Legal Memorandum: Sovereign Immunity for Personal Injury Actions

Issue: Under Ohio law, does sovereign immunity preclude a personal injury action against the state?

The waiver of sovereign immunity in Ohio is found not in a state statute but rather at Section 16, Article I of the Ohio Constitution.  In addition to ensuring that every Ohio citizen has access to Ohio courts, this provision also holds that “[s]uits may be brought against the state, in such courts and in such manner, as may be provided by law.”  Ohio Const. art. I, § 16.  With this express constitutional authority, the Ohio General Assembly has passed a statute that specifically denies its citizens a right to a jury trial in suits against the state. Ohio Rev. Code Ann. § 2743.11 (Anderson 1992).  If the state constitution means what it says, then without question the Ohio General Assembly has express constitutional authority to direct that in civil suits against the state, a citizen does not get a jury.

But as Justice Pfeifer of the Ohio Supreme court recently noted, a majority of the Ohio Supreme Court does not “simply abide by this clear constitutional mandate.”  See Fahnbulleh v. Strahan, 73 Ohio St. 3d 666, 653 N.E.2d 1186, 1189 (1995) (Pfeifer, J., dissenting).  Rather than simply cite the authority given in Article I, Section 16 of the Ohio Constitution, the court undertakes a constitutional analysis of sovereign-immunity based statutes.  In Fahnbulleh, for example, the court considered whether the state’s continued grant of immunity to municipalities and fire truck drivers in the context of an emergency is “reasonably calculated to advance a legitimate governmental interest.”  653 N.E.2d at […]