Click here for PDF version of this analysis

Final Bill Analysis

Legislative Service Commission



Effective Date from the Status Report of Legislation: 04/09/03 Effective
Because of Ohio Supreme Court interpretations, effective dates published in the Status Report of Legislation are not authoritative, and users of the Status Report of Legislation rely upon them at their own risk. The effective dates have been unofficially and undefinitively determined by the LSC Division of Legal Review and Technical Services solely for the convenience of users.

Signed by Governor: 01/08/03
Subject: Local Government


Am. Sub. S.B. 106
124th General Assembly

(As Passed by the General Assembly)

ACT SUMMARY TABLE OF CONTENTS
Political Subdivision Sovereign Immunity Law changes............................................... 3 Recreational Users Law changes................................................................................... 13
Application....................................................................................................................... 14
CONTENT AND OPERATION
Political Subdivision Sovereign Immunity Law changes
General overall operation of the act
The act includes as a "governmental function" under the Political Subdivision Sovereign Immunity (PSSI) Law (1) the design, construction, reconstruction, renovation, repair, maintenance, and operation of any school athletic facility, school auditorium, or gymnasium (explained in more detail below) and (2) the designation, establishment, design, construction, implementation, operation, repair, or maintenance of a public road rail crossing in a "quiet zone" or of a supplementary safety measure at or for a public road rail crossing (explained in more detail below).
In addition, the act makes changes proposed by Am. Sub. H.B. 350 of the 121st General Assembly (the Tort Reform Act) to the PSSI Law (explained generally below).  Because the Tort Reform Act was held by the Ohio Supreme Court to be unconstitutional for violation of the one-subject provision of the Ohio Constitution, those proposed changes did not operate.  State ex rel. Ohio Academy of Trial Lawyers v. Sheward  (1999), 86 Ohio St.3d 451.  The 124th General Assembly, in Sub. S.B. 108, repealed the Tort Reform Act, in response to the confusion over the status of the law after Sheward.  In Am. Sub. S.B. 106, the 124th General Assembly re-enacts the substantive changes to the PSSI Law that were originally proposed by the Tort Reform Act and did not operate because of Sheward.
The act also makes changes to the PSSI Law pertaining to a political subdivision's obligation to provide a defense for an employee in relation to certain acts or omissions, and it expands the existing scope of liability of a political subdivision for employees' negligent operation of motor vehicles to include negligent operation other than upon public roads, highways, or streets (explained in more detail below).  Lastly, the act specifies when civil liability of a political subdivision or an employee of a political subdivision cannot be construed to exist under another section of law, including (among other reasons) because that section provides for a criminal penalty (explained in more detail below).
Background law--general nonliability/liability of political subdivisions
For purposes of R.C. Chapter 2744., the PSSI Law, the functions of political subdivisions are classified as governmental functions and proprietary functions (see below).  Generally, except as specifically provided in statute, 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 or an employee of the political subdivision in connection with a governmental or proprietary function. 
Under former statutory law, subject to specific statutory defenses and immunities (see below) and to specified limitations on awardable damages, a political subdivision was liable in damages in a civil action in the following circumstances (R.C. 2744.02(A) and (B), 2744.03, and 2744.05):
(1) Generally and subject to specified defenses related to police, fire department, and emergency medical service emergency responses, if the injury, death, or loss to person or property was caused by the negligent operation of any motor vehicle by an employee of the political subdivision upon the public roads, highways, or streets when the employee was engaged within the scope of the employee's employment and authority (this provision is changed by the act--see "Political subdivision's liability for an employee's negligent operation of a motor vehicle," below);
(2) Generally, if the injury, death, or loss to person or property was caused by the negligent performance of acts by an employee of the political subdivision with respect to proprietary functions of the political subdivision (this provision is unchanged by the act and continues to be the law);
(3) Generally and subject to a specified defense, if the injury, death, or loss to person or property was caused by the political subdivision's failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivision open, in repair, and free from nuisance (this provision is changed by the act--see "Re-enactment of Am. Sub. H.B. 350 provisions," below);
(4) Generally, if the injury, death, or loss to person or property was caused by the negligence of a political subdivision employee and occurred within or on the grounds of buildings that were used in connection with the performance of a governmental function, other than adult or juvenile detention facilities (this provision is changed by the act--see "Re-enactment of Am. Sub. H.B. 350 provisions," below);
(5) If liability was expressly imposed upon the political subdivision by a section of the Revised Code. Liability was not construed to exist under another section of the Revised Code merely because that section imposed a responsibility upon a political subdivision or because of a general authorization in that section that a political subdivision could sue and be sued (this provision is changed by the act--see "Re-enactment of Am. Sub. H.B. 350 provisions," below).
Definitions of "governmental function" and "proprietary function" for PSSI Law
Continuing law.  For purposes of the PSSI Law, "governmental function" means a function of a political subdivision that is so specified in the Law or that is any of the following (R.C. 2744.01(C)(1)):
(1) A function that is imposed upon the state as an obligation of sovereignty and is performed by a political subdivision voluntarily or pursuant to legislative requirement;
(2) A function that is for the common good of all citizens of the state;
(3) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in the PSSI Law as a proprietary function.
