dissenting. Although I concur in the dissenting opinion of Justice Corrigan, 1 believe the suit should be allowed because the defense of governmental immunity is obsolete.
In this case, a hospital is claiming governmental immunity in a suit brought by an injured patient because it is part of the Ohio State University which is an agency of the government of the state of Ohio.
Immunity in this state has brought about grave injustices and discriminations. A person who has received negligent treatment in a city-owned hospital may sue for recovery, Sears v. Cincinnati (1972), 31 Ohio St. 2d 157; but, in this case, a person injured in a hospital that is run by a state university cannot sue—so the majority here holds. A tenant injured when the handrail on a stairway collapsed is denied recovery because the building is owned by the Board of Trustees of Franklin County Veterans Memorial, Schaffer v. Board of Trustees (1960), 171 Ohio St. 228; whereas in Dean v. Board of Trustees (1940), 65 Ohio App. 362, recovery was allowed to a woman who fell down the stairs in a building which was managed by the Board of Trustees of the Soldiers and Sailors Memorial Building. For a list of the inconsistencies in this area of law see the concurring opinion of Judge Gibson in Hack v. Salem (1963), 174 Ohio St. 383, 391.
Even though the courts that have abrogated governmental immunity have catalogued the evils of the rule,3 the *67courts that have adhered to the rule cite few reasons for that position, other than the longevity of the doctrine and its firmly established position. The reason adduced most frequently to support it is that:
“* * * if there is to be a departure from the rule [of governmental immunity] the policy should be declared and the extent of liability fixed by the Legislature.” Conway v. Hambert (1966), 82 S. D. 317, 323, 145 N. W. 2d 524. This type of argument begs the question of the desirability of the doctrine and relegates the whole problem to a discussion of who should change the doctrine.
Despite all the negative aspects and the repeated criticisms of the doctrine of governmental immunity, the majority still wants to retain the essence of the doctrine.
In Ohio, the doctrine has been judicially created and, as such, it can be abrogated by the judiciary. This court, in Krause v. State (1972), 31 Ohio St. 2d 132, concluded that governmental immunity in Ohio was judicially created, stating, at page 134: “Thus, the doctrine [of governmental immunity] had a judicial origin.” Justice Traynor, in Muskopf v. Corning Hospital Dist. (1961), 55 Cal. 2d 211, 218, 359 P. 2d 457, also agrees that “the doctrine of governmental immunity was originally court made.”
This doctrine appeared in Ohio law around 1840 in State v. Franklin Bank of Columbus (1840), 10 Ohio 91, and in Miers v. Zanesville and Marysville Turnpike Co. (1842), 11 Ohio 273, 274, wherein the court said:
“To so much of the bill as assumes to compel the state to pay arrearages of its subscription, it is plain that no answer need be made; it is enough to say the state is not, in fact, a party, and is not capable of being made a party defendant.”4
In Miers, Chief Justice Lane cited no constitutional provision or legislative enactment providing for the immunity. Therefore the common law of Ohio afforded the basis. The common law used by the courts in Ohio is not a *68copy of the English common law as it is in many states;5 for even though the English common law was introduced for adoption in the state, this provision was repealed in 1806.6
The relationship between the Ohio common law and the English common law was best explained by Judge Thurman in Bloom v. Richards (1853), 2 Ohio St. 387, 390, as follows:
“* * * The English common law, so far as it is reasonable in'itself, suitable to the condition and business of our people, and consistent with the letter and spirit of our federal and state constitutions and statutes, has been and is followed by our courts, and may be said to constitute a part of the common law of Ohio. But wherever it has been found-wanting in either of these requisites, our courts have not hesitated to modify it to suit our circumstances, or, if necessary, to wholly depart from it.”
The English concept of sovereign immunity, which applied to the King or the Grown, was not “suitable to the condition and business of our people.” So when the essence of this doctrine was incorporated into Ohio law, it was modified “to suit our circumstances.”
Some people object that this doctrine could not be incorporated into the common law of Ohio because the English sovereign was repudiated by the revolution; that sovereignty could not reside in a deposed king! There is dispute as to exactly where this “sovereignty” resided after the American Revolution, but suffice it to say that some considered “sovereignty” to reside in the individual states and others “sovereignty” in the federal government. See Chisholm v. Georgia (1793), 2 U. S. 419.
