Ohio § 2743.02

§ 2743.02.

(A)(1) The state hereby waives its immunity from liability, except as provided for the office

of the state fire marshal in division (G)(1) of section 9.60 and division (B) of section 3737.221 of the Revised Code and subject to division (H) of this section, and consents to be sued, and have its

liability determined, in the court of claims created in this chapter in accordance

with the same rules of law applicable to suits between private parties, except that

the determination of liability is subject to the limitations set forth in this chapter

and, in the case of state universities or colleges, in section 3345.40 of the Revised Code , and except as provided in division (A)(2) or (3) of this section.  To the extent that the state has previously consented to be sued, this chapter has

no applicability. Except in the case of a civil action filed by the state, filing a civil action in

the court of claims results in a complete waiver of any cause of action, based on

the same act or omission, that the filing party has against any officer or employee,

as defined in section 109.36 of the Revised Code .  The waiver shall be void if the court determines that the act or omission was manifestly

outside the scope of the officer's or employee's office or employment or that the

officer or employee acted with malicious purpose, in bad faith, or in a wanton or

reckless manner. (2) If a claimant proves in the court of claims that an officer or employee, as defined

in section 109.36 of the Revised Code , would have personal liability for the officer's or employee's acts or omissions

but for the fact that the officer or employee has personal immunity under section 9.86 of the Revised Code , the state shall be held liable in the court of claims in any action that is timely

filed pursuant to section 2743.16 of the Revised Code and that is based upon the acts or omissions. (3)(a) Except as provided in division (A)(3)(b) of this section, the state is immune from

liability in any civil action or proceeding involving the performance or nonperformance

of a public duty, including the performance or nonperformance of a public duty that

is owed by the state in relation to any action of an individual who is committed to

the custody of the state. (b) The state immunity provided in division (A)(3)(a) of this section does not apply

to any action of the state under circumstances in which a special relationship can

be established between the state and an injured party.  A special relationship under this division is demonstrated if all of the following

elements exist: (i) An assumption by the state, by means of promises or actions, of an affirmative duty

to act on behalf of the party who was allegedly injured; (ii) Knowledge on the part of the state's agents that inaction of the state could lead

to harm; (iii) Some form of direct contact between the state's agents and the injured party; (iv) The injured party's justifiable reliance on the state's affirmative undertaking. (B) The state hereby waives the immunity from liability of all hospitals owned or operated

by one or more political subdivisions and consents for them to be sued, and to have

their liability determined, in the court of common pleas, in accordance with the same

rules of law applicable to suits between private parties, subject to the limitations

set forth in this chapter.  This division is also applicable to hospitals owned or operated by political subdivisions

that have been determined by the supreme court to be subject to suit prior to July

28, 1975. (C) Any hospital, as defined in section 2305.113 of the Revised Code , may purchase liability insurance covering its operations and activities and its

agents, employees, nurses, interns, residents, staff, and members of the governing

board and committees, and, whether or not such insurance is purchased, may, to the

extent that its governing board considers appropriate, indemnify or agree to indemnify

and hold harmless any such person against expense, including attorney's fees, damage,

loss, or other liability arising out of, or claimed to have arisen out of, the death,

disease, or injury of any person as a result of the negligence, malpractice, or other

action or inaction of the indemnified person while acting within the scope of the

indemnified person's duties or engaged in activities at the request or direction,

or for the benefit, of the hospital.  Any hospital electing to indemnify those persons, or to agree to so indemnify, shall

reserve any funds that are necessary, in the exercise of sound and prudent actuarial

judgment, to cover the potential expense, fees, damage, loss, or other liability.  The superintendent of insurance may recommend, or, if the hospital requests the

superintendent to do so, the superintendent shall recommend, a specific amount for

any period that, in the superintendent's opinion, represents such a judgment.  This authority is in addition to any authorization otherwise provided or permitted

by law. (D) Recoveries against the state shall be reduced by the aggregate of insurance proceeds,

disability award, or other collateral recovery that the claimant receives or is entitled

to.  This division does not apply to civil actions in the court of claims against a state

university or college under the circumstances described in section 3345.40 of the Revised Code .  The collateral benefits provisions of division (B)(2) of that section apply under

those circumstances. (E) The only defendant in original actions in the court of claims is the state.  The state may file a third-party complaint or counterclaim in any civil action,

except a civil action for ten thousand dollars or less, that is filed in the court

of claims. (F) A civil action against an officer or employee, as defined in section 109.36 of the Revised Code , that alleges that the officer's or employee's conduct was manifestly outside the

scope of the officer's or employee's employment or official responsibilities, or that

the officer or employee acted with malicious purpose, in bad faith, or in a wanton

or reckless manner shall first be filed against the state in the court of claims that

has exclusive, original jurisdiction to determine, initially, whether the officer

or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action.  The officer or employee may participate in the immunity determination proceeding

before the court of claims to determine whether the officer or employee is entitled

to personal immunity under section 9.86 of the Revised Code . The filing of a claim against an officer or employee under this division tolls the

running of the applicable statute of limitations until the court of claims determines

whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code . (G) If a claim lies against an officer or employee who is a member of the Ohio national

guard, and the officer or employee was, at the time of the act or omission complained

of, subject to the “Federal Tort Claims Act,” 60 Stat. 842 (1946), 28 U.S.C. 2671, et seq., the Federal Tort Claims Act is the exclusive remedy of the claimant and the state

has no liability under this section. (H) If an inmate of a state correctional institution has a claim against the state for

the loss of or damage to property and the amount claimed does not exceed three hundred

dollars, before commencing an action against the state in the court of claims, the

inmate shall file a claim for the loss or damage under the rules adopted by the director

of rehabilitation and correction pursuant to this division.  The inmate shall file the claim within the time allowed for commencement of a civil

action under section 2743.16 of the Revised Code .  If the state admits or compromises the claim, the director shall make payment from

a fund designated by the director for that purpose.  If the state denies the claim or does not compromise the claim at least sixty days

prior to expiration of the time allowed for commencement of a civil action based upon

the loss or damage under section 2743.16 of the Revised Code , the inmate may commence an action in the court of claims under this chapter to recover

damages for the loss or damage. The director of rehabilitation and correction shall adopt rules pursuant to Chapter

119. of the Revised Code to implement this division.