Petition for Writ of Certiorari — Wallace v. Ohio Department of Commerce, Division of State Fire Marshal
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(1) WRILED
Q4 204 AUG 10 2004
No. 04- OFFIGE OF THE CLERK
In the
Supreme Court of the Anited States
JOHN WALLACE, INDIVIDUALLY AND AS
ADMINISTRATOR OF THE ESTATE OF
JASON O. WALLACE, ET AL.,
Petitioners,
Vv.
OHIO DEPARTMENT OF COMMERCE,
DIVISION OF STATE FiRE MARSHAL,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Ohio
PETITION FOR WRIT OF CERTIORARI
STANLEY M. CHESLEY
Counsel of Record
Pau M. De Marco
RosBert A. STEINBERG
D. ARTHUR RABOURN
JANE H. WALKER
Waite, SCHNEIDER, BAYLESS
& Cues._ey Co., L.P.A.
1513 Fourtu & Vine Tower
One West FourtH STREET
CINCINNATI, OH 45202
(513) 621-0267
Becker Gallagher Legal Publishing, Inc.
800.890.5001
i
QUESTIONS PRESENTED
Whether it violates the Fourteenth Amendment’s Due
Process Clause for a state court to ignore the law that is
effective at the time of its decision?
il
PARTIES TO THE PROCEEDING
Petitioners/Plaintiffs are individuals injured or
representatives of individuals killed in a fire on July 3,.1996
at the Flying Dragon fireworks store located in Scottown,
Ohio. The Respondent is the Ohio Department of Commerce,
Division of Fire Marshal.
ili
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................
CONSTITUTIONAL AND
STATUTORY PROVISIONS
INVOLVED IN THIS CASE ..................
THIS CASE PRESENTS AN IMPORTANT
OPPORTUNITY FOR THIS COURT TO
ARTICULATE THAT IT IS A FEDERAL DUE
PROCESS VIOLATION WHEN A STATE COURT
FAILS TO APPLY THE LAW IN EFFECT AT THE
TIME OF ITS DECISION .................
A. A State Appellate Court’s Failure To Apply the Law
in Effect at the Time of the Decision is a Federal Due
Process Violation .......................
iV
B. Neither the Ohio Court of Appeals Nor the Supreme
Court of Ohio Followed the Law in Effect at the Time
Oe ee ee Oe I ond se hes ee Sees 7
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APPENDIX
Appendix A
Order of the Supreme Court of Ohio Denying
Jurisdiction to Hear the Case,
ee eS, OE i a oe ee ee Ree la
Appendix B
Opinion of the Court of Appeals of Ohio, Tenth
Appellate District, Franklin County,
eo a a re ee 2a
Appendix C
Opinion of the Supreme Court of Ohio,
Decided September 4, 2002 ..........0000: 27a
Appendix D
Court of Appeals of Ohio, Tenth Appellate District,
Judgement Entry and Opinion,
PRE CT BOG OEE koe ei ewe ew ee eee 85a
Appendix E
Opinion of the Court of Claims of Ohio,
Filed October 29, 1999 ..............0.:. 109a
Appendix F
Constitutional and Statutory Provisions
a Pee ee eee ee ee Tee Te eee re 13la
Vv
TABLE OF AUTHORITIES
CASES
Boddie v. Connecticut, 401 U.S. 371 (1971) ...-. 6
Bradley v. School Bd. of The City of Richmond, 416
U.S. 696 (1976) 2... ee ee ee ees 5
Galas v. McKee, 801 F.2d 200 (6" Cir. 1986) .... 6
Garland v. ODOT, 48 Ohio St. 3d 10, 548 N.E.2d
133 (1990) .. 0... ccc weer cere c eens 13, 15
In re Cincinnati Radiation Litig., 874 F. Supp. 796
(S.D. Ohio 1995) ... 6.2.20 2 eee rece ecee 6
Logan v. Zimmerman Brush Co., 455 U.S. 422
t) ) ) re ee ee eo. 5-6
Mullane v. Central Hanover Bank & Trust Co., 339
U.S. SOB CIID) onc eae ensenss 6
Reynolds v. State, 14 Ohio St.3d 68, 14 OBR 506,
471 N.E.2d 776 (1984) .....-----+-- 4, 7-8, 13
Semadeni v. ODOT, 75 Ohio St. 3d 128, 661 N.E.2d
1013 (1996)... cc ec ere emcees 13, 15
Thorpe v. Housing Auth. Of the City of Durham, 393
U.S. 268 (1968) .....--- eee eee eres 5
Valot v. Southeast Local Schools Dist., 107
F.3d 1220 (6" Cir.), cert. denied, 139 L.