Various justifications were advanced for sovereign immunity when the doctrine was first being employed in American courts. In Russell v. Men of Devon (1788), 100 Eng. Rep. 359, 362, the immunity was supported because (1) since *69the group was unincorporated, there was no fund out of which the judgment could be paid, and (2) “it is better that an individual should sustain an injury than that the public should suffer inconvenience.”7 The Massachusetts Supreme Court first imported this rule into our country in Mower v. Inhabitants of Leicester (1812), 9 Mass. 247, even though the town was incorporated, could sue and be sued, and had a fund from which judgment could be satisfied.-
In State, ex rel. Parrott, v. Bd. of Public Works (1881), 36 Ohio St. 409, 415, this court upheld state immunity saying:
“* * * Not because a citizen may not have a just claim against the state, or may not suffer injury at the hands of the state; but because it must be assumed that the state will ever be ready and willing to act justly tov/ard its citizens in the absence of statutes or the intervention of courts.”
The first two reasons merit no reply, since they are now obviously inapplicable. As Justice Traynor said in Muskopf, supra (55 Cal. 2d 211) at 216: “If the reasons for Russell v. Men of Devon and the rule of county or local district immunity ever had any substance, they have none today.” Furthermore, the widespread availability and use of insurance or other modern funding methods render an argument based on economics invalid. If the state were to “ever be ready and willing to act justly toward its citizens,” as this court claimed in State, ex rel. Parrott, v. Bd. of Public Works, supra, at 415, there would not be all the support for abrogation of governmental immunity. Anyone who has tried to collect a large sum from the Sundry Claims Board or through a private bill in the General Assembly knows only too well the falsity of this statement.8
Even though the reasons behind a doctrine have van*70ished and even though the continuation of it renders an injustice to all people wronged by the state or its agents, it is suggested that the rule be retained because of the principle of stare decisis.
Greater justification is needed for a rule of law than that it has been part of the common law for a few hundred years. As Justice Holmes said:
“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Oliver Wendell Holmes, Collected Legal Papers (1920), p. 187.
As to the fundamental nature and the importance of stare decisis, there is no doubt. It lies at the heart of the common law. By this rule, our society has preserved the best of the wisdom and the morality of past ages. Wisdom and morality, however, are not immutable universals of the scholastic philosophers; they are to be modified by each new generation.
When, however, a rule of law is judge-made, and the reasons for its use have vanished, the court should not perpetuate it until petrification. A rule that has outlived its usefulness should be changed. Such an approach to stare decisis was urged by Justice Cardozo in his outstanding book, The Nature of the Judicial Process, pp. 150-152:
‘ ‘ But I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. We have had to do this sometimes in the field of constitutional law. Perhaps we should do so oftener in fields of private law where considerations of social utility are not so aggressive and insistent. There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have *71determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years. In such circumstances, the words of Wheeler, J., in Dwy v. Connecticut Co., 89 Conn. 74, 99 (92 A. 883, L. R. A. 1915E, 800, Ann. Cas. 1918D, 270), express the tone and temper in which problems should be met:
‘ ‘ ‘ That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the Legislature.’ ”
This court has recognized the need to modify the common law with regard to the duty of landowners toward their invitees, Holdshoe v. Whinery (1968), 14 Ohio St. 2d 134, and Mason v. Roberts (1973), 33 Ohio St. 2d 29, and with regard to the product liability of manufacturers, Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St. 2d 227. It has also seen fit to allow suits against a charitably operated private hospital in Avellone v. St. John’s Hospital (1956), 165 Ohio St. 467, and against a municipally operated hospital in Sears v. Cincinnati (1972), 31 Ohio St. 2d 157. Where is the justice in not allowing suits against a hospital operated by a state institution?
Since the rule of governmental immunity is judicially created, it can be judicially abrogated.9 In view of the *72facts that the doctrine has been subjected to effective, widespread and unanswered criticism,10 that it is out of step with contemporary notions of responsibility, and that its uneven application results in injustice, this court should abolish governmental immunity fox the state, and the plaintiff herein should be able to go forward with her suit against University Hospitals.11
The majority herein refuses to grant relief primarily upon the basis of Krause v. State, supra (31 Ohio St. 2d 132), which stated in paragraphs one and two of the syllabus :
“1. The state of Ohio is not subject to suits 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. *73Williams v. Glander, 148 Ohio St. 188; and Wolf v. Ohio State Univ. Hospital, 170 Ohio St. 49, approved and followed.)
“2. Section 16 of Article I of the Ohio Constitution, as amended September 3, 1912, abolished the defense of governmental immunity and empowered the G-eneral Assembly to decide in what courts and in what manner suits may be brought against the state.”
