Gladon v. Greater Cleveland Regional Transit Auth. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Gladon, Appellee and Cross-Appellant, v. Greater Cleveland Regional Transit
Authority, Appellant and Cross-Appellee.
[Cite as Gladon v. Greater Cleveland Regional Transit Auth. (1996), ____ Ohio
St.3d ___.]
Torts -- Negligence -- Passenger injured at rapid transit station -- Duty
of care owed passenger -- Where entrant upon another's land
exceeds scope of landowner's invitation, entrant loses status of
an invitee and becomes either a licensee or trespasser.

(No. 94-1063--Submitted September 13, 1995 and December 13, 1995--
Decided March 6, 1996.)
Appeal and Cross-Appeal from the Court of Appeals for Cuyahoga
County, No. 64029.

Greater Cleveland Regional Transit Authority ("RTA") appeals from a
jury verdict awarding Robert M. Gladon $2,736,915.35 in damages arising
from RTA's operation of a rapid transit train.

Gladon purchased a passenger ticket and boarded an RTA rapid transit
train at Terminal Tower after attending a Cleveland Indians' night game with

friends. During the baseball game, Gladon consumed about five 16-ounce
beers. He left his friends at the stadium in search of a restroom, and ended up
traveling alone on the RTA trains. Because there were no witnesses, the jury
only heard Gladon's account of events. According to Gladon, he mistakenly
exited the train at the West 65th Street Station and, once on the platform, was
chased and attacked by two unknown males. Gladon testified that he
remembered being "rolled up in a ball" on the tracks but he could not recall if
he had jumped onto the tracks or had been pushed onto the tracks. While there,
however, he did recall being kicked in the head.

While Gladon lay on the tracks with his legs draped over the rail, an
RTA rapid train approached the West 65th Street Station. Mary Bell, the train's
operator, had the train in braking mode when she observed first a tennis shoe
and then Gladon's leg on the tracks. The operator pulled the cinestar, or
control handle, back and hit the "mushroom," or emergency brake.
Unfortunately, the train struck Gladon causing him serious and permanent
injuries.

2

Gladon sued RTA and the operator alleging negligence in the security of
RTA's premises and in the operation of the train. Specifically, Gladon alleged
that the operator was negligent by failing to bring the train to a stop "after the
point she perceived or should have perceived the Plaintiff's peril prior to her
striking the Plaintiff." The trial court granted RTA summary judgment as to
the negligent security claim and the case proceeded to trial on the negligent
operation claim.

The trial court overruled RTA's motion for a directed verdict at the close
of Gladon's case-in-chief. The court instructed the jury that "as a matter of law
that the only evidence produced by either side indicates that the plaintiff was an
invitee." The court further informed the jury that "the driver of a rapid transit
car with the right of way must use ordinary care. Therefore, to avoid colliding
with a person found on the tracks, the defendant is required to use ordinary care
to discover and to avoid danger." The jury returned a verdict for Gladon and
overruled RTA's motion for judgment notwithstanding the verdict. The court
of appeals affirmed.

3

This cause is now before this court upon the allowance of a discretionary
appeal and cross-appeal.

Donald E. Caravona & Associates, Donald E. Caravona and Michael W.
Czack, for appellee and cross-appellant.

Ulmer & Berne, F. Thomas Vickers and James A. Vollins, for appellant
and cross-appellee.

Wanda Rembert Arnold and Inajo T. Davis, urging reversal for amicus
curiae, Cleveland Board of Education.

John E. Gotherman and Malcolm C. Douglas, urging reversal for amici
curiae, Ohio Municipal League, Ohio Municipal Attorneys Association and
Ohio Municipal Joint Self-Insurance Pool.

R. Todd Hunt, urging reversal for amicus curiae, Ohio Township
Association and Cuyahoga County Law Directors Association.

Malcolm C. Douglas; Ronald J. O'Brien, Columbus City Attorney,
Sharon Sobol Jordan, Cleveland Director of Law, Faye D. Dupuis, Cincinnati
City Solicitor, John H. Mattimoe, Toledo Director of Law, and Mark S.

4

Schmollinger, Toledo General Counsel, J. Anthony Sawyer, Dayton Director of
Law, and Michael E. Murman, Lakewood Director of Law, urging reversal for
amici curiae, cities of Columbus, Cleveland, Cincinnati, Toledo, Dayton, and
Lakewood, Ohio.
Maribeth
Deavers and D. Allen Asbury, urging reversal for amicus
curiae, Central Ohio Transit Authority.
Rosplock,
Curlson,
Perez, Deeb & Ezzone and Donald J. Ezzone, urging
reversal for amicus curiae, Laketran Regional Transit Authority.

Kitchen Deery & Barnhouse, Vincent A. Feudo, Eugene B. Meador and
William F. Schmitz, urging reversal for amicus curiae, Ohio Risk Management
Association.

Means, Bichimer, Burkholder & Baker Co., L.P.A., and Kimball H.
Carey, urging reversal for amicus curiae, Ohio School Boards Association.

Peck, Shaffer & Williams and Thomas A. Luebbers, urging reversal for
amicus curiae, County Commissioners Association of Ohio.

5

Mark W. Ruf, urging affirmance for amicus curiae, Ohio Academy of
Trial Lawyers.
Cook, J.
Because we find another issue dispositive of this appeal, we
fail to reach the substantial constitutional question regarding R.C. 2744.05(C)
that we otherwise would have reached. 1 We determine that the trial court erred
in instructing the jury about plaintiff's legal status and RTA's corresponding
duty. The trial court instructed the jury "as a matter of law that *** the plaintiff
was an invitee," and that as a result RTA was "required to use ordinary care to
discover and to avoid danger." The trial court did not give the instruction that
prior to discovering Gladon, RTA was obliged to refrain from willful and
wanton conduct which was likely to injure Gladon. Given the evidence
presented in the trial of this case, the erroneous instruction was prejudicial.
Accordingly, we reverse the judgment of the trial court and remand the cause
for a new trial.
I.
DUTY CLASSIFICATIONS

6

Ohio adheres to the common-law classifications of invitee, licensee, and
trespasser in cases of premises liability. Shump v. First Continental-Robinwood
Assoc. (1994), 71 Ohio St.3d 414, 417, 644 N.E.2d 291, 294; Boydston v.
Norfolk S. Corp. (1991), 73 Ohio App.3d 727, 733, 598 N.E.2d 171, 175.
Although there was a movement in many jurisdictions in the 1970s to abolish
these traditional duty classification schemes, it quite abruptly lost its steam late
in that decade. Prosser & Keaton, Law of Torts (5 Ed.1984) 433, Section 62.
Prosser hypothesizes that the retreat may reflect a "fundamental dissatisfaction
with certain developments in accident law that accelerated during the 1960s---
the reduction of whole systems of legal principles to a single, perhaps
simplistic, standard of reasonable care, the sometimes blind subordination of
other legitimate social objectives to the goals of accident prevention and
compensation, and the commensurate shifting of the decisional balance of
power to the jury from the judge. At least it appears that the courts are gaining
a renewed appreciation for the considerations behind the traditional duty
limitations toward trespassing adults, and that they are acquiring more

7

generally a healthy skepticism toward invitations to jettison years of developed
jurisprudence in favor of a beguiling legal panacea." Id. at 433-434.

In Ohio, the status of the person who enters upon the land of another
(i.e., trespasser, licensee, or invitee) continues to define the scope of the legal
duty that the landowner owes the entrant. Shump, 71 Ohio St. at 417, 644
N.E.2d at 294. Invitees are persons who rightfully come upon the premises of
another by invitation, express or implied, for some purpose which is beneficial
to the owner. Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165,
167, 502 N.E.2d 611, 613; Scheibel v. Lipton (1951), 156 Ohio St. 308, 46
O.O. 177, 102 N.E.2d 453, paragraph one of the syllabus.

The status of an invitee is not absolute but is limited by the landowner's
invitation. "*** The visitor has the status of an invitee only while he is on part
of the land to which his invitation extends -- or in other words, the part of the
land upon which the possessor gives him reason to believe that his presence is
desired for the purpose for which he has come * * * If the invitee goes outside
of the area of his invitation, he becomes a trespasser or a licensee, depending

8

upon whether he goes there without the consent of the possessor, or with such
consent." 2 Restatement of the Law 2d, Torts (1965) 181-182, Section 332,
Comment l.

In the present case, Gladon was an invitee when he purchased an RTA
ticket, rode the rapid transit train and waited at RTA's platform. However,
RTA's invitation to Gladon to use their premises did not extend to the area on
or near the tracks. In fact, Gladon acknowledged that RTA did not permit the
public in the area on or near the tracks.

Although the result seems harsh, the common law on this subject is well
grounded and we are not inclined to reject it. Accordingly, we hold that where
an entrant upon another's land exceeds the scope of the landowner's invitation,
the entrant will lose the status of an invitee, and become either a licensee or
trespasser. See Clary v. McDonald (1963), 120 Ohio App. 8, 11, 28 O.O.2d
169, 171, 200 N.E.2d 805, 808; Sweet v. Clare-Mar Camp, Inc. (1987), 38
Ohio App.3d 6, 9, 526 N.E.2d 74, 78. See, also, Restatement of Torts 2d, supra
Section 332, Comment l.

9

Gladon contends that he retained his invitee status because there was no
evidence that he "intentionally or purposely entered upon the track area."
According to the Restatement, "so far as the liability of the possessor of the
land to the intruder is concerned, however, the possessor's duty, and liability,
will be the same regardless of the manner of entry, so long as the entry itself is
not privileged." Restatement of Torts 2d, 171-172, supra, Section 329,
Comment c.

In determining whether the person is a trespasser within the meaning of
this section, the question whether his entry has been intentional, negligent or
purely accidental is not material, except as it may bear on the existence of a
privilege. Id. at 171. Without the consent or privilege to enter the area of the
tracks, the law views such entry from the aspect of the landowner whose duties
to the entrant flow from the parameters of his permission to be there. As a
result, "the determining fact is the presence or absence of a privilege to enter or
to remain on the land, and the status of an accidental trespasser is still that of a
trespasser." Id. at 172.

