Opinion

Smith v. McBride

  • 130 Ohio St. 3d 51
  • 2011 Ohio 4674
Court
Ohio Supreme Court
Filed
Sep 20, 2011
Status
Published
Author
Pfeifer
On the bench
Cupp, O'Connor, Stratton, O'Donnell, Lanzinger, Brown, Pfeifer
Cited by
121 cases
Authority
More cited than 11.5%

The opinion

Pfeifer, J.,

dissenting.

{¶ 46} A police officer spends a large percentage of his time in his cruiser without sovereign-immunity protection for his employer. When officers are on routine patrol, transporting suspects, or returning to the police station, their “political subdivisions are hable for injury, death, or loss to person or property” caused by the officers’ negligent operation of their motor vehicles. R.C. 2744.02(B)(1). The General Assembly has carved out only limited circumstances — emergencies—when political subdivisions enjoy sovereign immunity when their police officers drive negligently. R.C. 2744.02(B)(1)(a). I would hold that Officer Carpenter’s well-intentioned foray outside his jurisdiction is included in that broad category of police work that is not contained within the narrow exception to liability. The term “emergency” cannot be used to describe a situation in which a police officer has no actual duty to respond, has no authority to make an arrest, and does not demonstrate to other drivers that he is responding to an emergency, i.e. does not use lights and sirens.

{¶ 47} In this case, this court tells citizens harmed in an accident allegedly caused by the negligent driving of a police officer while outside his jurisdiction that they cannot recover damages from the officer’s employer. Yet at the place where the accident occurred, that same officer would have no authority to cite those citizens for so much as a muffler violation and would be under no duty to help them if they were in a dangerous situation. I have long argued that sovereign immunity is unconstitutional. Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 144 , 624 N.E.2d 704 (Pfeifer, J., concurring). I have accepted that that is a losing battle. But can we at least agree that the sovereign has no immunity where it is not the sovereign?

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.