Legal Memorandum: Sovereign Immunity in a Personal Injury Action

Issue: Under Ohio law, what is the rule on sovereign immunity in a personal injury action where the state is named as a defendant?

The roadblock to convincing the court to undertake this analysis is Ohio State University’s sovereign status.  At common law at the time Ohio’s Constitution was adopted, actions against the sovereign did not exist.  But the Supreme Court can avoid this issue because, as Justice Pfeifer, the dissenting judge in Fahnbulleh has noted, “[t]here is no constitutional authority for sovereign immunity in Ohio.  Instead, Section 16, Article I of the Ohio Constitution provides that each Ohioan has a right to remedy by due course of law.  That constitutional right extends to causes of action against the state.”  Fahnbulleh v. Strahan, (1995), 73 Ohio St.3d 666, 669, 653 N.E.2d 1186, 1189.  Because there is no constitutional authority for it, the “illegitimate” and “historical remnant” that is sovereign immunity need not and should not control whether a person receives a jury trial in his or her action against the state.  Id. at 1189-90. 

In Canning v. Lensink, 603 A.2d 1155 (Conn. 1992), the Connecticut Supreme Court ruled that there was no right to a jury trial in a wrongful death action against the commissioner of mental retardation because no action against sovereigns existed at common law when the Connecticut Constitution was adopted.  Id. at 1158.  The sovereign status of the defendant controlled the jury right issue, not the nature of the plaintiff’s negligence claim.  Id.

Similarly, in Wells v. Panola County Bd. of Educ., 645 So.2d 883, 899 (Miss. 1994), the Mississippi Supreme […]