10

The illustration employed by the Restatement to explain the duties owed
to a trespasser is remarkably similar to Gladon's situation. "Without any
negligence on his part A, standing on the platform of a subway station of the X
Company, slips and falls onto the tracks. While there he is run over by the
train of X Company, and injured. A is a trespasser, and the liability to him is
determined by the rules stated in sections 333 and 336, notwithstanding the
accidental character of his intrusion." Id. at 171, Illustration 1.2

Furthermore, whether Gladon was privileged to enter the tracks is
immaterial. A person privileged to enter the land is owed the same duties as a
licensee. Restatement of Torts, supra, at Section 345. Because the duties owed
to a licensee and trespasser are the same, whether Gladon was privileged to
enter the land does not change the standard of care RTA owed to him. Sole v.
Ohio Edison Co. (1945), 144 Ohio St. 373, 29 O.O. 559, 59 N.E.2d 138,
paragraph one of the syllabus.

Even though his entry may have been unintentional and against Gladon's
wishes, once on the tracks, Gladon exceeded the scope of his invitation and lost

11

his status as an invitee. Because Gladon then became either a licensee or a
trespasser for purposes of determining the duty RTA owed to him, the trial
court erred in instructing the jury that he was an invitee as a matter of law.

We now turn to the duty owed to Gladon by RTA as a result of Gladon's
change in status from invitee to either licensee or trespasser. A landowner
owes a duty to an invitee to exercise ordinary care for the invitee's safety and
protection. Light, 28 Ohio St.3d at 68, 28 OBR at 167, 502 N.E.2d at 613.
Conversely, a landowner owes no duty to a licensee or trespasser except to
refrain from willful, wanton or reckless conduct which is likely to injure him.
Sole v. Ohio Edison Co. (1945), 144 Ohio St. 373, 29 O.O. 559, 59 N.E.2d
138, paragraph one of the syllabus. See, also, Provencher v. Ohio Dept. of
Transp. (1990), 49 Ohio St.3d 265, 266, 551 N.E.2d 1257, 1258; McKinney v.
Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449,
450-451, 510 N.E.2d 386, 388; Brooks v. Norfolk & W. Ry. Co. (1976), 45
Ohio St.2d 34, 74 O.O.2d 53, 340 N.E.2d 392, paragraph one of the syllabus
("Where the status of a plaintiff is that of a trespasser on a railroad right-of-way

12

at the time certain injuries were sustained by him, recovery can only be had
against the railroad if the record demonstrates wanton misconduct on its part in
connection with the accident."). Furthermore, a railroad owes no duty to
anticipate or prevent the presence of licensees or trespassers. McKinney, 31
Ohio St.3d at 246-247, 31 OBR at 451, 510 N.E.2d at 389; Brooks, 45 Ohio
St.2d at 38, 74 O.O.2d at 451, 340 N.E.2d at 394; Cleveland, A. & C. Ry. Co.
v. Workman (1902), 66 Ohio St. 509, 540, 64 N.E. 582, 587 (A railroad owed a
licensee no duty of "active vigilance to especially look out for and protect
him."); see Mima v. Akron (1986), 31 Ohio App.3d 124, 126, 31 OBR 211,
213, 508 N.E.2d 974, 976.

When a trespasser or licensee is discovered in a position of peril, a
landowner is required to use ordinary care to avoid injuring him. Cole v. New
York Central RR. Co. (1948), 150 Ohio St. 175, 185, 37 O.O. 459, 463, 80
N.E.2d 854, 860; Cleveland C., C. & St. L. Ry. Co. v. Potter (1925), 113 Ohio
St. 591, 600-601, 150 N.E. 44, 47. The duty to exercise ordinary care arises
after the landowner "knows, or from facts within his knowledge should know

13

or believe," that a trespasser or licensee is on the land. Restatement of Torts,
supra, at Section 336, Comment d.

Having instructed the jury as a matter of law that Gladon was an invitee,
the trial court assigned RTA a duty of ordinary care "to discover and to avoid
danger." These instructions erred in two respects. First, the instructions
imposed upon RTA a duty to use ordinary care to discover Gladon's presence.
To the contrary, RTA was under no duty to anticipate trespassers and could
only be liable for injuries resulting from willful or wanton conduct. Second, the
instructions imposed upon RTA a duty to use ordinary care to avoid injuring
Gladon prior to the operator's discovery of him. Rather, RTA's duty to use
ordinary care to avoid injuring Gladon did not arise until RTA knew or should
have known that Gladon was on the tracks. Whether the operator knew or
should have known a person was on the tracks upon observing the tennis shoe
remains a question for the jury.

Given that the instructions were erroneous and prejudicial, we reverse
the judgment of the court of appeals and remand this cause for a new trial.

14

II
MOTIONS FOR DIRECTED VERDICT / JNOV

Having determined that the duty of care owed to Gladon changed with
his status, we now examine the issue of whether the trial court should have
granted RTA a directed verdict or judgment notwithstanding the verdict. RTA
contends the evidence produced at trial failed to prove that their operator
breached the duty of care owed to Gladon.

"The test to be applied by a trial court in ruling on a motion for judgment
notwithstanding the verdict is the same test to be applied on a motion for a
directed verdict. The evidence adduced at trial and the facts established by
admissions in the pleadings and in the record must be construed most strongly
in favor of the party against whom the motion is made, and, where there is
substantial evidence to support his side of the case, upon which reasonable
minds may reach different conclusions, the motion must be denied. Neither the
weight of the evidence nor the credibility of the witnesses is for the court's
determination in ruling upon either of the above motions." Posin v. A. B. C.

15

Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 430,
344 N.E.2d 334, 338, citing McNees v. Cincinnati Street Ry. Co. (1949), 152
Ohio St. 269, 40 O.O. 318, 89 N.E.2d 138; Ayers v. Woodard (1957), 166 Ohio
St. 138, 1 O.O.2d 377, 140 N.E.2d 401; Civ.R. 50(A) and (B).
A
Application of the Willful and Wanton Standard

RTA owed Gladon no duty except to avoid injuring him by willful or
wanton conduct prior to discovering Gladon on the tracks. See McKinney, 31
Ohio St.3d at 246, 31 OBR at 450-451, 510 N.E.2d at 388. Willful conduct
"`involves an intent, purpose or design to injure.'" Id. at 246, 31 OBR at 451,
510 N.E.2d at 388-389, quoting Denzer v. Terpstra (1934), 129 Ohio St. 1, 1
O.O. 303, 193 N.E. 647, paragraph two of the syllabus. Wanton conduct
involves the failure to exercise "`any care whatsoever toward those to whom he
owes a duty of care, and his failure occurs under the circumstances in which
there is great probability that harm will result.'" Id. at 246, 31 OBR at 451, 510

16

N.E.2d at 389, quoting Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d
243, 363 N.E.2d 367, syllabus.

At trial, Gladon produced evidence that the tracks were wet when the
operator traveled eastbound toward the West 65th Street platform. The
testimony of the operator indicates that she had the train in braking mode as she
traveled through a dark area near the platform with her high beams on at an
estimated 20 m.p.h. Generally, the speed limit in that area is 25 m.p.h., but
when a train is going to pass rather than stop at a platform, the permitted speed
is 5 m.p.h.

Gladon also presented RTA regulations which require operators to
operate the trains on sight, within the range of vision, at all times, and to
anticipate changes in the range of vision. According to the RTA operator,
operators "constantly run" their trains under "line of sight," or at a speed which
will permit stopping within one-half of the range of vision or within one-half of
the distance to an opposing object. Gladon offered evidence that when tracks

17

are wet, an operator must adjust the train's speed in light of the weather
conditions on the track.

In McKinney v. Hartz & Restle Realtors, Inc., we determined that a
railroad company was entitled to a directed verdict in the absence of any
evidence of speeding or other wanton misconduct. 31 Ohio St.3d at 247, 31
OBR at 451, 510 N.E.2d at 389. Our precedent has impliedly held that
speeding may be evidence of wanton misconduct. Id.; see, generally, Brooks,
45 Ohio St.3d at 37, 340 N.E.2d at 394.

Viewing these facts in the light most favorable to Gladon, we find that in
this trial reasonable minds could have reached different conclusions regarding
whether the speed of the train at the time the operator approached the West
65th platform meets the wanton standard in light of the operator's duty to
adjust the train's speed to her range of vision and to the known track
conditions. Therefore, the trial court did not err in overruling RTA's motions
for a directed verdict or judgment notwithstanding the verdict.
B

18

Application of the Ordinary Care Standard

RTA owed Gladon a duty to use reasonable care to avoid injuring
Gladon after the operator discovered Gladon on the tracks. Cole, 150 Ohio St.
at 185, 37 O.O. at 463, 80 N.E.2d at 860. Here, again, the RTA contends that
Gladon failed to produce evidence of a breach of that duty.

Viewing these facts presented in this trial in the light most favorable to
Gladon, reasonable minds could have reached different conclusions as to
whether the operator exercised ordinary care. First, the point at which this duty
arose remains a question for the jury. Reasonable minds could have reached
different conclusions regarding whether the operator should have known a
person was on the tracks when she saw the tennis shoes. Second, when the
operator did realize a person was on the tracks, she was not sure whether she
pulled the cinestar all the way back to the maximum braking mode before she
hit the "mushroom" when she observed Gladon's legs on the tracks.
Furthermore, the operator testified that she was not sure whether she hit the
"mushroom" before or after the train struck Gladon.

19

While we find that the trial court properly overruled the motions for
directed verdict and for judgment notwithstanding the verdict, we reverse the
judgment of the court of appeals and remand this cause for a new trial based on
the erroneous jury instructions.
Judgment reversed
and cause remanded.

MOYER, C.J., and WRIGHT, J., concur.

WRIGHT, J., concurs separately.

NADER, J., concurs in judgment only.

DOUGLAS, RESNICK and PFEIFER, JJ., dissent.

