Butler v. Jordan

Cook, J.,

concurring in judgment. Because I agree that R.C. 5104.11 does not expressly impose liability upon a political subdivision within the meaning of R.C. 2744.02(B)(5), I join today’s syllabus and judgment. While doing so, I continue to adhere to the views expressed in my dissenting opinion in Campbell v. Burton (2001), 92 Ohio St.3d 336 , 750 N.E.2d 539 . I write separately to respond to the plurality opinion’s dicta addressing the constitutionality of R.C. Chapter 2744 and the history of political subdivision immunity.

The constitutionality of R.C. Chapter 2744 is not at issue in this case. The plurality opinion ultimately recognizes this fact and accordingly decides this case on grounds of statutory interpretation alone. Nevertheless, the plurality opinion devotes several pages of the Ohio Official Reports to its not so'subtle hint that R.C. Chapter 2744 violates Sections 5 and 16, Article I of the Ohio Constitution. Until these constitutional issues are directly presented to this court again, however, we should refrain from addressing them even in dicta.

The plurality also undertakes a detailed analysis of the history of political subdivision immunity in .order to show that the doctrine is “faulty.” As the plurality observes, political subdivision immunity was a judicially created doctrine that this court ultimately abolished in the early 1980s. See Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26 , 2 OBR 572, 442 N.E.2d 749 ; Enghauser Mfg. Co. v. Eriksson Eng. Ltd. (1983), 6 Ohio St.3d 31, 33 , 6 OBR 53, 54, 451 N.E.2d 228, 230 , and paragraph one of the syllabus; Zents v. Summit Cty. Bd. of Commrs. (1984), 9 Ohio St.3d 204 , 9 OBR 516, 459 N.E.2d 881 , syllabus. In abolishing the immunity held by local governments, this court questioned the historical underpinnings of the immunity doctrine in much the same way that the plurality opinion does today. See Enghauser Mfg. Co., 6 Ohio St.3d at 33-34 , 6 OBR at 54-55, 451 N.E.2d at 230-231 . 10

William D. Mason, Cuyahoga County Prosecuting Attorney, Sandra Curtis-Patrick and Arline M. Zehe, Assistant Prosecuting Attorneys, for appellant.

Novak, Robenalt, Pavlik & Scharf L.L.P., William J. Novak, Thomas D. Robenalt and David W. Skall, for appellee.

As instructive and important as the history of political subdivision immunity may be, however, it is of diminished significance when assessing the continued viability of the doctrine today. The General Assembly responded to Haverlack, Enghauser Mfg., and Zents by enacting the Political Subdivision Tort Liability Act, declaring that political subdivisions would be liable in tort only as set forth in R.C. Chapter 2744. The legislature has therefore deemed political subdivision immunity to be desirable as the public policy of this state. Thus, any concern this court may have about the wisdom of political subdivision immunity or whether the doctrine is “soundly based in legal history or the law” is largely beside the point. Questions concerning the wisdom of legislation are “for the legislature, and whether the court agrees with it in that particular or not is of no consequence. * * * If the legislature has the constitutional power to enact a law, no matter whether the law be wise or otherwise it is no concern of the court.” State Bd. of Health v. Greenville (1912), 86 Ohio St. 1 , 20, 98 N.E. 1019 , 1021. If and when this court is called upon to assess the validity of R.C. Chapter 2744, the plurality’s belief that political subdivision immunity is a “faulty” rule should play no part in deciding the issue.

Lundberg Stratton, J., concurs in the foregoing opinion.

. This court’s abolishment of political subdivision immunity was not complete. This court made clear that political subdivisions remained immune from liability “for those acts or omissions involving the exercise of a legislative or judicial function or the exercise of 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.” Enghauser Mfg. Co., paragraph two of the syllabus; see, also, Zents , syllabus. This court thus recognized that local governments remained immune from liability for “certain acts which go to the essence of governing,” i.e., conduct characterized by a high degree of discretion and judgment in making public policy choices. Enghauser Mfg. Co., 6 Ohio St.3d at 35 , 6 OBR at 56, 451 N.E.2d at 232 . Accord Whitney v. Worcester (1977), 373 Mass. 208, 218-219 , 366 N.E.2d 1210, 1216 ; Muskopf v. Corning Hosp. Dist. (1961), 55 Cal.2d 211, 220-221 , 359 P.2d 457, 462-463 , 11 Cal.Rptr. 89, 94-95 .