Blankenship v. Enright

• Decision Date: 12 April 1990
• Docket Number: No. 89AP-1214,89AP-1214
• Citation: 67 Ohio App.3d 303,586 N.E.2d 1176
• Parties: BLANKENSHIP, Appellant, v. ENRIGHT, Clerk of Courts, et al., Appellees.
• Court: Ohio Court of Appeals

Page 303

67 Ohio App.3d 303

586 N.E.2d 1176

BLANKENSHIP, Appellant, v. ENRIGHT, Clerk of Courts, et al., Appellees.

No. 89AP-1214.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided April 12, 1990.

Jerry Weiner Legal Services, Jerry Weiner and Jerome R. Doute, for appellant.

Michael Miller, Pros. Atty., and Harland H. Hale, Asst. Pros. Atty., for appellees.

WHITESIDE, Judge.

Plaintiff-appellant, Lewis C. Blankenship, appeals a judgment of the Franklin County Common Pleas Court dismissing his complaint with prejudice and raises the following assignment of error:

"That the trial court erred when it determined that the appellees performed a judicial or quasi-judicial governmental function and thus pursuant to Chapter 2744 of the Ohio Revised Code, were statutorily immune from civil prosecution for their negligent performance of such functions."

Plaintiff filed a complaint against defendants-appellees, Thomas J. Enright, Clerk of the Franklin County Common Pleas Court, and Franklin County alleging that, due to defendants' negligence, plaintiff was arrested and incarcerated for a period of four days.

On June 13, 1985, a capias was issued for plaintiff's arrest by a domestic relations judge of the Franklin County Court of Common Pleas. However, on June 27, 1985, the same judge filed an entry with the clerk's office withdrawing the capias. Plaintiff's complaint alleged that defendants negligently failed to enter the withdrawal in the record, which subsequently led to plaintiff's arrest March 4, 1988.

Defendants filed a motion for summary judgment basically contending that, pursuant to R.C. Chapter 2744, defendant Franklin County is protected by the doctrine of sovereign immunity, that defendant clerk of courts is protected by official immunity and that performance of the duties involved is a governmental function. In plaintiff's response to defendants' motion, plaintiff contends that defendants were performing ministerial duties and, therefore, are subject to liability.

The trial court, in granting defendants' summary judgment motion, reasoned that defendants were performing "judicial functions" and, thus, are protected by sovereign immunity pursuant to R.C. 2744.01(B) and (F). The trial court concluded that there were no genuine issues of material fact and that defendants were entitled to judgment as a matter of law.

Plaintiff contends that it was error for the trial court to grant defendants' motion for summary judgment. Civ.R. 56(C) provides in pertinent part:

" * * * Summary judgment shall be rendered forthwith if the pleading * * * [and evidence] show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * "

Therefore, if reasonable minds can reach but one conclusion which is adverse to the nonmoving party, then summary judgment is appropriate and should be granted. See, also, Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615.

The development and refinement of sovereign immunity for political subdivisions in Ohio have had a very tortuous path. In 1854, the Ohio Supreme Court held that municipal corporations were liable for injuries to third persons which resulted from the negligence of agents or employees acting under the municipality's authority and direction in the construction of public improvements. See Dayton v. Pease (1854), 4 Ohio St. 80. In reaching this conclusion, the court recognized a distinction between acts of a municipality which involve a high degree of discretion and those which are merely carrying out the decisions, the court noting that "prosecution of a work thus authorized [by ordinance] was merely ministerial."

With regard to the first set of acts, described as "the accomplishment of purposes purely public," the Pease court concluded, at 99, that liability would not attach, reasoning that:

" * * * [T]he immunity from responsibility to individuals is grounded upon the same public policy, that protects the judge or legislator in the exercise of his duties, and is designed to remove every obstruction to the free exercise of his judgment and discretion. * * * "

Likewise, the court, at 100, predicated the imposition of liability upon the second set of acts on the following reasoning:

" * * * [W]hen a municipal corporation undertakes to execute its own prescribed regulations, by constructing improvements for the especial interest or advantage of its own inhabitants, the authorities are all agreed that it is to be treated merely as a legal individual, and as such owing all the duties to private persons, and subject to all the liabilities that pertain to private corporations or individual citizens."

