where, as here, an invitee is lawfully on the premises of another and, as a

consequence of the criminal acts of a third party, is placed onto a section of

property beyond the scope of the invitation, the invitee loses the status of an invitee

and, by the wave of a magic wand, is transformed into either a licensee or trespasser.

To support this novel concept, the plurality relies exclusively on Comment l to

Section 332 of the Restatement of the Law 2d, Torts (1965); Clary v. McDonald

(1963), 120 Ohio App. 8, 28 O.O.2d 169, 200 N.E.2d 805; and Sweet v. Clare-Mar

Camp, Inc. (1987), 38 Ohio App.3d 6, 526 N.E.2d 74. Not surprisingly, none of

these authorities support the majority’s holding in this case. Neither Clary, Sweet,

nor Comment l to Section 332 of the Restatement of Torts 2d, supra, even remotely

stands for the proposition that an invitee is magically converted into a licensee or a

trespasser where he or she is placed in a different location on the premises as a

direct result of the intervening criminal activities of a third person.

{¶ 58} The plurality also cites the Restatement of Torts 2d, 171, Section

329, to refute Gladon’s contention that he remained a business invitee at the time

of the accident because he had not entered the track area intentionally. Section 329

of the Restatement pertains to the common-law trespasser classification. However,

today’s majority never commits to saying that Gladon was ever a trespasser on

GCRTA’s premises. Thus, I am left to wonder why the plurality even discusses

Section 329 of the Restatement of Torts 2d, supra. Further, the plurality’s citation

of the illustration to Section 329 of the Restatement of Torts 2d is equally puzzling.

The illustration to Section 329 of the Restatement of Torts 2d, at 172, deals with an

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accidental trespasser who slips and falls onto a set of train tracks. Clearly, that

illustration differs dramatically from the facts in the case at bar where Gladon,

through no fault of his own, was placed onto the train tracks by two assailants.

{¶ 59} The plurality’s conclusion that Gladon lost his status as an invitee

because of the intervening criminal acts of third parties takes the common-law

entrant classification system to an entirely new level of absurdity. Take the

following example. Assume that a postal worker is in the process of delivering

mail to a homeowner’s premises. The postal worker enters upon the porch and slips

the mail into the mailbox. At that moment, a burglar leaves the home, beats the

postal worker, and then throws the postal worker through the front window of the

home and onto the living room couch. The homeowner then returns home and finds

the postal worker bleeding to death on the couch—a location on the premises where

the postal worker has no right to be. Under the majority’s analysis, the homeowner

would apparently owe no duty to the postal worker except to refrain from willfully

or wantonly causing further injury because the postal worker had magically been

transformed from a business invitee to a trespasser or a licensee by the intervening

acts of the burglar. I, for one, find the majority’s new legal doctrine to be beyond

comprehension.

{¶ 60} On several prior occasions, this court has been asked to specifically

abolish the legal standards that exist in Ohio with respect to those classified in the

law as licensees and social guests, as opposed to those classified as business

invitees. On each occasion, we have found it unnecessary to abolish the common-

law classifications. See, e.g., Brinkman v. Ross (1993), 68 Ohio St.3d 82, 85-86,

623 N.E.2d 1175, 1178. Today’s plurality opinion is an excellent example why the

common-law classification system should be abandoned in favor of a rule of law

that imposes a duty on landowners to exercise reasonable care toward all entrants

who lawfully come upon the landowner’s premises. I would be inclined to abandon

the artificial common-law classification system at least in cases where, as here, a

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person enters the property of another for the landowner’s business benefit and,

through no fault of her or his own and by the intervention of a third party, is placed

in a different location on the property.

{¶ 61} Moreover, the plurality recognizes that “[w]hen a trespasser or

licensee is discovered in a position of peril, a landowner is required to use ordinary

care to avoid injuring him.” In this regard, the majority also says that “[t]he duty

to exercise ordinary care arises after the landowner ‘knows, or from facts within his

knowledge should know or believe,’ that a trespasser or licensee is on the land.”

Compare these statements to the trial court’s actual charge to the jury that “to avoid

colliding with a person found [discovered?] on the tracks, the defendant is required

to use ordinary care to discover and to avoid danger.” I submit that the trial court’s

charge to the jury comports with even the majority’s strained analysis of this case.

{¶ 62} In sum, today’s plurality, with one swipe of the pen, makes Gladon

either a trespasser or a licensee even though Gladon entered upon GCRTA’s

property with permission and for the benefit of the GCRTA. The plurality has

engaged us in extensive discussion concerning Gladon’s legal status, has offered

up examples from the Restatement of Torts 2d, and has made certain suppositions

concerning Gladon, the activities of GCRTA, and the question of privileged entry.

Unfortunately, all of these matters are based on the plurality’s assumption that

Gladon was either a trespasser or a licensee and, of course, there is no evidence in

the record to support that assumption. The trial judge and the jury heard all of the

facts. The trial judge applied the law based on the facts in evidence—not on

suppositions and speculation. The jury deliberated and decided. However, today’s

majority reweighs all of that and comes to a different conclusion. Obviously, the

majority’s de novo review and evidence weighing is not a proper function of this

court.

{¶ 63} Gladon was a paying customer of the GCRTA. He was on GCRTA’s

premises for GCRTA’s business benefit. As the trial court noted, there was no

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evidence in this case suggesting that Gladon was anything but a business invitee at

the time of the accident. Accordingly, the trial court was correct to instruct the jury

that GCRTA owed Gladon a duty of reasonable care. I cannot join the majority’s

efforts in this case to usurp the functions of the trial court and the jury. Accordingly,

I dissent.

