Strohofer v. City of Cincinnati

451 N.E.2d 787, 6 Ohio St. 3d 118, 6 Ohio B. 178, 1983 Ohio LEXIS 789

• Court: Ohio Supreme Court
• Decided: August 3, 1983
• Docket: Nos. 82-674 and 82-1504
• Status: Published

Opinions

J. P. Celebrezze, J.

In each of these cases we are asked to determine whether appellant’s claims against the respective municipalities for damages arising from the allegedly tortious design and placement of traffic control devices, are barred by the doctrine of sovereign immunity.

In view of our recent decision in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, we hold that they are not. Therein we abrogated the doctrine of sovereign immunity and held at paragraph two of the syllabus that “[t]he defense of sovereign immunity is not available, in the absence of a statute providing immunity, to a municipal corporation in an action for damages alleged to be caused by the negligent operation of a sewage treatment plant.”

Relying on the syllabus, appellee city of Columbus and the amici argue that the holding in Haverlack is limited to liability for damages caused by the negligent operation of a sewage treatment plant.

It is clear from our decision, however, that we rejected the continued viability of the doctrine of sovereign immunity as a defense. We reached that result upon finding that attempts to apply the doctrine resulted in confusion and unpredictability in the law; that its application created unjust results; and that it was unnecessary because municipalities can protect themselves from liability in the same manner as private businesses. We concluded that, “[s]tare decisis alone is not a sufficient reason to retain the doctrine which serves no purpose and produces such harsh results. Therefore, we join with the other states in abrogating the doctrine.” Id. at 30.

The facts presented in the cases herein do not dissuade us from that conclusion. To the contrary, they illustrate the absurd consequences which result from attempts to distinguish proprietary from governmental functions in determining whether a municipality is amenable to suit. The courts below both found that the design and placement of traffic control devices were governmental functions, the performance of which could not give rise to liability. At the same time they conceded that the appellants would have had actionable claims had they alleged a failure to repair or maintain the traffic control devices in question.

R.C. 723.01 imposes upon municipalities the duty to keep their streets “* * * open, in repair, and free from nuisance.” It is difficult to conceive of a greater nuisance than improperly and dangerously directing traffic through a heavily travelled intersection. It is equally difficult to conceive of a justification for shielding a municipality from liability in an action alleging such conduct, solely because the conduct involved was the design and placement of traffic control devices rather than their repair and maintenance.

In the absence of a statute providing immunity, the defense of sovereign immunity is not available to a municipality in an action for damages alleged to be caused by the tortious conduct of the municipality.

Appellees cite no statute, nor does our research disclose one, which grants them immunity from liability for damages arising from the design and placement of traffic control devices.

Accordingly, the judgments of the courts of appeals are reversed and the causes are remanded to the trial courts for further proceedings.

Judgments reversed and causes remanded.

In case No. 82-674:

Celebrezze, C.J., Cook, Sweeney and C. Brown, JJ., concur. Locher and Holmes, JJ., dissent. Cook, J., of the Eleventh Appellate District, sitting for W. Brown, J.

In case No. 82-1504:

Celebrezze, C.J., Sweeney and C. Brown, JJ., concur. Whiteside, J., concurs separately. Locher and Holmes, JJ., dissent. Whiteside, J., of the Tenth Appellate District, sitting for W. Brown, J.