holding that only if there exists a statute commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, does such violation constitutes negligence per se
How later courts described this case
- holding that only if there exists a statute commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, does such violation constitutes negligence per se
- “The [public duty] rule ‘is used to determine the first element of negligence, the existence of a duty on the part of the state. If the duty owed is general in nature, the wrong created by its breach is to the public in general and, therefore, not individually actionable.’”
- applying public-duty rule to bar liability for negligently failing to detain parole violator
- ioverruled on other grounds by Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 773 N.E.2d 1018 (Ohio 2002)
Written by the judges who cited it.
Later courts went against this
Overruled in part by Wallace v. Ohio Dept. of Commerce, 96 Ohio St. 3d 266 (2002)
72 Ohio St.3d 325, 329 (1995), overruled on other grounds, Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266
The opinion
Pfeifer, J.,
dissenting. Della Hawkins is dead. Gary Smith was a parole violator at large (“PVAL”) for over seven weeks when he killed Della. Just four days before Della’s murder, Smith finished a three-week stint in the Allen County Correctional Facility for driving under the influence. Lacking the appropriate information on the prisoner, Allen County officials released him, since they had no idea they were holding a PVAL.
In the days when a federal marshal rode over his territory on horseback and handed out wanted posters, a lack of communication between jurisdictions was expected. It was understandable that outlaws would easily evade detection when only trains connected most towns and electricity was still a fascination. Incomplete information was even common when telephones had dials and documents actually traveled by mail. This, however, is the age of computers, fax machines, and mobile phones — instantaneous communications — the information age. Today we expect more, and the state has promised us more.
*330 The majority contends that the Department of Rehabilitation and Correction cannot be negligent for losing Gary Smith, nor for allowing his parole violation to go unreported. The majority states that “the duties imposed upon the [Department of Rehabilitation and Correction] regarding parolees are significantly different from those involving furloughed prisoners,” and that, therefore, Della’s estate cannot pursue its claim as the plaintiffs had in Reynolds and Crawford.
While the duties involved may differ, the key fact remains that the state does have certain statutorily defined duties regarding paroled prisoners. It is that existence of a statutory duty that took Crawford, and which should take this case, out of the realm of Sawicki.
Every negligence case has four factors: duty, a breach of that duty, damage, and causation. Sawicki stands for the notion that the state owes the public no general, actionable duty to exercise ordinary care. In Crawford, however, this court held that the state does create an actionable duty to the public when it sets certain specific statutory standards for itself. The plaintiff in Reynolds went on to prove the breach of that duty and linked that breach to the injuries suffered.
In this case, we are still at the first step, duty. The fact that the duty the state statutorily defines for itself in this case is, in the majority’s words, “described in terms of reasonableness,” is relevant to whether the duty was breached, not to whether the duty exists. In Crawford, the question of breach answered itself, since the statute required furloughees to be confined, and the assailant in that case obviously was not. The plaintiffs in this case will have a tougher row to hoe because of some leeway the state has created for itself — the statutory and Administrative Code sections require a PVAL’s supervisor to report that status to the Chief of the Adult Parole Authority “at the earliest practicable time” (Ohio Adm.Code 5120:1-1-16[A]) and the superintendent of parole supervision to order a PVAL returned to confinement “within a reasonable time” (former R.C. 2967.15). However, the fact that it will be harder to prove a breach of a duty does not mean that the duty does not exist. Therefore, the trial court wrongly granted the state summary judgment.
The state’s duties regarding furloughed prisoners and paroled prisoners are different. While the differences are legitimate, to hold that an injured person may recover for the state’s breach of duty regarding a furloughee but not for its breach of duty regarding a parolee defies both logic and fairness. To summarily excuse the state from liability in the death of Della Hawkins clings to the antiquated and incorrect British notion that “the King can do no wrong.”
The trial court should allow a determination by the trier of fact on the question of the state’s breach of duty. If the delays in this case were not reasonable in light of manpower demands, technology, and other factors, then the state *331 breached its duty. Whether that breach proximately caused Della’s death is another factual question.
Della Hawkins will have no other days on earth, but her heirs should have their day in court.