Thacker v. Board of Trustees of Ohio State University

298 N.E.2d 542, 35 Ohio St. 2d 49, 64 Ohio Op. 2d 28, 1973 Ohio LEXIS 313

• Court: Ohio Supreme Court
• Decided: June 27, 1973
• Docket: Nos. 72-105 and 72-106
• Status: Published

Opinions

Herbert, J.

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), this court decided Krause v. State (1972), 31 Ohio St. 2d 132, 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), succinctly states the law pertinent to this issue:

“The state of Ohio is not subject to swits in tort in the courts of this state without the consent of the General Assembly. (Raudabaugh v. State, 96 Ohio St. 513; Palumbo v. Indus. Comm., 140 Ohio St. 54; State, ex rel. Williams, v. Glander, 148 Ohio St. 188; and Wolf v. Ohio State Univ. Hospital, 170 Ohio St. 49, 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.”

Prom 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.

O’Neill, C. J., Steen and P. Blown, JJ., concur. Colligan, Celeblezze and W. Blown, JJ., dissent.

1 TMs court has never wavered from the principle that if constitutionally oriented immunity from suit in tort exists with regard to the state, the benefit thereof inures with equal vigor to those entities classified as instrumentalities of the state. See Brown v. Bd. of Edn. (1969), 20 Ohio St. 2d 68, 253 N. E. 2d 767; Wayman v. Bd. of Edn. (1966), 5 Ohio St 2d 248, 249, 215 N. E. 2d 394; Schaffer v. Bd. of Trustees (1960), 171 Ohio St. 228, 229, 168 N. E. 2d 547; Wolf v. Ohio State Univ. Hosp. (1959), 170 Ohio St. 49, 53, 162 N. E. 2d 475; State, ex rel. Williams, v. Glander (1947), 148 Ohio St. 188, 74 N. E. 2d 82; Farkas v. Fulton (1936), 130 Ohio St. 390, 199 N. E. 850; Neil v. Bd. of Trustees (1876), 31 Ohio St. 15.

This view of the law obtains in the following other jurisdictions where a viable immunity theory exists pursuant to a constitutional provision :

Alabama: Section 14, Article I; Hutchinson v. Bd. of Trustees of the Univ. of Alabama (1971), 288 Ala. 20, 256 So. 3d 281.

Arkansas: Section 20, Article 5; State Commr. of Labor v. Univ. of Arkansas Bd. of Trustees (1966), 241 Ark. 399, 407 S. W. 2d 916.

Connecticut: Section 4, Article II; Baker v. Ives (1972), 162 Conn. 295, 294 A. 2d 290. But, see Sections 4-141 to 4-165, Conn. Gen. Stat.

Delaware: Section 9, Article I; George & Lynch v. State (1964), 197 A. 2d 734.

Louisiana: Section 26, Article 19 (immunity for specified state subdivisions), Huckabay v. Netterville (1972), 263 So. 2d 113; Section 35 Article 3 (the state and other instrumenalities thereof), Weinstein Bronfin & Heller v. LeBlanc (1966), 249 La. 936, 192 So. 2d 130.

North Dakota: Section 22, Article 1; State, ex rel. Shafer, v. Lowe (1926), 54 N. D. 637, 210 N. W. 501; Heasley v. State (N. D. 1962), 115 N. W. 2d 334.

Pennsylvania: Section 11, Article 1; Duquesne Light Co. v. Dept. of Trans. (1972), 6 Pa. Cmwlth. 364, 295 A. 2d 351; Meagher v. Cmwlth. (1970), 439 Pa. 532, 266 A. 2d 684.

South Carolina: Section 2, Article 17; Sherbert v. School Dist. No. 85 (1933), 169 S. C. 191, 168 S. E. 391.

Tennessee: Section 17, Article 1; Cox v. State (1965), 217 Tenn. 644, 399 S. W. 2d 776; Brewington v. Brewington (1965), 215 Tenn. 475, 387 S. W. 2d 777.

West Virginia: Section 35, Article 6; Hesse v. State Soil Conservation Comm. (1969), 153 W. Va. 111, 168 S. E. 2d 293.

Wisconsin: Section 27, Article 4; Appel v. Halverson (1971), 50 Wis. 2d 230, 184 N. W. 2d 99.

Wyoming: Section 8, Article 1; Chavez v. Laramie (Wyo. 1964), 389 P. 2d 23.

The same view prevails in the jurisdictions which have retained common-law immunity for the state:

Iowa: Graham v. Worthington (1966), 259 Iowa 845, 146 N. W. 2d 626; Iseminger v. Black Hawk Cty. (1970), 175 N. W. 2d 374. But, see I. C. A., Section 25 A. 1 ei seq.

Maine: Nelson v. Maine Turnpike Auth. (1961), 157 Me. 174, 178, 170 A. 2d 687; Bale v. Ryder (1972), 286 A. 2d 344. But, see 14 M. R. S. A. Section 157.

Maryland: Dunkel v. Elkins (1971), 325 F. Supp. 1235, 1247, n. 23; University of Maryland v. Maas (1938), 173 Md. 554, 197 A. 123.

Massachusetts: Smith v. Commonwealth (1964), 347 Mass. 453, 198 N. E. 2d 420.

Mississippi: Lowndes County v. Mississippi State Highway Comm. (1969), 220 So. 2d 349.

Missouri: Smith v. Consolidated School Dist. No. 2 (1966), 408 S. W. 2d 50, 54; Todd v. Curators of Univ. of Mo. (1941), 347 Mo. 460, 147 S. W. 2d 1063.

Montana: Longpre v. Joint School Dist. (1968), 151 Mont. 345, 347, 443 P. 2d 1. But, see Section 75-7011, 2d Repl. Vol. 4 (Pt. 2), Montana Rev. Code.

New Hampshire: Krzysztalowski v. Fortin (1967), 108 N. H. 187, 230 A. 2d 750.

North Carolina: Orange Cty. v. Heath (1972), 14 N. C. App. 44, 187 S. E. 2d 345; Brooks v. Univ. of N. Car. (1968), 2 N. C. App. 157, 162 S. E. 2d 616; G. S. 143-291.

Oklahoma: Donaldson v. Bd. of Regents (1942), 190 Okla. 269, 122 P. 2d 139; State, ex rel. Dept. of Highways, v. McKnight (1972), 496 P. 2d 775.

Oregon: Bacon v. Harris (1960), 221 Ore. 553, 352 P. 2d 472; Smith v. Cooper (1970), 256 Ore. 485, 475 P. 2d 78. But, see O. R. S. 30.260-30.300.

Utah: Cobia v. Roy City (1961), 12 Utah 2d 375, 366 P. 2d 986.

See, also, 22 Gleve. St. L. E. 55, n. 2; Prosser, Law of Torts (4 Ed.), 976, Section 131; 74 Harv. L. Eev. 714; annotations, 160 A- L> E. 7, 86 A. L. E. 2d 489, and 33 A* A E- 3d 703.

2 Research fails to reveal any decision by tbis court in which state immunity from suit turned upon a finding of the performance of a “governmental function.” While the concurring opinion of the late Chief Justice Taft in Wolf could be construed to suggest that, at that time, he was considering whether the governmental-proprietary function approach might have application in state cases, it should be noted that the concurrence was not joined by other members of the court, that Chief Justice Taft concurred in the syllabus in the case and that he never repeated or developed the theory thereafter.