O'Brien v. Egelhoff

Locher, J.,

dissenting. I fully agree with the arguments put forth in the dissent presented hereinafter and reaffirm my position against the bootstrap *211“stare decisis” utilized by the majority which I have articulated at some length in dissents in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, 31; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 37; and Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, 124.

In the instant case the majority has taken a position that is difficult to justify in view of their own prior cases. In Enghauser Mfg. Co., supra, paragraph two of the syllabus sets forth an exception to the abolition of sovereign immunity when an “executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion” is challenged by tort action. The policy of immunity for certain discretionary acts is justified on the basis “that the exercise of discretion should not be influenced by even the possibility of unsuccessful litigation against the official.” Armstrong v. Ross Twp. (1978), 82 Mich. App. 77, 84, 266 N.W. 2d 674 (citing to Sherbutte v. Marine City [1964], 374 Mich. 48, 54, 130 N.W. 2d 920). Clearly “* * * it is not a tort for government to govern,” see Dalehite v. United States (1953), 346 U.S. 15, 57, dissenting opinion (with respect to the Federal Tort Claims Act), nor should the executive branch of the government not be given room to govern. See Adamov v. State (1975), 46 Ohio Misc. 1, 6 [75 O.O.2d 41] (in the context of the Ohio Court of Claims).

In the case herein a zoning inspector who was acting in his official capacity has been successfully challenged with the bludgeon of tort litigation. By not protecting this official who was acting within the course of his duties the end result will be to stifle the zeal of all public officials in their efforts to do their jobs and to protect the public. The end result of today’s decision will be to paralyze those functionaries whose lawful duty impinges on the prerogatives of anyone who can afford an attorney. Intimidation through litigation will not stop with zoning inspectors and the question is raised about the next group of public officials who will be deprived of immunity while acting within the course of their employment. Surely the majority, by eliminating sovereign immunity, cannot mean to hamstring those officials entrusted with the preservation of our health, life, and safety. Yet looking upon what the majority has done today, the specter of governmental paralysis has certainly been raised.

For these reasons I dissent.