In other words, while a municipal corporation would not be held liable for the establishing of rules and regulations, liability could be imposed in the ministerial duty of enforcing those rules and regulations if negligently performed.

Following the Pease decision, the Supreme Court undertook a series of decisions which imposed liability upon a municipal corporation only where the negligent acts of its employees or agents could be shown to be proprietary in nature. Sovereign immunity remained intact for those functions which could be classified as governmental. See Wooster v. Arbenz (1927), 116 Ohio St. 281, 156 N.E. 210, and cases cited therein. See, also, Broughton v. Cleveland (1957), 167 Ohio St. 29, 4 O.O.2d 1, 146 N.E.2d 301. Thus, a governmental versus proprietary concept rather than a discretion versus ministerial concept was adopted.

The Broughton court, quoting Arbenz, supra, defined the distinction between governmental and proprietary as follows, 167 Ohio St. at 31, 4 O.O.2d at 2, 146 N.E.2d at 303, which is essentially the same concept as stated in Pease, supra:

" 'In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself. If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens, for which the city is directly compensated by levying assessments upon property, or where it is indirectly benefited by growth and prosperity of the city and its inhabitants, and the city has an election whether to do or omit to do those acts, the function is private and proprietary.' "

Using this definition as a dividing line between liability and nonliability, a series of decisions followed which may be described as confusing at best. See Hack v. Salem (1963), 174 Ohio St. 383, 23 O.O.2d 34, 189 N.E.2d 857; Haas v. Akron (1977), 51 Ohio St.2d 135, 5 O.O.3d 110, 364 N.E.2d 1376, and cases cited therein. In Haas, supra, Justice William Brown in his dissent used the following example as indicating the potential for illogical and inequitable results:

" * * * This court's ad hoc approach to the governmental-proprietary doctrine and the General Assembly's enactment of R.C. 701.02 and 723.01 have, in the name of limiting immunity, placed the individual in the following situation. He may risk injury by walking down a street where a sewer is being maintained or by attending a program at a municipal auditorium or by unwittingly placing himself in the the range of a policeman driving negligently and know that he may sue the municipality for his injuries, Portsmouth v. Mitchell Mfg. Co. (1925), 113 Ohio St. 250 . See State, ex rel. White, v. Cleveland (1932), 125 Ohio St. 230 ; R.C. 701.02. If, however, he walks down a street where a sewer is being constructed, or visits a municipal zoo, or, as in the instant cause, he unwittingly places himself in the range of a policeman who allegedly negligently shoots him, he has no recourse against the city. Hutchinson v. Lakewood (1932), 125 Ohio St. 100 ; Crisafi v. Cleveland (1959), 169 Ohio St. 137 [8 O.O.2d 125, 158 N.E.2d 379]; Gabris v. Blake (1967), 9 Ohio St.2d 71 [38 O.O.2d 199, 223 N.E.2d 597]. * * * " Id. at 143, 5 O.O.3d at 115, 364 N.E.2d at 1381.

The Ohio Supreme Court in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, abrogated the judicially created sovereign immunity (which was not absolute to begin with), holding in paragraph two of the syllabus: "The defense of sovereign immunity is not available, in the absence of a statute providing immunity, to a municipal corporation * * *."

In 1983, this holding was defined in Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228, which held in paragraph one of the syllabus:

"The judicially created doctrine of municipal immunity is, within certain limits, abolished, thereby rendering municipal corporations subject to suit for damages by individuals injured by the negligence or wrongful acts or omission of their agents or employees whether such agents and employees are engaged in proprietary or governmental functions. (Dayton v. Pease, 4 Ohio St. 80, and its progeny overruled; Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, followed and extended.)"

Furthermore, the court revised an exception to immunity that was created in Pease, supra. Although it overruled Pease, in paragraph two of the syllabus the court adopted a principle very similar to that of Pease, holding:

"Under this decision abolishing municipal immunity, no tort action will lie against a municipal corporation for those acts or omissions involving the exercise of a legislative or judicial function or the...