ROBERT A. NADER, J., of THE Eleventh Appellate District, sitting for
F.E. SWEENEY, J.

FOOTNOTES

1 Although the parties and amici extensively briefed the issues
surrounding the constitutionality of R.C. 2744.05(C) at the request of this

20

court, our decision to remand this cause for a new trial precludes a
determination of that issue. At the new trial, the jury may not find that the
RTA breached its duty to Gladon or the jury may award Gladon less than
$250,000 for pain and suffering. Consequently, any opinion we would render
on the issue of the constitutionality of a cap on an award for pain and suffering
before a jury verdict has been rendered would be advisory in nature. It is well
settled that this court will not indulge in advisory opinions. Egan v. Natl.
Distillers & Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d
904, syllabus.

2 Section 333 states generally that "a possessor of land is not liable to
trespassers for physical harm caused by his failure to exercise reasonable care
(a) to put the land in a condition reasonably safe for their reception, or (b) to
carry on his activities so as not to endanger them." Restatement of Law 2d,
Torts (1965) 183, Section 333. Section 336 generally prescribes the duty of
ordinary care from a possessor of land who knows or has reason to know of the
presence of another who is trespassing on the land. Restatement of the Law 2d,

21

supra, at Section 336. Again, the example cited by the Restatement for this
duty is identical to the situation when the train driver saw Gladon and his shoe
on the tracks. "The engineer of the X &Y Railroad Company sees lying upon
the track a pile of clothing such as would give a reasonable man cause to
suspect that it might contain a human being. Under these circumstances the
engineer is not entitled to assume that it is not a human being but is required to
keep the engine under control until he is certain that it is not." Id. at 191-192,
Comment b, Illustration 1.

WRIGHT, J., concurring. I concur in Justice Cook's opinion. I write
separately to address the dissent's analysis of the so-called real issue in this
case. Before today, I never believed I could disagree with an opinion that relies
on the Declaration of Independence. The dissent has risen to that challenge.

The dissent takes issue with the majority's refusal to reach the
constitutional question raised by this case. This is surprising, when one recalls
the long-standing principle that we will not address constitutional questions
unless absolutely necessary. Norandex, Inc. v. Limbach (1994), 69 Ohio St.3d

22

26, 28, 630 N.E.2d 329, 331; Hal Artz Lincoln Mercury, Inc. v. Ford Motor Co.
(1986), 28 Ohio St.3d 20, 28, 28 OBR 83, 90, 502 N.E.2d 590, 597, fn. 17;
State ex rel. Hofstetter v. Kronk (1969), 20 Ohio St.2d 117, 119, 49 O.O.2d
440, 441, 254 N.E.2d 15, 17.

The dissent attempts to circumvent this consideration by assailing the
majority's determination that Gladon was not an invitee and by launching an
assault on the common-law duty classifications. In doing so, the dissent fails
to consider the words of Oliver Wendell Holmes that "[t]he life of the law has
not been logic: It has been experience." Holmes, The Common Law (1881) 1.
Instead, the dissent proposes to abolish the traditional duty categories, which
are the result of generations of accumulated legal thought, simply because their
application in this case does not comport with the dissent's understanding of
"fairness."

As far as the real issue in this case is concerned, the dissent has based its
analysis on a mischaracterization of the common-law rights of litigants to a
jury trial. The dissent correctly notes that Section 5, Article I of the Ohio

23

Constitution guarantees a jury trial only in those instances in which the
common law, at the time of the Ohio Constitution's adoption, recognized that
right. Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, 556, 644
N.E.2d 397, 401; Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 421, 633
N.E.2d 504, 510; Belding v. State ex rel. Heifner (1929), 121 Ohio St. 393,
169 N.E. 301, paragraph one of the syllabus.

For whatever reason, however, the dissent seeks to cast the issue in this
case in terms of whether the common law afforded individuals "a right to a jury
trial in a negligence action against a political subdivision of the state at the time
the Ohio Constitution was adopted." (Emphasis sic.) This narrow
characterization ignores the reality that, regardless of the level of government
to which the doctrine was applied, sovereign immunity did exist at common
law. Consequently, where sovereign immunity operates, a plaintiff has no right
to a cause of action, let alone a trial by jury. Thus, were we to have reached the
Section 5, Article I issue, that issue would have been properly framed as: "Do
litigants possess a right to a jury trial when the defendant is a governmental

24

entity which enjoys sovereign immunity?" This query could only have been
answered in the negative.

Admittedly, R.C. 2744.02(B)(2) and prior case law have refused to apply
municipal sovereign immunity when the injury to the plaintiff is the result of
the municipality's exercise of "proprietary" functions. Indeed, it is precisely
this limitation on sovereign immunity which enabled Gladon to bring his claim
against GCRTA.3 However, our case law has consistently stated that, because
of its origins in the common law, the contours of municipal sovereign
immunity are open to legislative reversal or modification. Haverlack v. Portage
Homes, Inc. (1982), 2 Ohio St.3d 26, 30, 2 OBR 572, 575, 442 N.E.2d 749,
752; Haas v. Hayslip (1977), 51 Ohio St.2d 135, 136, 5 O.O.3d 110, 111, 364
N.E.2d 1376, 1377; Hack v. Salem (1963), 174 Ohio St. 383, 384, 23 O.O.3d
34, 189 N.E.2d 857, 858; Broughton v. Cleveland (1957), 167 Ohio St. 29, 31,
4 O.O.2d 1, 2, 146 N.E.2d 301, 303. Indeed, in Menefee v. Queen City Metro
(1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181, 182, we noted that the General
Assembly could "extend[] sovereign immunity to all claims against a political

25

subdivision." (Emphasis sic.) In light of this consideration, the cap that R.C.
2744.05(C) places on pain and suffering awards cannot be rationally regarded
as an unconstitutional infringement on the province of the jury.

26

FOOTNOTE:
3 R.C. 2744.01(G)(2) states that "[a] `proprietary function' includes *** (c)
[t]he establishment, maintenance, and operation of *** a railroad, a busline or
other transit company ***."

NADER, J., concurring in judgment only. I agree that Ohio maintains its
traditional duty classifications in cases of premises liability and that one's
status is determined at entry in accordance with the landowner's invitation.

Gladon quite clearly entered appellant's property as an invitee. The
cases cited affirm that one can change that status by exceeding the terms of the
admission. All these cases, however, show intentional divergence; and while
the theories propounded by Prosser and the Restatement of Torts 2d support
each other, neither authority convinces me nor compels the conclusion that

27

Gladon's apparently involuntary and unexplained presence upon appellant's
tracks automatically transmuted his status to that of a trespasser.

The evidence, in this case, is not so determinative of status by location or
purpose as to support a finding of invitee or trespasser, as a matter of law, and
the trial court erred in not submitting that issue to the jury, as presented. While
appreciating the practical concern in limiting a landowner's duty to trespassers,
it is similarly difficult for me to accept the forfeiture of that duty, by an invitee,
for an involuntary action.

I believe the trial court should have accommodated this peculiar situation
by crafting an appropriate instruction permitting the jury to consider the status-
duty enigma fairly, upon the facts presented.

A less forceful approach to conform irregular facts to a standard charge
may not have been in error, or may have been harmless error, so this matter
could have proceeded on its most contentious issue, the constitutionalityof R.C.
2744.05(C).

28

DOUGLAS, J., dissenting. The real issue in this case is whether any
application of R.C 2744.05(C) to reduce or "cap" a jury award in a negligence
action against a political subdivision of the state violates the right to trial by
jury. Resolution of this issue involves the question whether there exists a
common-law right to a jury trial in a negligence action against a corporate
political subdivision of the state or, conversely, whether corporate political
subdivisions were historically protected from liability under the doctrine of
sovereign immunity. However, the majority has completely avoided this issue
by focusing instead on issues of jury instructions and by relying on the archaic
common-law entrant classification system to determine the duty owed by a
landowner to entrants upon the landowner's premises. In my judgment, the
manner in which the majority has adroitly avoided the real issue in this case is,
at the least, unfortunate.

The plurality opinion says in footnote one that the parties and amici have
extensively briefed the issues surrounding the constitutionality of R.C.
2744.05(C) "at the request of this court." (Emphasis added.) This statement

29

implies that the question whether R.C. 2744.05(C) is constitutional has nothing
to do with this case, and that the parties and amici have addressed the question
solely at our urging. However, that is not accurate. Both the trial court and the
court of appeals found that R.C. 2744.05(C) is an unconstitutional exercise of
legislative authority. The parties and amici extensively briefed the issues
concerning the constitutionality of R.C. 2744.05(C) because those issues are
what brought this case to this court. Only after the parties and amici filed their
briefs in this court, and after we heard oral arguments in this case, did we
specifically request that the parties submit supplemental briefing on the issues
concerning the constitutionality of R.C 2744.05(C). We asked for additional
briefing on these issues because we too recognized the importance of deciding
the significant constitutional questions in this case. Further, we knew at that
time that the issue concerning the constitutionality of R.C. 2744.05(C) was the
only issue that had been raised in appellant's appeal that had any possible
merit.

30

Obviously, this court did not accept jurisdiction in this case to perpetuate
the artificial common-law classification system for determining the duty owed
by a landowner to the entrants upon the landowner's property, and we certainly
did not accept jurisdiction to avoid deciding whether R.C. 2744.05(C) is
constitutional. The parties and amici have specifically asked us to determine
whether R.C. 2744.05(C) is constitutional, and that issue is ripe for our
determination. Unfortunately, today's plurality has gone to great lengths not to
decide the important constitutional questions by holding that the intervening
criminal acts of third parties can magically change the legal status of a business
invitee. Because that proposition has no basis in law, I must respectfully but
vigorously dissent.

I write this dissenting opinion not so much to persuade as to point out the
flaws in the majority's rationale and to spark critical thinking and scholarly
debate and writing concerning the constitutionality of R.C. 2744.05(C). The
question whether R.C. 2744.05(C) is a constitutional exercise of legislative
authority is almost certain to come before this court on another occasion.