A "governmental function" includes, but is not limited to, several types of functions or activities that are specified in R.C. 2744.01(C)(2).  Among the listed governmental functions in continuing law are the design, construction, reconstruction, renovation, repair, maintenance, and operation of any recreational area or facility, such as any park, playground, or playfield; an indoor recreational facility; a zoo or zoological park; a bath, swimming pool, pond, water park, wading pool, wave pool, water slide, or other type of aquatic facility; a golf course; a bicycle motocross facility or other type of recreational area or facility in which bicycling, skating, skateboarding, or scooter riding is engaged; a rope course or climbing walls; or an all-purpose vehicle facility in which such vehicles are contained, maintained, or operated for recreational activities (R.C. 2744.01(C)(2)(u)).  The other examples of "governmental functions" in continuing law are listed in COMMENT 1.
For purposes of the PSSI Law, "proprietary function" means a function of a political subdivision that is so specified in that Law (see COMMENT 2 for a list of the specified proprietary functions in continuing law) or that satisfies both of the following (R.C. 2744.01(G)(1)):
(1) The function is not one that is imposed upon the state as an obligation of sovereignty and performed by a political subdivision voluntarily or pursuant to legislative requirement, is not one that is for the common good of all citizens of the state, and is not one specified as a "governmental function."
(2) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.
New governmental functions.  The act adds to the specifically designated governmental functions of the PSSI Law (1) the design, construction, reconstruction, renovation, repair, maintenance, and operation of any school athletic facility, school auditorium, or gymnasium and (2) the designation, establishment, design, construction, implementation, operation, repair, or maintenance of a public road rail crossing in a "quiet zone" or of a supplementary safety measure at or for a public road rail crossing.  The effect of the act's expansion of the definition of "governmental function" is to provide that, regarding any injury, death, or loss to person or property that allegedly is caused by any act or omission of a political subdivision or an employee of a political subdivision in connection with either (1) the design, construction, reconstruction, renovation, repair, maintenance, and operation of any school athletic facility, school auditorium, or gymnasium, or (2) the designation, establishment, design, construction, implementation, operation, repair, or maintenance of a public road rail crossing in a "quiet zone" or of a supplementary safety measure at or for a public road rail crossing (see further explanation below), the political subdivision generally is not liable in damages in a civil action arising from those acts or omissions.  Similarly, the political subdivision is not liable in damages in a civil action arising from those acts or omissions under the provision of continuing law that generally provides for political subdivision liability for harm arising from employees' negligent acts performed with respect to proprietary functions.  (R.C. 2744.02.)  Thus, generally, the political subdivision will be immune from liability in damages in a civil action arising from those acts or omissions of an employee.  (R.C. 2744.01(C)(2)(u) and (w).)
Regulation of locomotive warning sounds.  Continuing Ohio law requires locomotives to sound a warning as they approach within 1,320 and 1,650 feet of a highway grade crossing, or for some other audible warning system to be activated (R.C. 4955.32 and 4955.321--not in the act).  However, neither sound warning requirement applies if it would "interfere with" compliance with a municipal ordinance regulating railroads, locomotives, and locomotive sound warnings (presumably, an ordinance prohibiting warning sounds in certain places or at certain hours of the day--often referred to as "quiet zones") (R.C. 4955.32(C)--not in the act).
This Ohio law eventually may be preempted by federal regulations that the United States Secretary of transportation is required to issue.  49 U.S.C.A. 20153.  These regulations, once issued, must require locomotives to sound warnings at grade crossings unless an exception is made by the Secretary.  The Secretary may grant exceptions for categories of grade crossings for which no significant risk is posed by the lack of a locomotive sound warning, for which the requirement is impractical, or for which a satisfactory "supplementary safety measure" is in place.  A supplementary safety measure essentially is some means of warning persons of approaching locomotives without the use of a locomotive sound warning.  To be considered for an exception from the federal sound warning requirement on the basis of a supplementary safety measure, local governments and railroad operators will have to jointly apply to the Secretary. 
Until the federal regulations are finally issued, the extent to which they will preempt Ohio law remains uncertain.  It is possible that the federal regulations will render every municipal "quiet zone" unlawful unless the grade crossings in a quiet zone are excepted from the federal locomotive sound warning requirements by the Secretary.
As noted under "New governmental functions," above, the act generally provides immunity from liability to a political subdivision for specified actions pertaining to public road rail crossings in quiet zones.  Because it is not certain when or if the Secretary of Transportation will issue locomotive sound warning regulations, the act addresses these actions for the period before the regulations take effect and for the period after they are in effect.  Before the regulations take effect, municipal corporations will have immunity in connection with the specified actions in the same manner they currently have for other governmental functions; after the regulations take effect, municipal corporations and other political subdivisions will have immunity from liability for acts or omissions in connection with the "governmental function" of the designation, establishment, design, construction, implementation, operation, repair, or maintenance of a public road rail crossing in a quiet zone or of a supplementary safety measure at or for a public road rail crossing, if, and to the extent that, the crossing is excepted from the federal sound warning requirements by the Secretary (for example, if a supplementary safety measure is in place at a crossing that has been excepted by the Secretary).  (R.C. 2744.01(C)(2)(w).)
Political subdivision and employee defenses and immunities