Ed. 2d 108 (1997) .....---- ee eee eee eee 6
Wallace v. Ohio Dept. of Commerce, Div. of State
Fire Marshall, 96 Ohio St.3d 266, 773 N.E.2d
1018 (2002) ........-2005- 3, 6, 7, 9, 10, 11
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1
OPINIONS BELOW
The opinion of the Supreme Court of Ohio denying
jurisdiction in this case is reported at 102 Ohio St.3d 1447
and is reproduced in Appendix A, p. la. The earlier opinion
of the Supreme Court of Ohio reversing and remanding the
decision entered by the Ohio Court of Appeals for the Tenth
Appellate District is reported at 96 Ohio St.3d 266 and
reproduced in Appendix C, p. 27a. The opinion of that
Court of Appeals upholding the Ohio Court of Claims’
judgment against Petitioners on remand is unreported and is
reproduced in Appendix B, p.2a. The earlier opinion of the
Court of Appeals affirming the decision of the Court of
Claims is unreported and is reproduced in Appendix D,
p.85a. The judgment of the Court of Claims is unreported
and is reproduced in Appendix E, p.109a
JURISDICTION
The order of the Supreme Court of Ohio denying
jurisdiction was entered on May 12, 2004. This Court has
jurisdiction to review the judgment of the Supreme Court of
Ohio by writ of certiorari pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED IN THIS CASE
This case involves the Fourteenth Amendment to the
Constitution of the United States and Ohio Revised Code,
Section 2743.02, which are set forth in Appendix F, pp. 131-
132.
2
STATEMENT OF THE CASE
Petitioners/Plaintiffs are individuals injured or
representatives of individuals killed in a fire on July 3, 1996
at the Flying Dragon fireworks store located in Scottown,
Ohio. Petitioners alleged that the negligence of
Respondent/Defendant Ohio Department of Commerce
Division of Fire Marshal (“fire marshal”), was the proximate
cause of the injuries suffered by Petitioners and their
decedents. Todd Hall, a mentally disturbed boy, used a
cigarette to ignite fireworks inside the Flying Dragon. The
fireworks Hall lit in turn ignited other fireworks and a
devastating fire occurred, resulting in the death of nine people
and serious injuries to eleven others.
The Flying Dragon was operating under a license issued
by the fire marshal. A condition of this license required the
Flying Dragon to be equipped with an approved, operable fire
suppression system, which includes an automatic sprinkler
system. An additional condition of licensure required fire
marshal inspectors to make annual and seasonal inspections of
the fireworks store. The seasonal inspection was required
during the peak firework sales season - between May 15 and
July 4 - each year. Safety being the primary concern,
seasonal inspections during the peak fireworks sales season
always included an inspection of all safety features, including
adequacy of exits and the operation of sprinkler systems. A
directive issued by the chief fire marshal inspector on May
26, 1996 required that at least one visit be made to each
licensed fireworks store during the peak period to monitor
overall compliance.
On or about June 7, 1996, the fire marshal received a
complaint that the Flying Dragon was illegally selling Class
B fireworks. Based on this information, the fire marshal
eee ee ee ee oe _
3
decided to postpone the seasonal inspection in order to
perform a “bust-buy” targeting the illegal fireworks. The
bust-buy occurred on June 28, 1996, but the fire marshal
agents did not conduct the seasonal inspection upon
concluding the bust-buy. The fire marshal also failed to
perform the mandated inspection for the remainder of the
peak period between June 28, 1996 and July 3, 1996, the day
the fire occurred.
Fo!! wing a bench trial, the Ohio Court of Claims ruled
in fa\ .1 of the fire marshal primarily <n the basis that the
public duty rule precluded Petitioners from suing the fire
marshal for breach of the duty to inspect the fireworks store.
On appeal, the Court of Appeals for the Tenth Appellate
District affirmed the Court of Claims’ decision. In Wallace
v. Ohio Dept. of Commerce, Div. of State Fire Marshal, 96
Ohio St.3d 266, 773 N.E.2d 1018 (2002), however, the
Supreme Court of Ohio held that the fire marshal (like all
other state agencies) was barred from invoking the public duty
rule and remanded the case to the appeals court. The syllabus
stated:
The public-duty rule is incompatible with R.C.
2743.02(A)(1)’s express language requiring that the
state’s liability in the Court of Claims be determined
“in accordance with the same rules of law applicable
to suits between private parties.” In negligence suits
against the state, the Court of Claims must determine
the existence of a legal duty using conventional tort
principles that would be applicable if the defendant
were a private individual or entity.