III

R.C. 2744.05(C)

{¶ 64} The real issue in this case is whether R.C. 2744.05(C) is a

constitutional exercise of legislative authority. I would decide that issue. However,

because the majority has adroitly avoided any discussion of R.C. 2744.05(C), I

offer the following information, hoping to foster scholarly debate on the question

of whether R.C. 2744.05(C) violates the right to trial by jury. As indicated above,

I present the fruits of my research not so much to persuade as to inquire.

{¶ 65} R.C. 2744.05 provides:

“Notwithstanding any other provision of the Revised Code or rules of a

court to the contrary, in an action against a political subdivision to recover damages

for injury, death, or loss to persons or property caused by an act or omission in

connection with a governmental or proprietary function:

“* * *

“(C)(1) There shall not be any limitation on compensatory damages that

represent the actual loss of the person who is awarded the damages. However,

except in wrongful death actions brought pursuant to Chapter 2125. of the Revised

Code, damages that arise from the same cause of action, transaction or occurrence,

or series of transactions or occurrences and that do not represent the actual loss

of the person who is awarded the damages shall not exceed two hundred fifty

thousand dollars in favor of any one person. * * *

“(2) As used in this division, ‘the actual loss of the person who is awarded

the damages’ includes all of the following:

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“(a) All wages, salaries, or other compensation lost by the person injured

as a result of the injury, including wages, salaries, or other compensation lost as of

the date of a judgment and future expected lost earnings of such a person;

“(b) All expenditures of the person injured or another person on his behalf

for medical care or treatment, for rehabilitation services, or for other care,

treatment, services, products, or accommodations that were necessary because of

the injury;

“(c) All expenditures to be incurred in the future, as determined by the

court, by the person injured or another person on his behalf for medical care or

treatment, for rehabilitation services, or for other care, treatment, services,

products, or accommodations that will be necessary because of the injury;

“* * *

“(e) All expenditures of the person injured or whose property was

injured or destroyed or of another person on his behalf in relation to the actual

preparation or presentation of the person's claim;

“(f) Any other expenditures of the person injured or whose property was

injured or destroyed or of another person on his behalf that the court determines

represent an actual loss experienced because of the personal or property injury or

property loss.

"‘The actual loss of the person who is awarded the damages’ does not

include any fees paid or owed to an attorney for any services rendered in relation

to a personal or property injury or property loss, and does not include any damages

awarded for pain and suffering, for the loss of society, consortium, companionship,

care, assistance, attention, protection, advice, guidance, counsel, instruction,

training, or education of the person injured, for mental anguish, or for any other

intangible loss.” (Emphasis added.)

{¶ 66} I confine my discussion to the issue whether the R.C. 2744.05(C)(1)

cap on noneconomic damages violates Section 5, Article I of the Ohio Constitution

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January Term, 1996

(right to trial by jury), although the parties have also briefed and argued the question

whether R.C. 2744.05(C)(1) violates the guarantees of due process and equal

protection set forth in Section 16, Article I and Section 2, Article I of the Ohio

Constitution.

IV

Trial By Jury

{¶ 67} The right to trial by jury derives from Magna Carta. It is reasserted

in both the Constitution of the United States and the Constitution of the state of

Ohio. For centuries, the right to a jury trial has been held to be a fundamental

constitutional right. See Cleveland Ry. Co. v. Halliday (1933), 127 Ohio St. 278,

284, 188 N.E. 1, 3. Where the right exists, it is a substantive right, not a mere

procedural privilege. See Kneisley v. Lattimer-Stevens Co. (1988), 40 Ohio St.3d

354, 356, 533 N.E.2d 743, 746, and Halliday, supra, at paragraph one of the

syllabus.

{¶ 68} The right to trial by jury is one of the most fundamentally democratic

institutions in the history of the human race. Throughout history, the right to trial

by jury has been considered the crown jewel of our liberty. “For 500 years, trial by

jury has been praised as the most cherished institution of free and intelligent

government that the world has ever seen and as the best institution for the

administration of justice ever devised by the mind of man.” 1 Few, In Defense of

Trial By Jury (1993) 74. The founders of this great nation held the right to trial by

jury in very high esteem. They were willing to sacrifice their very lives to preserve

for the people of the United States of America the inestimable right to trial by jury.

In the words of United States Supreme Court Justice (now Chief Justice) William

J. Rehnquist, “[t]he founders of our Nation considered the right of trial by jury in

civil cases an important bulwark against tyranny and corruption, a safeguard too

precious to be left to the whim of the sovereign, or, it might be added, to that of the

judiciary. * * * Trial by a jury of laymen rather than by the sovereign’s judges was

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important to the founders because juries represent the layman’s common sense * *

* and thus keep the administration of law in accord with the wishes and feelings of

the community.” Parklane Hosiery Co., Inc. v. Shore (1979), 439 U.S. 322, 343-

344, 99 S.Ct. 645, 657-658, 58 L.Ed.2d 552, 570 (Rehnquist, J., dissenting).

{¶ 69} The Ohio Constitution recognizes the fundamental right to trial by

jury in Section 5, Article I, which states:

“The right of trial by jury shall be inviolate, except that, in civil cases, laws

may be passed to authorize the rendering of a verdict by the concurrence of not less

than three-fourths of the jury.” (Emphasis added.)

