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Adams v. Willoughby12/19/1994
e liability insurance, or other political subdivisions, unless the operation of their parks, playgrounds, playfields, and certain other recreational facilities is immediately categorized as a governmental function and immunized from civil liability under the Political subdivision Sovereign Immunity Law, these other political subdivisions also may lose their facilities. Therefore, this act shall go into immediate effect."
In light of the foregoing, we conclude that R C. 2744.02(B)(3) is inapplicable. See, also, Nowak v. Ries (Dec. 19, 1991), Cuyahoga App. No. 59276, unreported, 1991 WL 271353. No other exception applies to appellants' claims and, therefore, appellee is statutorily immune from suit.
Appellants' assertion that R.C. 2744.02(A)(1) was not intended to grant immunity for reckless and wanton acts must also fail. The statute states without limitation that a political subdivision is "not liable in damages in a civil action for injury , death, or loss to persons or property." Moreover, in Wilson, supra, the Supreme Court of Ohio indicated that the cloak of immunity conferred by the statute extends to both negligent and reckless acts. Id., 70 Ohio St.3d at 452, 639 N.E.2d at 107. It further determined that there were no exceptions for the intentional torts alleged in that case.
Appellants' first assignment of error is without merit.
In their second assignment of error, appellants' argue that, insofar as applicable to this case, R.C. Chapter 2744 is unconstitutional under Sections 2, 5 and 16, Article I of the Ohio Constitution.
A review of the record reveals that appellants did not raise the argument of unconstitutionality with respect to Section 5, Article I. The argument is therefore waived.
In Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 355, 639 N.E.2d 31, 34-35, the court reaffirmed the proposition that the doctrine of sovereign immunity was a creature of common law, and thus an appropriate subject for legislative action. The court held that because sovereign immunity was a proper subject for legislative action when Section 16, Article I was passed, the immunity of the defendants in that case was not an infringement of a pre-existing right, and was therefore constitutional. The rationale of Fabrey is apposite to appellants' assertion under Section 16, Article I.
R.C. 2744.01(C)(2)(u) does not violate Section 2, Article I. This provision does not involve a fundamental right or a suspect class. The preservation of fiscal integrity is a valid state interest. See Fabrey, 70 Ohio St.3d at 353, 639 N.E.2d at 33. The primary purpose of R.C. Chapter 2744 is to preserve the fiscal resources of political subdivisions. Id. We cannot find that the legislative distinctions involved bear no relation to the state's goal or that no ground can be conceived to justify them. See id.
Appellants' second assignment of error lacks merit.
The judgment of the trial court is affirmed.
Judgment affirmed.
CHRISTLEY, P.J., and JOSEPH E. MAHONEY, J., concur.
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