Id. at 1019. The state supreme court added:
The language in R.C. 2743.02 that the state shall
4
“have its liability determined * * * in accordance with
the same rules of law applicable to suits between
private parties” means that the state cannot be sued for
its legislative or judicial functions or the exercise of an
executive or planning function involving the making
of a basic policy decision which is characterized by
the exercise of a high degree of official judgment or
discretion. However, once the decision has been
made to engage in a certain activity or function, the
state may be held liable, in the same manner as
private parties, for the negligence of the actions of its
employees and agents in performance of that activity
or function. (Reynolds v. State, 14 Ohio St.3d 68, 14
OBR 506, 471 N.E.2d 776 (1984), paragraph one of
the syllabus approved.)
On remand, the court of appeals rejected Petitioners’
claim again and affirmed based on discretionary function
immunity, even though there was no evidence of a high level
decision not to inspect the store between June 28 and July 3,
1996, and even though all evidence suggested that the fire
marshal made the opposite decision. The Supreme Court of
Ohio denied review.
REASONS FOR GRANTING THE PETITION
THIS CASE PRESENTS AN IMPORTANT
OPPORTUNITY FOR THIS COURT TO
ARTICULATE THAT IT IS A FEDERAL DUE
PROCESS VIOLATION WHEN A _ STATE
COURT FAILS TO APPLY THE LAW IN
EFFECT AT THE TIME OF ITS DECISION.
By affirming based on discretionary function immunity
and denying review of the appellate court’s ruling in favor of
5
the fire marshal, the court of appeals and the Supreme Court
of Ohio, respectively, so far departed from established
principles of Ohio law that their decisions violate due process
and warrant this Court’s intervention. It is particularly
important that this Court intervene not only to remedy the
Ohio courts’ errors, but also to deter other state courts from
committing the same due process violation to the detriment of
litigants in a variety of contexts across the country.
Specifically, it is important that this Court review this case
for the purpose of expressly articulating that it is a violation
of the Due Process Clause of the Fourteenth Amendment to
the United States Constitution when a state court fails to
follow the well-established principle that it must apply the law
in effect at the time of its decision. While this Court has long
instructed that reviewing courts must adhere to this salutary
principle, this Court has never articulated its underlying
constitutional basis, namely due process of the law.
A. A State Appellate Court’s Failure To Apply the
Law in Effect at the Time of the Decision is a
Federal Due Process Violation.
It is a fundamental principle of law that a reviewing court
is required to apply the law that is in effect at the time of its
decision. See Bradley v. School Bd. of The City of
Richmond, 416 U.S. 696, 711 (1974); Thorpe v. Housing
Auth. Of the City of Durham, 393 U.S. 268, (1968). A state
appellate court’s failure to apply the law in effect at the time
of the decision is a due process violation because it results in
litigants being deprived of fundamental and non-fundamental
rights. The state courts deprived Petitioners of both
procedural and substantive due process of law by denying
them the fundamental right of meaningful access to the courts.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-30
6
(1982); Boddie v. Connecticut, 401 U.S. 371, 375-78 (1971).
A substantive due process violation occurs where a
fundamental right is denied in a manner that does not survive
strict scrutiny. Valot v. Southeast Local Schools Dist., 107
F.3d 1220, 1228 (6" Cir.), cert. denied, 139 L. Ed. 2d 108
(1997); see also Galas v. McKee, 801 F.2d 200, 204 (6" Cir.
1986).
To survive strict scrutiny, the state court’s decision must
promote a compelling state interest, and the means chosen
must be narrowly tailored to meet that goal. /d. The
Supreme Court of Ohio’s action cannot pass strict scrutiny as
there can be no compelling interest in ignoring the law it
established in Wallace v. Ohio Dept. of Commerce, Div. of
State Fire Marshall, 96 Ohio St.3d 266, 2002-Ohio-4210, 773
N.E.2d 1018 (2002).
The Ohio courts also deprived Petitioners of procedural
due process of law by denying them the property right of
meaningful access to the courts to pursue a cause of action.
This property right is protected by the Due Process Clause.
See generally Logan, 455 U.S. 422, 428-29; Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 313-14
(1950); In re Cincinnati Radiation Litig., 874 F.Supp. 796,
825 (S.D. Ohio 1995). Interference with pursuing a cause of
action violates due process. Jd. Petitioners’ pursuit of their
cause of action was substantially impaired by the courts of
Ohio.
Petitioners’ circumstances are not unique. If this Court
does not expressly articulate that failing to apply the law in
effect at the time of the decision is a federal due process
violation, other litigants in a various contexts will face the
same risk of state appellate courts depriving them of their due
process rights.
MME SHi Le DOA
7
B. Neither the Ohio Court of Appeals Nor the
Supreme Court of Ohio Followed the Law in Effect
at the Time of Each Court’s Decision.
