Rex Non Potest Peccare

The King can do no wrong

By A.J. Wagner

David Esrati, a Dayton blogger and perennial candidate for office, can often be heard complaining that we need to update our laws from the 1785 Northwest Ordinance upon which they are based. He has a point, but some of our most archaic laws are actually based on more ancient tradition.

Take for instance this tidbit of Olde English from 1538, during the reign of Henry VIII of England, “Wyl you make a kyng to have no more powar then one of hys lordys? Hyt ys commynly sayd – ‘a kyng hys aboue hys laws.’” This statement more briefly stated in ensuing years became the phrase, “The King can do no wrong.”

Originally, the phrase was interpreted to mean that the King was not privileged to do wrong. Richard Nixon, in his interview with journalist David Frost, used a similar theory to defend his actions during Watergate by saying, “When the President does it, it’s not illegal.”

In the United States, although we are fond of saying that nobody is “above the law,” the reality is different. This old English maxim protecting the king has been adopted here as protection for states and their subdivisions. Judges and lawyers call it “sovereign immunity,” and it is found in laws that protect governments and government officials from being sued.

Section 2744.02 of the Ohio Revised Code states in part: “Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” So, there are exceptions, but, for the most part the government can do no wrong.

A recent case decided in Ohio’s Eighth Appellate District describes some of the exceptions. In   Frenz v. Springvale Golf Course & Ballroom, the city of North Olmsted was sued after Frenz removed her shoes and joined other wedding guests on the dance floor of the city-owned country club where she dislocated her elbow when she slipped and fell on the floor.

Frenz claimed: (1) excessive or unsuitable polish was used to maintain the ballroom

floor and created a “defective and/or dangerous and hazardous condition,” (2) the city

was aware of the unsafe condition, and (3) the city was negligent for failing to remedy the

condition and/or warn the patrons of the danger.

The city argued it could do no wrong and asserted the protection of sovereign immunity.

The Court put forth an analysis of the exceptions in R.C. 2744.02(B). Generally, exceptions to immunity are made for injury, death, or loss to person or property caused by: (1) the negligent operation of motor vehicles by government employees when they aren’t responding to an emergency; (2) the negligent performance of acts by government employees with respect to proprietary functions; (3) negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads; (4) the negligence of government employees in maintaining the grounds of buildings that are used in connection with the performance of a governmental function, not including jails; and (5) any other exception in the laws.

The Court noted exceptions in the law. The city might still be off the hook if it can successfully establish that: (1) the city was in the performance of a judicial, quasi-judicial, prosecutorial, legislative, or quasi-legislative function; (2) the conduct was required by law or authorized by law or the conduct was necessary or essential to the exercise of powers of the city; (3) the conduct was a discretionary decision or act with respect to policy-making, planning or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee involved; (4) the negligent person was a criminal doing community service; (5) the injury resulted from testing equipment; and (6) the employee was acting outside the scope of employment or acted with malicious purpose, in bad faith or in a wanton or reckless manner.

Ultimately, the Court reasoned that the city was acting beyond its required governmental functions by owning and operating a country club which is usually a profit-making, private business. That took away the city’s immunity.

The city argued they were simply maintaining a building when applying the floor wax, noting one of the exceptions. It also argued that the application of floor wax involved employee discretion as to amount and manner of application. Since this was not a governmental function, however, the exception wasn’t accepted by the Court. Nor was the city exempted under any discretionary rule according to the judges.

Thus the king can do no wrong, but not when he’s operating a business that has little to do with being king.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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