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Overcoming the assumption of immunity: an analysis of R.C. 2744

The Columbus Dispatch recently published an article regarding a $1.2 million settlement Leeseberg & Valentine obtained against the City of Columbus. Since then, the Dispatch has published an additional four articles, which can be read about here, here, here, and here. For an overview of Bray v. City of Columbus, please see our initial blog post published on June 27, 2016.

While we are grateful for the significant amount of press coverage, all of these articles have failed to focus on a key issue. The City of Columbus is a political subdivision (i.e. a local government created by the State of Ohio), and as such the City is entitled to broad immunity from liability. In other words, the City is free to make mistakes without fear of any repercussions. The rationale behind this grant of immunity is that the burden of paying for these mistakes actually falls on the taxpayers. Of course that rationale has merit, but it ignores the fundamental flaw: if you don't hold people responsible for their mistakes, nothing will get fixed.

This blog takes a look at the political subdivision immunity statutes and the various layers of protection from liability the Ohio legislature has put in place for governmental entities.

Chapter 2744 of the Ohio Revised Code governs the immunity provisions for political subdivisions. In Cater v. City of Cleveland, the Ohio Supreme Court set forth a three-tiered analysis for determining whether a political subdivision is immune from liability. 83 Ohio St. 3d 24 (Ohio 1998). The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental or proprietary function. R.C. § 2744.02(A)(1). That immunity is not absolute, however, as the second tier of analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. § 2744.02(B) may apply. If any of these exceptions apply, and no defense in that section protects the political subdivision from liability, then the third tier of analysis requires a court to determine whether a litany of the defenses listed in R.C. § 2744.03 apply.

As applied to the case of Sonia Bray, courts start its analysis by simply assuming a political subdivision is entitled to immunity. This shifts the burden to a plaintiff to prove the city is not entitled to immunity, rather than requiring the City to actually defend the claim. This assumption of immunity automatically places every plaintiff seeking to bring a claim against a political subdivision at a disadvantage from the start.

To try and overcome this assumption of immunity, the claim must fit into one of the five narrowly construed exceptions to immunity provided by R.C. 2744.02. One such exception states "political subdivisions are liable for injury, death or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." R.C. 2744.02(B)(2). This is the exception that opened the door for Sonia Bray. In order to bring a claim under this exception, the plaintiff must be able to demonstrate that the negligent act was governmental or proprietary in nature. Many of these are defined by statute in R.C. 2744.01(C)(1) and 2744.01(G). These "exceptions" also come with their own full defenses specified by statute. In our case, Ms. Bray was injured while being treated by City of Columbus paramedics and none of the full defenses applied, so we were able to overcome this obstacle.

Finally, if a plaintiff is able to overcome the initial hurdles placed upon him or her, the third tier of analysis allows a political subdivision to once again assert immunity through one of the affirmative defenses listed in R.C. 2744.03. For example, an employee is immune from liability unless "the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." R.C. 2744.03(A)(6)(b). This defense again assumes the public employee is immune from liability and shifts the burden to a plaintiff to demonstrate the employee's misconduct was willful, in bad faith, wanton, or reckless. In the case at hand, Ms. Bray was able to prove that the City of Columbus paramedics were "reckless" as they had a conscious disregard or indifference to her well being despite being aware of the known or obvious risk of harm that could result from their actions.

While Ms. Bray was eventually able to successfully resolve her claim against the City, it is important to note her case was initially thrown out on summary judgment by the trial court. This was not surprising and it goes to show just how difficult it is to overcome this assumption of immunity. Fortunately, our attorneys were able to demonstrate that the trial court erred in granting summary judgment resulting in the case being sent back to the lower court for it to be tried on the merits.

The Tenth District Court of Appeals decision is a rare deviation from the assumption of immunity and creates a new avenue for those injured at the hands of governmental employees to successfully bring a claim. If your or someone you know has been injured by a political subdivision, please contact our office today to see if we can be of assistance. 

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