After rejecting the fire marshal’s primary ground for
affirmance, the public duty doctrine, the Ohio Supreme Court
in Wallace v. Ohio Dept. of Commerce, Div. of State Fire
Marshall, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d
1018 (2002), left it to the court of appeals “to resolve, if
necessary, on remand” the viability of “the state’s alternative
argument based on the fire marshal’s discretionary function
immunity.” Id. at (36. However, the Ohio Supreme Court
did not leave the court of appeals without guidance in
evaluating that defense.
In paragraph two of the Wallace syllabus, the Ohio
Supreme Court articulated the standard for evaluating the
State’s claimed discretionary function immunity in a manner
consistent with the Court of Claims Act:
The language in R.C. 2743.02 that the state shall
“have its liability determined * * * in accordance with
the same rules of law applicable to suits between
private parties” means that the state cannot be sued for
its legislative or judicial functions or the exercise of an
executive or planning function involving the making
of a basic policy decision which is characterized by
the exercise of a high degree of official judgment or
discretion. However, once the decision has been
made to engage in a certain activity or function, the
state may be held liable, in the same manner as
private parties, for the negligence of the actions of its
employees and agents in performance of that activity
or function. (Reynolds v. State, 14 Ohio St.3d 68, 14
8
OBR 506, 471 N.E.2d 776 (1984), paragraph one of
the syllabus approved.)
(Emphasis added). The Ohio Supreme Court also observed
that,
[e]ven without the public-duty rule, the state already
enjoys a fair degree of protection from litigious
second guessing of discretionary governmental
decisions that necessarily involve difficult choices
about how to allocate the state’s resources.
Id. at 436 (emphasis added). Then the court specifically
addressed the state’s defense of discretionary function
immunity in this case:
In this case, for example, Reynolds arguably bars
liability for the fire marshal’s actions if the [plaintiffs’]
harm resulted from a discretionary executive decision
to forgo a seasonal inspection; if, on the other hand,
the fire marshal’s negligent performance of an
inspection was the proximate cause of the [plaintiffs’]
harm, R.C. 2743.02(A)(1) allows for liability.
A D6 ase dass alba advo om VA ds tn Alon
Id. (emphasis in original). |
Petitioners’ claims in this case carefully steer clear of
alleging that their harm resulted from “discretionary
governmental decisions that necessarily involve difficult
choices about how to allocate the state’s resources,” id., or
“from a discretionary executive decision to forgo a seasonal 3
inspection . . . .” Id. The record in the Court of Claims
reflects only three material decisions by the fire marshal: (1) F
the May 24, 1996 directive from the Assistant Chief of the
Fire Marshal's Inspection Bureau, Daniel Lehman, head of all :
— —
9
state fire safety inspectors, requiring all inspectors to conduct
at least one seasonal (i.e., safety) inspection of all licensed
fireworks stores during the period from May 24 to July 4,
1996, (2) the decision to conduct a “bust-buy” operation at
the Flying Dragon, and (3) the decision by Lehman that the
seasonal inspection of the Flying Dragon would not be
performed until after the investigators had conducted the
“bust-buy” operation, which they completed on June 28,
1996. Assuming, arguendo, that each of these decisions
reasonably could be classified as “the exercise of an executive
or planning function involving the making of a basic policy
decision which is characterized by the exercise of a high
degree of official judgment or discrvtion,” Wallace, supra, at
paragraph two of the syllabus, the central question was
whether any one or more of these decisions constituted “the
proximate cause of the [plaintiffs’] harm,” or instead whether
that harm proximately resulted from the fire marshal’s
negligent performance or implementation of a decision
already made. Wallace, 96 Ohio St.3d at 436. '
' Because of its resolution of the now-moot public duty issue,
the Court of Claims did not resolve that central question as a factual
matter. Twice in its Decision, the Court of Claims assumed,
without deciding, that defendant had acted in a negligent manner by
performing or failing to perform an inspection of the Flying
Dragon. At page 11 of its Decision, the Court of Claims began its
analysis of the public duty rule with the words, “Even if the court
were to find that defendant had acted in a negligent manner by
performing or failing to perform its duty to inspect . . . .” At page
15 of its Decision, the Court of Claims concluded that the public
duty doctrine would preclude state liability “even if defendant’s
agents were negligent in implementing the discretionary decision to
forego [sic] a seasonal inspection and conduct the operation . . . .”