Section 16, Article I of the Ohio Constitution, as amended September 3, 1912, provides:
“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 he brought against the state, in such courts and in such manner, as may he provided hy law." (Emphasis added.)
The syllabus in Krause, as quoted above, means that, although governmental immunity in Ohio was abolished by ratification of the 1912 Amendment to Section 16, Article I of the Ohio Constitution, suits still cannot be brought against the state without its consent. The very essence of sovereign immunity is that it is a shield to prevent suits being brought against the sovereign without his consent, as will be shown hereafter. Therefore, this distinction in Krause is meaningless and a tautology, and should not be followed as law. How the phrase, “suits may be brought against the state, in such courts and in such manner, as may be provided by law,” can, in one breath, abrogate governmental immunity, and, in another breath reinstate it is nowhere explained in the Krcmse opinion.
There is no support for this distinction in the development of sovereign immunity in the English common law. One of the first recorded references to the doctrine is the maxim of Bracton “The King can do no wrong.”12 This *74did not mean that the King was above the law or that he could break it with impunity. Rather it meant that the King was not privileged to do wrong. If his acts were against the law, they were injtiriae (wrongs). There was no intention to convey the idea that he was incapable of committing a legal wrong.13
Since the King was the fountain of justice and equity, he could not refuse to redress wrongs when petitioned to do so by his subjects. The petition and other special remedies were devised to afford a means of recovery for subjects because the customary writs could not be sued out against the King.14 The remedy most frequently used was the petition of right. This was a prayer addressed to the King, Parliament, or Council in which recovery was requested for a wrong suffered at the King’s hands. The right claimed in the petition had to be similar to the type recognized at law. The petition would be granted if the subject proved that he suffered a wrong which, if the case were between subject and subject, could be remedied by one of the ordinary writs.. There is even some evidence that the Court of Exchequer had jurisdiction over equitable claims against the King.15
The scope of these remedies applied primarily to actions involving real property; but many of these actions, in contemporary law, would be considered as actions in tort or contract. Since the norm by which recovery was granted on the petition of right was the recovery by one subject vis-a-vis another, the forms of action developed as the general law did.16
So, in the history of the English common law there *75is no basis for the distinction in Krause that governmental. immunity can be abolished and yet the state cannot be sued unless there is a consent-to-sue statute. The doctrine of sovereign immunity was developed essentially by a dialectic between the evolution of remedies by which wrongs could be redressed by the Crown and the more insistent demands by the Crow that it was immune from actions. These remedies needed to be devised, because ordinary writs did not lie against the Crown. This inability to use writs.did not imply that there was a shield covering the King’s wrongdoing (substantive immunity). In fact, the lawyers of the thirteenth century did not shrink from declaring that the , King, either by himself or through his servants, had committed a wrong.17
So the history, far from supporting the distinction, indicates that the very essence of sovereign immunity was a ■ lack of jurisdiction to sue the King in his courts (procedural immunity). For instance, when the immunity was waived and consent to sue was granted with regard to the King’s officers, suit could be brought against them.18 The history of the doctrine of sovereign immunity has revolved around the development of remedies by which the subject could recover against the Crown, not because the-King was shielded from liability (substantive immunity) but because the law had to create ways to circumvent the inability to sue the King. The immunity operated more as a lack of jurisdiction in the King’s courts than as a denial of total relief.19
Nor does the case law in Ohio support this miraculous distinction. The amendment to Section 16, Article I, has been construed many times in the 49 years since it was ratified, but the Krause decision was the first to interpret it as abolishing sovereign immunity and then immediately resurrecting it like the Phoenix. On the contrary, the sylla*76bus of West Park Shopping Center v. Masheter (1966), 6 Ohio St. 2d 142, provides that:
“By reason of the doctrine of sovereign immunity, the state of Ohio cannot be sued without its consent. ”20
In Indiana, Section 24, Article IV of the Constitution, is similar to Ohio’s Section 16, Artcile I. It provides:
“Provision may be made, by general law, for bringing suit against the state, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the state, shall eve]’ be passed.”
In Perkins v. State (1969), 252 Ind. 549, 251 N. E. 2d 30, the Supreme Court held that where the state was involved in proprietary functions, such as furnishing housing facilities in a state park, it was liable for injuries suffered there, and could be sued in court. This constitutional provision was not thought to bar a ruling on sovereign immunity, and it was summarily abolished with regard to the state and its agencies. At page 551, the court stated:
“We are dealing here not with a constitutional prohibition, but rather with a principle of common law which has its roots in the ancient common law of England which held ‘The King can do no wrong’ and hence could not be sued in any court of law.”