Under former law, in a civil action brought against a political subdivision or a political subdivision employee to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities could be asserted to establish nonliability (R.C. 2744.03):
(1) The political subdivision is immune from liability because the employee involved was engaged in the performance of a judicial, quasi-judicial, prosecutorial, legislative, or quasi-legislative function (this immunity is not changed by the act and continues to be the law).
(2) The political subdivision is immune from liability because the conduct of the employee involved that gave rise to the claim of liability (a) was not negligent conduct and was required or authorized by law, or (b) was necessary or essential to the exercise of powers of the political subdivision or employee (this immunity is not changed by the act and continues to be the law).
(3) The political subdivision is immune from liability because the action or failure to act by the employee involved that gave rise to the claim of liability was within the employee's discretion with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the employee's office or position (this immunity is not changed by the act and continues to be the law).
(4) The political subdivision is immune from liability because the action or failure to act by the political subdivision or employee involved that gave rise to the claim of liability resulted in injury or death to a person who had been convicted of or pleaded guilty to a criminal offense or was found to be a delinquent child and who, at the time of the injury or death, was performing, in specified circumstances, community service work (this immunity is not changed by the act and continues to be the law).
(5) The political subdivision is immune from liability because the injury, death, or loss to person or property 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 (this immunity is not changed by the act and continues to be the law).
(6) In addition to any immunity or defense referred to in paragraph (7) below and in circumstances not covered by that provision or other specified provisions, the employee is immune from liability because (a) the employee's acts or omissions were not manifestly outside the scope of the employee's employment or official responsibilities, (b) the employee's acts or omissions were not with malicious purpose, in bad faith, or in a wanton or reckless manner, and (c) liability was not expressly imposed upon the employee by a section of the  Revised Code.  (This immunity is not changed by the act except for the portion described in (c) above--see "Re-enactment of Am. Sub. H.B. 350 provisions," below.)
(7) The political subdivision, and a county prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a political subdivision, an assistant of any such person, or a judge of an Ohio court has a defense or immunity available at common law or established by the Revised Code (this provision is not changed by the act and continues to be the law).
Under continuing law, the immunities and defenses of an employee referred to in paragraphs (6) and (7) above do not affect or limit any liability of a political subdivision for an act or omission of the employee as provided in R.C. 2744.02, as described above.
Re-enactment of Am. Sub. H.B. 350 provisions
Most of the provisions explained in this portion of this final analysis were originally proposed by Am. Sub. H.B. 350 of the 121st General Assembly, were held to be unconstitutional by the Ohio Supreme Court in Sheward for violating the one-subject provision of the Ohio Constitution, and were subsequently repealed by Sub. S.B. 108 of the 124th General Assembly.  The provisions relate to political subdivision sovereign immunity, and Am. Sub. S.B. 106 re-enacts them (with some additional noted modifications) as follows: Political subdivision's liability for an employee's negligent operation of a motor vehicle
As explained above under "Background law--general nonliability/liability of political subdivisions," a political subdivision formerly was generally liable (subject to specified defenses for police, fire department, and emergency medical services emergency responses) in damages in a civil action if injury, death, or loss to person or property was caused by the negligent operation of any motor vehicle by an employee upon the public roads, highways, or streets when the employee was engaged within the scope of the employee's employment and authority.  The act generally continues this liability and its defenses but removes the requirement for the negligent operation of a motor vehicle to occur on a public road, highway, or street, thereby expanding the scope of a political subdivision's liability to include negligent operation of a motor vehicle occurring other than upon a public road, highway, or street (R.C. 2744.02(B)(1)).
Defense of an employee by a political subdivision
Under former law, a political subdivision was required to provide for the defense of an employee in any federal or state court civil action or proceeding to recover damages for injury, death, or loss to person or property allegedly caused by an act or omission of the employee in connection with a governmental or proprietary function if the act or omission occurred or was alleged to have occurred while the employee was acting in good faith and not manifestly outside the scope of employment or official responsibilities (R.C. 2744.07(A)).  If a political subdivision refused to provide an employee with such a defense, the employee could file in the court of common pleas an action seeking a determination as to the appropriateness of that refusal (R.C. 2744.07(C)).
The act generally continues the qualified requirement to provide a defense to an employee but removes from it the provision of a defense for an alleged occurrence of an act or omission by an employee seeking the defense, and clarifies that an employee's act or omission must have occurred while the employee was acting "both" in good faith and not manifestly outside the scope of employment or official responsibilities (R.C. 2744.07(A)).  In addition, the act removes the ability of an employee to file a separate action in the court of common pleas for a determination whether a political subdivision's refusal to defend the employee was appropriate, and instead provides that within a civil action against an employee the associated political subdivision may file a motion with the court, within 30 days of the close of discovery, to have a hearing conducted regarding its duty to defend the employee in that action; the employee then has 30 days to respond to the motion.  At the request of the political subdivision or the employee, the court must order the motion to be heard at an oral hearing.  At the hearing on the motion, the court must consider all evidence and arguments submitted by the parties, and, in determining whether the political subdivision has a duty to defend the employee in the civil action, the court must determine whether the employee was acting both in good faith and not manifestly outside the scope of employment or official responsibilities.  The pleadings (presumably meaning those in the civil action and in the motion proceeding) cannot be determinative of whether that standard is met.  If the court determines that the employee was acting both in good faith and not manifestly outside the scope of employment or official responsibilities, it must order the political subdivision to defend the employee in the civil action.  (R.C. 2744.07(A) and (C).)
