Haynes v. City of Franklin

Pfeifer, J.,

dissenting.

{¶ 30} I dissent for several reasons. First, I dissent because R.C. Chapter 2744, to the extent that it grants immunity to political subdivisions, is unconstitutional. Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141-144, 624 N.E.2d 704, 706-708 (Pfeifer, J., concurring).

{¶ 31} Second, this case illustrates the absurdity of the legal fictions propping up sovereign immunity. The General Assembly has allowed political subdivisions to be held liable for injuries caused “by their failure to keep public roads, highways, [and] streets * * * within the political subdivisions open, in repair, and free from nuisance.” R.C. 2744.02(B)(3). All well and good, until the political subdivision asserts the defense offered by children everywhere when they take an embarrassing tumble: “I meant to do that.” The majority asserts that as long as the political subdivision planned a dangerous edge drpp, then the drop is not a *352nuisance. If the same drop occurs by negligence of installation, then the drop is a nuisance. The political subdivision is protected when it plans a potential harm, but not protected when the harm occurs accidentally. The archaic monarchical notion upon which sovereign immunity is based — “The King can do no wrong”— has been absurdly revised to “The King can do no wrong as long as he has planned to do wrong.”

{¶ 32} Finally, I join the dissent of Justice Cook. At the very least, there is a question of fact as to whether the city’s implementation of its plan created a nuisance for which it could be liable under any reading of the sovereign immunity statute.