Ranells v. City of Cleveland

William B. Beown, J.,

dissenting. Plaintiffs alleged that defendant’s acts “constituted a complete and utter disregard for human life and safety.” My review of the record bears out this allegation, and clearly discloses, on the part of the defendant, a continuing hardheartedness toward the residents of the neighborhood surrounding the Baldwin Filtration Plant. Time and again city officials were put on notice that a catastrophe was imminent, but those warnings were ignored to the peril of the citizens of Cleveland.

In my opinion, a better ease could not be made for an award of punitive damages. However, a majority of this court seizes this opportunity to formulate a new type of municipal tort immunity.

In Atlantic & Great Western Ry. Co. v. Dunn (1869), 19 Ohio St. 162, this court upheld an award of punitive damages against a railway company. In the dissenting opinion it was argued, at page 592, that every dollar of punitive damages assessed against the company would be paid by the stockholders of the company or would be assessed against the public who use the company’s roads.

Here, over 100 years later, the majority embraces the rationale of the Bunn dissent by arguing that “* * the burden of meeting a punitive damage obligation falls upon a taxpayer, as a taxpayer, or as a user and consumer of the public water supply.”

Prior to this case, it was assumed by the bench and bar of this state “* * * [t]hat a municipal corporation, as the proprietor of lands, would be responsible for an in*10jury resulting from the use of its own property to an adjacent proprietor, to the same extent as if it were a natural person. * * ” Tiffin v. McCormack (1878), 34 Ohio St. 638, 643.

The state of Ohio is now liable to the same extent as a private party or natural person. R. C. 2743.02(A), in pertinent part, reads:

“The state hereby waives its immunity from liability and consents to he sued, and have its liability determined * * * in accordance with the sam,e rules of law applicable to suits between private parties.” (Emphasis added.)

In enacting R. C. 2743.02(A), the General Assembly had, as a guide, the Federal Tort Claims Act, Section 2671 et seq., Title 28, U. S. Code.

Section 2674, Title 28, U. S. Code, reads:

“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. * * *” (Emphasis added.)

By that provision, the federal government is expressly absolved of liability for punitive damages. However, the Ohio General Assembly did not follow that provision.

In my view, in order for the state or a municipal corporation not to be answerable in punitive damages, a statute should expressly so provide.

The judgment herein, requiring a statute expressly authorizing punitive damage awards against a municipality, simply places the cart before the horse.