stating that, in order to reverse on plain error, the record must show that but for the wrongful admission of testimony, the jury would have decided differently
How later courts described this case
- stating that, in order to reverse on plain error, the record must show that but for the wrongful admission of testimony, the jury would have decided differently
- indicating that whether defendant breached fiduciary duties is a question of fact
- characterizing whether defendant breached his fiduciary duties as a question of fact
- “The applicability of the public duty rule does not depend upon whether the allegations against the municipality may be characterized as nonfeasance or as misfeasance.”
Written by the judges who cited it.
The opinion
Holmes, J.,
concurring. I am able to concur completely in the majority opinion, inclusive of the discussion of the potential liability of the city of Toledo, in that the latter was presented within the context of the trial court having granted a Civ. R. 12(B)(6) motion for dismissal of the complaint for failure to state a claim upon which relief may be granted.
Here, as the majority quite correctly points out, the mere pronouncement that a fire is under control does not constitute an assumption of a special duty to act on anyone’s behalf. However, as noted by the majority, when the facts tend to show that the fire department authorities made certain statements to owners or their agents that relaxed their continued vigilance to the owners’ detriment, there may be found to be a cause of action stated within these pleadings. In such an event, there may be proof that the fire department, and thus the city, went beyond its public duty. I concur.
Grey, J., concurs in the foregoing opinion.