31

Indeed, the Court of Appeals for the Eighth Appellate District decided in this
case that the R.C. 2744.05(C) cap on damages is unconstitutional. Today's
majority opinion reverses the judgment of the court of appeals on different
grounds. Thus, if any other appellate district court of appeals reaches the
opposite conclusion, that R.C. 2744.05(C) is constitutional, that court will
almost certainly certify the issue to this court for review and final
determination pursuant to Section 3(B)(4), Article IV of the Ohio Constitution.
I
The Facts

The facts of this case are not in dispute. On April 27, 1988, Robert
M. Gladon, appellee and cross-appellant, attended a Cleveland Indians baseball
game at Cleveland Stadium. After the game, Gladon proceeded to the Terminal
Tower station of the Greater Cleveland Regional Transit Authority
("GCRTA"), appellant and cross-appellee, and paid his fare to ride a rapid
transit train to the near west side of Cleveland. At that time, Gladon also
obtained a transfer ticket allowing him to ride a bus to his home in Lakewood

32

once he left the train. Gladon rode the rapid transit train to the West 65th
Street station. Upon leaving the train, Gladon was approached and assaulted
by two unidentified males.

Gladon's assailants left him lying on the tracks at the West 65th
Street station. Meanwhile, a GCRTA rapid transit train operated by Mary Bell
was quickly approaching the West 65th Street station. Bell was on her last run
for the evening and was traveling at a high rate of speed. She had been running
late on her route and was trying to "make up some time." The tracks were wet
and slippery. The weather was a combination of snow, sleet, and rain.

As Bell approached the West 65th Street station with her high beam
lights illuminated, she saw a peculiar object on the tracks. As the train
continued forward, Bell realized that the object on the tracks was a tennis shoe.
As the train moved even closer, Bell realized that there was a leg attached to
the tennis shoe. At that time, Bell attempted to stop the train by pulling the
control handle back. She then hit the "mushroom," which was designed to put
the train into maximum braking mode. Bell was unsure whether she hit the

33

mushroom before or after running over Gladon. In any event, the train did not
stop in time, apparently due to the wet conditions of the tracks. The train
struck Gladon, causing him severe and permanent injuries.

Gladon sued GCRTA for negligence arising out of the operation of
the rapid transit train. This claim proceeded to trial before a jury. At the close
of the evidence, the trial court instructed the jury, in part, as follows:

"[W]e have heard a great deal of conversation during the evidence in
this case about the question of whether or not the plaintiff was a trespasser, or
an invitee on the property of RTA at the time he was injured.

"When one is on the property of another, he is normally an invitee, a
licensee or a trespasser, depending upon the evidence, and different standards
of care apply to each of those three different categories.

"Sometimes that's a matter for the jury to determine based upon the
evidence. In this case the Court is instructing you as a matter of law that the
only evidence produced by either side indicates that the plaintiff was an invitee.
The only evidence we have heard with regard to how he got on the ground was

34

his recollection that he bought a transfer at Tower City, got off the train at the
platform of West 65th Street, and he saw two strangers, that he was frightened
and remembered nothing until much later.

"There being no contrary evidence to that testimony, you are
instructed that plaintiff was an invitee, and the standard of care with respect to
an invitee applies to this case * * *.

"Plaintiff has the burden of proving the elements of negligence by a
preponderance of evidence.

"Negligence is an act or omission in violation of a duty owed to
persons sustaining injury. Everyone has a general legal duty to exercise
ordinary care to avoid injuring someone else.

"So, negligence is simply a failure to use ordinary care. What is that?
Ordinary care is that degree of care which a reasonably prudent person would
have used, taking into consideration all of the facts, circumstances and
conditions in which such a person was placed in at the time of the happening in
question.

35

"In determining whether ordinary care was used, you will consider
whether the defendant ought to have foreseen under the attending
circumstances that the natural and probably [sic, probable] result of its acts or
omissions would cause someone injury.

"* * *

"The test [for forseeability] is whether in light of all the
circumstances a reasonably prudent person would have anticipated that injury
and damage was likely to result to someone from the performance or from the
non-performance of an act.

"If the defendant by the use of ordinary care should have foreseen
some injury, and either would not have acted, or if it did act, would have taken
precaution to say avoid the result, then in the performance of the acts or the
failure to take such precautions may constitute negligence.

"The driver of a rapid transit car with the right of way must use
ordinary care. Therefore, to avoid colliding with a person found on the tracks,
the defendant is required to use ordinary care to discover and to avoid danger."

36

The jury found GCRTA negligent, and awarded Gladon
$2,736,915.35 in damages. The total jury award of $2,736,915.35 represented
$52,800 in lost wages, $206,565.35 in past medical expenses, $43,000 in future
medical expenses, and $2,434,550 for pain and suffering. Thus, most of the
jury's damage award was attributable to pain and suffering (i.e., noneconomic
losses). The trial court reduced the jury's $2.7 million verdict to $2.5 million
to conform with Gladon's amended prayer for relief. Further, pursuant to R.C.
2744.05(B), the trial court trimmed the jury award by an additional
$115,544.23 in benefits Gladon had received from collateral sources. GCRTA
also requested the trial court to reduce the award for pain and suffering to
$250,000 pursuant to R.C. 2744.05(C). The trial court refused, finding that
R.C. 2744.05(C) is unconstitutional. On appeal, the court of appeals affirmed
the judgment of the trial court. The cause is now before this court pursuant to a
discretionary appeal and cross-appeal.
II
The Majority's Analysis

37

The majority has chosen to decide this case on the basis of a
questionable analysis of the common-law classifications of invitee, licensee
and trespasser. These artificial common-law categories have traditionally been
used to determine the scope of the duty owed to an entrant upon a landowner's
premises. A question remains, however, whether this court should continue to
blindly adhere to this artificial classification system, particularly in light of
decisions like the one the majority makes in the case now before us.

A business invitee is a person who comes upon the premises of another
by invitation, express or implied, for some purpose which is beneficial to the
owner. See Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165,
167, 502 N.E.2d 611, 613. The landowner owes the invitee a duty to exercise
reasonable care and to protect the invitee by maintaining the premises in a safe
condition. Id. Conversely, a person who enters the premises of another by
permission or acquiescence, for the entrant's own pleasure or benefit, and not
by invitation, is a licensee. Id. The licensor/landowner owes the licensee no
duty except to refrain from willfully and wantonly causing injury. Id. A

38

trespasser is a person who enters or remains upon the premises of another
without a privilege to do so created by the possessor's consent or otherwise.
As in the case of a licensee, the owner or occupier of land owes no duty to a
trespasser except to refrain from willfully and wantonly causing injury.

The majority concedes that Gladon was a business invitee at the time he
left the rapid transit train at the West 65th Street platform. However, three
members of the majority find that Gladon lost his status as an invitee when he
was attacked by two assailants and left on the tracks in or near a state of
unconsciousness, and a fourth finds it to be a jury question. Thus, the majority
finds that the trial court erred by instructing the jury that Gladon was an invitee
at the time of the accident. This conclusion of the majority is clearly in error.

It is interesting that the plurality does not say whether Gladon was a
licensee or a trespasser while he was lying on the tracks. The reason the
plurality fails to classify Gladon as either a licensee or trespasser should be
obvious. Gladon did not enter the track area or remain there for his own
pleasure or benefit. Therefore, he could not be considered a licensee. Nor did

39

Gladon lose any privilege to be on GCRTA's premises simply because he was
beaten and placed on the tracks by his assailants. Thus, he could not have been
a trespasser.

Nevertheless, the plurality holds that "[w]here an entrant upon another's
land exceeds the scope of the landowner's invitation, the entrant will lose the
status of an invitee, and become either a licensee or a trespasser." That may be
true under other fact patterns, but it cannot be true here. What the plurality is
saying is that where, as here, an invitee is lawfully on the premises of another
and, as a consequence of the criminal acts of a third party, is placed onto a
section of property beyond the scope of the invitation, the invitee loses the
status of an invitee and, by the wave of a magic wand, is transformed into
either a licensee or trespasser. To support this novel concept, the plurality
relies exclusively on Comment l to Section 332 of the Restatement of the Law
2d, Torts (1965); Clary v. McDonald (1963), 120 Ohio App. 8, 28 O.O.2d 169,
200 N.E.2d 805; and Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio App.3d 6,
526 N.E.2d 74. Not surprisingly, none of these authorities support the

40

majority's holding in this case. Neither Clary, Sweet, nor Comment l to
Section 332 of the Restatement of Torts 2d, supra, even remotely stands for the
proposition that an invitee is magically converted into a licensee or a trespasser
where he or she is placed in a different location on the premises as a direct
result of the intervening criminal activities of a third person.

The plurality also cites the Restatement of Torts 2d, 171, Section 329, to
refute Gladon's contention that he remained a business invitee at the time of
the accident because he had not entered the track area intentionally. Section
329 of the Restatement pertains to the common-law trespasser classification.
However, today's majority never commits to saying that Gladon was ever a
trespasser on GCRTA's premises. Thus, I am left to wonder why the plurality
even discusses Section 329 of the Restatement of Torts 2d, supra. Further, the
plurality's citation of the illustration to Section 329 of the Restatement of Torts
2d is equally puzzling. The illustration to Section 329 of the Restatement of
Torts 2d, at 172, deals with an accidental trespasser who slips and falls onto a
set of train tracks. Clearly, that illustration differs dramatically from the facts

41

in the case at bar where Gladon, through no fault of his own, was placed onto
the train tracks by two assailants.

The plurality's conclusion that Gladon lost his status as an invitee
because of the intervening criminal acts of third parties takes the common-law
entrant classification system to an entirely new level of absurdity. Take the
following example. Assume that a postal worker is in the process of delivering
mail to a homeowner's premises. The postal worker enters upon the porch and
slips the mail into the mailbox. At that moment, a burglar leaves the home,
beats the postal worker, and then throws the postal worker through the front
window of the home and onto the living room couch. The homeowner then
returns home and finds the postal worker bleeding to death on the couch -- a
location on the premises where the postal worker has no right to be. Under the
majority's analysis, the homeowner would apparently owe no duty to the postal
worker except to refrain from willfully or wantonly causing further injury
because the postal worker had magically been transformed from a business

42

invitee to a trespasser or a licensee by the intervening acts of the burglar. I, for
one, find the majority's new legal doctrine to be beyond comprehension.

