Schenkolewski v. Cleveland Metroparks System

• Citation: 21 O.O.3d 19,67 Ohio St.2d 31,426 N.E.2d 784
• Decision Date: 01 July 1981
• Docket Number: No. 80-978,80-978
• Parties: , 21 O.O.3d 19 SCHENKOLEWSKI, Appellant, v. CLEVELAND METROPARK SYSTEM, Appellee.
• Court: United States State Supreme Court of Ohio

Page 31

67 Ohio St.2d 31

426 N.E.2d 784, 21 O.O.3d 19

SCHENKOLEWSKI, Appellant, v. CLEVELAND METROPARK SYSTEM, Appellee.

No. 80-978.

Supreme Court of Ohio.

July 1, 1981.

Syllabus by the Court

1. The common law doctrine of governmental or sovereign immunity may, consistent with Section 16, Article I of the Ohio Constitution, be abolished or altered by the judicial branch of government. (Raudabaugh v. State, 96 Ohio St. 513, 118 N.E. 102; Palumbo v. Indus. Comm., 140 Ohio St. 54, 42 N.E.2d 766; Wolf v. Ohio State University Hospital, 170 Ohio St. 49, 162 N.E.2d 475; Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736; and Thacker v. Bd. of Trustees of Ohio State Univ., 35 Ohio St.2d 49, 298 N.E.2d 542; overruled in part.)

2. The defense of governmental immunity is unavailable to a board of commissioners of a park district established pursuant to R.C. Chapter 1545, where its alleged liability has arisen out of the exercise of a proprietary function.

3. A board of commissioners of a park district established pursuant to R.C. Chapter 1545 which voluntarily owns and operates a zoological park primarily for the benefit and accommodation of those citizens who might be interested in that activity does so in the exercise of a proprietary function and is answerable for its tortious conduct.

On May 21, 1979, Craindle Schenkolewski, appellant herein, joined by her husband, Yisriel Schenkolewski, filed a complaint in the Court of Common Pleas in which the Cleveland Metroparks System, defendant-appellee herein, was named as the defendant. She alleged that upon entering the main entrance of the Cleveland Metropark Zoo, (which is owned and operated by appellee) on April 25, 1978, she turned her ankle and fell, incurring a fracture of the fifth metatarsal of the right foot, extreme swelling of the right foot and ankle and pain. She further alleged that her fall was caused by the defendant's negligence in that a piece of pipe was cut off and left exposed three inches above the surface. It was further alleged that a depression about two and one-half inches deep was present in the asphalt walk. Plaintiffs-appellants sought damages in the combined amount of $12,500.

In response, defendant-appellee, Cleveland Metroparks System (hereinafter "park district" ¹), filed a motion to dismiss the complaint for failure to state a claim pursuant to Civ.R. 12(B)(6). In support of its motion, the park district contended that it was an instrumentality and agency of the state of Ohio and therefore immune from liability under the doctrine of sovereign immunity. The trial court granted the park district's motion and dismissed the complaint.

The Court of Appeals affirmed, holding that the governmental-proprietary distinction characteristic of municipal law was inapplicable to this cause, the park district being a state instrumentality.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Steuer, Escovar & Berk Co., L.P.A., Thomas J. Escovar, Cleveland, for appellant.

Kelley, McCann & Livingstone, Walter C. Kelley, Stephen M. O'Bryan and Steven N. Bulloch, Cleveland, for appellee.

SWEENEY, Justice.

Relying on existing Ohio precedent, the Court of Appeals held that appellee, a park district established under the authority of R.C. Chapter 1545, is a political subdivision of the state of Ohio which performs functions that are governmental in character, and thus is immune from tort liability. Village of Willoughby Hills v. Bd. of Park Commrs. (1965), 3 Ohio St.2d 49, 209 N.E.2d 162; Wolf v. Ohio State University Hospital (1959), 170 Ohio St. 49, 162 N.E.2d 475; Krause v. State (1972), 31 Ohio St.2d 132, 285 N.E.2d 736; Thacker v. Bd. of Trustees of Ohio State Univ. (1973), 35 Ohio St.2d 49, 298 N.E.2d 542; see, also, Kroger v. Bd. of Park Commrs. (D.C.S.C.Ohio, 1980), 17 Ohio Op.3d 158.

The long established common law rule in Ohio is that the state, being sovereign, is not amenable to suit in its own courts without its express consent. Raudabaugh v. State (1917), 96 Ohio St. 513, 514, 118 N.E. 102; see, generally, Thacker v. Bd. of Trustees of Ohio State Univ., supra, 35 Ohio St.2d at 67-68, 298 N.E.2d 542 (dissenting opinion, per W. Brown, J.). Similarly, although the state itself has been called the "only true sovereign," ² under common law it was traditionally held that the benefit of the state's sovereign immunity inures with equal vigor to entities classified as instrumentalities of the state, Thacker v. Bd. of Trustees of Ohio State Univ., supra, at page 52, footnote 1, 298 N.E.2d 542, and to political subdivisions of the state, Schaffer v. Bd. of Trustees (1960), 171 Ohio St. 228, 168 N.E.2d 547 (counties).

