Enghauser Manufacturing Co. v. Eriksson Engineering Ltd.

Holmes, J., dissenting.

I have previously stated on numerous occasions my disagreement with the judicial abrogation of municipal immunity. I continue to adhere to that belief, so I must strenuously dissent from the judgment here and, particularly, paragraph one of the syllabus. However, I write here to comment on the manner in which the majority abrogates municipal immunity.

In my opinion in King v. Williams (1983), 5 Ohio St. 3d 137, 141 , I raised certain questions relating to the abandonment of municipal immunity. While the majority partially responds to these questions, it neglects to address what I consider to be of paramount importance: should this court’s decision be prospective or retroactive. In my opinion, the doctrine should be abrogated prospectively.

Generally, decisions of this court which overrule former decisions are applied retroactively. See State, ex rel. Bosch, v. Indus. Comm. (1982), 1 Ohio St. 3d 94, 98 ; Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209 , 210 [ 57 O.O. 411 ], Nevertheless, there are instances where this court has decided to apply a new rule of law prospectively only. See, e.g., Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399, 421-422 [75 O.O. 2d 474]. It is my opinion that if the defense of sovereign immunity must be abrogated at all, it should be done prospectively only. 3

The doctrine of sovereign immunity has been a long standing principle of law in this state. To abolish it retroactively would deny municipalities that have relied upon it the opportunity to make arrangements to meet the new liability to which they are subject. The availability of liability insurance has been used in recent years to justify the dramatic expansion of tort liability. Yet, we impose liability on municipalities without allowing them the opportunity to obtain liability insurance. Further, this immunity should be annulled prospectively so that the General Assembly will be given an opportunity to act upon our decision. It is that branch of government which is best equipped to balance competing considerations of public policy. Lastly, the prospective abolition of this defense would be in line with the overwhelming weight of authority from other jurisdictions that have considered this question. See, e.g., Nieting v. Blondell (1975), 306 Minn. 122 , 235 N.W. 2d 597 ; Holytz v. Milwaukee (1962), 17 Wis. 2d 26 , 115 N.W. 2d 618 ; Evans v. Bd. of Cty. Commrs. (1971), 174 Colo. 97 , 482 P. 2d 968 ; Merrill v. Manchester (1974), 114 N.H. 722 , 332 A. 2d 378 ; Willis v. Dept. of Conservation & Economic Dev. (1970), 55 N.J. 534 , 264 A. 2d 34 ; Kitto v. Minot Park Dist. (N.D. 1974), 224 N.W. 2d 795 ; Oroz v. Bd. of Cty. Commrs. (Wyo. 1978), 575 P. 2d 1155 ; Smith v. State (1970), 93 Idaho 795 , 473 P. 2d 937 .

*38 The second area upon which I wish to comment is the attempt of the majority to limit the abolition of municipal immunity. This is in line with other jurisdictions. See, e.g., Merrill v. Manchester, supra; Willis v. Dept. of Conservation & Economic Dev., supra; Oroz v. Bd. of Cty. Commrs., supra; Parish v. Pitts (1968), 244 Ark. 1239 , 429 S.W. 2d 45 ; Spanel v. Mounds View School Dist. No. 621 (1962), 264 Minn. 279 , 118 N.W. 2d 795 ; Spencer v. General Hospital (C.A. D.C. 1969), 425 F. 2d 479 ; Kitto v. Minot Park, Dist., supra; Lipman v. Brisbane Elementary School Dist. (1961), 55 Cal. 2d 224 , 11 Cal. Rptr. 97 , 359 P. 2d 465 . See, also, 4 Restatement of the Law 2d 406, Torts, Section 895C. 4

The majority correctly determines here that a municipality is immune when it acts legislatively or judicially. Also, I agree that actions which are characterized as “discretionary” should be immunized, but the ambiguity of the language utilized by the majority in this regard does not accomplish this desired result.

The majority describes this latter group of immunized actions as “* * * an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.” Little practical guidance is given to bench and bar by the adoption of such a nebulous standard, nor are municipal employees informed with any specificity when they will be “second-guessed.”

It is difficult for the judiciary by way of decisional law to comprehensively deal with these matters of practical public policy. No reported decision has been found which does more than set slippery standards in this area. This necessarily vague stance of the majority further demonstrates the weakness of this court’s actions in the area of governmental immunity. Decisions in this area should have been left to the General Assembly, or, barring that, the General Assembly should have been given the opportunity to enact a practical, comprehensive solution before the court’s decisions abrogating municipal immunity became effective.

This court’s decisions in the area of governmental immunity cry out for a legislative response. I, for one, hopefully anticipate that the General Assembly will proceed as have the legislative bodies in other states, and enact responsive laws. See, e.g., Cal. Govt. Code Anno., Sections 810 et seq.

Locher, J., concurs in the foregoing dissenting opinion.

There is, of course, no federal constitutional barrier to such an application. See Great Northern Ry. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358 .

In the past, this court recognized that even in the absence of immunity, a municipality was not liable for legislative acts. Superior Uptown v. Cleveland (1974), 39 Ohio St. 2d 36 [68 O.O. 2d 21],