Krause v. State

• Decision Date: 30 September 1971
• Citation: 274 N.E.2d 321,28 Ohio App. 2d 1
• Parties: , 57 O.O.2d 1 KRAUSE, Admr., Appellant, v. The STATE of Ohio, Appellee.
• Court: Ohio Court of Appeals

Page 1

28 Ohio App.2d 1

274 N.E.2d 321, 57 O.O.2d 1

KRAUSE, Admr., Appellant, v. The STATE of Ohio, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Sept. 30, 1971.

Syllabus by the Court

1. The State of Ohio is responsible under the doctrine of respondeat superior for the tortious acts of its authorized agents. A complaint alleging the tortious conduct of an agent while engaged in authorized activity on behalf of the state states a cause of action.

2. The doctrine of sovereign immunity cannot be supported in Ohio in the light of the history of Section 16, Article I of the Ohio Constitution, as amended in the Convention of 1912, and the legislative policy reflected in the general procedural statutes governing suability in Ohio. Moreover, a special shield for the state against responsibility for its tortious acts is unjust, arbitrary, and unreasonable and results in discrimination prohibited by the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution.

3. If the doctrine of sovereign immunity had any vitality in Ohio after the amendment of Section 16, Article I, in the Convention of 1912, it was derived from judicial interpretation. As a creation of the courts, the doctrine can be removed by the judiciary.

4. The possibility that the removal of sovereign immunity may impede or inhibit agents of the state in the proper performance of necessary, authorized functions on behalf of the state can be obviated by the retention of immunity from civil liability for individual agents of the state when performing in an authorized capacity on the state's behalf while at the same time imposing liability on the state when the activity is tortious.

Sindell, Sindell, Bourne, Markus, Stern & Spero, Cleveland, for appellant.

William J. Brown, Atty. Gen., Charles E. Brown and Julius J. Nemeth, Columbus, for appellee.

DAY, Chief Justice.

This case comes here after a motion to quash was sustained and judgment for the defendant entered in the trial court. Appellant filed timely notice of appeal.

Appellant assigns one error, in effect, and states the claimed, controlling proposition of law in these terms:

'Where agents, servants and employees of the state of Ohio commit negligence, carelessness, and wanton and reckless misconduct as a result of which injury and death occur to an innocent victim, the heirs and estate of that victim have the right to recover damages against the state of Ohio, and such action is not barred by the doctrine of sovereign immunity which is invalid and unconstitutional.'

The underlying contention in the appellant's proposition of law has two branches; first, the doctrine of sovereign immunity violates equal protection of law because it establishes two categories of claimants, those offended by state action and those offended by private action, with different protections but without a foundation in reasonableness.

Second, the doctrine of sovereign immunity, if not foreign to American jurisprudence, is judge-made in this jurisdiction, and can be unmade under the same auspice.

The state argues that it has not consented to be sued for the alleged carelessness, negligence, reckless and wanton misconduct of its agents and employees when the appellant's decedent, Allison Krause, was killed on May 4, 1970, and that, therefore, the doctrine of sovereign immunity insulates it and its agents from response to law.

I.

The article and section of the Ohio Constitution relevant to governmental immunity provides:

Article I, Section 16:

'All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.

'(Suits against the state.) Suits may be brought against the state, in such courts and in such manner, as may be provided by law. (As amended September 3, 1912.)'

The Supreme Court of Ohio interpreting the 1912 amendment held, in 1917, that it was not self-executing and required legislative authority by statute as a prerequisite to suit. Raudabaugh v. Ohio and Palmer v. Ohio (1917), 96 Ohio St. 513, 518, 118 N.E. 102. The Ohio conclusion relied heavily upon a since discarded California interpretation of a comparable constitutional provision (see III below) and made no reference to a revealing constitutional history. Had the history of the amendment in the 1912 convention been considered, an entirely different conclusion probably would have been reached ¹ on the nonself-Executing issue.

