FAHNBULLEH, APPELLANT, v. STRAHAN; CITY OF COLUMBUS ET AL., APPELLEES.
No. 94-672
Supreme Court of Ohio
September 13, 1995
73 Ohio St.3d 666 | 1995-Ohio-295
Submitted April 19, 1995. APPEAL from the Court of Appeals for Franklin County, No. 93AP-956.
Barkan & Barkan Co., L.P.A., Neal J. Barkan and Daniel J. Allen, for appellant.
Ronald J. O‘Brien, City Attorney, and Mary E. Johnson, Assistant City Attorney, for appellees.
GWIN, J.
I
{¶ 1} On October 17, 1992, plaintiff-appellant, Duraman Fahnbulleh, was injured when his automobile was struck by a fire truck belonging to the Columbus Division of Fire and operated by appellee Scott Strahan. Appellant was stopped at a stop sign when the emergency vehicle made an improper left turn at the intersection and struck appellant‘s vehicle. Appellees, the city of Columbus and Scott Strahan, claimed immunity pursuant to
{¶ 2} On April 21, 1993, appellant brought suit against appellees alleging ordinary negligence and also sought declaratory judgment against Leader National Insurance for uninsured motorists coverage. The complaint did not allege that Strahan was acting outside the scope of his employment, acting with a malicious purpose, in bad faith, or in a wanton and reckless manner. Nor was it alleged that the appellees were expressly liable pursuant to any other section of the Revised Code.
{¶ 4} The court of appeals affirmed the decision. After this court accepted the matter on July 13, 1994, appellant reached a settlement with Leader National Insurance on August 25, 1994, and filed a notice of voluntary dismissal as to Leader National Insurance.
{¶ 5} The cause is before this court pursuant to the allowance of a discretionary appeal.
{¶ 6} Appellant contends the court of appeals erred in affirming the trial court‘s ruling on appellees’ motion to dismiss, pursuant to Civ.R. 12(B)(6). The trial court found that both appellees were immune from liability pursuant to
{¶ 7} A complaint should not be dismissed for failure to state a claim merely because the allegations do not support the legal theory on which the plaintiff relies.
{¶ 8} We agree with the court of appeals that appellant‘s complaint contains no factual allegations that would remove appellees from the protection of
II
{¶ 9} Appellant urges that
{¶ 10} Historically, the doctrine of sovereign immunity protected political subdivisions from liability. In Ohio, the doctrine of sovereign immunity as to a municipal corporation was judicially abolished in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749. However, in Strohofer v. Cincinnati (1983), 6 Ohio St.3d 118, 6 OBR 178, 451 N.E.2d 787, we held that sovereign immunity could be restored to a municipality by statute. Thereafter, the General Assembly enacted
“Subject to sections
2744.03 and2744.05 of the Revised Code , a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or ofany of its employees in connection with a governmental or proprietary function, as follows: “(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any motor vehicle by their employees upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority. The following are full defenses to such liability.
“***
“(b) A member of a municipal corporation fire department or any other fire fighting agency was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a fire is in progress or is believed to be in progress, or answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct[.]”
{¶ 11} Appellant concedes that all legislative enactments enjoy a presumption of constitutionality. Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 512 N.E.2d 626. Since
{¶ 12} The court of appeals found two legitimate governmental interests that are served by the grant of statutory immunity. First, the government encourages rapid response of emergency vehicles and personnel. On balance, the harm to an individual who may be injured is outweighed by the benefit to society in general by quick response of emergency personnel. Whether the statute best achieves its purposes is not the focus of a constitutional inquiry. Instead, we must uphold the statute unless it is wholly irrelevant to the achievement of the purpose. Menefee v. Queen City Metro. (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181, 183,
{¶ 13} Appellant maintains that if
“All courts shall be open, and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.
“Suits may be brought against the state, in such courts and in such manner, as may be provided by law.”
{¶ 14} The court of appeals noted the irony that appellant lives in a state that mandates automobile liability insurance, but he must nonetheless personally bear all the costs of the automobile collision where an at-fault motorist claims governmental immunity. It may well be argued that any grant of immunity necessarily impairs some individual‘s right to seek redress in a court of law, and thus treats some persons harshly. All too frequently, decisionmaking requires difficult balancing of competing interests and equities. The Ohio Constitution specifies that suits may be brought against the state “as provided by law.” This language can only mean that the legislature may enact statutes to limit suits if it does so in a rational manner calculated to advance a legitimate state interest. In
{¶ 15} We note that here, the detrimental effect of the immunity statute is blunted by the enactment of Am.Sub.S.B. No. 20,1 so that future persons in appellant‘s circumstances will recover for their injuries.
{¶ 16} We hold that
{¶ 17} The judgment of the court of appeals is affirmed.
Judgment affirmed.
DOUGLAS, ACTING C.J., WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
PFEIFER, J., dissents.
W. SCOTT GWIN, J., of the Fifth Appellate District, sitting for MOYER, C.J.
PFEIFER, J., dissenting.
{¶ 18} Sovereign immunity—the more they explain it, the more I don‘t understand it.
{¶ 19} There is no constitutional authority for sovereign immunity in Ohio. Instead,
“Suits may be brought against the state, in such courts and in such manner, as may be provided by law.”
{¶ 20} Instead of abiding by that clear constitutional mandate, the majority and the General Assembly take a trip “through the looking glass,” claiming that what the Constitution means when it says that suits may be brought against the state is that suits cannot be brought against the state.
{¶ 21} The Constitution means what it says—that the General Assembly may determine how and in what courts cases are brought against the state. The General Assembly, for instance, could do for the state‘s political subdivisions what it has done for the state—create a special court like the Court of Claims to make litigation more convenient for the state. The General Assembly does not have the power, however, to foreclose a citizen‘s right to recover against the state.
{¶ 22} Another confounding theory underlying sovereign immunity is that the people‘s constitutional right to sue the state is not “self-executing.” By that it is meant that the constitutional right to sue the state does not arise until the General Assembly makes some move to provide for that right. Thus, the General Assembly supposedly has the power to limit a right that does not exist.
{¶ 23} The rationalizations and legal fictions employed to prop up this monarchical throwback are bewildering. The doomsaying is particularly disturbing. The suggestion that without sovereign immunity our communities would go broke is insulting. We expect every person with an automobile to purchase insurance in this state. Should the state be held to a lesser standard of responsibility than we hold for small business, big business, drivers and homeowners?
{¶ 24} Next comes the common claim that we need to protect the integrity of rapid response emergency vehicles and personnel. Emergency vehicles already
{¶ 25} Sovereign immunity is a remnant of history. Just because it is historically based does not mean that it is legitimate. Its illegitimacy is well exemplified in this case. Fahnbulleh, stopped at a stop sign, gets slammed into by a negligently driven fire truck. Since the city is immune from suit, Fahnbulleh‘s uninsured motorists coverage does not apply, and he is left to pay for the injuries for which he was not at fault. What‘s right about that?