The interpretation of sovereign immunity in Krause is not unique, however, for in Holytz v. Milwaukee (1962), 17 Wis. 2d 26, 115 N. W. 2d 618, the Supreme Court of Wisconsin held that governmental immunity was abrogated, but the state could not be sued unless the Legislature enacted a consent-to-sue statute. The Wisconsin constitutional provision, which is similar to Ohio’s, reads:
*77“The Legislature shall direct by law in what manner and in what courts suits may be brought against the state. ’ ’ Section 27, Article IY.
That decision cannot be relied on as support for Krause because a distinction between procedural and substantive immunity is crucial to its outcome. The Wisconsin court held that: “Henceforward, there will be substantive liability on the part of the state, but the right to sue the state is subject to sec. 27, Art. IY of the Wisconsin Constitution
From the survey of the historical development presented above, it is clear that sovereign immunity included at least procedural immunity; and if a court abrogated sovereign immunity for the state and claimed that the procedural immunity remained, it misstated and misapplied the principle of law. It is a vain and useless act to abolish an immunity that is still operative in another way.21
Crucial to the decision in Krause was an interpretation of Section 16, Article I of the Ohio Constitution. It is not deemed useful to embark on another venture construing this section. Whether the amendment is construed as self-executing, or not self-executing, as Krause holds, does not affect a decision of this court to abolish governmental immunity. If the amendment was intended to be self-executing, the court would merely be achieving the same effect that was intended 50 years ago when the immunity amendment was ratified. If, on the other hand, the amendment was not intended to be self-executing and merely informed the General Assembly that it was empowered to abolish *78governmental immunity, the court’s decision to abolish governmental immunity would merely execute the abolition by an alternative method—for the court has authority to change a judicially-created rule.
There is no justification for the fear that a clear abolition of the doctrine of governmental immunity will bring down an avalanche of suits against state officers, seriously affecting the performance of their duties in governing. The specific protection for the actions involved in the process of governing can be detailed when a majority of this court decides to remove this unjust shield. Either of two procedures would be adequate. This court could remove the immunity in a case-by-case, piecemeal fashion, as the Supreme Court of New Jersey has done.22 There are some drawbacks to this procedure, such as lack of predictability and reliability for the government, as well as the legal profession. The other procedure is for the General Assembly to spell out the types of governmental acts where immunity is provided in a logical scheme. These immunities then could not be abolished by this court because they were legislatively, not judicially, created. Such a plan would remedy the inconsistencies and the lack of predictability that could result from the piecemeal abolition.
Stone v. Arizona Highway Comm. (1963), 93 Ariz. 384, 381 P. 2d 107; Muskopf v. Corning Hosp. Dist. (1961), 55 Cal. 2d 211, 359 P. 2d 457; Evans v. Board of County Commrs. (Colo. 1971), 482 P. 2d 968; Hargrove v. Cocoa Beach (Fla. 1957), 96 So. 2d 130; Smith v. Idaho (1970), 93 Idaho 795, 473 P. 2d 937; Molitor v. Kaneland Community Unit Dist. (1959), 18 Ill. 2d 11, 163 N. E. 2d 89; Carroll v. Kittle (1969), 203 Kan. 841, 457 P. 2d 21; Haney v. Lexington (Ky. App. 1964), 386 S. W. 2d 738; Williams v. Detroit (1961), 364 Mich. 231, 111 N. W. 2d 1; Spanel v. Mounds View School Dist. (1962), 264 Minn. 279, 118 N. W. 2d 795; Rice v. Clark County (1963), 79 Nev. 253, 382 P. 2d 605; Willis v. Department of Conserv. & Econ. Dev. (1970), 55 N. J. 534, 264 A. 2d 34; Becker v. Beaudoin (1970), 106 R. I. 562, 261 A. 2d 896; Kelso v. Tacoma (1964), 63 Wash. 2d 913, 390 P. 2d 2; Holytz v. Milwaukee (1962), 17 Wis. 2d 26, 115 N. W. 2d 618.
The common-law doctrine was extended to encompass also local government units in Dayton v. Pease (1854), 4 Ohio St. 80.
For instance, Georgia adopted the common law of England by an Act of the General Assembly, approved on February 25, 1784 (Prince’s 1837 Digest, p. 570; see, also, Cobb’s 1851 Digest, p. 720).
