Political Subdivision Tort Liability – Immunity Under RC 2744.02(A)(1)

Under RC 2744.02(A)(1), political subdivisions and their employees are immune from tort liability (meaning legal responsibility for personal injury and property damage) in performing either a governmental or proprietary function, subject to certain exceptions. Political subdivisions include municipal corporations, townships, counties, school districts, and similar entities.

Several exceptions to this general grant of immunity include:

  • Operation of a police department, fire department or emergency medical service vehicle, in a willful or wanton manner. The Supreme Court, in Anderson v. Massillon, held that willful misconduct “implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.” Wanton misconduct, on the other hand, is “the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.” 134 Ohio St.3d 380, 983 N.E.2d, 266, 2012-Ohio-5711, at syl. Citations omitted. Both are indicative of conduct exceeding negligence.

  • Negligence of a political subdivision employee with respect to a “proprietary function.” “Proprietary function” is statutorily defined at 01(G) and includes those functions that “promote or preserve the public peace, health, safety, or welfare.” Proprietary functions are customarily engaged in by nongovernmental persons (for example, the operation of a hospital by one or more political subdivisions; the operation and control of a public stadium etc.).

  • Negligent failure to keep public roads in repair, including negligent failure to remove obstructions from public roads. Practically speaking, this might include a township failing to remove foliage from the fringes of the road such that it obstructs the view of road signs.

Of course, there are exceptions to these exceptions. (Confusing, isn’t it?)

And, even if one is able to establish that an exception to immunity does indeed apply (and thus political subdivisions should NOT be afforded statutory immunity), 2744.03 provides political subdivisions and their employees with a battery of defenses. In short, Ohio’s Political Subdivision Tort Liability Act is complex and requires a multi-tiered analysis. Please contact us if you have questions about a specific situation.