Given that the Court of Claims indulged these assumptions,
arguendo, for the sole purpose of deciding the legal issue posed by
the public duty rule, it is clear that the Court of Claims did not
10
There was no evidence that reasonably could support a
finding that Petitioners’ harm “resulted from a discretionary
executive decision to forgo a seasonal inspection... .” It is
undisputed that the decision was not to forgo a seasonal
inspection of the Flying Dragon altogether, but merely to
postpone it until after the “bust-buy” was completed. It is
undisputed that fire safety inspector Thomas Baker, fire safety
inspector Michael Kraft, and arson investigator Donald Eifler
participated in and completed the “bust-buy” operation at the
Flying Dragon on June 28, 1996. It also is undisputed that,
at the conclusion of that operation, they revealed themselves
to be agents from the fire marshal’s office. At that point,
they had fully implemented the decision to (1) conduct the
“bust-buy” operation and (2) postpone the seasonal inspection
until they had done so. With the completion of the “bust-
buy,” they no longer were acting under the disability that
Lehman had imposed when he postponed the seasonal
inspection of the Flying Dragon until after the “bust-buy” was
completed. In other words, two of the three policy directives
mentioned above had been completely fulfilled and were no
longer operative.
At the point when the “bust-buy” was completed, the only
operative policy decision that fire marshal agents were bound
to implement was Lehman’s unequivocal directive of May 24,
1996, which required a seasonal inspection of every fireworks
store, including the Flying Dragon.” The evidence of record
decide as a factual matter whether plaintiffs’ harm “resulted from
a discretionary executive decision to forgo a seasonal inspection”
or instead from “the fire marshal’s negligent performance of an
inspection . . . .” Wallace, supra, at 436.
> The court of appeals’ opinion suggests that this directive
merely encouraged, as opposed to required, seasonal inspections.
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11
substantiates plaintiffs’ contention that, as to the Flying
Dragon, that policy decision became operative again
immediately upon the completion of the “bust-buy” on June
28, 1996 and it remained operative on June 29, June 30, July
1, July 2, and July 3, 1996.
Petitioners’ negligence claim thus falls on the permissible
side of the line carefully drawn by the Ohio Supreme Court
in the last sentence of paragraph two of the Wallace syllabus:
that “once the decision has been made to engage in a certain
activity or function” —- i.e., the decision by Lehman that the
Flying Dragon must be inspected for fire safety hazards after
the “bust-buy” was completed but before July 4, 1996 - “the
state may be held liable, in the same manner as private
parties, for the negligence of the actions of its employees and
agents in the performance of that activity or function.” The
fact that fire marshal agents negligently failed to perform a
reasonable and proper safety inspection of the Flying Dragon
before the fire was not in any way attributable to
“discretionary governmental decisions that necessarily involve
difficult choices about how to allocate the state’s resources.”
Wallace, at 436. Rather, to the extent such discretionary
decisions are even involved here, the intent of those decisions
was to require the agents to conduct a proper safety inspection
of the Flying Dragon once the “bust-buy” was completed.
Thus, this case involves the negligent performance of a
App. A, 43. This is at odds with the language of the directive itself
- “‘[t]he minimal acceptable level of activity is one visit to each
facility,’” Wallace, at {5 - and with the fire marshal’s brief before
the Supreme Court of Ohio in Wallace, which stated at page 5, “In
May 1996, the bureau chief issued a directive mandating a second,
‘cursory,’ seasonal inspection - before the Fourth of July holiday.”
(Emphasis added.)
12
function or activity that state discretionary decision-making
actually imposed on the state’s agents.
The fire marshal had no evidentiary basis to contest that
its agents negligently delayed performing that function or
activity. There is no evidence that fire marshal agents Baker,
Kraft, and Eifler had not read Lehman’s directive, or that
they believed it did not apply to the Flying Dragon, or that
they lacked the qualifications to detect fire safety hazards at
the Flying Dragon, including an inoperative sprinkler system
in plain view. On every previous seasonal inspection of the
Flying Dragon, an agent from the fire marshal’s office had
inspected the sprinkler system to ensure that it was turned on
and working. But agents Baker, Kraft, and Eifler did not
perform any such reasonable and proper safety inspection on
June 28, 1996. Not only did they not do so, but neither did
any other agent from the fire marshal’s office over the
ensuing five days. Had any agent done a proper safety
inspection as contemplated by Lehman’s “seasonal
inspection” directive of May 24, 1996, he or she would have
detected that the sprinkler system was turned off.
The negligence of respondent’s agents in implementing the
policy decision to inspect the Flying Dragon for fire safety
hazards began on June 28, 1996 and went uncured for five
days, right through the moment the fire started, when the full,
horrible consequences of defendant’s negligence took hold.
The only reasonable conclusion to draw from the evidence is
that petitioners’ harm proximately resulted from “the fire
marshal’s negligent performance” of an activity that
respondent itself set in motion, via its own directive to inspect
the Flying Dragon after the “bust-buy” was completed but
before July 4, 1996. Therefore, the state’s discretionary
function immunity has no application to plaintiffs’ claim in
this case.
