dissenting. It is something of an anomaly that the common-law doctrine of sovereign immunity which is based on the concept that “the king can do no wrong”2 was ever, adopted by. the American courts. Nonetheless it was, and the anomaly of its adoption was compounded when the doctrine was applied to municipalities in Mower v. Leicester (1812), 9 Mass. 247, on the rationale that it is preferable for an individual to sustain injury than for the public to suffer inconvenience.3 Anomalous or not, however, the doctrine of municipal immunity was soon judicially adopted in virtually every American jurisdiction, including Ohio.4 The question raised by the instant cause is whether it should be retained.5
*141The majority of American jurisdictions have held that it should not,6 In doing so they have rejected the argument that abolishing immunity might cause a flood of litigation (Ayala v. Philadelphia Bd. of Public Edn. [1973], 453 Pa. 584, 595, 305 A. 2d 877, 882); emphasized the incongruous results of basing immunity on the governmental or proprietary nature of a municipality’s acts (Hargrove v. Cocoa *142Beach [Fla. 1957], 96 So. 2d 130); and decried a doctrine which imposes “the entire burden, of damage resulting from the wrongful acts of the government * * * upon the single individual who suffers the injury * * Barker v. Santa Fe (1943), 47 N. M. 85, 88, 136 P. 2d 480, 482.
The arguments marshalled by the courts of other jurisdictions apply to Ohio’s municipal immunity doctrine as well. This court does not need to defer to the General Assembly in this area, because Ohio’s sovereign immunity for municipalities, was judicially created (see State v. Franklin Bank of Columbus [1840], 10 Ohio 91; Western College of Homeopathic Medicine v. Cleveland [1861], 12 Ohio St. 375; and Thacker v. Bd. of Trustees of Ohio State Univ. [1973], 35 Ohio St. 2d 49, 67-68 [Justice William B. Brown, dissenting]), and judicially-created doctrines may.be judicially abolished. (See Sears v. Cincinnati [1972], 31 Ohio St. 2d 157, 161, overruling paragraph one of the syllabus in Hyde v. Lakewood [1965], 2 Ohio St. 2d 155; Muskopf v. Corning Hospital District [1961], 55 Cal. 2d 211, 359 P. 2d 457; Molitor v. Kaneland Community Unit District No. 302 [1959], 18 Ill. 2d 11, 25, 163 N. E. 2d 89.)
Moreover, where the legitimate purpose of a doctrine no longer exists and its application produces unjust results, it should not be retained on the grounds of stare decisis. As Justice Holmes.said:
“It is revolting to havé no better reason for a rule than that it was laid down in the time' of- Henry IV. It is still moré 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), at page 187. In Avellone v. St. John’s Hospital (1956), 165 Ohio St. 467, 473-475, this court rejected stare decisis and charitable immunity for hospitals on the grounds that the charitable immunity rule had outlived its purpose in light of the “social conscious: ness of. present day government,” inroads -which, had already been made on the charitable immunity doctrine and the availability- of insurance. Given- the-^legislative and *143judicial inroads on municipal immunity7 and the availability of insurance and other types of funding for municipalities,the same arguments apply to the instant cause.