At the same time, the law of governmental immunity of municipal corporations developed differently. As summarized in Prosser on Torts (4 Ed.), at 977-78, Section 131, municipal corporations have been regarded as having a dual character:

"On the one hand they are subdivisions of the state, endowed with governmental powers and charged with governmental functions and responsibilities. On the other they are corporate bodies, capable of much the same acts as private corporations, and having the same special and local interests and relations, not shared by the state at large. They are at one and the same time a corporate entity and a government. The law has attempted to distinguish between the two functions, and to hold that in so far as they represent the state, in their 'governmental,' 'political,' or 'public' capacity, they share its immunity from tort liability, while in their 'corporate,' 'private' or 'proprietary' character they may be liable."

In Ohio, this so-called "governmental-proprietary" distinction is reflected in a long line of cases, e. g., Frederick v. Columbus, (1898) 58 Ohio St. 538, 51 N.E. 35; Wooster v. Arbenz (1927), 116 Ohio St. 281, 156 N.E. 210; Hack v. Salem (1963), 174 Ohio St. 383, 189 N.E.2d 857; Haas v. Hayslip (1977), 51 Ohio St.2d 135, 364 N.E.2d 1376.

Effective January 1, 1975, the General Assembly enacted the Court of Claims Act, R.C. 2743.01 et seq. The Act expressly waived the sovereign immunity of the state of Ohio, its departments, boards, offices, commissions, agencies, institutions and other instrumentalities, and granted consent to have the liability of such entities determined in a Court of Claims in accordance with the same rules of law applicable to suits between private parties. R.C. 2743.02; 2743.01(A). Excluded from the Act's coverage were "political subdivisions," defined as "municipal corporations, townships, counties, school districts, and all other bodies corporate and politic responsible for governmental activities only in geographic areas smaller than that of the state to which the sovereign immunity of the state attaches." R.C. 2743.01(B).

Thus, after the effective date of the Court of Claims Act, governmental tort liability extended to the state and its instrumentalities (by statute), and to municipal corporations as to their proprietary activities (under the common law). A gap in potential liability exists, however, as to those entities held to be subdivisions of the state under common law, thus beneficiaries of the state's sovereign immunity, which did not become subject to the jurisdiction of the Court of Claims under R.C. Chapter 2743. A board of park commissioners of a park district established under R.C. Chapter 1545, being a "body politic and corporate," R.C. 1545.07, responsible for governmental activities on less than a statewide basis, Village of Willoughby Hills v. Bd. of Park Commrs., supra, is one such entity.

While acknowledging that park districts are not liable for torts committed in the exercise of governmental functions, appellants urge us to adopt as law their proposition that such a district is liable for torts committed while carrying on proprietary activities.

In addressing appellants' argument we first must determine whether this court may constitutionally abrogate the immunity of a park district as to functions it engages in that are of a proprietary nature.

In 1912, Section 16, Article I of the Ohio Constitution was amended to provide that "(s)uits may be brought against the state, in such courts and in such manner, as may be provided by law." In Raudabaugh v. State, supra, this court was faced with the contention that such amendment, in and of itself, authorized suits to be brought against the state, i. e., that the provision was self-executing. The court rejected this argument, holding, in the second paragraph of the syllabus, that "statutory authority is required as a prerequisite to the bringing of suits against the state." Since that time, the principle has been steadfastly reiterated that statutory express consent is required before the state or its instrumentalities is amenable to suit. Palumbo v. Indus. Comm. (1942), 140 Ohio St. 54, 42 N.E.2d 766; Wolf v. Ohio State University Hospital, supra; Schaffer v. Bd. of Trustees, supra; Krause v. State, supra; Thacker v. Bd. of Trustees, supra. In recent years, however, this principle has been the subject of intensified criticism. Thacker v. Bd. of Trustees of Ohio State Univ., supra, 35 Ohio St.2d at 62-63, 298 N.E.2d 542 (dissenting opinion, per Corrigan, J.) ³ and 72-78, 298 N.E.2d 542 (dissenting opinion, per W. Brown, J.); see, also, Haas v. Hayslip, supra, 51 Ohio St.2d at 140-142, 364 N.E.2d 1376 (dissenting opinion, per W. Brown, J., joined by Celebrezze and Sweeney, JJ.).

Unlike those states whose Constitutions expressly provide that the legislative branch is to direct in what manner and in what courts suits may be brought against the state, e. g., Section 27, Article IV, Wisconsin Constitution; Section 231, Kentucky Constitution; Section 11, Article I, Pennsylvania Constitution, our Constitution provides simply that suits may be brought against the state as may be provided by law. Section 16, Article I, Ohio Constitution. As stated in...