tort action against the county for injuries occurring during the renovation of a building owned by county and subleased by plaintiffs; supreme court held the defense of sovereign immunity was available to counties only under the same limited circumstances as it was available to municipalities
How later courts described this case
- tort action against the county for injuries occurring during the renovation of a building owned by county and subleased by plaintiffs; supreme court held the defense of sovereign immunity was available to counties only under the same limited circumstances as it was available to municipalities
- “Simply put, counties are, by this decision, subject to the same rules as private persons or corporations if a duty has been violated and a tort has been committed.”
- “In Ohio, a county is not regarded as a body corporate like a municipality but rather a political subdivision of the state.”
Written by the judges who cited it.
The opinion
Holmes, J.,
dissenting. I dissent upon the basis of prior dissents set forth in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, 31 ; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 37 ; and Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, 126 . Further, my dissent here regarding the judicial abrogation of sovereign immunity as it generally would relate to county governments is with much greater emphasis because this court is now dealing with a governmental agency which has historically been a direct arm and subdivision of the state of Ohio.
The majority of this court has failed to recognize the distinctions between county and municipal governments. The existence and authority of county governments have traditionally emanated from the state. Conversely, municipalities have obtained their authority from their respective charters or through corporate existence.
In Section 1, Article X of the Ohio Constitution, the General Assembly is empowered by general law to provide for the organization and government of county entities throughout the state. Municipal corporations, however, are governed by Article XVIII of the Ohio Constitution and, pursuant to Section 2 of that article, specific provisions provide for the incorporation and government of municipalities. In addition, Section 3 of Article XVIII grants municipalities the authority to exercise all powers of local self-government. Thus, the constitutional sources of the authority for counties and municipalities have been, throughout Ohio’s history, distinctly separate in nature.
This distinction, as pointed out by appellee, was recognized by the Sixth Circuit Court of Appeals in the case of Western Pa. Natl. Bank v. Ross (C.A. 6, 1965), 345 F. 2d 525 , which stated:
“In Ohio, a county is not regarded as a body corporate like a municipality, but rather as a political subdivision of the state. It enjoys the same immunity from suit as the state. It may not be sued except as permitted by statute. Statutes creating liability of counties are strictly construed since they are in derogation of common law.” Id. at 526 .
I am aware that R.C. 301.22 provides that a county may become a body politic and corporate by taking the overt action of adopting a charter or an alternative form of county government. However, in my view, this does not alter the fact that counties generally remain a basic extension of state government. The statute merely provides counties the opportunity to obtain charters or an alternative form of government, and relatively few have availed themselves of such avenues of change. 8
Finally, if the immunity of these subdivisions of state government is to be *209 abrogated, then such action should be taken by the General Assembly and not this court. I cannot emphasize enough that with the distinctions between county and municipal governments, the abrogation of county governmental immunity should be within the General Assembly’s prerogative rather than that exercised by this court.
Accordingly, I would affirm the decision of the court of appeals.
Locher, J., concurs in the foregoing dissenting opinion.
No county has adopted an alternative form of county government, and only one county, i.e., Summit, has adopted a county charter form of government.