Thacker v. Board of Trustees of Ohio State University

Decision Date27 June 1973
Docket NumberNos. 72-105,72-106,s. 72-105
Citation298 N.E.2d 542,35 Ohio St.2d 49
Parties, 64 O.O.2d 28 THACKER et al., Appellants, v. BOARD OF TRUSTEES OF the OHIO STATE UNIVERSITY et al., Appellees. (Two cases.)
CourtOhio Supreme Court

Syllabus by the Court

1. The state of Ohio is not subject to suits in tort in the courts of this state without the consent of the General Assembly. (First paragraph of the syllabus in Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736, approved and followed.)

2. The Ohio State University and The Ohio State University Hospitals are instrumentalities of the stae of Ohio and as such are not suable in tort until the General Assembly of Ohio enacts a statute determining the courts and the manner in which such suits may be brought against the state. (Fourth paragraph of the syllabus in Wolf v. State, 170 Ohio St. 49, 162 N.E.2d 475, approved and followed.)

Plaintiffs-appellants, Esther H. Thacker and Roland T. Thacker, filed an action in the Court of Common Pleas against defendants-appellees, Board of Trustees of The Ohio State University, The Ohio State University Hospitals, B. R. Wiltberger, M. D., and John or Jane Doe as unknown residents, interns, nurses or attendants at the named hospital, for the recovery of damages for injuries allegedly sustained by plaintiff Esther H. Thacker while a patient there.

The Board of Trustees of The Ohio State University and The Ohio State University Hospitals filed a motion to dismiss the action, as to them, '* * * because the complaint fails to state a claim against defendants upon which relief can be granted.'

The Court of Common Pleas granted defendants' motion to dismiss on the basis of this court's decisions in Wolf v. Ohio State University Hospital (1959), 170 Ohio St. 49, 162 N.E.2d 475, and Schaffer v. Bd. of Trustees of Franklin County Veterans Memorial (1960), 171 Ohio St. 228, 168 N.E.2d 547.

Plaintiffs appealed to the Court of Appeals, setting forth the following single assignment of error:

'The Court of Common Pleas erred in sustaining the defendants' motion to dismiss without first making a determination whether the defendants in operating The Ohio State University Hospitals, were exercising a governmental function or a proprietary function.'

The Court of Appeals affirmed the judgment, citing Raudabaugh v. State (1917), 96 Ohio St. 513, 118 N.E. 102; West Park Shopping Center v. Masheter (1966), 6 Ohio St.2d 142, 216 N.E.2d 761; Wolf v. Ohio State University Hospital, supra 170 Ohio St. 49, 162 N.E.2d 475; and Schaffer v. Bd. of Trustees of Franklin County Veterans Memorial, supra 171 Ohio St. 228, 168 N.E.2d 547.

Plaintiffs filed a motion in the Court of Appeals requesting certification of the record in the case to this court because of a conflict between its decision and the decision of the Court of Appeals for Cuyahoga County in the case of Krause v. State (1971), 28 Ohio App.2d 1, 274 N.E.2d 321. Plaintiffs also filed, in this court, a motion to certify the record on the specific question of the assignment of error alleged as the original ground of their appeal.

The Court of Appeals, finding that the aforestated conflict did exist, certified the record to this court for review and final determination, the appeal being docketed here as case No. 72-105. In case No. 72-106, the cause is before us pursuant to our allowance of plaintiffs' motion to certify the record.

Santen, Santen & Hughes Co., L. P. A., and William B. Singer, Cincinnati, for appellants.

Vorys, Sater, Seymour & Pease, Duke W. Thomas and Jacob E. Davis, II, Columbus, for appellees.

HERBERT, Justice.

Subsequent to the certification of case No. 72-105 by the Court of Appeals because of the conflict with Krause v. State, supra (28 Ohio App.2d 1, 274 N.E.2d 321), this court decided Krause v. State (1972), 31 Ohio St.2d 132, 285 N.E.2d 736, and passed upon the issues presented. We will not reconsider those issues here. However, the remaining question which was raised in the Court of Appeals merits scrutiny: Whether the Ohio State University Hospitals may be sued in tort for the alleged negligent acts of hospital employees and agents in treating a patient at the hospital.