13
The court of appeals’ opinion consistently fails to
distinguish a true decision, which can be cloaked with
discretionary function immunity, from implementation of the
decision, which is not. Whenever discretionary function
immunity is asserted as. a defense to a claim that state
employees negligently failed to Carry out some required
action, the conduct of the employees charged with carrying
out the action must be carefully distinguished from the
original decision to carry it out. Semadeni v. ODOT » 75 Ohio
St.3d 128, 132, 661 N.E.2d 1013, 1017 (1996). Although
this Court held in Garland v. ODOT, 48 Ohio St.3d 10, 548
N.E.2d 233 (1990), that the state has a reasonable time to
carry out a highly discretionary decision, the state can be held
liable for unjustified delays in implementation once a decision
to proceed has been made. Jd. at 12; Semadeni, 75 Ohio St.3d
at 132-33; cf. Reynolds v. State, 14 Ohio St.3d 68, 471
N.E.2d 776 (1984), syllabus, para. 1. In Garland, Semadeni,
and their progeny, the key question always has been whether
the evidence justified the delay in implementing the decision.
In other words, did the evidence show that the state, even
after making the original decision, still was involved in some
discretionary planning, such that the delay in implementation
was reasonable? Garland, 48 Ohio St.3d at 12. Or did the
evidence show that the state either was not actively
implementing the decision, or was merely involved in low-
level decision-making related to the “time and manner” of
performance, such that the delay in implementation could be
considered unreasonable and negligent? Semadeni , 75 Ohio
St.3d at 132-33. The common thread running through
Garland and Semadeni is that both rested on evidence
concerning why there had been a delay in implementing the
decision.
In this case, however, there was no evidence linking the
fire marshal office’s delay in conducting the seasonal
14
inspection with some actual high-level decision. The record
shows that the decision had been made to do the seasonal
inspection as soon as the bust-buy was completed. The record
leaves no room to conclude that, by sequencing the seasonal
inspection after the bust-buy, the fire marshal had decided that
agents did not have to complete the seasonal inspection. Such
a conclusion would be no more reasonable than a child who
infers from a parental command “Take out the garbage as
soon as you finish your homework” that he really is not
required to take out the garbage. The decision to postpone
the seasonal inspection until after the bust-buy could not
reasonably be equated with a decision that no seasonal
inspection would be conducted. To the contrary, the only
plausible interpretation of the record is that a seasonal
inspection was required. Absent plausible evidence of a
decision not to conduct a seasonal inspection at all,
discretionary function immunity has no application.
Rather than rest on evidence, the court of appeals
opinion’s application of discretionary function immunity rests
purely on speculation concerning high-level decisions that
might have been made and that might have been the reasons
why the seasonal inspection did not take place before the fire.
First, the opinion speculates that the failure of fire marshal
agents to conduct the seasonal inspection might have been due
to a decision (presumably after the bust-buy) that a seasonal
inspection would not take place at the Flying Dragon before
July 4, 1996. App. 8a, 417. But, again, there is absolutely no
evidence to support the opinion’s speculation that such a
decision ever was made. To the contrary, Bureau Chief
Lehman, who would have made such a decision, had
expressly assured Barbara Hess, his subordinate, of just the
opposite. It is undisputed he told Hess, the field supervisor
in charge of the Flying Dragon, that the seasonal inspection
15
in fact was planned and would be conducted. Even one of the
agents involved in the bust-buy understood that, once the
bust-buy was over, the seasonal inspection would take place.
There was no evidence that the failure of fire marshal agents
to conduct the seasonal inspection was due to a decision after
the bust-buy that the inspection would not take place.
Second, and presumably in the alternative, the court of
appeals’ opinion speculates that the reason why the seasonal
inspection did not take place before the fire might have been
that the fire marshal’s office did not have had enough time to
complete it after the bust-buy. App. 8a, 417. Although the
opinion cites Garland as support, this opinion actually is
incompatible with Garland and Semadeni. In Garland, the
evidence showed that, during the period of the delay in
implementation, the state agency “was still performing a
discretionary function.” 48 Ohio St.3d at 12. Thus, the
Garland Court held it had a reasonable time to implement its
decision-making. Because in Semadeni the evidence showed
the opposite - that the state agency was simply lax in
implementation — the state was not afforded the same leeway.
Garland and Semadini are thus reconcilable with one another,
but the court of appeals’ opinion is not reconcilable with
either. ——"
In this case, there is not a shred of evidence suggesting
that the six days that remained in the peak firework sales
Season were not enough time to conduct a seasonal inspection.
Although the court of appeals excused the delay by saying that
“obviously schedules must be coordinated,” App. 8a, 17, the
record lends no credence to this excuse. Assistant Chief
Lehman had told Supervisor Hess that there would be enough
time to conduct the seasonal inspection at the same time as the
bust-buy. Moreover, the inspector who usually inspected the
Flying Dragon had only one other fireworks store to inspect.
