concurring.
{¶ 40} I concur in the judgment of the majority. I do so, however, for different reasons.
{¶ 41} In my view, despite the conclusions reached by the majority, I would hold that political subdivisions are no longer entitled to immunity pursuant to R.C. 1533.181. R.C. 1533.181 does not, by its own terms, apply to publicly owned property. Notwithstanding that the majority did not cite or rely on Johnson v. New London (1988), 36 Ohio St.3d 60, 521 N.E.2d 793, it must have accepted the court’s holding in that case. In Johnson, 36 Ohio St.3d 60, 521 N.E.2d 793, syllabus, we held, “A political subdivision has derivative immunity from tort liability to a recreational user of municipal property to the same extent that an owner of private land has, pursuant to R.C. 1533.181, immunity from tort liability to a recreational user of private property. (Enghauser v. Eriksson Engineering Ltd. [1983], 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228, followed; Marrek v. Cleveland Metroparks Bd. of Commrs. [1984], 9 Ohio St.3d 194, 9 OBR 508, 459 N.E.2d 873, clarified.)”
{¶ 42} The cause of action in Johnson arose after this court abolished common-law municipal sovereign immunity in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, paragraph two of the syllabus, and Enghauser, 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228, paragraphs one and two of the syllabus, but prior to the enactment of R.C. Chapter 2744, the Political Subdivision Tort Liability Act. Am.Sub.H.B. No. 176, 141 Ohio Laws, Part 1,1699,1703-1724. Thus, in the absence of judicially created and statutorily enacted sovereign immunity (the period between Enghauser, decided July 20, 1983, and the enactment of R.C. Chapter 2744, effective November 20, 1985), municipalities were, with the exceptions of judicial, legislative, and discretionary executive functions, subject to suit in the same manner as private litigants. Enghauser, 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228, paragraph two of the syllabus. In Johnson, we stated, “Since owners of private land are statutorily immune from tort liability to recreational users, and municipalities have, pursuant to Enghauser, only the same liability for negligent acts as do private persons, municipalities are immune from liability to recreational users of municipal property.” Johnson, 36 Ohio St.3d 60, 63, 521 N.E.2d 793.
{¶ 43} Because the facts giving rise to Johnson took place prior to the legislature’s enactment of R.C. Chapter 2744, Johnson is inapplicable. This may be, in fact, the reason that the majority does not cite Johnson. However, as previously indicated, the majority cannot reach its conclusion with regard to R.C. 1533.181 without the application of Johnson. In any event, this court held in Johnson that political subdivisions are subject to suit by recreational users of their property in the same manner as private parties. Johnson, 36 Ohio St.3d at *47463-64, 521 N.E.2d 793. However, pursuant to R.C. Chapter 2744, political subdivisions are no longer subject to suits in the same manner as private parties. R.C. 2744.02(A)(1) provides, “Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision * * Therefore, it follows that political subdivisions should no longer be entitled to immunity derived from R.C. 1533.181, and the holding of Johnson should be limited.
{¶ 44} Furthermore, the majority states, “Some members of this court are on record as believing sovereign immunity to be an unconstitutional infringement of Section 16, Article I of the Ohio Constitution. See Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624 N.E.2d 704 (Pfeifer, J., concurring).” While I agree with the conclusion reached in Justice Pfeifer’s concurrence in Garrett, I disagree slightly with the analysis he applied. In Community Ins. Co. v. Ohio Dept. of Transp. (2001), 92 Ohio St.3d 376, 750 N.E.2d 573, I pointed out that Garrett relies on the second sentence of Section 16, Article I, Ohio Constitution, which provides, “Suits may be brought against the state, in such courts and in such manner, as may be provided by law.” (Emphasis added.) Id. at 387-388, 750 N.E.2d 573 (Douglas, J., dissenting). The waiver of immunity, expressed in the second sentence of Section 16, Article I, removes the cloak of sovereign immunity that was traditionally granted to the state. However, political subdivision immunity did not originate with the traditional immunity accorded to the state. Butler v. Jordan (2001), 92 Ohio St.3d 354, 358-361, 750 N.E.2d 554 (The concept of state immunity evolved from the English common-law concept that “the King can do no wrong.” Local government immunity can be traced to the English case of Russell v. Men of Devon [K.B.1788], 100 Eng.Rep. 359, and the misapplication of Russell by a Massachusetts court in 1812). Moreover, the Revised Code specifically distinguishes between the state and political subdivisions, providing that “ ‘[s]tate’ does not include political subdivisions.” R.C. 2744.01(H) and R.C. 2743.01(A).
{¶ 45} For these reasons, I do not believe that reference to the word ‘state’ in the second sentence of Section 16, Article I, has any application to political subdivisions. Instead, I believe it to be a proper conclusion that a political subdivision is not entitled to immunity based upon the right-to-remedy provision of the first sentence of Section 16, Article I. Community, 92 Ohio St.3d at 387-388, 750 N.E.2d 573 (Douglas, J., dissenting). Additionally, I believe that R.C. *475Chapter 2744 violates the right to trial by jury provided for by Section 5, Article I, Ohio Constitution. Butler, supra, 92 Ohio St.3d 354, 370-373, 750 N.E.2d 554.1
{¶ 46} For the foregoing reasons, I concur in judgment only.
F.E. Sweeney, J., concurs in the foregoing opinion.. For a full discussion of sovereign immunity, see Butler v. Jordan (2001), 92 Ohio St.3d 354, 750 N.E.2d 554, and Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 331-344, 662 N.E.2d 287 (Douglas, J., dissenting).