Think Intentional Torts, Not Constitutional Rights
Although Ohio courts have never recognized a private state constitutional right of action, they have indicated that they would do so under certain narrow circumstances. In 1992, the Ohio Supreme Court considered whether to recognize a constitutional right to damages for an alleged discriminatory firing and concluded that there is no private right of action in this context when there exist “other reasonably satisfactory remedies provided by statutory enactment and administrative process.” 1
In Ohio, plaintiffs with claims against the State will typically fare better than plaintiffs with claims against a political subdivision. To sue the State, plaintiffs must bring their claims before a special court called the Ohio Court of Claims. The Ohio Court of Claims Act broadly waives sovereign immunity before carving out exceptions to this waiver, such as an exception for “the performance or nonperformance” of a “public duty.” 2
This public-duty exception does not apply when “a special relationship can be established between the state and an injured party.” 3
The State is liable for the acts of its employees if the employee acted within the scope of employment without malicious purpose, bad faith, or in a wanton or reckless manner. 4
Employees are immune except to the extent the State is not liable for their conduct. 5
In other words, when the State is immune because the employee acted outside the scope of his employment or with “malicious purpose, in bad faith, or in a wanton or reckless manner,” the employee may be liable. 6
Even personal-capacity suits alleging acts outside the scope of employment or taken with a malicious purpose, in bad faith, or in a wanton or reckless manner must first be brought in the Court of Claims to determine whether the employee is immune or may be personally liable. 7
Ohio law provides broad immunity to political subdivisions, including municipalities. The Political Subdivision Liability Act provides only five negligence exceptions to political subdivisions’ immunity. 8
Moreover, local government employees are liable to the same extent as state employees: when they are acting “manifestly outside” the scope of their employment or with a malicious purpose, with bad faith, or in a wanton or reckless manner. 9
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