16
What makes the court of appeals opinion’s speculation all
the more egregious is that the fire marshal did not even argue
before that court that six days were not enough to complete
the seasonal inspection. To the contrary, the fire marshal
incredibly argued below that “had the store not burned to the
ground, that inspection undoubtedly would have taken place
....” Fire Marshal’s Court of Appeals Brief, p. 8 (emphasis
added). Not only was there no evidence of insufficient time
to do the seasonal inspection, there also was no evidence that,
in the period after the bust-buy, the fire marshal’s office was
still somehow engaged in discretionary decision-making
related to the Flying Dragon’s seasonal inspection. Again,
laying aside the court of appeals’ naked speculation, all of the
evidence points to inertia and inattentiveness on the part of the
fire marshal’s office as the cause for its delay in performing
the seasonal inspection. It is not consonant with the Due
Process Clause, Ohio Revised Code Section 2743.02(A)(1),
or the public interest for courts to rescue state agencies from
being held accountable for the consequences of their inertia
and inattentiveness, given that private citizens enjoy no such
leeway. This issue warrants review.
17
CONCLUSION
Based on the decisions of the Supreme Court of Ohio and
the Ohio Court of Appeals denying Petitioners’ Constitutional
right to pursue their claim, Petitioners respectfully submit that
certiorari should be granted.
Respectfully submitted,
Stanley M. Chesley
(Counsel of Record)
Paul M. De Marco
Robert A. Steinberg
D. Arthur Rabourn
Jane H. Walker
WAITE, SCHNEIDER, BAYLESS
& CHESLEY CoO., L.P.A.
1513 Fourth & Vine Tower
One West Fourth Street
Cincinnati, OH 45202
OER Te
Li? ee eS eS ae ee a
la
APPENDIX A
SUPREME COURT OF OHIO
No. 04-222
[Filed May 12, 2004]
John Wallace, Individually and as Administrator of the —)
Estate of Jason O. Wallace, et al., )
Appellants, )
)
v. )
)
Ohio Dept. of Commerce, Division of State Fire Marshal. )
Appellee. )
)
ENTRY
Upon consideration of the jurisdictional memoranda filed
in this case, the Court declines jurisdiction to hear the case.
COSTS:
Docket Fee: $40.00, paid by Waite, Schneider, Bayless,
Chesley Co., L.P.A.
(Franklin County Court of Appeals; No. 99AP1303)
/s/
THOMAS J. MOYER
Chief Justice
2a
APPENDIX B i
COURT OF APPEALS OF OHIO, :
TENTH APPELLATE DISTRICT,
FRANKLIN COUNTY
No. 99AP-1303
[Filed December 18, 2003]
ir Rec ah IES AM a A he i sl ate Rta he's Seto) be se 8D at
John Wallace, Individually and as Administrator )
of the Estate of Jason O. Wallace et al., )
Plaintiffs-Appellants, )
) 3
v. )
)
Ohio Department of Commerce, ) i
Division of State Fire Marshal, )
Defendant-Appellee. . )
)
(C.C. No. 97-01325) |
ON REMAND FROM THE OHIO SUPREME COURT
Wallace v. Ohio DOC, 2000 Ohio App. LEXIS 4831 (Ohio
Ct. App., Franklin County, Oct. 19, 2000)
JUDGES: PETREE, P.J. BROWN and McCORMAC, JJ.,
concur.
3a
OPINION
PETREE, P.J.
[{1] | This case is before this court on remand from the
Ohio Supreme Court’s decision in Wallace v. Ohio Dept. of
Commerce, Div. of State Fire Marshal, 96 Ohio St. 3d 266,
2002 Ohio 4210, 773 N.E.2d 1018 , which reversed Wallace
v. Dept. of Commerce (Oct. 19, 2000), Franklin App. No.
99AP-1303, 2000 Ohio App. LEXIS 4831.
[{2] The factual background, procedural history, and
testimony underlying this case previously have been reported
in both this court’s earlier opinion and the Ohio Supreme
Court’s opinion of Wallace. See Wallace, Franklin App. No.
99AP-1303, 2000 Ohio App. LEXIS 4831, and Wallace, 96
Ohio St.3d 266, at 42-11. Accordingly, only a condensed
summary is provided here.