“Inviolate” means free from substantial impairment. Black’s Law

Dictionary (6 Ed.1990) 826. It is difficult to imagine a more forceful way of saying

that the right to trial by jury should in no way be infringed.

{¶ 70} R.C. 2744.05(C)(1) places a cap on the noneconomic damages a

plaintiff can recover in an action against a political subdivision of the state. In

Ohio, the right to a jury trial includes the right to have the jury not only determine

factual issues but also assess damages. See Sorrell v. Thevenir (1994), 69 Ohio

St.3d 415, 422, 633 N.E.2d 504, 510, and Miller v. Wikel Mfg. Co. (1989), 46 Ohio

St.3d 76, 81, 545 N.E.2d 76, 81 (Douglas, J., concurring in part and dissenting in

part). See, also, McCormick, Handbook on the Law of Damages (1935) 24, Section

6 (“The amount of the damages * * * from the beginning of trial by jury, was a

‘fact’ to be found by the jurors.”) Thus, if Gladon had a constitutionally protected

right to a jury trial in his action against GCRTA, any application of R.C.

2744.05(C)(1) to reduce or cap the damages awarded by the jury would be

constitutionally impermissible.

{¶ 71} Section 5, Article I of the Ohio Constitution does not guarantee a

jury trial in all cases. Rather, “Section 5 of Article I of the Constitution of Ohio

only guarantees the right of trial by jury in those cases where it existed previous to

its adoption.” Belding v. State ex rel. Heifner (1929), 121 Ohio St. 393, 169 N.E.

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301, paragraph one of the syllabus. See, also, Sorrell, supra, 69 Ohio St.3d at 421,

633 N.E.2d at 510, wherein this court, citing Belding, supra, stated: “However,

this constitutional provision [Section 5, Article I] does not guarantee a jury trial in

all cases, but only for those causes of actions where the right existed at common

law at the time the Ohio Constitution was adopted.”

{¶ 72} Here, Gladon asserted an action for negligence against GCRTA, a

political subdivision of the state. 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. See,

generally, Kneisley, supra, 40 Ohio St.3d at 356-357, 533 N.E.2d at 746. Thus, this

alone substantiates the theory that Gladon had a constitutionally protected right to

trial by jury in his action against GCRTA. Again, in Sorrell, supra, 69 Ohio St.3d

at 421, 633 N.E.2d at 510, this court stated that Section 5, Article I guarantees the

right to trial by jury “for those causes of actions where the right existed at common

law at the time the Ohio Constitution was adopted.” (Emphasis added.) Following

this line of reasoning, R.C. 2744.05(C) could not be applied in the case at bar to

reduce the jury’s damage award.

{¶ 73} However, the next question that could be asked is whether there

existed a right to a jury trial in a negligence action against a political subdivision of

the state at the time the Ohio Constitution was adopted. If that question can be

answered in the negative, it is arguable that Gladon had no constitutionally

protected right to a jury trial against GCRTA and, thus, R.C. 2744.05(C) could be

applied to reduce the jury’s damage award without violating Section 5, Article I of

the Ohio Constitution. In this vein, GCRTA suggests that there existed no right to

sue a political subdivision at common law because political subdivisions were

protected by the concept of sovereign immunity. My research has revealed no

unassailable precedent to substantiate GCRTA’s assertion. Indeed, there is much

evidence to the contrary.

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{¶ 74} First, it should be noted that the concept of sovereign immunity is

applicable in this country (if at all) to the federal and state governments—not to the

political subdivisions of the state. See, generally, Prosser & Keeton, Law of Torts

(5 Ed.1984) 1033, 1043, 1051, Section 131. Corporate political subdivisions of the

state are not sovereign powers. By definition, a “sovereign” is “[a] person, body,

or state in which independent and supreme authority is vested.” Black’s Law

Dictionary, supra, at 1395. “Sovereignty” means “[t]he supreme, absolute, and

uncontrollable power by which any independent state is governed.” Id. at 1396. In

this regard, a political subdivision of a state government cannot by any stretch of

the imagination be considered a sovereign power. Nevertheless, I will discuss the

topic of sovereign immunity before proceeding to the question whether there

existed a common-law right to sue a political subdivision of a state government for

negligence.

{¶ 75} The history of the doctrine of sovereign immunity in this country is

associated with the English common-law concept that “the king can do no wrong.”

See Haas v. Hayslip (1977), 51 Ohio St.2d 135, 140, 5 O.O.3d 110, 113, 364 N.E.2d

1376, 1379 (William B. Brown, J., dissenting).4 That concept evolved from the

personal prerogatives of the King of England, who was considered the fountain of

justice and equity in the English common law. In the English feudal system, the

lord of the manor was not subject to suit in his own courts. See 1 Pollock &

Maitland, The History of English Law (2 Ed.1968) 518. The king, as highest feudal

lord, enjoyed this protection on the theory that no court was above him. Id. Further,

the king was considered the supreme power and was, thus, infallible. His person

was considered sacred and the law ascribed him the attribute of sovereignty.

Therefore, it was his personal royal prerogative not to be subjected to suit in his

4. Haas v. Hayslip (1977), 51 Ohio St.2d 135, 5 O.O.3d 110, 364 N.E.2d 1379, was overruled by

Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749.

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January Term, 1996

own courts. See, generally, Borchard, Government Liability in Tort (1924), 34

Yale L.J. 1, 4. Accordingly, the king could do no wrong.