Recreational Users Law changes
R.C. 1533.181 (not in the act) essentially confers an immunity from civil liability upon the owner, lessee, or occupant of premises in connection with (1) recreational users who are injured on the premises and (2) third-parties or property injured by recreational users on the premises.  Although the statute does not confer the immunity by utilizing specific immunity language (for example, "an owner, lessee, or occupant is not liable in damages in a civil action for injury, death, or loss to person or property"), Ohio courts have construed it as conferring an immunity.  The statute provides that an owner, lessee, or occupant of premises (1) does not owe any duty to a recreational user to keep the premises safe for entry or use, (2) does not extend any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use, and (3) does not assume responsibility for or incur liability for any injury to person or property caused by any act of a recreational user (R.C. 1533.181(A)).[1]  These provisions apply to an owner, lessee, or occupant of privately owned, nonresidential premises whether or not the premises are kept open for public use and whether or not the owner, lessee, or occupant denies entry to certain individuals (R.C. 1533.181(B)). 
R.C. 1533.18 defines "premises" and "recreational user" for purposes of R.C. 1533.181's immunity provisions.  "Premises" means all privately-owned lands, ways, or waters and any buildings and structures on them, and all state-owned lands, ways, and waters leased to a private person, firm, organization, or corporation, including any buildings and structures on them.  "Recreational user" means a person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises, other than a fee or consideration paid to the state or an agency of the state, to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits.
The act adds the operation of a snowmobile or all-purpose vehicle to the list of example recreational pursuits in the definition of a "recreational user."  It, thus, has the effect of providing that an owner, lessee, or occupant of premises does not owe any duty to a snowmobile or all-purpose vehicle user who is granted permission to use the premises, without the payment generally of any fee or consideration, to keep the premises safe for entry or use, does not extend any assurance to that user, by giving the permission, that the premises are safe for entry or use, and does not assume responsibility for or incur liability for any injury to person or property caused by an act of that user.  "All-purpose vehicles" is defined for this purpose to include all-terrain vehicles, all-season vehicles, mini-bikes, and trail bikes, but not to include golf carts.  (R.C. 1533.18(B) and (C).)
Application
The act states that its PSSI Law and Recreational Users Law provisions apply only to causes of action that accrue on or after its effective date.  Any cause of action that accrues before the act's effective date is governed by the law in effect when the cause of action accrued.  (Section 3.)
COMMENT
1. Examples of specified governmental functions in continuing PSSI Law are: police, fire, emergency medical, ambulance, and rescue services or protection; power to preserve the peace, to prevent and suppress riots, disturbances, and disorderly assemblages, to protect persons and property, and to prevent, mitigate, and clean up releases of oil and hazardous and extremely hazardous substances; provision of a system of public education and a free public library system; regulation of the use of and the maintenance and repair of roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds; judicial, quasi-judicial, prosecutorial, legislative, and quasi-legislative functions; construction, reconstruction, repair, renovation, maintenance, and operation of buildings used in connection with the performance of a governmental function; design, construction, reconstruction, renovation, repair, maintenance, and operation of jails, places of juvenile detention, workhouses, or other detention facilities; enforcement or nonperformance of any law; regulation of traffic and erection or nonerection of traffic signs, signals, or control devices; collection and disposal of solid wastes; provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system; operation of a job and family services department or agency, a health board, department, or agency, mental health facilities, mental retardation or developmental disabilities facilities, alcohol treatment and control centers, and children's homes or agencies; provision or nonprovision of inspection services of all types; urban renewal projects and the elimination of slum conditions; flood control measures; design, construction, reconstruction, renovation, operation, care, repair, and maintenance of a township cemetery; issuance of certain revenue obligations; public defender services by a county or joint county public defender's office; and any function that the General Assembly mandates a political subdivision to perform (R.C. 2744.01(C)(2)(a) to (t), (v), and (x)).
2. The specified proprietary functions under continuing PSSI Law are:  the operation of a hospital; the design, construction, reconstruction, renovation, repair, maintenance, and operation of a public cemetery other than a township cemetery; the establishment, maintenance, and operation of a utility, including a light, gas, power, or heat plant, a railroad, a busline or other transit company, an airport, and a municipal corporation water supply system; the maintenance, destruction, operation, and upkeep of a sewer system; and the operation and control of a public stadium, auditorium, civic or social center, exhibition hall, arts and crafts center, band or orchestra, or off-street parking facility (R.C. 2744.01(G)(2)(a) to (e)).
HISTORY

