Operation of Public Housing Authority Is ‘Governmental Function’ Covered by Sovereign Immunity Statute
2007-2106 and 2008-0030. Moore v. Lorain Metro. Hous. Auth., Slip Opinion No. 2009-Ohio-1250.
Lorain App. No. 06CA008995, 2007-Ohio-5111. Judgment reversed and cause remanded to the trial court.
Moyer, C.J., and Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Pfeifer, J., concurs in judgment only.
O'Donnell, J., concurs in part and dissents in part.
Cupp, J., dissents.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1250.pdf 
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(March 25, 2009) In a ruling announced today, the Supreme Court of Ohio held that the operation of a public housing authority is a “governmental function” for which Ohio’s political subdivisions are generally immune from civil liability under Chapter 2744 of the Ohio Revised Code.
In a 5-2 decision authored by Justice Judith Ann Lanzinger, the Court reversed a ruling by the 9th District Court of Appeals that had allowed a civil lawsuit against a public housing authority to go forward, and remanded the case to the trial court for further proceedings.
The case arose from an October 2003 fire at the Oberlin apartment of Danielle Moore that killed two of Moore’s young children. The apartment was part of a public housing project operated by the Lorain Metropolitan Housing Authority (LMHA).
Moore filed a wrongful death lawsuit against LMHA and its executive director, Homer Verdin, in the Lorain County Court of Common Pleas. She alleged among other claims that negligence by the authority and Verdin had been a factor in the children’s deaths because a smoke detector in Moore’s apartment had allegedly been removed by project employees several days before the fire and not replaced. Both LMHA and Moore filed pretrial motions for summary judgment. The court granted LMHA’s motion and dismissed Moore’s claims, finding that the housing authority was immune from civil liability under R.C. Chapter 2744, the state’s political subdivision immunity statute.
Moore appealed. On review, the 9th District Court of Appeals reversed the trial court and reinstated Moore’s claims against LMHA. The court of appeals held that LMHA was not entitled to immunity from Moore’s claims because the operation of a public housing project is not a “governmental function” for which political subdivisions have been granted immunity for negligent acts, but is rather a “proprietary function” for which a government agency can be held liable if a plaintiff can show that the agency or its employees acted negligently. The 9th District certified that its ruling was in conflict with decisions of several other appellate districts which held that the operation of a public housing project is an immune governmental function. The Supreme Court agreed to review the case to resolve the conflict among districts.
Writing for the majority in today’s opinion, Justice Lanzinger found that the operation of a public housing project by a public housing authority qualifies as a “governmental function” under two different provisions of the immunity statute: R.C. 2744.01(C)(2)(q), which includes “urban renewal projects and the elimination of slum conditions” in the category of governmental functions; and R.C. 2744.01(C)(2)(g), which provides that governmental functions include “repair, renovation, maintenance and operation of buildings that are used in connection with the performance of a governmental function.”
Justice Lanzinger noted, however, that even when an act or omission of a political subdivision that causes injury occurs in the performance of a governmental function, the sovereign immunity statute includes several exceptions that negate immunity under certain circumstances. She noted that one of those exceptions, contained in R.C. 2744.02(B)(4), imposes liability on political subdivisions for injury, death or property damage “that is caused by the negligence of their employees and ... is due to physical defects within or on the grounds of buildings that are used in connection with the performance of a governmental function.”
In this case, she wrote, “a unit of public housing is a building ‘used in connection with the performance of a governmental function’ within the meaning of R.C. 2744.01(C)(2). LMHA is therefore liable for negligence if the deaths in this case were due to physical defects occurring on its property within the meaning of R.C. 2744.02(B)(4). The final step in the analysis of (B)(4) is to determine whether absence of a required smoke detector is a ‘physical defect’ occurring on the grounds of LMHA’s property. Because the trial court did not fully consider this issue, which, if established, would dissolve immunity, we must remand to the trial court for further proceedings.”
“We resolve the certified conflict by holding that the operation of a public housing authority is a governmental function within the meaning of Ohio’s sovereign-immunity statutes. We therefore reverse the judgment of the court of appeals and remand this case to the trial court for a determination of negligence and available affirmative defenses.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Maureen O’Connor. Justice Paul E. Pfeifer concurred in judgment only.
Justice Terrence O’Donnell entered a separate opinion in which he concurred with the majority’s holding that operation of a public housing project by a public housing authority is a governmental function as that term is defined in the political subdivision immunity statute, and said he would reverse the judgment of the court of appeals on that basis. Justice O’Donnell went on, however, to state his disagreement with the majority’s additional finding that the housing units managed by LMHA qualify as buildings “used in connection with the performance of a governmental function” and therefore may fall under the exception to immunity in R.C. 2744.02(B)(4).
He pointed out that the trial court in this case specifically found that the residential units managed by LMHA did not fall under the exception to immunity provided in R.C. 2744.02(B)(4), and noted that the court of appeals did not review that issue because it found as a threshold matter that operation of a housing authority was a proprietary rather than a governmental function, and therefore could not fall under an exception to immunity applicable only to governmental functions. Based on that analysis, Justice O’Donnell wrote: “I am of the view that this case should be remanded to the court of appeals to determine in the first instance whether R.C. 2744.02(B)(4) applies here. Thus, I respectfully dissent from the majority’s resolution of this issue and its order remanding the case to the trial court for further proceedings.”
Justice Robert R. Cupp entered a dissenting opinion, stating that while the activities of a public housing authority in clearing slum areas and constructing low-income housing units clearly qualify as “governmental” functions, in his view the day-to-day operation of a public housing project once it has
been put in place falls under the legal definition of a “proprietary” function for which LMHA would not be immune if its actions were found to be negligent. “Such activities are indistinguishable from those engaged in by private landlords,” wrote Justice Cupp. “Consequently, I would affirm that part of judgment of the court of appeals that concludes that the operation and maintenance of residential rental properties are proprietary functions within the meaning of R.C. 2744.01(G)(1).” Justice Cupp added that, even if the majority was correct in finding that LMHA’s operation of a housing project was a “governmental function,” he concurred with the portion of Justice O’Donnell’s opinion holding that it was premature for this court to rule on whether a public housing unit is a “building used in connection with the performance of a governmental function” under R.C. 2744.02(B)(4).
Contacts
Daniel D. Mason, 440.930.4001, for the Lorain Metropolitan Housing Authority.
Joseph F. Salzgeber, 330.725.1199, for Danielle Moore.