{¶ 76} Although the notion of sovereign immunity is best suited to a

government of royal power, American courts nonetheless accepted the doctrine in

the early days of the republic. See Prosser & Keeton, supra, at 1033. However,

courts and commentators have remained mystified why the doctrine was ever

accepted in this country. In Borchard’s writings on this subject (Borchard,

Government Liability in Tort, supra, 34 Yale L.J. at 4-5) it is stated that:

“Nothing seems more clear than that this immunity of the King from the

jurisdiction of the King’s courts was purely personal. How it came to be applied in

the United States of America, where the [royal] prerogative is unknown, is one of

the mysteries of legal evolution. Admitting its application to the sovereign and its

illogical ascription as an attribute of sovereignty generally, it is not easy to

appreciate its application to the United States, where the location of sovereignty—

undivided sovereignty, as orthodox theory demands—is a difficult undertaking. It

is beyond doubt that the Executive in the United States is not historically the

sovereign, and the legislature, which is perhaps the depository of the widest powers,

is restrained by constitutional limitations. The federal government is one of

delegated powers and the states are not sovereign, according to the Constitution, as

demonstrated forcibly by the Civil War and the resulting Amendments. That brings

us to the only remaining alternative, that sovereignty resides in the American

electorate or the people.” (Footnotes omitted.) See, also, Muskopf v. Corning

Hosp. Dist. (1961), 55 Cal.2d 211, 214-216, 11 Cal.Rptr. 89, 90-92, 359 P.2d 457,

458-460.

{¶ 77} In his dissenting opinion in Haas, supra, 51 Ohio St.2d at 140, 5

O.O.3d at 113, 364 N.E.2d at 1379, Justice William B. Brown summed up the entire

matter by stating that “[i]t is something of an anomaly that the common-law

doctrine of sovereign immunity which is based on the concept that ‘the king can do

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no wrong’ was ever adopted by the American courts.” (Footnote omitted.) Further,

the United States Supreme Court has also indicated that there is no rational

justification in American jurisprudence for the English legal maxim “the King can

do no wrong.” Specifically, in Langford v. United States (1879), 101 U.S. 341,

343, 25 L.Ed. 1010, 1011, the court stated that “[w]e do not understand that either

in reference to the government of the United States or of the several States, or of

any of their officers, the English maxim has an existence in this country.”

{¶ 78} The rule of county or local district immunity did not originate with

the concept of sovereign immunity. Indeed, legal authorities seemingly agree that

the concept of local governmental immunity can be traced to the English case of

Russell v. Men of Devon (K.B. 1788), 100 Eng. Rep. 359, and the misapplication

of Russell by a Massachusetts court in 1812.

{¶ 79} In Russell, the plaintiffs’ wagon was damaged as a consequence of a

bridge being out of repair. The plaintiffs sued the inhabitants of the unincorporated

county for trespass on the case. However, the court denied recovery on the basis

that the inhabitants were not incorporated and, thus, there was no fund from which

a judgment could have been paid. In support of the holding, one member of the

court said “that it is better that an individual should sustain an injury than that the

public should suffer an inconvenience.” Id., 100 Eng. Rep. at 362.

{¶ 80} The rule of Russell was first introduced into this country in Mower

v. Inhabitants of Leicester (1812), 9 Mass. 247. In Mower, a stagecoach belonging

to the plaintiff, Ephraim Mower, was traveling through the town of Leicester when

one of his horses was fatally injured as a consequence of the bridge being out of

repair. The plaintiff sued the inhabitants of Leicester, and a verdict was returned

in his favor. In contrast to the county in Russell, the town of Leicester was

incorporated and had a public treasury out of which any judgment could have been

paid. However, ignoring the fact that Leicester was incorporated and that Mower

was thus clearly distinguishable from Russell, the Massachusetts court held that no

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recovery could be had against the townspeople unless such recovery was authorized

by statute. Id. at 250. This rule of local government immunity then became the

general American rule. See Borchard, Government Liability in Tort, supra, 34 Yale

L.J. at 41-42; and Muskopf, supra, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457.

However, a reading of Mower demonstrates that there existed no logical reason in

that case for recovery to have been denied. In the words of Justice William B.

Brown, “[t]he common-law precedent for municipal immunity (Russell v. Devon

[1788], 100 Eng. Rep. 359), denied recovery because of the absence of a

‘corporation fund’ from which satisfaction could be made. Since the Mower case

did not deal with a lack of a corporate fund, it was essentially decided on the

grounds of which party should bear the loss.” Haas, supra, 51 Ohio St.2d at 140,

5 O.O.3d at 113, 364 N.E.2d at 1380, fn. 3 (William B. Brown, J., dissenting).

{¶ 81} My research reveals that Ohio courts in the early 1800s did not share

the view that local government units were immune from liability. Rather, “[d]uring

the period immediately following Mower and, indeed, throughout the early 1800’s,

Ohio courts favored imposition of liability on local governmental units. Concerned

primarily with establishing a rule that promoted ‘substantial justice,’ Ohio courts

considered municipal corporations and individuals equally responsible in tort.

