concurring.
In my judgment, it matters not a wit whether the position of the abandoned vehicle which originated the chain reaction resulting in the plaintiffs injuries constituted a nuisance under Ohio Rev.Code § 2744.02(B)(3) (2000) or any other provision of Ohio law. That is so because even if the vehicle was a nuisance, the defendant political subdivisions are immune from liability.
Section 2744.03(A)(5) states:
The political subdivision is immune from liability if the injury ... resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
Ohio Rev.Code § 2744.03(A)(5) (West Supp.2002) (emphasis added).
Unquestionably, the decision whether to use personnel to remove a car from the emergency lane or berm of a public highway is purely discretionary. The Ohio statute that indicates the discretionary nature of this decision states that the chief of police or a highway patrol trooper
may order into storage any motor vehicle ... that has been left on a public street ... or upon or within the right-of-way of any road or highway, for forty-eight hours or longer without notification ... except that when such a motor vehicle constitutes an obstruction to traffic it may be ordered into storage immediately.
Ohio Rev.Code § 4513.61 (emphasis added). The use of the word “may” indicates that the public official has discretion whether to remove an abandoned vehicle that is outside the traffic lanes of a highway, as was the car in this case.
This statutory grant of immunity to political subdivisions has nothing to do with the law of nuisance; it has to do with whether the act or omission attributed to the political subdivisions “resulted from *419the exercise of judgment or discretion.” Ohio Rev.Code § 2744.03(A)(5).
Thus, in my view, the nuisance discussion in my brother Martin’s opinion is irrelevant.
My brother Cohn’s view, however, is that this separate and distinct governmental function defense is unavailable to the defendants because “the purpose of nuisance law is to create a duty to remove nuisances.” Thus, he thinks that whether the vehicle on the side of the highway constituted a nuisance is very much at issue and requires jury resolution.
But that is a misreading of the discretionary function statute. Its broad grant of immunity makes no exception for injuries resulting from a nuisance. It does provide three exceptions, but nuisance is not one of them. The three are “discretion ... exercised with [ (1)] malicious purpose, [ (2)] in bad faith, or [ (3)] in a wanton or reckless manner.” Ohio Rev.Code § 2744.03(A)(5). Conspicuously absent from that list of exceptions is “a nuisance.”
Nuisance once was a statutory exception to a separate and very different grant of general blanket immunity — the immunity given to political subdivisions engaged in “a governmental or proprietary function.” Ohio Rev.Code § 2744.02(A)(1) (West Supp.2002). But even that exception, which had nothing to do with “discretionary function” immunity, has been withdrawn by the Ohio legislature effective April 9, 2003. Ohio Rev.Code § 2744.02 (West Supp.2002).
At bottom, my brother Cohn’s theory is that the Ohio legislature could not have intended the discretionary function immunity to extend to the discretion not to eliminate a nuisance because if it did, then there would have been “no point in having a law that creates a duty to remove the nuisance at all, as section 2744.02(B)(3) clearly does.” Not quite! The Ohio legislature’s “point” may well have been to impose an enforceable duty to remove a nuisance when a municipality is engaged in a governmental or proprietary function that did not involve an exercise of discretion.
I would, but only for the foregoing reasons, AFFIRM the district court’s judgment.