On several prior occasions, this court has been asked to specifically
abolish the legal standards that exist in Ohio with respect to those classified in
the law as licensees and social guests, as opposed to those classified as
business invitees. On each occasion, we have found it unnecessary to abolish
the common-law classifications. See, e.g., Brinkman v. Ross (1993), 68 Ohio
St.3d 82, 85-86, 623 N.E.2d 1175, 1178. Today's plurality opinion is an
excellent example why the common-law classification system should be
abandoned in favor of a rule of law that imposes a duty on landowners to
exercise reasonable care toward all entrants who lawfully come upon the
landowner's premises. I would be inclined to abandon the artificial common-
law classification system at least in cases where, as here, a person enters the
property of another for the landowner's business benefit and, through no fault
of her or his own and by the intervention of a third party, is placed in a
different location on the property.

43

Moreover, the plurality recognizes that "[w]hen a trespasser or licensee
is discovered in a position of peril, a landowner is required to use ordinary care
to avoid injuring him." In this regard, the majority also says that "[t]he duty to
exercise ordinary care arises after the landowner `knows, or from facts within
his knowledge should know or believe,' that a trespasser or licensee is on the
land." Compare these statements to the trial court's actual charge to the jury
that "to avoid colliding with a person found [discovered?] on the tracks, the
defendant is required to use ordinary care to discover and to avoid danger." I
submit that the trial court's charge to the jury comports with even the
majority's strained analysis of this case.

In sum, today's plurality, with one swipe of the pen, makes Gladon either
a trespasser or a licensee even though Gladon entered upon GCRTA's property
with permission and for the benefit of the GCRTA. The plurality has engaged
us in extensive discussion concerning Gladon's legal status, has offered up
examples from the Restatement of Torts 2d, and has made certain suppositions
concerning Gladon, the activities of GCRTA, and the question of privileged

44

entry. Unfortunately, all of these matters are based on the plurality's
assumption that Gladon was either a trespasser or a licensee and, of course,
there is no evidence in the record to support that assumption. The trial judge
and the jury heard all of the facts. The trial judge applied the law based on the
facts in evidence -- not on suppositions and speculation. The jury deliberated
and decided. However, today's majority reweighs all of that and comes to a
different conclusion. Obviously, the majority's de novo review and evidence
weighing is not a proper function of this court.

Gladon was a paying customer of the GCRTA. He was on GCRTA's
premises for GCRTA's business benefit. As the trial court noted, there was no
evidence in this case suggesting that Gladon was anything but a business
invitee at the time of the accident. Accordingly, the trial court was correct to
instruct the jury that GCRTA owed Gladon a duty of reasonable care. I cannot
join the majority's efforts in this case to usurp the functions of the trial court
and the jury. Accordingly, I dissent.
III

45

R.C. 2744.05(C)
The
real issue in this case is whether R.C. 2744.05(C) is a
constitutional exercise of legislative authority. I would decide that issue.
However, because the majority has adroitly avoided any discussion of R.C.
2744.05(C), I offer the following information, hoping to foster scholarly debate
on the question of whether R.C. 2744.05(C) violates the right to trial by jury.
As indicated above, I present the fruits of my research not so much to persuade
as to inquire.

R.C. 2744.05 provides:

"Notwithstanding any other provision of the Revised Code or rules of
a court to the contrary, in an action against a political subdivision to recover
damages for injury, death, or loss to persons or property caused by an act or
omission in connection with a governmental or proprietary function:

"* * *
"(C)(1)

There shall not be any limitation on compensatory damages
that represent the actual loss of the person who is awarded the damages.

46

However, except in wrongful death actions brought pursuant to Chapter 2125.
of the Revised Code, damages that arise from the same cause of action,
transaction or occurrence, or series of transactions or occurrences and that do
not represent the actual loss of the person who is awarded the damages shall
not exceed two hundred fifty thousand dollars in favor of any one person. * * *

"(2) As used in this division, `the actual loss of the person who is
awarded the damages' includes all of the following:

"(a) All wages, salaries, or other compensation lost by the person
injured as a result of the injury, including wages, salaries, or other
compensation lost as of the date of a judgment and future expected lost
earnings of such a person;

"(b) All expenditures of the person injured or another person on his
behalf for medical care or treatment, for rehabilitation services, or for other
care, treatment, services, products, or accommodations that were necessary
because of the injury;

47

"(c) All expenditures to be incurred in the future, as determined by
the court, by the person injured or another person on his behalf for medical care
or treatment, for rehabilitation services, or for other care, treatment, services,
products, or accommodations that will be necessary because of the injury;

"* * *

"(e) All expenditures of the person injured or whose property was
injured or destroyed or of another person on his behalf in relation to the actual
preparation or presentation of the person's claim;

"(f) Any other expenditures of the person injured or whose property
was injured or destroyed or of another person on his behalf that the court
determines represent an actual loss experienced because of the personal or
property injury or property loss.
"`The actual loss of the person who is awarded the damages' does
not include any fees paid or owed to an attorney for any services rendered in
relation to a personal or property injury or property loss, and does not include
any damages awarded for pain and suffering, for the loss of society,

48

consortium, companionship, care, assistance, attention, protection, advice,
guidance, counsel, instruction, training, or education of the person injured, for
mental anguish, or for any other intangible loss." (Emphasis added.)

I confine my discussion to the issue whether the R.C. 2744.05(C)(1)
cap on noneconomic damages violates Section 5, Article I of the Ohio
Constitution (right to trial by jury), although the parties have also briefed and
argued the question whether R.C. 2744.05(C)(1) violates the guarantees of due
process and equal protection set forth in Section 16, Article I and Section 2,
Article I of the Ohio Constitution.
IV
Trial By Jury

The right to trial by jury derives from Magna Carta. It is reasserted in
both the Constitution of the United States and the Constitution of the state of
Ohio. For centuries, the right to a jury trial has been held to be a fundamental
constitutional right. See Cleveland Ry. Co. v. Halliday (1933), 127 Ohio St.
278, 284, 188 N.E. 1, 3. Where the right exists, it is a substantive right, not a

49

mere procedural privilege. See Kneisley v. Lattimer-Stevens Co. (1988), 40
Ohio St.3d 354, 356, 533 N.E.2d 743, 746, and Halliday, supra, at paragraph
one of the syllabus.

The right to trial by jury is one of the most fundamentally democratic
institutions in the history of the human race. Throughout history, the right to
trial by jury has been considered the crown jewel of our liberty. "For 500
years, trial by jury has been praised as the most cherished institution of free and
intelligent government that the world has ever seen and as the best institution
for the administration of justice ever devised by the mind of man." 1 Few, In
Defense of Trial By Jury (1993) 74. The founders of this great nation held the
right to trial by jury in very high esteem. They were willing to sacrifice their
very lives to preserve for the people of the United States of America the
inestimable right to trial by jury. In the words of United States Supreme Court
Justice (now Chief Justice) William J. Rehnquist, "[t]he founders of our Nation
considered the right of trial by jury in civil cases an important bulwark against
tyranny and corruption, a safeguard too precious to be left to the whim of the

50

sovereign, or, it might be added, to that of the judiciary. * * * Trial by a jury of
laymen rather than by the sovereign's judges was important to the founders
because juries represent the layman's common sense * * * and thus keep the
administration of law in accord with the wishes and feelings of the
community." Parklane Hosiery Co., Inc. v. Shore (1979), 439 U.S. 322, 343-
344, 99 S.Ct. 645, 657-658, 58 L.Ed.2d 552, 570 (Rehnquist, J., dissenting).

The Ohio Constitution recognizes the fundamental right to trial by
jury in Section 5, Article I, which states:

"The right of trial by jury shall be inviolate, except that, in civil cases,
laws may be passed to authorize the rendering of a verdict by the concurrence
of not less than three-fourths of the jury." (Emphasis added.)

"Inviolate" means free from substantial impairment. Black's Law
Dictionary (6 Ed.1990) 826. It is difficult to imagine a more forceful way of
saying that the right to trial by jury should in no way be infringed.

R.C. 2744.05(C)(1) places a cap on the noneconomic damages a
plaintiff can recover in an action against a political subdivision of the state. In

51

Ohio, the right to a jury trial includes the right to have the jury not only
determine factual issues but also assess damages. See Sorrell v. Thevenir
(1994), 69 Ohio St.3d 415, 422, 633 N.E.2d 504, 510, and Miller v. Wikel Mfg.
Co. (1989), 46 Ohio St.3d 76, 81, 545 N.E.2d 76, 81 (Douglas, J., concurring in
part and dissenting in part). See, also, McCormick, Handbook on the Law of
Damages (1935) 24, Section 6 ("The amount of the damages * * * from the
beginning of trial by jury, was a `fact' to be found by the jurors.") Thus, if
Gladon had a constitutionally protected right to a jury trial in his action against
GCRTA, any application of R.C. 2744.05(C)(1) to reduce or cap the damages
awarded by the jury would be constitutionally impermissible.

Section 5, Article I of the Ohio Constitution does not guarantee a jury
trial in all cases. Rather, "Section 5 of Article I of the Constitution of Ohio
only guarantees the right of trial by jury in those cases where it existed
previous to its adoption." Belding v. State ex rel. Heifner (1929), 121 Ohio St.
393, 169 N.E. 301, paragraph one of the syllabus. See, also, Sorrell, supra, 69
Ohio St.3d at 421, 633 N.E.2d at 510, wherein this court, citing Belding, supra,

52

stated: "However, this constitutional provision [Section 5, Article I] does not
guarantee a jury trial in all cases, but only for those causes of actions where the
right existed at common law at the time the Ohio Constitution was adopted."