Justice was considered served only by spreading the losses inflicted upon private

individuals through the execution of governmental activity upon everyone who had

shared a benefit from such activity.” (Emphasis added and footnote omitted.) Note,

Municipal Immunity in Ohio—How Much Wrong Can a Municipality Do? (1984),

15 U.Tol.L.Rev. 1559, 1566. See, also, Comment, The Ohio Political Subdivision

Tort Liability Act: A Legislative Response to the Judicial Abolishment of

Sovereign Immunity (1986), 55 U.Cin.L.Rev. 501, 502 (The Ohio Supreme Court

first introduced the doctrine of municipal sovereign immunity in 1854 and, prior to

that time, courts treated Ohio municipalities the same as private individuals when

imposing liability for wrongful acts or injuries.); Comment, Can Municipal

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Immunity in Ohio be Resurrected From the Sewers After Haverlack v. Portage

Homes, Inc.? (1983), 13 Cap.U.L.Rev. 41, 42 (“The early Ohio cases which dealt

with municipal tort liability did not recognize immunity.”); and Celebrezze & Hull,

The Rise and Fall of Sovereign Immunity in Ohio (1984), 32 Clev.St.L.Rev. 367,

367-368 (“Municipal corporations have not always been protected by sovereign

immunity in Ohio. Instead, early cases held municipalities subject to action in tort

as a matter of basic justice.”)

{¶ 82} A review of Ohio history demonstrates that the doctrine of sovereign

immunity was first applied in Ohio in 1840 in the case of State v. Franklin Bank of

Columbus (1840), 10 Ohio 91. See Celebrezze & Hull, The Rise and Fall of

Sovereign Immunity in Ohio, supra, 32 Clev.St.L.Rev. at 369. However, Franklin

Bank of Columbus, supra, involved the liability of the state of Ohio -- not a political

subdivision of the state. It was not until the 1854 case of Dayton v. Pease (1854),

4 Ohio St. 80, that the doctrine of sovereign immunity was expanded to include

political subdivisions (municipal corporations) of the state. See Celebrezze & Hull,

The Rise and Fall of Sovereign Immunity in Ohio, supra, 32 Clev.St.L.Rev. at 370.

See, also, Comment, The Ohio Political Subdivision Tort Liability Act, supra, 55

U.Cin.L.Rev. at 502. Prior to our 1854 decision in Pease, supra, Ohio courts

imposed tort liability on municipal corporations as a matter of basic justice. See

Celebrezze & Hull, The Rise and Fall of Sovereign Immunity in Ohio, supra, 32

Clev.St.L.Rev. at 367-369; Comment, The Ohio Political Subdivision Tort Liability

Act, supra, 55 U.Cin.L.Rev. at 502; and Note, Municipal Immunity in Ohio, supra,

15 U.Tol.L.Rev. at 1566. For example, research reveals several cases spanning the

period from 1831 to 1846 in which this court recognized the right to recover against

political subdivisions (municipal corporations) of the state for injuries inflicted

upon private individuals. See, e.g., Goodloe v. Cincinnati (1831), 4 Ohio 500,

Rhodes v. Cleveland (1840), 10 Ohio 160, and McCombs v. Town Council of Akron

(1846), 15 Ohio 475. The case of Goodloe was ultimately tried before a jury. See

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January Term, 1996

4 Ohio 514, fn. Rhodes and McCombs, too, were tried before a jury. Each case

involved an action sounding in negligence or, more particularly, an action for

trespass on the case.

{¶ 83} Additionally, there is some evidence that the common law of this

country at the time the Ohio Constitution was adopted in 1851 actually recognized

no impediments to recovery against a corporate political subdivision of the state.

In Hack v. Salem (1963), 174 Ohio St. 383, 392, 23 O.O.2d 34, 38, 189 N.E.2d 857,

862 (Gibson, J., concurring), it is noted that “[i]n the early reported American cases

it apparently was assumed, without argument and as a matter of basic justice, that

municipal corporations were subject to actions for torts.” In Barnett, The

Foundations of the Distinction Between Public and Private Functions in Respect to

the Common-Law Tort Liability of Municipal Corporations (1937), 16 Oregon

L.Rev. 250, 259, it is said that “[t]he earliest reported American case coming to

attention that recognized the tort liability of a municipal corporation is Hooe v.

Alexandria [(1802), 1 Cranch C.C. 90, 12 Fed. Cases 461, No. 6666], decided in

1802, in which no distinction was made between the tort liability of public and

private corporations, and the city was held liable [in a jury trial], simply as ‘a

corporation.’” Furthermore, Justice Gibson’s concurrence in Hack, supra, 174

Ohio St. at 392, 23 O.O.2d at 39, 189 N.E.2d at 863, makes clear that the early

cases in Ohio took the same approach as to tort liability of municipal corporations.

{¶ 84} Accordingly, it is clear that, in Ohio, there did exist a right to a jury

trial against a political subdivision of the state in 1851 when Section 5, Article I of

the Constitution was adopted. In Belding, supra, 121 Ohio St. 393, 169 N.E. 301,

paragraph one of the syllabus, we held that “Section 5 of Article I of the Constitution

of Ohio only guarantees the right of trial by jury in those cases where it existed

previous to its adoption.” (Emphasis added.) Since the right to trial by jury in a

suit against a political subdivision of the state did exist prior to 1851, it follows that

the right is constitutionally protected. This argument, if accepted, establishes that

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Section 5, Article I guarantees the right to trial by jury in tort actions against

political subdivisions of the state. Unfortunately, the majority fails to address this

question.

