# Gladon v. Greater Cleveland Regional Transit Authority

> Ohio Supreme Court · March 6, 1996 · 75 Ohio St. 3d 312

URL: https://www.frixlaw.com/law-library/cases/6773638

## Case

- **Full name:** Gladon, and v. Greater Cleveland Regional Transit Authority, and Cross-Appellee
- **Court:** Ohio Supreme Court
- **Decided:** March 6, 1996
- **Citations:** 75 Ohio St. 3d 312; 662 N.E.2d 287
- **Precedential status:** Published
- **Opinion:** Concurrence by Wright
- **Judges:** Cook, Douglas, Eleventh, Moyer, Nader, Only, Pfeifer, Resnick, Sweeney, Wright
- **Cited by:** 328 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Wright, J.,
concurring. 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 *321 today, I never believed I could disagree with an opinion that relies on the Declaration of Independence. The dissent has risen to that challenge.
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 longstanding 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. Hofstetter v. Kronk (1969), 20 Ohio St.2d 117, 119 , 49 O.O.2d 440, 441 , 254 N.E.2d 15, 17 .
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.”
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.
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 trial when the defendant is a governmental entity which enjoys sovereign immunity?” This query could only have been answered in the negative.
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 *322 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.2d 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.
. 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6773638. Public record. Not legal advice.