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Municipal Liability

Info you can use about municipal liability

Negligence. It's a common reason to bring a lawsuit. You get hurt because of someone else's negligence and you feel you're owed some compensation. And, in most cases, people and entities are responsible for injuries caused by their (or their employee's) negligence.1 But when the defendant is a political subdivision or one of its employees, it's a completely different story.

POLITICAL SUBDIVISION – A governmental subdivision of the state. Most often a municipality, township, county, or school district.

Why? Because in 1985, the Ohio legislature passed the Political Subdivision Tort Liability Act, a law that states that political subdivisions are immune from some kinds of civil liability.2 To put it more simply, state law prevents these governmental entities from being sued by injured parties.

You might be thinking, "Well, maybe that's a good thing. We don't want our government going bankrupt just because people decide to file frivolous law suits." Well, in some cases, you may be right. But for the majority of plaintiffs, governmental immunity acts as a barrier to recovery from the real harm they have suffered. More importantly, if the responsible party is not made to pay for the harm they caused, the burden is generally shifted to others via insurance premiums, or public assistance programs.

PROPRIETARY FUNCTION – Refers to conduct designed to promote or preserve the public peace, health, safety, or welfare but that involves activities that are customarily engaged in by nongovernmental persons or entities. Examples include operation of a hospital, cemetery or sewer system.

Thankfully, there are exceptions. But navigating the murky sea of state statutes is a daunting task. When deciding whether immunity applies, courts must look to the type of activity performed. There are two basic categories: governmental or proprietary functions.

GOVERNMENTAL FUNCTION – State or legislatively mandated conduct carried out for the benefit of the public that is generally not undertaken by private parties. Police, fire, and rescue services are obvious examples, but it can also include operation of health boards, libraries or parks recreation facilities.

Generally, governmental functions are afforded the most protection from liability while the performance of proprietary functions carries more risk for political subdivisions to lose their immunity. However, the statute is replete with specific exemptions, and exceptions to those exemptions, that make it difficult to summarize.

If all of this sounds confusing to you, you're not alone. Appellate courts throughout the state, as well as the Ohio Supreme Court, regularly hear and decide cases involving the application of the Act. That's why it takes an experienced attorney to analyze the potential liability of a political subdivision, an attorney like Kimberly Young.

Ms. Young had the distinction of arguing such a case before the Ohio Supreme Court. Her client, a young boy, (we'll call him "M.H.") was seriously injured while using a city pool. His parents sued the city, alleging an improperly maintained diving board had caused M.H.'s injuries. The city argued that they had immunity because operating swimming pools is a governmental function, and no exceptions applied.

At trial, the city moved for summary judgment - effectively asking the court to decide the case without a trial -- based on the issue of immunity, which was granted. The court of appeals then reversed the trial court's decision, finding there was an exception to immunity that applied in this case. The City appealed to the Ohio Supreme Court

During oral arguments, Young argued that the Appellate Court was correct in holding that a subsection of the law created liability for the city where a person's injuries were caused by the negligence of an employee that "occurs within or on the grounds of, and is due to the physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function."

The city maintained that "buildings that are used in connection with the performance of a governmental function" should be limited to those like a courthouse or office building and that the building housing the indoor pool should not be included in the exception.

The Ohio Supreme Court, in a unanimous decision, agreed with Young and ruled that the city was not immune from liability. "I was optimistic the court would rule in our favor, because the language of the statute is clear" recalled Young. "But I really didn't expect a 7-0 decision -- that was a pleasant surprise."

The case isn't over yet. It has been remanded back to the trial court, where Young must now prove that both the negligence by an employee and a physical defect within the building caused M.H.'s injuries. Sometimes as lawyers fight for principles, the victim can get lost in the shuffle, but not for Young. "[M.H.] is now a young man, the incident occurred back in 2006," explained Young. "He has already had multiple surgeries, and is undoubtedly facing ongoing problems during his lifetime. I am very much looking forward to getting this matter resolved for his whole family."


1.  Negligence has four basic elements: 1) the existence of a duty owed to one person by another, 2) the failure of a person to fulfill this duty, 3) injury, and 4) the injury must be caused by the failure of one person to fulfill his/her duty to another. See Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981).

2.  Ohio Rev. Code Ann. § 2744 (LexisNexis 2013)