{¶ 85} Further, even if Ohio courts recognized immunity for corporate

political subdivisions at the time of the adoption of the 1851 Ohio Constitution,

such immunity apparently originated as an extension of the concept that “the King

can do no wrong.” However, as shown above, it appears that the historic

justification for that English maxim never existed in this country. Therefore, it

could be argued that the common law of this country actually recognizes no such

impediment to an action against a political subdivision. Alternatively, county or

local district immunity could have been predicated on the 1788 case of Russell v.

Men of Devon, supra, 100 Eng. Rep. 359. If so, any grant of immunity might have

been the product of an enormous judicial accident. Russell does not stand for the

proposition that there exists county or local district immunity from liability for

negligence. Indeed, just the opposite might be true. That is, a careful reading of

Russell could very well indicate that recovery most likely would have been allowed

had the defendants in the action been an incorporated governmental entity with a

public treasury from which a judgment could have been paid. Therefore, it might

be said that the common law of this country actually recognizes no rational

justification for extending immunity to political subdivisions of the state. Again,

the majority deprives us of any answer to these penetrating questions.

{¶ 86} Moreover, GCRTA claims that Section 16, Article I of the Ohio

Constitution, as amended in 1912, authorized the General Assembly to enact R.C.

Chapter 2744 and to define the manner in which political subdivisions may be sued.

Section 16, Article I, as amended, provides that:

“All 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. Suits may be brought

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against the state, in such courts and in such manner, as may be provided by law.”

(Emphasis added.)

{¶ 87} The second sentence of Section 16, Article I applies to suits against

the state. Does this also mean that Section 16, Article I applies to suits against

political subdivisions of the state? Section 16, Article I certainly does not say that.

Obviously, this question is one which this court needs to address.

{¶ 88} GCRTA also relies on Fabrey v. McDonald Village Police Dept.

(1994), 70 Ohio St.3d 351, 639 N.E.2d 31, Menefee v. Queen City Metro (1990),

49 Ohio St.3d 27, 550 N.E.2d 181, and Fahnbulleh v. Strahan (1995), 73 Ohio

St.3d 666, 653 N.E.2d 1186, as authority for the proposition that a person has no

fundamental right to sue a political subdivision of the state and thus no right to a

jury trial. However, GCRTA’s reliance on these cases might be misplaced. This

is especially true when a close reading of Fabrey and Fahnbulleh and possibly even

Menefee reveals that those decisions were founded on the second sentence of

Section 16, Article I, which came into existence by way of a 1912 amendment to

the Ohio Constitution. That sentence applies only to the state—not political

subdivisions of the state. In fact, R.C. 2743.01(A) states that “‘[s]tate’ does not

include political subdivisions.” (Emphasis added.) This is right from the Court of

Claims Act. See, also, R.C. 1.59(G). Further, the three cases involve R.C.

2744.02(B) and R.C. 2744.05(B)—not R.C. 2744.05(C).

{¶ 89} In Fabrey, supra, 70 Ohio St.3d at 355, 639 N.E.2d at 34-35, this

court stated:

“In Haverlack [v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572,

442 N.E.2d 749], we recognized that the doctrine of sovereign immunity was a

creature of common law, and thus was 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,

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within the constraints of equal protection and due process, the right to sue the state

is not fundamental.” (Emphasis added.)

{¶ 90} In Haverlack, supra, 2 Ohio St.3d at 30, 2 OBR at 575, 442 N.E.2d

at 752, this court recognized that sovereign or governmental immunity was

judicially created and, thus, could be judicially abolished, stating:

“As aptly stated by Justice William B. Brown in Haas, supra, [51 Ohio

St.2d 135, 145, 5 O.O.3d 110, 116, 364 N.E.2d 1379, 1382,] ‘the judicially created

doctrine of sovereign immunity is a legal anachronism which denies recovery to

injured individuals without regard to the municipality's culpability or the

individual's need for compensation.’ * * *. Because Ohio's sovereign immunity

for municipalities was judicially created (see State v. Franklin Bank of Columbus

[1840], 10 Ohio 91; Western College of Homeopathic Medicine v. Cleveland

[1861], 12 Ohio St. 375; and Thacker v. Bd. of Trustees of Ohio State Univ. [1973],

35 Ohio St. 2d 49, 67-68 [64 O.O.2d 28] [William B. Brown, J., dissenting]), it can

be judicially abolished. * * * When we considered sovereign immunity last year,

we noted that only six other states adhered to the traditional common law immunity

doctrines. Schenkolewski v. Metroparks System (1981), 67 Ohio St. 2d 31, 38 [21

O.O.3d 19]. Stare decisis alone is not a sufficient reason to retain the doctrine

which serves no purpose and produces such harsh results. Therefore, we join with

the other states in abrogating the doctrine.

“We hold that the defense of sovereign immunity is not available, in the

absence of a statute providing immunity, to a municipal corporation in an action for

damages alleged to be caused by the negligent operation of a sewage treatment

plant. A municipal corporation, unless immune by statute, is liable for its

negligence in the performance or nonperformance of its acts.” (Emphasis added.)

{¶ 91} Haverlack implies that “sovereign immunity for municipalities” was

accepted in this state by 1840 in Franklin Bank of Columbus, supra, 10 Ohio 91.

However, Franklin Bank of Columbus actually says that no suit can be brought

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against the state -- not a political subdivision of the state. The other early case cited

by the Haverlack court as creating “sovereign immunity for municipalities” was W.