ACTIONDATEJOURNAL ENTRY
    Introduced
05-08-01p.          351
    Reported, S. State & Local Gov't & Veterans Affairs

10-25-01

p.          1009
    Passed Senate (22-8)
11-14-01pp.        1122-1124
    Reported, H. Local Gov't
    and Townships

11-14-02

pp.        2058-2059
    Passed House (95-0)
12-03-02pp.        2150-2154
    Concurrence (21-9)
12-04-02pp.        2203-2204




* The Legislative Service Commission had not received formal notification of the effective date at the time this analysis was prepared.  Additionally, the analysis may not reflect action taken by the Governor.
[1] The Ohio Supreme Court has held that, by virtue of the provision of the Court of Claims Law (R.C. 2743.02) that the state consents to be sued "in accordance with the same rules of law applicable to suits between private parties," the Recreational Users Law also applies to the recreational users of state-owned parks and other lands.  See, McCord v. Division of Parks and Recreation (1978), 54 Ohio St.2d 72.  The Recreational Users Law's immunity has also been judicially determined to be available to political subdivisions.  See, Pippin v. M.A. Hauser Enterprises, Inc. (1996), 111 Ohio App.3d 557;  LiCause v. Canton (1989), 42 Ohio St.3d 109; and Johnson v. New London (1988), 36 Ohio St.3d 60.

Top of Page

[View Bill]