Here, Gladon asserted an action for negligence against GCRTA, a
political subdivision of the state. Negligence actions evolved from the
common-law action of trespass on the case, and there is no question that the
right to trial by jury existed in such actions at the time the Ohio Constitution
was adopted. See, generally, Kneisley, supra, 40 Ohio St.3d at 356-357, 533
N.E.2d at 746. Thus, this alone substantiates the theory that Gladon had a
constitutionally protected right to trial by jury in his action against GCRTA.
Again, in Sorrell, supra, 69 Ohio St.3d at 421, 633 N.E.2d at 510, this court
stated that Section 5, Article I guarantees the right to trial by jury "for those
causes of actions where the right existed at common law at the time the Ohio
Constitution was adopted." (Emphasis added.) Following this line of
reasoning, R.C. 2744.05(C) could not be applied in the case at bar to reduce the
jury's damage award.

53

However, the next question that could be asked is whether there
existed a right to a jury trial in a negligence action against a political
subdivision of the state at the time the Ohio Constitution was adopted. If that
question can be answered in the negative, it is arguable that Gladon had no
constitutionally protected right to a jury trial against GCRTA and, thus, R.C.
2744.05(C) could be applied to reduce the jury's damage award without
violating Section 5, Article I of the Ohio Constitution. In this vein, GCRTA
suggests that there existed no right to sue a political subdivision at common
law because political subdivisions were protected by the concept of sovereign
immunity. My research has revealed no unassailable precedent to substantiate
GCRTA's assertion. Indeed, there is much evidence to the contrary.

First, it should be noted that the concept of sovereign immunity is
applicable in this country (if at all) to the federal and state governments -- not
to the political subdivisions of the state. See, generally, Prosser & Keeton,
Law of Torts (5 Ed.1984) 1033, 1043, 1051, Section 131. Corporate political
subdivisions of the state are not sovereign powers. By definition, a

54

"sovereign" is "[a] person, body, or state in which independent and supreme
authority is vested." Black's Law Dictionary, supra, at 1395. "Sovereignty"
means "[t]he supreme, absolute, and uncontrollable power by which any
independent state is governed." Id. at 1396. In this regard, a political
subdivision of a state government cannot by any stretch of the imagination be
considered a sovereign power. Nevertheless, I will discuss the topic of
sovereign immunity before proceeding to the question whether there existed a
common-law right to sue a political subdivision of a state government for
negligence.

The history of the doctrine of sovereign immunity in this country is
associated with the English common-law concept that "the king can do no
wrong." See Haas v. Hayslip (1977), 51 Ohio St.2d 135, 140, 5 O.O.3d 110,
113, 364 N.E.2d 1376, 1379 (William B. Brown, J., dissenting).4 That concept
evolved from the personal prerogatives of the King of England, who was
considered the fountain of justice and equity in the English common law. In
the English feudal system, the lord of the manor was not subject to suit in his

55

own courts. See 1 Pollock & Maitland, The History of English Law (2
Ed.1968) 518. The king, as highest feudal lord, enjoyed this protection on the
theory that no court was above him. Id. Further, the king was considered the
supreme power and was, thus, infallible. His person was considered sacred and
the law ascribed him the attribute of sovereignty. Therefore, it was his
personal royal prerogative not to be subjected to suit in his own courts. See,
generally, Borchard, Government Liability in Tort (1924), 34 Yale L.J. 1, 4.
Accordingly, the king could do no wrong.

Although the notion of sovereign immunity is best suited to a
government of royal power, American courts nonetheless accepted the doctrine
in the early days of the republic. See Prosser & Keeton, supra, at 1033.
However, courts and commentators have remained mystified why the doctrine
was ever accepted in this country. In Borchard's writings on this subject
(Borchard, Government Liability in Tort, supra, 34 Yale L.J. at 4-5) it is stated
that:

56

"Nothing seems more clear than that this immunity of the King from
the jurisdiction of the King's courts was purely personal. How it came to be
applied in the United States of America, where the [royal] prerogative is
unknown, is one of the mysteries of legal evolution. Admitting its application
to the sovereign and its illogical ascription as an attribute of sovereignty
generally, it is not easy to appreciate its application to the United States, where
the location of sovereignty -- undivided sovereignty, as orthodox theory
demands -- is a difficult undertaking. It is beyond doubt that the Executive in
the United States is not historically the sovereign, and the legislature, which is
perhaps the depository of the widest powers, is restrained by constitutional
limitations. The federal government is one of delegated powers and the states
are not sovereign, according to the Constitution, as demonstrated forcibly by
the Civil War and the resulting Amendments. That brings us to the only
remaining alternative, that sovereignty resides in the American electorate or the
people." (Footnotes omitted.) See, also, Muskopf v. Corning Hosp. Dist.

57

(1961), 55 Cal.2d 211, 214-216, 11 Cal.Rptr. 89, 90-92, 359 P.2d 457, 458-
460.

In his dissenting opinion in Haas, supra, 51 Ohio St.2d at 140, 5
O.O.3d at 113, 364 N.E.2d at 1379, Justice William B. Brown summed up the
entire matter by stating that "[i]t is something of an anomaly that the common-
law doctrine of sovereign immunity which is based on the concept that `the
king can do no wrong' was ever adopted by the American courts." (Footnote
omitted.) Further, the United States Supreme Court has also indicated that
there is no rational justification in American jurisprudence for the English legal
maxim "the King can do no wrong." Specifically, in Langford v. United States
(1879), 101 U.S. 341, 343, 25 L.Ed. 1010, 1011, the court stated that "[w]e do
not understand that either in reference to the government of the United States
or of the several States, or of any of their officers, the English maxim has an
existence in this country."

The rule of county or local district immunity did not originate with
the concept of sovereign immunity. Indeed, legal authorities seemingly agree

58

that the concept of local governmental immunity can be traced to the English
case of Russell v. Men of Devon (K.B. 1788), 100 Eng. Rep. 359, and the
misapplication of Russell by a Massachusetts court in 1812.
In
Russell, the plaintiffs' wagon was damaged as a consequence of a
bridge being out of repair. The plaintiffs sued the inhabitants of the
unincorporated county for trespass on the case. However, the court denied
recovery on the basis that the inhabitants were not incorporated and, thus, there
was no fund from which a judgment could have been paid. In support of the
holding, one member of the court said "that it is better that an individual should
sustain an injury than that the public should suffer an inconvenience." Id., 100
Eng. Rep. at 362.

The rule of Russell was first introduced into this country in Mower v.
Inhabitants of Leicester (1812), 9 Mass. 247. In Mower, a stagecoach
belonging to the plaintiff, Ephraim Mower, was traveling through the town of
Leicester when one of his horses was fatally injured as a consequence of the
bridge being out of repair. The plaintiff sued the inhabitants of Leicester, and a

59

verdict was returned in his favor. In contrast to the county in Russell, the town
of Leicester was incorporated and had a public treasury out of which any
judgment could have been paid. However, ignoring the fact that Leicester was
incorporated and that Mower was thus clearly distinguishable from Russell, the
Massachusetts court held that no recovery could be had against the
townspeople unless such recovery was authorized by statute. Id. at 250. This
rule of local government immunity then became the general American rule.
See Borchard, Government Liability in Tort, supra, 34 Yale L.J. at 41-42; and
Muskopf, supra, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457. However, a
reading of Mower demonstrates that there existed no logical reason in that case
for recovery to have been denied. In the words of Justice William B. Brown,
"[t]he common-law precedent for municipal immunity (Russell v. Devon
[1788], 100 Eng. Rep. 359), denied recovery because of the absence of a
`corporation fund' from which satisfaction could be made. Since the Mower
case did not deal with a lack of a corporate fund, it was essentially decided on
the grounds of which party should bear the loss." Haas, supra, 51 Ohio St.2d

60

at 140, 5 O.O.3d at 113, 364 N.E.2d at 1380, fn. 3 (William B. Brown, J.,
dissenting).

My research reveals that Ohio courts in the early 1800s did not share
the view that local government units were immune from liability. Rather,
"[d]uring the period immediately following Mower and, indeed, throughout the
early 1800's, Ohio courts favored imposition of liability on local governmental
units. Concerned primarily with establishing a rule that promoted `substantial
justice,' Ohio courts considered municipal corporations and individuals equally
responsible in tort. Justice was considered served only by spreading the losses
inflicted upon private individuals through the execution of governmental
activity upon everyone who had shared a benefit from such activity."
(Emphasis added and footnote omitted.) Note, Municipal Immunity in Ohio --
How Much Wrong Can a Municipality Do? (1984), 15 U.Tol.L.Rev. 1559,
1566. See, also, Comment, The Ohio Political Subdivision Tort Liability Act:
A Legislative Response to the Judicial Abolishment of Sovereign Immunity
(1986), 55 U.Cin.L.Rev. 501, 502 (The Ohio Supreme Court first introduced

61

the doctrine of municipal sovereign immunity in 1854 and, prior to that time,
courts treated Ohio municipalities the same as private individuals when
imposing liability for wrongful acts or injuries.); Comment, Can Municipal
Immunity in Ohio be Resurrected From the Sewers After Haverlack v. Portage
Homes, Inc.? (1983), 13 Cap.U.L.Rev. 41, 42 ("The early Ohio cases which
dealt with municipal tort liability did not recognize immunity."); and
Celebrezze & Hull, The Rise and Fall of Sovereign Immunity in Ohio (1984),
32 Clev.St.L.Rev. 367, 367-368 ("Municipal corporations have not always
been protected by sovereign immunity in Ohio. Instead, early cases held
municipalities subject to action in tort as a matter of basic justice.")