In addition, the inequities arising out of judicial attempts to limit immunity by classifying municipal functions as proprietary rather than governmental are as dramatic in'Ohio as in any other jurisdiction. Indeed,-“it is impossible1'to-reconcile all’the decisions of this court dealing'-with the subject of governmental and proprietary functions in relation to a municipality.” Eversole v. Columbus (1959), 169 Ohio St. 205, 208. This court’s ad hoc- approach to the governmental-proprietary doctrine and the General Assembly’s enactment of B. C. 701.02 and 723.01 have, in the name of limiting immunity, placed the individual irrthe following situation. He may risk injury by walking - down a street where a sewer is being maintained or by attending a program at a municipal auditorium or by unwittingly placing himself in the range of a policeman driving negligently and know that he may sue the municipality for his injuries, Portsmouth v. Mitchell Manufacturing Co. (1925), 113 Ohio St. 250. See State, ex rel. White, v. Cleveland (1932), 125 Ohio St. 230; R. C. 701.02.8 If, however, he walks down, a street where a sewer is being constructed, or visits- a muni-, cipal zoo, or, as in the instant cause, he unwittingly places himself in the range of a policeman- who. allegedly negligently shoots him, he has no recourse against the- city; Hutchinson v. Lakewood (1932), 125 Ohio St. 100; Crisafi v. Cleveland (1959), 169 Ohio St. 137; Gabris v. Blake (1967), 9 Ohio St. 2d 71.9 If such arbitrary and irrationaFre*144suits are the product of judicial and legislative attempts to expand an individual's recourse against his local government, then it would be much better and simpler to join lire majority of American jurisdictions and abolish municipal immunity altogether.
The objections that abolishing immunity would create a flood of litigation or that it would financially cripple local governments are insufficient to require a negative answer (see David, Tort Liability of Local Government: Alternatives to Immunity from Liability or Suit [1959], 6 U.C.L.A. L. Rev. 1; Lambert, Tort Law, 36 A.T.L.A. L.J. 29, 23), especially since immunity has already been legislatively and judicially abolished for a number of municipal activities.
In addition, if the burden of damages must be imposed, it is much fairer that it be imposed on the municipality than on the victim. In the words of one commentator:
“ * * * cities and states are active and virile creatures capable of inflicting great harm, and their civil liability should be co-extensive. Even though a governmental entity does not profit from its projects, the taxpaying public nevertheless does, and it is the taxpaying public which should pay for governmental maladministration. If the city operates or maintains injury-inducing activities or conditions, the harm thus caused should be viewed as a part of the normal and proper costs of public administration and not as a diversion of public funds. The city is a far better loss-distributing agency than the innocent and injured vietim.” 32 A.T. L. L.J. 284, 288 (1968); see, also, 2 Harper & James, The Law of Torts (1956), 1622. As Judge Gibson stated in his concurrence to Hack v. Salem (1963), 174 Ohio St. 383, at page .397, “ [tjo raise the question of whether the municipality or the injured individual is better able to bear the cost is to answer it.”
Where, as in the instant cause, the individual is a *145paralyzed 17-year-old boy and the municipality is able to obtain liability insurance, one wonders if the question even need be asked.
Because the judicially-created doctrine of sovereign immunity for municipalities is a legal anachronism which denies recovery to injured individuals without regard to the municipality’s culpability or the individual’s need for compensation, I believe this court should join the ranks of the majority of American jurisdictions and abolish it. Therefore, I dissent.
Celebeezze and Sweeney, JJ., concur in the foregoing dissenting opinion.“* * * earliest common law the doctrine of ‘sovereign immunity’ did not produce the harsh results it does today. It was a rule that allowed substantial relief. It began as the personal prerogative of the king, gained impetus from sixteenth century metaphysical concepts, may have been based on the misreading of an ancient maxim, and only rarely had the effect of completely denying compensation. How it became in the United States the basis for a rule that the federal and state governments did not have to answer for their torts has been called ‘one of the mysteries of legal evolution.’ (Borchard, Governmental Responsibility [sic] in Tort, 34 Yale L. J., 1, 4.)” Muskopf v. Corning Hospital District (1961), 55 Cal. 2d 211, 214-215, 359 P. 2d 457, 458-459. It has also been suggested that sovereign immunity is based on “the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polybank (1907), 205 U. S. 349, 353.
The common-law precedent for municipal immunity (Russell v. Devon [1788], 100 Eng. Rep. 359), denied recovery because of the absence of a “corporation fund” from which satisfaction could be made. Since the Mower case did not deal with a lack of a corporate- fund, it was essentially decided on the grounds of which party should bear the loss.