The first paragraph of the syllabus in Krause v. State, supra 31 Ohio St.2d 132, 285 N.E.2d 736, succinctly states the law pertinent to this issue:

'The state of Ohio is not subject to suits in tort in the courts of this stae without the consent of the General Assembly. (Raudabaugh v. State, 96 Ohio St. 513, 118 N.E. 102; Palumbo v. Indus. Comm., 140 Ohio St. 54, 42 N.E.2d 766; State, ex rel. Williams v. Glander, 148 Ohio St. 188, 74 N.E.2d 82; and Wolf v. Ohio State Univ. Hospital, 170 Ohio St. 49, 162 N.E.2d 475, approved and followed.)' (Emphasis added.)

Appellants orally argue that the Ohio State University Hospitals are not 'the state,' within the meaning of the Krause syllabus, and, therefore, that the hospital may be sued in tort if the operation thereof constitutes the performance by the state of a proprietary function. However, the fourth paragraph of the syllabus in Wolf declares:

'The Ohio State University and the Ohio State University Hospital are instrumentalities of the state of Ohio and as such are not suable in tort until the General Assembly of Ohio enacts a statute determining the courts and the manner in which such suits may be brought against the state.' (Emphasis added.) 1

Appellants seek to debilitate Krause and Wolf as precedents for the holdings below, contending that the issue of whether a governmental or proprietary function was being performed was not before the court in either case.

Such a position, however, overlooks one of the main points made in Krause. As set forth in the second paragraph of the syllabus in that case:

'Section 16 of Article I of the Ohio Constitution, as amended September 3, 1912, abolished the defense of governmental immunity and empowered the General Assembly to decide in what courts and in what manner suits may be brought against the state.'

From that language, it should be readily apparent that questions concerning the governmental or proprietary nature of state activity were rendered irrelevant by Krause. That case held that the state and its instrumentalities do not have a defense of governmental immunity-that sovereign immunity exists in Ohio, insofar as suits against the state are concerned, only because the constitutional requirement for legislative consent in the field has not yet been satisfied. Since Krause, if not before, 2 any inquiry directed to the nature of the function in which the state was engaged at the time of an alleged wrong has become meaningless.

Since the General Assembly has not consented to suits in tort against these appellees, the judgment of the Court of Appeals must be affirmed.

Judgment affirmed.

C. WILLIAM O'NEILL, C. J., and STERN and PAUL W. BROWN, JJ., concur.

CORRIGAN, CELEBREZZE and WILLIAM B. BROWN, JJ., dissent.

CORRIGAN, Justice (dissenting).

The issue before this court is: Whether the Ohio State University Hospitals may be held accountable in tort for the negligent acts of hospital employees and agents in treating a patient, or whether the doctrine of governmental immunity shields them from such liability and justifies the trial court's grant of defendants' motion to dismiss the complaint without that court first making a determination as to whether the defendants, in operating the Ohio State University Hospitals, were exercising a governmental function or a proprietary function.

The shield of immunity protected charitable hospitals from liability in tort prior to this court's decision in Avellone v. St. John's Hospital (1956), 165 Ohio St. 467, 135 N.E.2d 410, wherein it was held:

'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.'

The defense of governmental immunity was also available to municipal hospitals operated not as a proprietary but as a governmental function (Hyde v. Lakewood (1965), 2 Ohio St.2d 155, 207 N.E.2d 547), until this court's decision in Sears v. Cincinnati (1972), 31 Ohio St.2d 157, 285 N.E.2d 732. The syllabus in Sears reads:

'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.'

In the opinion in Sears, at page 160, 285 N.E.2d at page 734, the following comment is found concerning the liability of hospitals operated by an instrumentality of the state: 'The rule governing those 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.''

The foregoing cases reflect the status of existing Ohio law in respect to immunity from liability of hospitals to tortiously injured patients, i. e., the immunity doctrine has been completely abolished as to hospitals operated by charitable corporations and as to those operated by municipalities. The question presently before the court is whether the immunity doctrine is applicable to a hospital operated by an instrumentality of the state in an action in tort wherein it is claimed that such hospital is not operated as a governmental but as a proprietary function.

Resolution of the issue presented...

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