Sears v. City of Cincinnati

• Decision Date: 19 July 1972
• Docket Number: No. 71-72,71-72
• Citation: 285 N.E.2d 732,31 Ohio St.2d 157
• Parties: , 60 O.O.2d 113 SEARS, a Minor, Appellant, v. CITY OF CINCINNATI, Appellee.
• Court: Ohio Supreme Court

Page 157

31 Ohio St.2d 157

285 N.E.2d 732, 60 O.O.2d 113

SEARS, a Minor, Appellant, v. CITY OF CINCINNATI, Appellee.

No. 71-72.

Supreme Court of Ohio.

July 19, 1972.

Syllabus by the Court

1. The maintenance of a municipal hospital by a municipal corporation is not essential to the government of a municipality and is not an exercise of an inherently governmental function.

2. In an action for damages alleged to be caused by the negligence of an employee of a municipal hospital, the defense of governmental immunity is not available to the municipality which owns the hospital.

3. Under the doctrine of respondeat superior a municipal corporation is liable to a party injured by the negligence of an employee of a hospital owned by the municipality.

Plaintiff-appellant, Hertie Sears, a minor, by her mother and next friend, brought an action to recover damages for personal injuries against defendant-appellee, city of Cincinnati, as operator of the Cincinnati General Hospital.

In her petition, plaintiff alleges that she entered defendant's hospital 'on or about June 14, 1967,' and while so hospitalized 'she was given intravenous treatment at the site of the right foot, and that due to the negligent care of defendant, through its employees or agents acting in the scope of employment or agency, said right foot became gangrenous.' Plaintiff alleges further that the subsequent 'amputation of part of her right foot was directly and proximately caused by the negligence of the defendant * * *.'

Defendant demurred to the petition 'on the ground that the facts contained therein do not state a cause of action against it.' In its memorandum in support of the demurrer, defendant stated that it owned the Cincinnati General Hospital, but claimed that it was engaged in a governmental function and hence immune to such suit, citing Hyde v. Lakewood (1965), 2 Ohio St.2d 155, 207 N.E.2d 547.

The trial court sustained the demurrer and dismissed the petition.

The Court of Appeals affirmed the judgment and the cause is before this court following allowance of a motion to certify the record.

Harry Gehler, Cincinnati, for appellant.

William A. McClain, City Solicitor, and Richard A. Castellini, Cincinnati, for appellee.

C. WILLIAM O'NEILL, Chief Justice.

This appeal again brings before this court the question of whether a municipality, which owns a municipal hospital, may assert the defense of governmental immunity in a suit for the negligent acts of the hospital's employees occurring within the scope of their employment or agency.

The existing rule, as expressed in the syllabus of Hyde v. Lakewood, supra, 2 Ohio St.2d 155, 207 N.E.2d 547, is that:

'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.'

Under the foregoing rule, determination of the question of liability of the municipality turns upon the facts.

In Hyde v. Lakewood, supra, 2 Ohio St.2d 155, 207 N.E.2d 547, the facts showed that taxpayers of the city of Lakewood had voted funds for the construction and equipping of the hospital; that the hospital was not operated 'with a view to profit'; that it was managed by a board of trustees established by city charter; that purchases were conducted by competitive bidding; that hospital accounting records were kept by the municipality's finance department; that 37% of the annual admissions were Lakewood residents; that an outpatient clinic was maintained for indigents; and that all who applied for admittance were accommodated. Those facts were held to support a finding that the hospital operation constituted a governmental function.

In Holt v. Cincinnati, a companion case to Hyde, although the hospital was owned by the city of Cincinnati, the facts revealed that the hospital was operated by the board of directors of the University of Cincinnati; that accounting operations were performed by the University; that the hospital was self-supporting; that only paying patients were admitted; and that only patients of the faculty members of the College of Medicine were admitted to the hospital. It was held that those facts supported a determination that the hospital was 'essentially a proprietary undertaking' and that the municipality could not avail itself of the defense of governmental immunity.

Prior to the decision of this court in Avellone v. St. John's Hospital (1956), 165 Ohio St. 467, 135 N.E.2d 410, the defense of immunity also applied to hospitals operated by charitable corporations not for profit. That case held that 'A corporation not for profit, which has as its purpose the maintenance and operation of a hospital, is, under the doctrine of respondeat superior, liable for the torts of its servants', thus stripping charitable hospitals of their immunity.

The defense of governmental immunity also arises in cases involving injury to a patient in a hospital owned and operated by an instrumentality of the state. The rule governing these hospitals, as expressed in paragraph four of the syllabus in Wolf v. Ohio State University Hospital (1959), 170 Ohio St. 49, 162 N.E.2d 475, is that such hospitals '* * * are not suable in tort until the General Assembly * * * enacts a statute determining the courts and the manner in which such suits may be brought against the state.'

It can be seen that application of the rules laid down in Hyde, Avellone and Wolf, supra, leads to varying results for injured patients, depending upon the type of hospital in which an injury is sustained: (1) A patient who is injured by the negligence of an employee of a charitable hospital may maintain an...