A reader approaching Section 16 for the first time, without preconceptions engendered by Raudabaugh v. Ohio and Palmer v. Oho, id., could certainly conclude that the constitutional provision was intended to jettison the concept of sovereign immunity in Ohio if it ever existed. However, as an intermediate Court of Appeals we must read the section in the light of our highest court's interpretation and we do so. Nonetheless, it occurs to us that a reading fifty-four years old might yield to a different view if the section were reread by contemporary light. ²

For other reasons, however, we conclude that notwithstanding Raudabaugh-Palmer, the immunity is no longer viable. We reverse.

II.

In the face of the Raudabaugh-Palmer decision, the Legislature has enacted and re-enacted statutes from which it is adducible that the state has waived immunity. This follows from the consideration of the language in the second paragraph of Section 16, Article I-

'Suits may be brought against the state, in such courts and in such manner, as may be provided by law.'-in conjunction with the general procedural statutes of the state. For those statutes have long provided, with no exceptions for tortious state conduct, that:

'The court of common pleas has original jurisdiction in all civil cases * * *.' R.C. 2305.01.

and

'An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for thr redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.' R.C. 2307.01. ³

These examples of the general treatment of all causes of action, without a distinction or exception to support the vitality of sovereign immunity, could be extended. However, the examples sufficiently make the point that the omnibus language of the procedural statutes effects compliance with the constitutional invitation to allow suits 'in such manner, as may be provided by law' nothing appearing to the contrary.

III.

Governmental immunity is an anachronism. It represents a vestige of the ancient apotheosis of the state in the person of a king. That the king can do no wrong ⁴ is a dubious concept in a nation whose very founding repudiated kings. Discussions of such immunity begin with the idea of protecting acts of a state ⁵ (something greater than the sum of its citizens) and finish by shielding the wrongful acts of men. A person claiming injury is unprotected in either case. If, in fact, a culpable injury has been done ⁶ and goes unchastised by the law because of the doctrine of sovereign immunity, that doctrine protects injustice for no better person than that its source is the state. And the concept becomes this: 'the king can do wrong with impunity.' This is outlaw doctrine obviously incompatible with the rule of law. Moreover, the notion that government may irresponsibly main or kill contravenes the most elemental notions of due process of law.

Recognizing the inequities inherent in the concept of sovereign immunity the Supreme Court of California abolished governmental tort immunity in 1961. Muskopf v. Corning Hospital District, 11 Cal.Rptr. 90, 359 P.2d 458. There the court ticked off various arguments in support of the doctrine and disposed of them:

'If the reasons for Russell v. Men of Devon and the rule of county or local district immunity ever had any substance they have none today. Public convenience does not outweigh individual compensation, and a suit against a county hospital or hospital district is against an entity legally and financially capable of satisfying a judgment.' (11 Cal.Rptr. page 91, 359 P.2d page 459)

'The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by force of inertia.' (11 Cal.Rptr. page 92, 359 P.2d page 460)

None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In fact, it does not exist. It has become riddled with exceptions, both legislative * * * and judicial * * * and the exceptions operate so illogically as to cause serious inequality. Some who are injured by governmental agencies can recover, others cannot * * *.' (11 Cal.Rptr. page 92, 359 P.2d page 460) ⁷

'It is contended * * * that article XX, section 6, ⁸ should be interpreted as also having substantive significance and establishing the rule of immunity * * *. If the section has any substantive significance it would appear to be a waiver of immunity.' (11 Cal.Rptr. pages 92-93, 359 P.2d pages 460-461)

'The doctrine of governmental immunity was originally court made.' (11 Cal.Rptr. page 93, 359 P.2d page 461)

'What is before us is a series of sporadic statutes, each operating on a separate area of governmental immunity where its evil was felt most * * *. We read the statutes as meaning only what they say: that in the areas indicated there shall be no governmental immunity. They leave to the court whether it should adhere to its own rule of immunity in order areas.' (11 Cal.Rptr. page. 93, 359 P.2d page 461)

'Abrogation of governmental immunity does not mean that the state is liable for all harms that result from its activities. Both the state and individuals are free to engage in many activities that result in harm to others so long as such activities are not tortious * * *. Although it 'is not a tort for government to...