volunteer fireman was "fireman" with meaning of immunity statute, but remanded to determine whether driving private vehicle to fire fell within immunity statute
How later courts described this case
- volunteer fireman was "fireman" with meaning of immunity statute, but remanded to determine whether driving private vehicle to fire fell within immunity statute
Written by the judges who cited it.
The opinion
Celebrezze, C.J.,
concurring. Although I concur in this court’s construction of R.C. 701.02, the majority opinion fails to mention Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26 , recently decided by this court. In Haverlack , sovereign immunity for a municipal corporation, unless provided by statute, was abolished. Consequently, the liability of a municipal corporation, absent a statute, now depends on the merits instead of the often difficult and inconsistent classification of municipal functions as governmental or proprietary to determine liability.
In this case, a statute does provide immunity for firemen engaged in the operation of a motor vehicle in the performance of a governmental function. Because there is a statute providing immunity, this decision is consistent with Haverlack . However, it is important to emphasize that today’s decision merely gives volunteer fire fighters the possible defense of immunity when their actions meet the statutory requirements. Consequently, it is yet to be determined, when this cause is remanded, whether the fire fighter’s action in driving a private vehicle to a fire station qualifies for the statutory immunity provided in R.C. 701.02.
W. Brown and C. Brown, JJ., concur in the foregoing concurring opinion.