Governmental Immunity - is it a free pass for a city?

From time to time, we get questions about Governmental Immunity and it’s impact on cases against the government. In general, a political subdivision (i.e. a local government created by the State of Ohio) is entitled to broad immunity from liability. In other words, the political subdivision is free to make mistakes without fear of any repercussions.  The thought process behind this grant of immunity is that the burden of paying for these mistakes actually falls on the taxpayers and as a result the government is afforded certain protection.

Does this mean the government can get away with anything?

            The short answer is NO, but if you don’t hold people responsible for their mistakes then nothing will get fixed. Recognizing the need to hold people accountable for their mistakes, the Ohio Supreme Court set forth a three-tiered analysis for determining whether a political subdivision is immune from liability. In Carter v. City of Cleveland, 83 Ohio St. 3d 24 (Ohio 1998).

First hurdle – a political subdivision is immune from liability incurred in performing either a governmental or proprietary function. A governmental function can mean a variety of actions as identified by the O.R.C. 2744.01, but its fair to say a governmental function means “a function that is for the common good of all citizens of the state” and/or “a function that promotes or preserves the public peace, health, safety, or welfare.” Now the key to remember is that the political subdivision’s immunity is not absolute.

Second hurdle – requires the court to determine whether any of the five exceptions to immunity apply. O.R.C. 2744.02(B)

Third hurdle – if any exceptions do apply, and there is no defense in O.R.C. 2744.02(B) apply from liability, then the court determines whether any other defenses in section O.R.C. 2744.03 apply.
 

As you can see determine whether the government would be immune from liability depends on several factors and laws. But what is clear is that for someone to receive immunity they must be performing a governmental or proprietary function. If not, then no immunity applies. Think about it an off-duty police officer is harassing his neighbor. The police officer wouldn’t be entitled to government immunity. If you or someone you know has been injured by a political subdivision, please contact us to see if we can be of assistance.

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