Tuesday, September 12, 2000

Legal immunity pondered


Ohio Supreme Court to hear three cases pitting individuals against government

By Andrew Welsch-Huggins
The Associated Press

        COLUMBUS — Venisha Butler wants the right to sue Cuyahoga County after her son died from abuse suffered at a county licensed day care center. The county says it is immune from a lawsuit as a political subdivision.

        The Ohio Supreme Court today hears Ms. Butler's case and two others that pit individuals against the government.

        At issue is when to allow exceptions to the state law that bars lawsuits against governmental entities.

        Government protection from lawsuits — known as sovereign immunity — has been getting increased attention from state and federal courts in recent years, said Jeffrey Sutton, former state solicitor and an expert on state constitutional law.

        “For courts, it's a real dilemma. On the one hand, they want to recognize that injuries do occur at the hands of government employees,” said Mr. Sutton, who's not involved in today's cases. “On the other hand, the courts don't want to be responsible for sparking a run on the state treasury that ultimately requires a significant tax increase.”

        Ms. Butler sued the Cuyahoga County Department of Human Services after her 8-month-old son, Aaron, died in April 1995.

        She had found her son unconscious at Guardian Angel Day Care, which was licensed and certified by the county human services department, according to court records. The day care's operator was convicted of child endangering and placed on probation for covering the boy's nose and mouth with tape.

        Ms. Butler argued the county was negligent in licensing the day care. The department argued it was immune from the lawsuit as a political entity.

        In the second case, a couple is suing the Fairborn city schools because a teacher failed to notify authorities after their daughter told the teacher of sexual abuse at the hands of a family friend.

        The couple contends a state law requiring teachers to report child abuse strips the district of immunity. The trial and appeals court both ruled in favor of the district.

        In the third case, a couple is suing Preble County for negligence after their car was in an accident with a county tractor doing road repair.

        David Arens, a lawyer representing the Fairborn school district, said making government employees liable for failing to perform every job requirement under state law would spawn a multitude of lawsuits.

        “Rather than have employees worried about doing their jobs, they'll be worried about whether they're going to be subject to a lawsuit,” he said.

        Gary Leppla, representing the girl's family, said that where there's a clearly defined duty, public policy says to perform it.

        “It's very difficult to argue on the other side of the case that that duty doesn't apply and a general concept of governmental immunity ought to apply,” he said. “You're talking about protecting kids.”

       



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