dissenting. As I stated in my opinion in the'recent decision in King v. Williams (1983), 5 Ohio St. 3d 137,141,1 continue to adhere to my belief that the defense of sovereign immunity should be abrogated solely by the General Assembly.3 However, I write here to elaborate upon what I consider are three factors neglected by this court in its opinions abrogating the defense.
First, there is the question of whether the change should be retroactive or prospective. The majority in these cases has chosen to make the abrogation of sovereign immunity retroactive. In my opinion, this is against both the weight of authority from other jurisdictions, and reason.
Generally, decisions of this court which overrule former decisions are applied retroactively. See State, ex rel. Bosch, v. Indus. Comm. (1982), 1 Ohio St. 3d 94, 98; Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210 [57 O.O. 411]. Nevertheless, there are instances where this court has decided to apply a new rule of law prospectively only. See, e.g., Wolfe v. Wolfe (1976), 46 Ohio St. 2d 399, 421-422 [75 O.O.2d 474]. It is my opinion that'if the defense of sovereign immunity must be abrogated at all, it should be done prospectively only.4
The doctrine of sovereign immunity has been a long standing principle of law in this state. To abolish it retroactively would deny municipalities that have relied upon it the opportunity to make arrangements to meet the new liability to which they are subject. The availability of liability insurance has been used in recent years to justify the dramatic expansion of tort liability. Yet, we impose liability on municipalities without allowing them the opportunity to obtain liability insurance. Further, this immunity should be annulled prospectively so that the General Assembly will be given an opportunity to act upon our decision. It is that branch of government which is best equipped to balance competing considerations of public policy. Lastly, the prospective abolition of this defense would be in line with the overwhelming weight of authority from other jurisdictions that have considered this question. See, e.g., Nieting v. Blondell (1975), 306 Minn. 122, 235 N.W. 2d 597; Holytz v. Milwaukee (1962), 17 Wis. 2d 26, 115 N.W. 2d 618; Evans v. Bd. of Cty. Commrs. (1971), 174 Colo. 97, 482 P. 2d 968; Merrill v. Manchester (1974), *127114 N.H. 722, 332 A. 2d 378; Willis v. Dept. of Conservation & Economic Dev. (1970), 55 N.J. 534, 264 A. 2d 34; Kitto v. Minot Park Dist. (N.D. 1974), 224 N.W. 2d 795; Oroz v. Bd. of Cty. Commrs. (Wyo. 1978), 575 P. 2d 1155; Smith v. State (1970), 93 Idaho 795, 473 P. 2d 937.
Second, I disagree with the court’s open-ended abolition of municipal immunity. There are certain activities undertaken by municipalities which should, even in the absence of general immunity, still be given immunity. When a municipality acts in a legislative or judicial capacity, it must be immune from suit.
In addition to immunity for judicial and legislative actions, there is a second area of governmental activity which should remain immune. This second limitation on the abolition of municipal immunity should be for discretionary actions of governmental employees which involve the essentials of government. The very good reason for this exception is that governmental officials should be able to carry out the essential functions of government without the fear of being second-guessed by the courts for the exercise of free and independent judgment in so acting. To hold municipalities liable in these circumstances would stifle the process of municipal government.5
Adoption of these exceptions to the abrogation of municipal immunity would put Ohio in line with the position adopted by other jurisdictions and advocated by commentators. See, e.g., Merrill v. Manchester, supra; Willis v. Dept. of Conservation & Economic Dev. supra; Oroz v. Bd. of Cty. Commrs., supra; Parish v. Pitts (1968), 244 Ark. 1239, 429 S.W. 2d 45; Spanel v. Mounds View School Dist. No. 621 (1962), 264 Minn. 279, 118 N.W. 2d 795; Spencer v. General Hospital (C.A. D.C. 1969), 425 F. 2d 479; Kitto v. Minot Park Dist. supra; Lipman v. Brisbane Elementary School Dist., supra; 4 Restatement of the Law 2d 406, Torts,. Section 895C.6
Lastly, I wish to comment on what is the effect of abolishing sovereign immunity. The nature of an immunity is not to deny that a defendant’s conduct is tortious; rather, an immunity absolves the defendant from liability because of its status. Prosser, Law of Torts (4 Ed. 1971) 970. Hence, the abolishment of sovereign immunity does not impose duties upon municipalities. Whether a municipality is under a duty, in a given case, is dependent upon factors other than sovereign immunity. Cf. Savransky v. Cleveland (1983), 4 Ohio St. 3d 118.
*128In summation, I continue to adhere to the opinion that if governmental immunities are to vanish, the General Assembly should hold the wand. However,-in light of this court’s decision to abrogate it, I wish to emphasize three considerations. First, any abrogation should be prospective. Second, municipalities should remain immune for their legislative, judicial and discretionary acts. Third, the abrogation of sovereign immunity should not impose independent duties upon municipalities. Accordingly, I dissent.
Ohio would not have been alone if this court had decided to retain municipal immunity. See, e.g., Dugan v. Burlington (1977), 135 Vt. 303, 375 A. 2d 991; Transportation, Inc. v. Falls Church (1979), 219 Va. 1004, 254 S.E. 2d 62; Tucker v. Kershaw Cty. School Dist. (1981), 276 S.C. 401, 279 S.E. 2d 378; Austin v. Baltimore (1979), 286 Md. 51, 405 A. 2d 255.
There is, of course, no federal constitutional barrier to such an application. See Great Northern Ry. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358.
With respect to what are legislative and quasi-judicial actions, courts may be given guidance from the jurisprudence surrounding R.C. Chapter 2506. Discretionary actions are much broader. It is beyond the scope of this dissent to attempt to categorize these actions. However, I find particularly illuminating Riss v. New York (1968), 22 N.Y. 2d 579, 293 N.Y. Supp. 2d 897 (municipality not liable for refusal to provide police protection upon request); and Lipman v. Brisbane Elementary School Dist. (1961), 55 Cal. 2d 224,11 Cal. Rptr. 97, 359 P. 2d 465 (no liability for asserted defamation of employee).
In the past this court recognized that even in the absence of immunity, a municipality was not liable for legislative acts. Superior Uptown v. Cleveland, (1974), 39 Ohio St. 2d 36 [68 O.O.2d 21].