"It is spurious logic to conclude that a doctrine that is, by definition, available only to public defendants can be consistent with a statute mandating that suits be determined in accordance with rules of law applicable to private parties.”
How later courts described this case
- "It is spurious logic to conclude that a doctrine that is, by definition, available only to public defendants can be consistent with a statute mandating that suits be determined in accordance with rules of law applicable to private parties.”
- relying on Mussivand, 544 N.E.2d at 270
Written by the judges who cited it.
The opinion
Douglas, J.,
concurring.
{¶ 42} Justice Cook has, with surgical skill, dissected the so-called public-duty rule and, in the process, has shown why the rule has no efficacy or relevance in Ohio. The intellectual honesty of the opinion, drawing its conclusions from the facts as opposed to trying to make the law and facts fit preconceived notions, makes it difficult for the dissenters to mount a credible argument in opposition to the majority opinion. Perhaps that is why both dissents carry on, page after page, citing fact patterns and cases that have no relevance to the case at bar.
{¶ 43} Justice Cook has, for all to see and understand, explained the clear differences between the doctrine of sovereign immunity as it applies to the state on the one hand, and to municipalities on the other. Yet even though the case now before us involves the state, both dissents continue to confuse the concepts by citing and relying on the inapplicable Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222 , 525 N.E.2d 468 — a case arising out of municipal tort liability. The failure to grasp this basic distinction is why we now find the law of Ohio to be confused in its application in these types of cases.
{¶ 44} It would be an easy task to respond to the dissents point by point, but since they both start with a faulty premise and go downhill from there, not much would be gained by doing so. Just one statement from each should suffice.
{¶ 45} Justice Resnick, in discussing the doctrine of sovereign immunity, states that “it functions to exempt government from the usual liability that flows from the breach of an established duty of care.” Well, yes, that is exactly what it does. Justice Resnick says that that is OK. Many of us now say that it is not OK. How one justifies that a governmental entity can injure one of its citizens without liability but if the same injury is caused by a fellow citizen liability attaches escapes many of us and lies at the heart of our disagreement.
{¶ 46} Justice Stratton says about the majority opinion that “[t]he reasoning is so internally inconsistent that I find it difficult to even argue against.” Now *283 that is strange. A proposition that is so internally inconsistent should be an easy mark. It could be, of course, that the lack of any real law contrary to the majority opinion is the reason it is difficult to argue against.
{¶ 47} But it is not the issue of whether they are wrong and we are right or vice versa that determines the outcome. The outcome is determined by the law of this state and the framers of our Constitution and makers of our statutes. It should not escape interested readers that both dissents, by necessity and convenience, ignore the real law in the case — Section 16, Article I of the Ohio Constitution. In a separate sentence, which seems to have no particular relevance to the other sentence of the section, the framers provided that “[s]uits may be brought against the state, in such courts and in such manner, as may be provided by law.” No limitations, other than place and manner, are set forth. No sovereign immunity exception. No public-duty exception. Nothing but simple language — the state may be sued.
{¶ 48} Given the constitutional language, nothing more was needed. But maybe just to be sure, the General Assembly enacted R.C. 2743.02(A)(1), which provides that “[t]he state hereby waives its immunity from liability and consents to be sued, and have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties * * Justice Cook has now explained what all of that means. The dissenters have ignored the constitutional language.
{¶ 49} Notwithstanding the constitutional language, the dissenters say that there are limitations on the state’s liability and that those limitations come dressed up as the “public-duty rule.” If this premise is accepted, then it must logically follow that without a corresponding amendment to the Constitution, the General Assembly could provide that no suit could be brought against the state. This obviously is not and could not be the law.
{¶ 50} Justice Cook has done the law a great service. The opinion deserves to be supported, not denigrated. I respectfully concur.