Published March 26, 2024 · Ohio Supreme Court

Most people never think about who owns the road they drive on, the hospital where they had surgery, or the building where they work. It matters a great deal if they are hurt there. When the defendant is the State of Ohio itself, including a state agency, a state university and its hospital, the Ohio Department of Transportation, or a state prison, the case goes to a special court with its own rules.

On March 6, 2024, the Supreme Court of Ohio changed one of those rules in a way that favors the state. The case did not involve an injury at all. But its reach extends to anyone with an injury claim against the state, and if you have one, you should understand it.

What the case was about

Smith v. Ohio State University, Slip Opinion No. 2024-Ohio-764, was a class action over money, not injuries. When the COVID-19 pandemic hit in spring 2020, Ohio State moved classes online and restricted access to campus. It refunded part of room-and-board and recreation fees, but not tuition and many other fees. A student, Brooke Smith, sued in the Ohio Court of Claims on behalf of undergraduates, arguing they paid for services they did not receive.

Ohio State listed "discretionary immunity" in its answer but did not argue it in the trial court. It pressed the argument for the first time on appeal. The Tenth District Court of Appeals said that was too late, because discretionary immunity is an affirmative defense, a defense the state must raise and argue in the trial court or lose.

The Supreme Court disagreed, 4-3, in an opinion by Chief Justice Kennedy.

What the Court held

Some background helps. The state cannot be sued unless it consents. In the Court of Claims Act, the state did consent: under R.C. 2743.02(A)(1), it waived its immunity and agreed to have its liability decided in the Court of Claims "in accordance with the same rules of law applicable to suits between private parties." Private parties do not make laws or set public policy, so the Supreme Court has long read that waiver as excluding the state's basic policy decisions, those that involve a high degree of official judgment or discretion.

In Smith, the Court took the next step. It held that when the state makes a highly discretionary legislative, judicial, executive or planning decision, it has never consented to be sued over it, so the Court of Claims has no jurisdiction, meaning no power, to hear that claim. Because a lack of jurisdiction can never be waived, the Court held that discretionary immunity "cannot be waived and may be raised at any time," even for the first time on appeal.

The case went back to the court of appeals to decide whether Ohio State's pandemic decisions were the kind of discretionary policy choices that are protected.

The important limit: implementation is not immune

The majority also said, plainly, that discretionary immunity "is not absolute." Once the state makes a discretionary decision to do something, it can be held liable, like any private party, for negligence in how its employees carry that decision out. A suit that challenges the manner in which the state implements a decision is not barred.

That distinction is now the center of any serious injury claim against the state. As an illustration (not a holding from this case): a decision about whether to build a road or adopt a particular policy may be a protected planning choice, but carelessly performing the work, maintaining the property, or providing care under that policy is implementation. How a claim is framed from the very first filing can decide whether a court ever hears it.

Why the dissent is worried, and why you should be too

Justice Brunner, joined by Justices Donnelly and Stewart, dissented. She warned that treating discretionary immunity as jurisdictional could let the state derail cases by raising immunity at any time, and that claimants might feel forced into separate preliminary lawsuits just to resolve immunity questions, with delays measured in years.

She also pointed directly at injury victims, writing that "Many cases brought before the Court of Claims involve serious personal injury or death." Her concern was that meritorious claims could ultimately be lost to statutes of limitations or repose while the immunity fight plays out, citing the Court's December 2023 Everhart decision applying the four-year repose period to medical wrongful-death claims, which we discussed in January in our post on the malpractice deadline for wrongful-death cases.

Those concerns are well founded. Claims against the state already move on a tight clock: R.C. 2743.16(A) generally requires a Court of Claims action to be filed within two years after the claim accrues, or within any shorter period that would apply to a similar suit between private parties.

State versus local government: different rules

Smith concerns the State of Ohio and its instrumentalities in the Court of Claims. Claims against cities, counties, townships and school districts are governed by a different statute, R.C. Chapter 2744, which grants political subdivisions broad immunity but lists specific exceptions, such as negligent operation of a vehicle and negligent failure to keep roads in repair. Last year we wrote about one of those exceptions in our post on the Greenville schools decision and physical defects in public buildings. Our page on claims against the government in Ohio explains how the two systems differ.

Identifying which government entity is responsible, and therefore which court, which statute, and which deadline apply, is often harder than it sounds. A road can be a city street, a county road or a state route within a single mile. A hospital can be state-run or private. Claims that a state employee acted outside the scope of employment or recklessly must, under R.C. 2743.02(F), first be filed in the Court of Claims for an immunity determination before any case against the employee personally can go forward.

What this means for you

If you were injured by a state agency, at a state university or its medical center, on a state highway, or while in state custody:

  • Expect the state to argue immunity, and expect it to be able to do so at any stage of the case.
  • Frame the claim around what was done, not what was decided. The negligent carrying-out of a decision remains actionable.
  • Watch the two-year deadline, and remember that medical claims have their own shorter limits. Our guide chapter on deadlines and the timeline of an Ohio injury case lays them out.
  • Get counsel before filing anything. Our guide chapter on why you should talk to a lawyer early explains why early decisions shape everything that follows, and that is especially true here.

This article is general information about Ohio law, not legal advice about your situation. Reading it does not create an attorney-client relationship. Deadlines and rules change; talk to a lawyer about your specific case.