College of Homeopathic Medicine, supra, 12 Ohio St. 375, which did involve the

liability of a political subdivision of the state, but which was decided after the

adoption of Section 5, Article I of the Ohio Constitution. It is also important to

recognize that Haverlack adopted the historical analysis of sovereign or

governmental immunity set forth in Justice William Brown’s dissent in Haas,

supra, 51 Ohio St.2d at 140-145, 5 O.O.3d at 113-116, 364 N.E.2d at 1379-1382,

and the analysis of Justice Gibson’s concurrence in Hack, supra, 174 Ohio St. 383,

391-402, 23 O.O.2d 34, 38-45, 189 N.E.2d 857, 862-869, wherein it was essentially

argued that municipal immunity has no rational justification in the common law of

this country.

{¶ 92} Therefore, the statement in Fabrey, supra, 70 Ohio St.3d at 355, 639

N.E.2d at 34-35, indicating that there is no fundamental right to sue a political

subdivision of the state, and that the General Assembly can control the means by

which political subdivisions are sued, might not have taken into consideration the

constitutional right to trial by jury. The same might be true with respect to the case

of Menefee, supra, 49 Ohio St.3d 27, 29, 550 N.E.2d 181, 182, wherein this court

indicated that it is within the power of the state to extend immunity to all claims

against a political subdivision. Likewise, Fahnbulleh, supra, 73 Ohio St.3d 666,

653 N.E.2d 1186, did not involve any question concerning the right to trial by jury.

Indeed, a review of the history of the right to trial by jury and the concept of

sovereign immunity could lead any interested reader to question why this court

indicated in Haverlack, supra, 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, that

it was within the realm of the legislature to enact statutes immunizing political

subdivisions from tort liability. Again, there is at least some authority to suggest

that the Ohio legislature (and the Ohio courts for that matter) never had any

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authority whatsoever to provide immunity to political subdivisions of this state at

the expense of the people’s right to trial by jury.

{¶ 93} In any event, this court or any other court faced with the question

whether R.C. 2744.05(C) violates Section 5, Article I of the Ohio Constitution

would do well to observe the tremendous value the people of our state and nation

place on the right to trial by jury. The right to trial by jury, where it exists, cannot

be compromised. To compromise that right in any manner would crack the

foundation of our individual liberties.

{¶ 94} On July 4, 1776, our founding fathers declared independence from

the British Crown. One of the specific causes that impelled them to do so was the

act of King George III in attempting to deprive the people of the United States of

the benefits to trial by jury. Although the Declaration of Independence is over two

hundred years old, the document continues to speak with great clarity and wisdom.

It continues to define our very existence as a free and independent nation. We must

remain mindful of that historic document,5 which provides:

“When in the Course of human events, it becomes necessary for one people

to dissolve the political bands which have connected them with another, and to

assume among the powers of the earth, the separate and equal station to which the

Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions

of mankind requires that they should declare the causes which impel them to the

separation.

“We hold these truths to be self-evident, that all men are created equal, that

they are endowed by their Creator with certain unalienable Rights, that among these

are Life, Liberty and the pursuit of Happiness. That to secure these rights,

Governments are instituted among Men, deriving their just powers from the consent

5. The Declaration of Independence is reproduced in Page’s Ohio Revised Code Annotated,

Appendix (1994) 405-406, and in Baldwin’s Ohio Revised Code Annotated, 1 Constitutions (1995)

21-24.

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January Term, 1996

of the governed,—That whenever any Form of Government becomes destructive

of these ends, it is the Right of the People to alter or to abolish it, and to institute

new Government, laying its foundation on such principles and organizing its

powers in such form, as to them shall seem most likely to effect their Safety and

Happiness. Prudence, indeed, will dictate that Governments long established

should not be changed for light and transient causes; and accordingly all experience

hath shewn, that mankind are more disposed to suffer, while evils are sufferable,

than to right themselves by abolishing the forms to which they are accustomed. But

when a long train of abuses and usurpations, pursuing invariably the same Object

evinces a design to reduce them under absolute Despotism, it is their right, it is their

duty, to throw off such Government, and to provide new Guards for their future

security.--Such has been the patient sufferance of these Colonies; and such is now

the necessity which constrains them to alter their former Systems of Government.

The history of the present King of Great Britain is a history of repeated injuries and

usurpations, all having in direct object the establishment of an absolute Tyranny

over these States. To prove this, let Facts be submitted to a candid world.

“He has refused his Assent to Laws, the most wholesome and necessary for

the public good.

“He has forbidden his Governors to pass Laws of immediate and pressing

importance, unless suspended in their operation till his Assent should be obtained;

and when so suspended, he has utterly neglected to attend to them.

“He has refused to pass other Laws for the accommodation of large districts

of people, unless those people would relinquish the right of Representation in the

Legislature, a right inestimable to them and formidable to tyrants only.

“He has called together legislative bodies at places unusual, uncomfortable,

and distant from the depository of their public Records, for the sole purpose of

fatiguing them into compliance with his measures.

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“He has dissolved Representative Houses repeatedly, for opposing with

manly firmness his invasions of the rights of the people.

“He has refused for a long time, after such dissolutions, to cause others to

be elected; whereby the Legislative powers, incapable of Annihilation, have

returned to the People at large for their exercise; the State remaining in the mean

time exposed to all the dangers of invasion from without, and convulsions within.

“He has endeavoured to prevent the population of these States; for that

purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass

others to encourage their migration hither, and raising the conditions of new

Appropriations of Lands.