It was introduced in the Ordinance of 1787; it was repealed on Japugry 2, 1806 (4 Ohio Daws 38).
It is a sad commentary on our concept of justice if we still believe “that an individual should sustain an injury” rather than the state be inconvenienced!
See the Note: Claims against the State of Ohio: The Need for Reform, 36 U. of Cin. L. R. 239 (1967).
Some other jurisdictions have ruled similarly on the abolition of sovereign immunity: Smith v. State (1970), 93 Idaho 795, 473 P. 2d 937, 945; Perkins v. State (1969), 252 Ind. 549, 251 N. E. 2d 30, 34; Brown v. Omaha (1968), 183 Neb. 430, 160 N. W 2d 805, 808.
Prof. Borchard called the import of this rule from the British Isles as “one of the mysteries of legal evolution.” Borchard, Governmental Responsibility for Tort, 34 Yale L. J. 1, 4.
Justice Traynor is a trifle more caustic:
“The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia. * * *
“None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In fact, it does not exist.” Muskopf v. Corning Hospital District (1961), 11 Cal. Rptr. 89, 359 P. 2d 457, 460. For detailed and thorough criticism there are many journal articles and chapters in books. See the list compiled by Judge Gibson in Hack v. Salem, 174 Ohio St. 383, 399-400, and a more recent list by Sindell, Sovereign Immunity—An Argument Con., 22 Cleveland State L. R. 55, 61-62.
If there was any justification for the doctrine when Chief Justice Lane first announced it, there is none now. Ohio has grown from a small rural state, where today the population is 10,739,000 as of July 1, 1971, according to Department of Development. The state does many things other than actually govern. It constructs roads and bridges; it runs education institutions where there are various athletic facilities; it runs state parks with recreational facilities from swimming to golfing;, it runs hospitals; and so on. There is no reason why the state, in its involvement in these fields like any business corporation, should be immune from suit. There are 56,768 state employees,, the State Personnel Department reported, as of May 21, 1973. Justice is not being achieved when these people’s acts are immune, merely because they work for the state. 1 1 ' ■ ..
The best answer for us is “* * * that the Revolutionary War abrogated the doctrine that the King can do no wrong * * Stone v. Arizona Highway Comm. (1963), 93 Ariz. 384, 381 P. 2d 107, 111.
Borchard, Governmental Responsibility in Tort, 34 Yale L. J. 1, 2.
Other remedies used were: petition of grace, writ of Liberate, traverse, monstrans de droit, petition to the Barons of the Exchequer. Holdsworth History of English Law, IX, pp. 7-45 (1926 Ed.). See, also, Pollock & Maitland, I History of English Law (1968 Ed.) 514-518.
Holdsworth, at 30-32, citing Pawlett v. Attorney General (Exchequer 1668), 145 Eng. Rep. 550.
Holdsworth, 41-42.
Ehrlich, Vinogradoff, VI Oxford Studies in Social and Legal History, Proceedings Against the Crown (1216-1377), p. 14 (1921 Ed.).
Ehrlich, supra, at 200.
Muskopf v. Corning Hospital District, at 219.
In Raudabaugh v. State (1917) 96 Ohio St. 513, Judge Jones held that sovereign immunity was a fundamental principle of law. And in Palumbo v. Indus. Comm. (1942), 140 Ohio St. 54, the cases of State v. Franklin Bank (1840), 10 Ohio 91, and Miers v. Turnpike Co. (1842), 11 Ohio 273, are cited as authority for the governmental immunity of the state. The constitutional amendment is the object of discussion only to determine whether it was self-executing or not.
The California court in Muskopf v. Corning Hospital District, 55 Cal. 2d 211, at 217, notes: “Previous cases, however, have differentiated between the state’s consenting to sue and its substantive liability, and have held that the language used in section 32121, subsection (b), and in article XX, section 6 gives only the state’s consent to be sued and does not waive any defenses or immunities.” Here, too, the courts had misapplied the doctrine of sovereign immunity. Indeed, nowhere in the decision does the learned Justice Traynor embrace the distinction. Here the court held that a governmental agency operating a hospital could be sued for the alleged neglignce of its staff in treating a patient.
For instance, P. T. & L. Construction Co. v. Commr. of Transportation (1970), 55 N. J. 341, 262 A. 2d 195, and Willis v. Dept. of Conservation (1970), 55 N. J. 534, 264 A. 2d 34.