A review of Ohio history demonstrates that the doctrine of sovereign
immunity was first applied in Ohio in 1840 in the case of State v. Franklin
Bank of Columbus (1840), 10 Ohio 91. See Celebrezze & Hull, The Rise and
Fall of Sovereign Immunity in Ohio, supra, 32 Clev.St.L.Rev. at 369.
However, Franklin Bank of Columbus, supra, involved the liability of the state
of Ohio -- not a political subdivision of the state. It was not until the 1854 case

62

of Dayton v. Pease (1854), 4 Ohio St. 80, that the doctrine of sovereign
immunity was expanded to include political subdivisions (municipal
corporations) of the state. See Celebrezze & Hull, The Rise and Fall of
Sovereign Immunity in Ohio, supra, 32 Clev.St.L.Rev. at 370. See, also,
Comment, The Ohio Political Subdivision Tort Liability Act, supra, 55
U.Cin.L.Rev. at 502. Prior to our 1854 decision in Pease, supra, Ohio courts
imposed tort liability on municipal corporations as a matter of basic justice.
See Celebrezze & Hull, The Rise and Fall of Sovereign Immunity in Ohio,
supra, 32 Clev.St.L.Rev. at 367-369; Comment, The Ohio Political Subdivision
Tort Liability Act, supra, 55 U.Cin.L.Rev. at 502; and Note, Municipal
Immunity in Ohio, supra, 15 U.Tol.L.Rev. at 1566. For example, research
reveals several cases spanning the period from 1831 to 1846 in which this court
recognized the right to recover against political subdivisions (municipal
corporations) of the state for injuries inflicted upon private individuals. See,
e.g., Goodloe v. Cincinnati (1831), 4 Ohio 500, Rhodes v. Cleveland (1840), 10
Ohio 160, and McCombs v. Town Council of Akron (1846), 15 Ohio 475. The

63

case of Goodloe was ultimately tried before a jury. See 4 Ohio 514, fn.
Rhodes and McCombs, too, were tried before a jury. Each case involved an
action sounding in negligence or, more particularly, an action for trespass on
the case.

Additionally, there is some evidence that the common law of this
country at the time the Ohio Constitution was adopted in 1851 actually
recognized no impediments to recovery against a corporate political
subdivision of the state. In Hack v. Salem (1963), 174 Ohio St. 383, 392, 23
O.O.2d 34, 38, 189 N.E.2d 857, 862 (Gibson, J., concurring), it is noted that
"[i]n the early reported American cases it apparently was assumed, without
argument and as a matter of basic justice, that municipal corporations were
subject to actions for torts." In Barnett, The Foundations of the Distinction
Between Public and Private Functions in Respect to the Common-Law Tort
Liability of Municipal Corporations (1937), 16 Oregon L.Rev. 250, 259, it is
said that "[t]he earliest reported American case coming to attention that
recognized the tort liability of a municipal corporation is Hooe v. Alexandria

64

[(1802), 1 Cranch C.C. 90, 12 Fed. Cases 461, No. 6666], decided in 1802, in
which no distinction was made between the tort liability of public and private
corporations, and the city was held liable [in a jury trial], simply as `a
corporation.'" Furthermore, Justice Gibson's concurrence in Hack, supra, 174
Ohio St. at 392, 23 O.O.2d at 39, 189 N.E.2d at 863, makes clear that the early
cases in Ohio took the same approach as to tort liability of municipal
corporations.

Accordingly, it is clear that, in Ohio, there did exist a right to a jury
trial against a political subdivision of the state in 1851 when Section 5, Article
I of the Constitution was adopted. In Belding, supra, 121 Ohio St. 393, 169
N.E. 301, paragraph one of the syllabus, we held that "Section 5 of Article I of
the Constitution of Ohio only guarantees the right of trial by jury in those cases
where it existed previous to its adoption." (Emphasis added.) Since the right
to trial by jury in a suit against a political subdivision of the state did exist prior
to 1851, it follows that the right is constitutionally protected. This argument, if
accepted, establishes that Section 5, Article I guarantees the right to trial by

65

jury in tort actions against political subdivisions of the state. Unfortunately,
the majority fails to address this question.

Further, even if Ohio courts recognized immunity for corporate
political subdivisions at the time of the adoption of the 1851 Ohio Constitution,
such immunity apparently originated as an extension of the concept that "the
King can do no wrong." However, as shown above, it appears that the historic
justification for that English maxim never existed in this country. Therefore, it
could be argued that the common law of this country actually recognizes no
such impediment to an action against a political subdivision. Alternatively,
county or local district immunity could have been predicated on the 1788 case
of Russell v. Men of Devon, supra, 100 Eng. Rep. 359. If so, any grant of
immunity might have been the product of an enormous judicial accident.
Russell does not stand for the proposition that there exists county or local
district immunity from liability for negligence. Indeed, just the opposite might
be true. That is, a careful reading of Russell could very well indicate that
recovery most likely would have been allowed had the defendants in the action

66

been an incorporated governmental entity with a public treasury from which a
judgment could have been paid. Therefore, it might be said that the common
law of this country actually recognizes no rational justification for extending
immunity to political subdivisions of the state. Again, the majority deprives us
of any answer to these penetrating questions.

Moreover, GCRTA claims that Section 16, Article I of the Ohio
Constitution, as amended in 1912, authorized the General Assembly to enact
R.C. Chapter 2744 and to define the manner in which political subdivisions
may be sued. Section 16, Article I, as amended, provides that:

"All courts shall be open, and every person, for an injury done him in
his land, goods, person, or reputation, shall have remedy by due course of law,
and shall have justice administered without denial or delay. Suits may be
brought against the state, in such courts and in such manner, as may be
provided by law." (Emphasis added.)

The second sentence of Section 16, Article I applies to suits against
the state. Does this also mean that Section 16, Article I applies to suits against

67

political subdivisions of the state? Section 16, Article I certainly does not say
that. Obviously, this question is one which this court needs to address.

GCRTA also relies on Fabrey v. McDonald Village Police Dept.
(1994), 70 Ohio St.3d 351, 639 N.E.2d 31, Menefee v. Queen City Metro
(1990), 49 Ohio St.3d 27, 550 N.E.2d 181, and Fahnbulleh v. Strahan (1995),
73 Ohio St.3d 666, 653 N.E.2d 1186, as authority for the proposition that a
person has no fundamental right to sue a political subdivision of the state and
thus no right to a jury trial. However, GCRTA's reliance on these cases might
be misplaced. This is especially true when a close reading of Fabrey and
Fahnbulleh and possibly even Menefee reveals that those decisions were
founded on the second sentence of Section 16, Article I, which came into
existence by way of a 1912 amendment to the Ohio Constitution. That
sentence applies only to the state -- not political subdivisions of the state. In
fact, R.C. 2743.01(A) states that "`[s]tate' does not include political
subdivisions." (Emphasis added.) This is right from the Court of Claims Act.

68

See, also, R.C. 1.59(G). Further, the three cases involve R.C. 2744.02(B) and
R.C. 2744.05(B) -- not R.C. 2744.05(C).
In
Fabrey, supra, 70 Ohio St.3d at 355, 639 N.E.2d at 34-35, this
court stated:
"In
Haverlack [v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2
OBR 572, 442 N.E.2d 749], we recognized that the doctrine of sovereign
immunity was a creature of common law, and thus was an appropriate subject
also for legislative action. The General Assembly in enacting R.C. Chapter
2744 has used that power to create a scheme for immunity and liability of
political subdivisions. Because the General Assembly has the power to define
the contours of the state's liability, within the constraints of equal protection
and due process, the right to sue the state is not fundamental." (Emphasis
added.)
In
Haverlack, supra, 2 Ohio St.3d at 30, 2 OBR at 575, 442 N.E.2d at
752, this court recognized that sovereign or governmental immunity was
judicially created and, thus, could be judicially abolished, stating:

69

"As aptly stated by Justice William B. Brown in Haas, supra, [51
Ohio St.2d 135, 145, 5 O.O.3d 110, 116, 364 N.E.2d 1379, 1382,] `the
judicially created doctrine of sovereign immunity is a legal anachronism which
denies recovery to injured individuals without regard to the municipality's
culpability or the individual's need for compensation.' * * *. Because Ohio's
sovereign immunity for municipalities was judicially created (see State v.
Franklin Bank of Columbus [1840], 10 Ohio 91; Western College of
Homeopathic Medicine v. Cleveland [1861], 12 Ohio St. 375; and Thacker v.
Bd. of Trustees of Ohio State Univ. [1973], 35 Ohio St. 2d 49, 67-68 [64
O.O.2d 28] [William B. Brown, J., dissenting]), it can be judicially abolished. *
* * When we considered sovereign immunity last year, we noted that only six
other states adhered to the traditional common law immunity doctrines.
Schenkolewski v. Metroparks System (1981), 67 Ohio St. 2d 31, 38 [21 O.O.3d
19]. Stare decisis alone is not a sufficient reason to retain the doctrine which
serves no purpose and produces such harsh results. Therefore, we join with the
other states in abrogating the doctrine.

70

"We hold that the defense of sovereign immunity is not available, in
the absence of a statute providing immunity, to a municipal corporation in an
action for damages alleged to be caused by the negligent operation of a sewage
treatment plant. A municipal corporation, unless immune by statute, is liable
for its negligence in the performance or nonperformance of its acts."
(Emphasis added.)

Haverlack implies that "sovereign immunity for municipalities" was
accepted in this state by 1840 in Franklin Bank of Columbus, supra, 10 Ohio
91. However, Franklin Bank of Columbus actually says that no suit can be
brought against the state -- not a political subdivision of the state. The other
early case cited by the Haverlack court as creating "sovereign immunity for
municipalities" was W. College of Homeopathic Medicine, supra, 12 Ohio St.
375, which did involve the liability of a political subdivision of the state, but
which was decided after the adoption of Section 5, Article I of the Ohio
Constitution. It is also important to recognize that Haverlack adopted the
historical analysis of sovereign or governmental immunity set forth in Justice

71

William Brown's dissent in Haas, supra, 51 Ohio St.2d at 140-145, 5 O.O.3d at
113-116, 364 N.E.2d at 1379-1382, and the analysis of Justice Gibson's
concurrence in Hack, supra, 174 Ohio St. 383, 391-402, 23 O.O.2d 34, 38-45,
189 N.E.2d 857, 862-869, wherein it was essentially argued that municipal
immunity has no rational justification in the common law of this country.

