“From Tort to Contract: Ohio’s Discretionary Sovereign Immunity Now Bars State-Contract Suits”

1. Introduction

The Supreme Court of Ohio, in its 06/18/2025 Case Announcements #2 (2025-Ohio-2119), declined to accept jurisdiction in Smith v. Ohio State University, thereby leaving intact a Tenth District decision that applied “discretionary sovereign immunity” to bar a breach-of-contract action against the State. Although styled as a routine case-announcement, the refusal to review—coupled with two vigorous dissents—effectively shifts Ohio law. For the first time, an Ohio appellate opinion extending Reynolds’s immunity doctrine beyond tort claims to contracts now governs all Court of Claims litigation, because every such appeal lies solely in the Tenth District.

Parties:

• Appellant: Brooke Smith — an Ohio State University (“OSU”) student seeking damages for OSU’s COVID-19-era switch to remote learning and partial fee refunds.
• Appellee: The Ohio State University — an instrumentality of the State of Ohio.

Issues preserved for review:

1. Whether R.C. 2743.02(A)(1) actually authorizes a judicially created “discretionary immunity” not expressed in the statute.
2. Whether such immunity, even if valid, applies to contract claims.

2. Summary of the Judgment

The Court simply announced that the Smith appeal was “not accepted for review,” thus letting the Tenth District’s opinion (2024-Ohio-5887) stand. No majority reasoning accompanied the denial, but two substantive dissents (Fischer, J., joined by Hawkins, J.; and Brunner, J.) criticized the decision. The practical result is:

• The Tenth District’s rule that discretionary sovereign immunity bars breach-of-contract suits survives unchallenged.
• The Court of Claims, and by extension all future statewide litigants, must now treat such immunity as binding until the Supreme Court reconsiders or the General Assembly intervenes.

3. Analysis

3.1 Precedents Cited

1. Reynolds v. State, 14 Ohio St.3d 68 (1984) — Origin of the “discretionary immunity” doctrine for tort claims against the State.
2. Wallace v. Ohio Dept. of Commerce, 2002-Ohio-4210 — Reaffirmed Reynolds.
3. Haverlack v. Portage Homes, 2 Ohio St.3d 26 (1982) — Abolished municipal sovereign immunity absent statutory protection.
4. Blount v. Smith, 12 Ohio St.2d 41 (1967) — Recognized fundamental right to contract.
5. State ex rel. Parrott v. Bd. of Pub. Works, 36 Ohio St. 409 (1881) — Early statement that State could not be sued absent legislative waiver.
6. Several tort precedents (Crawford, Hurst, Baum) applying Reynolds to negligence and wrongful-death actions.

The dissents argue that none of those cases ever applied discretionary immunity to contract disputes, and that the Tenth District’s leap lacked Supreme Court imprimatur.

3.2 Legal Reasoning (or Lack Thereof) Behind the Denial

Because the Court announced only a refusal to accept review, there is no majority opinion. The legal reasoning must therefore be distilled from the dissents:

• Justice Fischer contends that Reynolds was wrongly decided, adding an extra-statutory immunity that the plain text of R.C. 2743.02 does not supply. At minimum, he would limit Reynolds to torts and refuse to extend it to contracts.
• Justice Brunner notes procedural unfairness: OSU invoked immunity only on appeal; the Court of Claims never evaluated facts bearing on discretion; and the Tenth District’s single ruling will now control statewide.
• Both dissents highlight constitutional concerns: Article I, §16 (right to remedy) and the fundamental right to contract.

Counterpoint: By declining review, at least four justices signaled there is insufficient institutional concern to reassess Reynolds or its extension—whether because the issue lacks urgency, the record is unripe, or they tacitly endorse the Tenth District’s view.

3.3 Impact Assessment

1. Litigation Landscape: • Any breach-of-contract action against the State (universities, agencies, boards) filed in the Court of Claims now faces a new jurisdictional hurdle. Plaintiffs must show the challenged conduct involved ministerial rather than “high-level policy” decisions. 2. Bargaining Power: • Individuals and private entities may discount the enforceability of contracts with the State, increasing risk premiums and discouraging business with governmental units. 3. Separation of Powers: • By allowing a common-law doctrine to eclipse a statutory waiver without legislative amendment, the judiciary effectively narrows the General Assembly’s express intent to expose the State to suit. 4. Procedural Ripple: • Litigants must now brief immunity much earlier, and discovery targeting the “nature of the decision” will become routine. 5. Potential Legislative Response: • The General Assembly could amend R.C. 2743.02 to clarify that waiver applies equally to contract actions or to cabin discretionary immunity. 6. National Resonance: • Other jurisdictions watching Ohio may view the case as an invitation to expand sovereign immunities amid pandemic-related contract controversies.

4. Complex Concepts Simplified

Sovereign Immunity: The historic idea that “the king can do no wrong,” translated into State immunity from lawsuits unless it consents.

Discretionary Immunity: A judicial gloss on sovereign immunity. The State is immune when the challenged act involves high-level planning or policy choices demanding “a high degree of official judgment.” Comparable to federal “discretionary-function” immunity under the FTCA.

Ministerial vs. Discretionary Acts:

• Ministerial: Routine, day-to-day tasks with little policy choice (e.g., maintaining a sidewalk) → no immunity.
• Discretionary: Decisions requiring judgment and balancing of policy factors (e.g., how to respond to a pandemic) → immunity.

Court of Claims: Ohio’s exclusive trial forum for civil actions against the State or its instrumentalities. All appeals go to the Tenth District.

Denial of Review: When the Supreme Court refuses jurisdiction, the underlying appellate decision stays intact but, technically, the denial is not precedential. Nonetheless, practical reliance may vest—especially when only one appellate district has authority over the issue statewide.

5. Conclusion

By silently turning away Smith v. Ohio State University, the Supreme Court of Ohio has, de facto, expanded discretionary sovereign immunity from tort to contract. While not a formal precedent, the Tenth District’s reasoning will govern all future Court of Claims litigation, creating a formidable barrier for citizens and businesses seeking to enforce contracts with the State. The dissents warn that this undermines both statutory text and constitutional rights, but absent legislative correction or a future change of heart by the Court, Ohioans must now navigate a far narrower pathway to contractual remedies against their own government.