“He has obstructed the Administration of Justice, by refusing his Assent to

Laws for establishing Judiciary powers.

“He has made Judges dependent on his Will alone, for the tenure of their

offices, and the amount and payment of their salaries.

“He has erected a multitude of New Offices, and sent hither swarms of

Officers to harass our people, and eat out their substance.

“He has kept among us, in times of peace, Standing Armies without the

Consent of our legislature.

“He has affected to render the Military independent of and superior to the

Civil power.

“He has combined with others to subject us to a jurisdiction foreign to our

constitution, and unacknowledged by our laws; giving his Assent to their Acts of

pretended Legislation:

“For quartering large bodies of armed troops among us:

“For protecting them, by a mock Trial, from punishment for any Murders

which they should commit on the Inhabitants of these States:

“For cutting off our Trade with all parts of the world:

“For imposing taxes on us without our Consent:

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“For depriving us in many cases, of the benefits of Trial by Jury:

“For transporting us beyond Seas to be tried for pretended offences:

“For abolishing the free System of English Laws in a neighbouring

Province, establishing therein an Arbitrary government, and enlarging its

Boundaries so as to render it at once an example and fit instrument for introducing

the same absolute rule into these Colonies:

“For taking away our Charters, abolishing our most valuable Laws, and

altering fundamentally the Forms of our Government:

“For suspending our own Legislatures, and declaring themselves invested

with power to legislate for us in all cases whatsoever.

“He has abdicated Government here, by declaring us out of his Protection

and waging War against us.

“He has plundered our seas, ravaged our Coasts, burnt our towns, and

destroyed the lives of our people.

“* * *

“In every stage of these Oppressions We have Petitioned for Redress in the

most humble terms: Our repeated Petitions have been answered only by repeated

injury. A Prince, whose character is thus marked by every act which may define a

Tyrant, is unfit to be the ruler of a free people.

“Nor have We been wanting in attention to our Brittish brethren. We have

warned them from time to time of attempts by their legislature to extend an

unwarrantable jurisdiction over us. We have reminded them of the circumstances

of our emigration and settlement here. We have appealed to their native justice and

magnanimity, and we have conjured them by the ties of our common kindred to

disavow these usurpations, which, would inevitably interrupt our connections and

correspondence. They too have been deaf to the voice of justice and of

consanguinity. We must, therefore, acquiesce in the necessity, which denounces

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our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in

Peace Friends.

“We, therefore, the Representatives of the United States of America, in

General Congress, Assembled, appealing to the Supreme Judge of the world for the

rectitude of our intentions, do, in the Name, and by Authority of the good People

of these Colonies, solemnly publish and declare, That these United Colonies are,

and of Right ought to be Free and Independent States; that they are Absolved from

all Allegiance to the British Crown, and that all political connection between them

and the State of Great Britain, is and ought to be totally dissolved * * *. And for

the support of this Declaration, with a firm reliance on the protection of Divine

Providence, we mutually pledge to each other our Lives, our Fortunes and our

sacred Honor.” (Emphasis added.)

{¶ 95} We should also remain mindful of those brave souls who placed their

signatures on the Declaration of Independence, including John Hancock, John

Adams, Benjamin Franklin, Thomas Jefferson, and Button Gwinnett. These great

men and the document that they signed should forever remind us that there is

nothing to be gained, and there is everything to lose, by infringing upon the sacred

and fundamental right to trial by jury. Accordingly, if in the face of all of this the

majority believes that R.C. 2744.05(C) is constitutional, then the majority should

so hold. If, however, R.C. 2744.05(C) is unconstitutional, today’s majority should

muster the courage to say so and should do everything in its power to preserve the

precious right to trial by jury. Yet, today’s majority has not even taken the time to

consider these important issues. That is truly unfortunate. I must respectfully

dissent!6

6. In addition to not deciding the real issues raised in appellant’s (GCRTA’s) appeal concerning the

constitutionality of R.C. 2744.05(C), the majority addresses none of the issues raised in Gladon’s

cross-appeal. Those issues include whether R.C. 2744.05(B) is unconstitutional on the basis of

Section 5, Article I of the Ohio Constitution. Clearly, the majority should have addressed these

issues head-on rather than skirting them on the basis of an improper analysis of the archaic common-

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V

Conclusion

{¶ 96} I recognize that some persons will have vigorous disagreement with

some or all I have set forth herein. I accept that, but all I ask is for that disagreement

to be argued on the basis of law -- not emotion. I maintain an open mind and am

willing to be persuaded. After all, I come from nineteen years of service in the

legislative body of a political subdivision, so my natural predilection is towards

sovereign immunity. That predilection, however, cannot be permitted to supersede

the law.

{¶ 97} I conclude, then, by asking, if the doctrine of sovereign immunity is

a valid and workable rule of law, why then have so many exceptions, both

legislatively and judicially, been created to the rule? The very latest example of

this is found in Semadeni v. Ohio Dept. of Transp. (1996), 75 Ohio St.3d 128, 661

N.E.2d 1013. Might it be that the rule is not only unfair but that it was never solidly

grounded in American and Ohio jurisprudence? Given the majority opinion, we

will never know—at least not for now.

RESNICK and PFEIFER, JJ., concur in the foregoing dissenting opinion.

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law entrant classification system. I would decide all of the issues presented in both the appeal and

the cross-appeal. However, because the majority does not address all of the various issues in this

case, neither do I.

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