Hyde v. City of Lakewood

• Decision Date: 19 May 1965
• Docket Number: Nos. 38459,38955,s. 38459
• Citation: 207 N.E.2d 547,2 Ohio St.2d 155
• Parties: , 31 O.O.2d 313 HYDE, Appellant, v. CITY OF LAKEWOOD, Appellant. CITY OF LAKEWOOD, Appellee. v. CITY OF CINCINNATI, Appellant.
• Court: Ohio Supreme Court

Page 155

2 Ohio St.2d 155

207 N.E.2d 547, 31 O.O.2d 313

HYDE, Appellant, v. CITY OF LAKEWOOD, Appellant.

CITY OF LAKEWOOD, Appellee. v. CITY OF CINCINNATI, Appellant.

Nos. 38459, 38955.

Supreme Court of Ohio.

May 19, 1965.

Syllabus by the Court

1. Unless there is a statute removing immunity, a governmental unit or agency may escape liability for the commission of a tort upon a showing that a governmental function was being performed at the time the tort occurred.

2. Whether the performance of various activities by a municipality is governmental or proprietary frequently depends on the peculiar facts of the particular case. In one instance a municipally owned hospital may be found to be carrying on a governmental function in the manner of its operation, whereas in another instance a finding may be made that a municipally owned hospital is being operated in a proprietary capacity.

In case No. 38459, originating in the Court of Common Pleas of Cuyahoga County, plaintiff, appellant herein, claims damages from the city of Lakewood for injuries sustained through the alleged negligence of employees of the municipally owned and operated Lakewood Hospital while she was a patient there. The action is resisted on the ground that in the operation of the hospital the city was engaged in a governmental function and was thereby absolved from tort liability. The Court of Common Pleas, upon evidence, sustained the city's contention and rendered judgment in its favor. Such judgment was affirmed by the Court of Appeals on an appeal on questions of law.

Case No. 38955 was commenced in the Court of Common Pleas of Hamilton County, wherein plaintiff, appellee herein seeks damages from the city of Cincinnati for claimed injuries occurring to him through the negligence of hospital employees while he was a patient in the Christian R. Holmes Hospital, a municipally owned institution. As in case No. 38459, the city contests the action upon the contention that the operation of the hospital constituted a governmental activity, and that it should escape tort liability on such basis. A jury trial of the action resulted in a verdict and judgment for plaintiff, which judgment was affirmed on a law appeal by the Court of Appeals.

Both cases are now before this court for decision pursuant to the allowance of motions to certify the records.

McDonald, Hopkins & Hardy and Ellis B. Brannon, Cleveland, for appellant in case No. 38459.

John L. Lamb, Director of law, and Harold J. Craig, Cleveland, for appellee in case No. 38459.

Lindhorst & Dreidame and James L. O'Connell, Cincinnati, for appellee in case No. 38955.

Rendigs, Fry, Kiely & Dennis, John A. Kiely, Cincinnati, and William A. McClain, City Sol., for appellant in case No. 38955.

ZIMMERMAN, Judge.

This court has not yet abandoned the principle that, where a municipal corporation is engaged in the exercise of a governmental function and a tort is committed by it while it is so engaged, there is no liability. In line with a number of other jurisdictions, Ohio still adheres to the general rule that, unless there is a statute removing immunity, a governmental unit or agency may escape liability for the commission of a tort upon a showing that a governmental function was being performed at the time the tort occurred. Broughton v. City of Cleveland, 167 Ohio St. 29, 149 N.E.2d 301, and the cases cited therein. See, also, annotation, 25 A.L.R.2d 203, 210, relating to the operation of hospitals. Compare Wolf v. Ohio State University, 170 Ohio St. 49, 162 N.E.2d 475.

Section 715.37, Revised Code, confers upon municipal corporations, among other things, the power to provide for the public health and to erect, maintain and regulate hospitals. Clearly, this legislation is designed to promote public welfare generally.

In case No. 38459, the trial court found, upon the evidence presented to it, that over a period of 30 years, from 1931 to 1961, the operating expenses of the Lakewood Hospital exceeded receipts by $142,529.66; that the taxpayers of the city of Lakewood, in maintaining the hospital, had expended the sum of $2,767,082 by way of special tax levies to amortize hospital capital improvement bonds and to provide for the erection, enlargement and equipping of the hospital; that such hospital has not been operated with a view to profit; that the hospital is managed by an eight-member board of trustees, established by city charter, which is composed of the mayor, the commissioner of health and six residents of the city of Lakewood; that the hospital is administered by a superintendent, his assistant and an executive committee composed of members of the hospital medical staff; that purchases of supplies and equipment are by competitive bidding; and that the accounting records of the hospital are kept by the financial department of the municipality in accordance with its rules.

Furthermore, the court found, from the evidence, that some 37% of the annual hospital admissions are of residents of Lakewood, and that the remainder come mostly from the adjacent territory; that the rates charged and the priority of admissions are the safme for all; that an outpatient clainic for a considerable number of indigent persons is maintained, the majority of such indigents being Lakewood residents; that all who apply for hospital admittance are the same for all; that an outpatient clinic for Lakewood residents and for many of those who live in neighboring communities; that, considering the overall operation and the activities conducted there, there is a direct relationship to the preservation of the health of the inhabitants of the city of Lakewood; and that the hospital operation constitutes a governmental function.

Of course, whether the performance of various activities by a municipality is governmental or proprietary frequently depends on the peculiar facts of the particular case. Here, a majority of the members of this court are of the opinion that the trial court and the Court of Appeals, in affirming, were justified in declaring that the operation of the Lakewood Hospital constitutes a governmental function, and, for such reason, the city is exonerated from tort liability.

In Case No. 38955 against the city of Cincinnati, a different situation is presented. In this case, the evidence is such as to support the following conclusions. Holmes Hospital is owned by the city of Cincinnati and has a relationship with the College of Medicine of the...