dissenting in part. I must dissent from the majority’s decision which abrogates the defense of sovereign immunity as it relates to public libraries. The majority’s adoption of the Enghamer standard is particularly ill-advised when it is retrospectively applied to such institutions.
It is my continued view that if the defense of sovereign immunity must be abrogated at all, it should only be done prospectively.3 This was never more evident than in the present case.
Public libraries, as entities, do not possess statutory authority to purchase liability insurance. R.C. 3375.401 only allows the purchase of liability insurance for individuals acting in their official capacities as trustees, officers, and employees of the library.
Until the General Assembly acts to correct this situation, today’s decision places the burden of liability upon tax dollars that had been budgeted for general library purposes. A library’s board of directors will now be forced to withhold money which would otherwise have been used for educational purposes in order to protect against the possible devastating effects of future lawsuits. This, in turn, will substantially hinder the educational role which public libraries play in Ohio.
Locher, J., concurs in the foregoing dissenting opinion.This view is in accord with the overwhelming weight of authority from other jurisdictions that have considered the question. See, e.g., Evans v. Bd. of Cty. Commrs. (1971), 174 Colo. 97, 482 P. 2d 968; Smith v. State (1970), 93 Idaho 795, 473 P. 2d 937; Nieting v. Blondell (1975), 306 Minn. 122, 235 N.W.2d 597; Kitto v. Minot Park Dist. (N.D. 1974), 224 N.W. 2d 795; Merrill v. Manchester (1974), 114 N.H. 722, 332 A. 2d 378; Willis v. Dept. of Conservation & Economic Dev. (1970), 55 N.J. 534, 264 A. 2d 34; Holytz v. Milwaukee (1962), 17 Wis. 2d 26, 115 N.W. 2d 618; Oroz v. Bd. of Cty. Commrs. (Wyo. 1978), 575 P. 2d 1155.