Borchard, Government Liability in Tort (1924), 34 Yale L. J. 1, 42.
Although the instant cause is before this court because of a conflict and the question certified by the Court of Appeals was “whether *141governmental immunity from tort liability is still available as a defense for the political subdivisions of the state of Ohio or did the legislature abrogate all governmental immunity from tort liability when it enacted the Court of Claims Act (R. C. 2473.01 et seq.) 1”, certification of the record because of a conflict brings in the entire case (Pettibone v. McKinnon [1932], 125 Ohio St. 605), and this court may, if it chooses to, rule on the validity of the judicial doctrine of municipal immunity.
Jurisdictions limiting immunity by judicial decisions include: Spencer v. General Hospital of District of Columbia (1969), 138 U. S. App. D. C. 48, 425 F. 2d 479; Jackson v. City of Florence (1975), 294 Ala. 592, 320 So. 2d 68; Fairbanks v. Schaible (Alaska 1962), 375 P. 2d 201; Veach v. Phoenix (1967), 102 Ariz. 195, 427 P. 2d 335; Parish v. Pitts (1968), 244 Ark. 1239, 429 S. W. 2d 45; Muskopf v. Corning Hospital District (1961), 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P. 2d 457; Evans v. Bd. of County Commrs. of County of El Paso (1971), 174 Colo. 97, 482 P. 2d 968; Hargrove v. Cocoa Beach (Fla. 1957), 96 So. 2d 130; Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N. E. 2d 89; Brown v. Wichita State Univ. (1975), 217 Kan. 279, 540 P. 2d 66; Haney v. Lexington (Ky. 1964), 386 S. W. 2d 738; Bd. of Commrs. of Port of New Orleans v. Splendour S. & E. Co. (La. 1973), 273 So. 2d 19; Davies v. Bath (Me. 1976), 364 A. 2d. 1269; Sherbutte v. Marine City (1964), 374 Mich. 48, 130 N. W. 2d 920; Spanel v. Mounds View School Dist. No. 621 (1962), 264 Minn. 279, 118 N. W. 2d 795; Brown v. City of Omaha (1968), 183 Neb. 430; 160 N. W. 2d 805; Rice v. Clark County (1963), 79 Nev. 253, 382 P. 2d 605; Merrill v. Manchester (1974), 114 N. H. 722, 332 A. 2d 378; B. W. King, Inc., v. West New York (1967), 49 N. J. 318, 230 A. 2d 133; Hicks v. State (1975), 88 N. M. 588, 544 P. 2d 1153; Kitto v. Minot Park District (N. D. 1974), 224 N. W. 2d 795; Ayala v. Philadelphia Bd. of Public Edn. (1973), 453 Pa. 584, 305 A. 2d 877; Becker v. Beaudoin (1970), 106 R. I. 562, 261 A. 2d 896; Long v. Weirton (W. Va. 1975), 214 S. E. 2d 832; Holytz v. Milwaukee (1962), 17 Wis. 2d 26, 115 N. W. 2d 618.
A number of other jurisdictions have done away with municipal immunity by statute. See the appendix to Restatement of Torts 2d, Section 895(C), Comment / .(Tent, Draft No. 19, 1973).
In • addition to developing the proprietary-governmental. function •doctrine, this court has extended the definition of a nuisance under R. G.. 723.01 to include traffic , lights, and the General Assembly has enacted R. C. 701.02 (which denies immunity for the negligent operation •of municipally owned vehicles) and R. C. 723.01 (denying immunity for defects in roads or bridges, etc.). ...
R. C. 701.02 does immunize municipalities from liability caused by poliee-automotive accidents occurring during an emergency, run. .. .
By ruling that this case falls within the holding. of Gabris•• v. Blake, supra, the majority extends municipal immunity for police actions *144to police shootings. The Gahris case dealt with immunity from claims arising out Of a police automotive mishap.