Therefore, the statement in Fabrey, supra, 70 Ohio St.3d at 355, 639
N.E.2d at 34-35, indicating that there is no fundamental right to sue a political
subdivision of the state, and that the General Assembly can control the means
by which political subdivisions are sued, might not have taken into
consideration the constitutional right to trial by jury. The same might be true
with respect to the case of Menefee, supra, 49 Ohio St.3d 27, 29, 550 N.E.2d
181, 182, wherein this court indicated that it is within the power of the state to
extend immunity to all claims against a political subdivision. Likewise,
Fahnbulleh, supra, 73 Ohio St.3d 666, 653 N.E.2d 1186, did not involve any
question concerning the right to trial by jury. Indeed, a review of the history of
the right to trial by jury and the concept of sovereign immunity could lead any

72

interested reader to question why this court indicated in Haverlack, supra, 2
Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, that it was within the realm of the
legislature to enact statutes immunizing political subdivisions from tort
liability. Again, there is at least some authority to suggest that the Ohio
legislature (and the Ohio courts for that matter) never had any authority
whatsoever to provide immunity to political subdivisions of this state at the
expense of the people's right to trial by jury.

In any event, this court or any other court faced with the question
whether R.C. 2744.05(C) violates Section 5, Article I of the Ohio Constitution
would do well to observe the tremendous value the people of our state and
nation place on the right to trial by jury. The right to trial by jury, where it
exists, cannot be compromised. To compromise that right in any manner would
crack the foundation of our individual liberties.

On July 4, 1776, our founding fathers declared independence from the
British Crown. One of the specific causes that impelled them to do so was the
act of King George III in attempting to deprive the people of the United States

73

of the benefits to trial by jury. Although the Declaration of Independence is
over two hundred years old, the document continues to speak with great clarity
and wisdom. It continues to define our very existence as a free and
independent nation. We must remain mindful of that historic document,5 which
provides:

"When in the Course of human events, it becomes necessary for one
people to dissolve the political bands which have connected them with another,
and to assume among the powers of the earth, the separate and equal station to
which the Laws of Nature and of Nature's God entitle them, a decent respect to
the opinions of mankind requires that they should declare the causes which
impel them to the separation.

"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness. That to secure
these rights, Governments are instituted among Men, deriving their just powers
from the consent of the governed, -- That whenever any Form of Government

74

becomes destructive of these ends, it is the Right of the People to alter or to
abolish it, and to institute new Government, laying its foundation on such
principles and organizing its powers in such form, as to them shall seem most
likely to effect their Safety and Happiness. Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient
causes; and accordingly all experience hath shewn, that mankind are more
disposed to suffer, while evils are sufferable, than to right themselves by
abolishing the forms to which they are accustomed. But when a long train of
abuses and usurpations, pursuing invariably the same Object evinces a design
to reduce them under absolute Despotism, it is their right, it is their duty, to
throw off such Government, and to provide new Guards for their future
security.--Such has been the patient sufferance of these Colonies; and such is
now the necessity which constrains them to alter their former Systems of
Government. The history of the present King of Great Britain is a history of
repeated injuries and usurpations, all having in direct object the establishment

75

of an absolute Tyranny over these States. To prove this, let Facts be submitted
to a candid world.

"He has refused his Assent to Laws, the most wholesome and
necessary for the public good.

"He has forbidden his Governors to pass Laws of immediate and
pressing importance, unless suspended in their operation till his Assent should
be obtained; and when so suspended, he has utterly neglected to attend to them.

"He has refused to pass other Laws for the accommodation of large
districts of people, unless those people would relinquish the right of
Representation in the Legislature, a right inestimable to them and formidable to
tyrants only.

"He has called together legislative bodies at places unusual,
uncomfortable, and distant from the depository of their public Records, for the
sole purpose of fatiguing them into compliance with his measures.

"He has dissolved Representative Houses repeatedly, for opposing
with manly firmness his invasions of the rights of the people.

76

"He has refused for a long time, after such dissolutions, to cause
others to be elected; whereby the Legislative powers, incapable of
Annihilation, have returned to the People at large for their exercise; the State
remaining in the mean time exposed to all the dangers of invasion from
without, and convulsions within.

"He has endeavoured to prevent the population of these States; for
that purpose obstructing the Laws for Naturalization of Foreigners; refusing to
pass others to encourage their migration hither, and raising the conditions of
new Appropriations of Lands.

"He has obstructed the Administration of Justice, by refusing his
Assent to Laws for establishing Judiciary powers.

"He has made Judges dependent on his Will alone, for the tenure of
their offices, and the amount and payment of their salaries.

"He has erected a multitude of New Offices, and sent hither swarms
of Officers to harass our people, and eat out their substance.

77

"He has kept among us, in times of peace, Standing Armies without
the Consent of our legislature.

"He has affected to render the Military independent of and superior to
the Civil power.

"He has combined with others to subject us to a jurisdiction foreign
to our constitution, and unacknowledged by our laws; giving his Assent to their
Acts of pretended Legislation:

"For quartering large bodies of armed troops among us:

"For protecting them, by a mock Trial, from punishment for any
Murders which they should commit on the Inhabitants of these States:

"For cutting off our Trade with all parts of the world:

"For imposing taxes on us without our Consent:

"For depriving us in many cases, of the benefits of Trial by Jury:

"For transporting us beyond Seas to be tried for pretended offences:

"For abolishing the free System of English Laws in a neighbouring
Province, establishing therein an Arbitrary government, and enlarging its

78

Boundaries so as to render it at once an example and fit instrument for
introducing the same absolute rule into these Colonies:

"For taking away our Charters, abolishing our most valuable Laws,
and altering fundamentally the Forms of our Government:

"For suspending our own Legislatures, and declaring themselves
invested with power to legislate for us in all cases whatsoever.

"He has abdicated Government here, by declaring us out of his
Protection and waging War against us.

"He has plundered our seas, ravaged our Coasts, burnt our towns, and
destroyed the lives of our people.

"* * *

"In every stage of these Oppressions We have Petitioned for Redress
in the most humble terms: Our repeated Petitions have been answered only by
repeated injury. A Prince, whose character is thus marked by every act which
may define a Tyrant, is unfit to be the ruler of a free people.

79

"Nor have We been wanting in attention to our Brittish brethren. We
have warned them from time to time of attempts by their legislature to extend
an unwarrantable jurisdiction over us. We have reminded them of the
circumstances of our emigration and settlement here. We have appealed to
their native justice and magnanimity, and we have conjured them by the ties of
our common kindred to disavow these usurpations, which, would inevitably
interrupt our connections and correspondence. They too have been deaf to the
voice of justice and of consanguinity. We must, therefore, acquiesce in the
necessity, which denounces our Separation, and hold them, as we hold the rest
of mankind, Enemies in War, in Peace Friends.

"We, therefore, the Representatives of the United States of America,
in General Congress, Assembled, appealing to the Supreme Judge of the world
for the rectitude of our intentions, do, in the Name, and by Authority of the
good People of these Colonies, solemnly publish and declare, That these
United Colonies are, and of Right ought to be Free and Independent States; that
they are Absolved from all Allegiance to the British Crown, and that all

80

political connection between them and the State of Great Britain, is and ought
to be totally dissolved * * *. And for the support of this Declaration, with a
firm reliance on the protection of Divine Providence, we mutually pledge to
each other our Lives, our Fortunes and our sacred Honor." (Emphasis added.)

We should also remain mindful of those brave souls who placed their
signatures on the Declaration of Independence, including John Hancock, John
Adams, Benjamin Franklin, Thomas Jefferson, and Button Gwinnett. These
great men and the document that they signed should forever remind us that
there is nothing to be gained, and there is everything to lose, by infringing upon
the sacred and fundamental right to trial by jury. Accordingly, if in the face of
all of this the majority believes that R.C. 2744.05(C) is constitutional, then the
majority should so hold. If, however, R.C. 2744.05(C) is unconstitutional,
today's majority should muster the courage to say so and should do everything
in its power to preserve the precious right to trial by jury. Yet, today's majority
has not even taken the time to consider these important issues. That is truly
unfortunate. I must respectfully dissent!6

81

V
Conclusion

I recognize that some persons will have vigorous disagreement with
some or all I have set forth herein. I accept that, but all I ask is for that
disagreement to be argued on the basis of law -- not emotion. I maintain an
open mind and am willing to be persuaded. After all, I come from nineteen
years of service in the legislative body of a political subdivision, so my natural
predilection is towards sovereign immunity. That predilection, however,
cannot be permitted to supersede the law.

I conclude, then, by asking, if the doctrine of sovereign immunity is a
valid and workable rule of law, why then have so many exceptions, both
legislatively and judicially, been created to the rule? The very latest example
of this is found in Semadeni v. Ohio Dept. of Transp. (1996), 75 Ohio St.3d __,
__ N.E.2d __. Might it be that the rule is not only unfair but that it was never
solidly grounded in American and Ohio jurisprudence? Given the majority
opinion, we will never know -- at least not for now.

82

RESNICK and PFEIFER, JJ., concur in the foregoing dissenting opinion.

83

FOOTNOTES:
4
Haas v. Hayslip (1977), 51 Ohio St.2d 135, 5 O.O.3d 110, 364 N.E.2d
1379, was overruled by Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d
26, 2 OBR 572, 442 N.E.2d 749.
5
The Declaration of Independence is reproduced in Page's Ohio Revised
Code Annotated, Appendix (1994) 405-406, and in Baldwin's Ohio Revised
Code Annotated, 1 Constitutions (1995) 21-24.
6
In addition to not deciding the real issues raised in appellant's
(GCRTA's) appeal concerning the constitutionality of R.C. 2744.05(C), the
majority addresses none of the issues raised in Gladon's cross-appeal. Those
issues include whether R.C. 2744.05(B) is unconstitutional on the basis of
Section 5, Article I of the Ohio Constitution. Clearly, the majority should have
addressed these issues head-on rather than skirting them on the basis of an
improper analysis of the archaic common-law entrant classification system. I
would decide all of the issues presented in both the appeal and the cross-

84

appeal. However, because the majority does not address all of the various
issues in this case, neither do I.

85