[{3] OnJuly 3, 1996, Todd Hall entered the Ohio River
Fireworks store in Scottown, Lawrence County, Ohio, with
a lit cigarette. Before store employees could intervene, Hall
used the lit cigarette to set fire to a stack of “crackling wheel”
fireworks, which, in turn, ignited other fireworks within the
store. A fire resulted that killed nine people and injured
several others.' At the time of the fire, Flying Dragon, Inc.,
possessed a valid fireworks wholesaler license, which had
been issued by the fire marshal, to operate the Ohio River
Fireworks store. In October 1995, the Ohio River Fireworks
' See Wallace, 96 Ohio St.3d 266, at 42, fn. 1. (Hall was later
indicted on multiple counts of involuntary manslaughter and
aggravated arson. Additionally, Hall, who suffers from a severe
mental disorder, has been found incompetent to stand trial.)
4a
store had been inspected by the fire marshal as required by
statute. See, generally, R.C. 3743.16. Additionally, prior to
1996, as a matter of internal policy, fire marshal inspectors
were encouraged to make seasonal inspections of fireworks
businesses during the July 4th fireworks season to ensure
compliance with applicable statutes and regulations. During
the spring of 1995, two seasonal inspections were conducted,
and the store’s sprinkler system was determined to be
functional.
[44] In June 1996, after a commercial competitor
informed the fire marshal that Ohio River Fireworks was
advertising and selling Class B fireworks’ to parties that were
unauthorized to purchase them, Michael Kraft, then an acting
field supervisor, organized a “bust buy” operation, during
which fire marshal agents would try to purchase Class B
fireworks without a proper license. A seasonal inspection of
the Ohio River Fireworks store was postponed until after the
“bust buy” was completed and was not performed prior to the
fire on July 3, 1996.
[45] On June 28, 1996, five days before the fatal fire,
Donald Eifler, an arson investigator, and Thomas Baker and
Michael Kraft, two fire safety inspectors, conducted a “bust
buy,” during which Eifler purchased Class B fireworks
without a proper license. None of the three fire marshal
agents who were present at the “bust buy” conducted a fire
inspection at any time that day.
? Class B fireworks are now referred to as “1.2G fireworks.”
See 1997 Am.Sub.H.B. No. 215, 147 Ohio Laws Part I, 1325-26,
1353.
iMag DS ihe ne eh AA cM AR Ae OS.
Sa
[{6] Following the fatal fire, plaintiffs, persons injured
in the fire and administrators of the decedents’ estates, filed
a lawsuit in the Ohio Court of Claims, alleging negligence
against the state fire marshal.
({7] At trial, plaintiffs presented testimony that
suggested the store’s sprinkler system was shut off at the time
of the fire and this shutdown was not an isolated occurrence.
Additionally, plaintiffs presented expert opinion testimony
that decedents would have had an improved chance of
survival if the sprinkler system had functioned properly.
Moreover, plaintiffs presented evidence that, at the time of
the “bust buy,” state fire marshal agents could have easily
determined whether the store’s sprinkler system was
operational.
[48] | After a four-day trial that was limited to the issue
of liability, the Court of Claims found in favor of the state fire
marshal. On appeal, this court in Wallace, supra, affirmed
based on an application of the public-duty rule.
[49] However, in Wallace, 96 Ohio St.3d 266, 2002
Ohio 4210, 773 N.E.2d 1018, the Ohio Supreme Court
reversed this court’s decision and remanded the cause. Id. at
441. See, also, id. at syllabus.
[10] In Wallace, the Ohio Supreme Court declined to
address two issues raised by the parties in that appeal,
namely, “(1) the appellants’ proposition concerning the
proper foreseeability standard in assessing issues regarding
proximate causation and (2) the state’s alternate argument for
affirmance based on the fire marshal’s discretionary-function
immunity.” Wallace, 96 Ohio St.3d, at 440. The Wallace
court also noted that “because the court of appeals held that
the public-duty rule barred the appellants’ claims, it had no
6a
occasion to reach these issues; accordingly, we leave those
issues for the court of appeals to resolve, if necessary, on
remand.” Id.
[{11] On remand, plaintiffs assert three assignments of
error:
ASSIGNMENT OF ERROR NO. 1:
THE COURT OF CLAIMS ERRED IN NOT
HOLDING THAT THE STATE’S
DISCRETIONARY FUNCTION IMMUNITY DOES
NOT APPLY TO THE NEGLIGENCE CLAIM
ASSERTED BY PLAINTIFFS IN THIS CASE.
ASSIGNMENT OF ERROR NO. 2:
THE TRIAL COURT ERRED TO THE PREJUDICE
OF PLAINTIFFS BY RELYING ON THE
TESTIMONY OF DEFENDANT’S EXPERT, DR.
GEORGE NICHOLS, WHO BASED HIS OPINION
OF THE PHYSIOLOGICAL EFFECTS OF THE
FIRE SOLELY UPON THE INADMISSIBLE PRIOR
OPINION OF DEFENDANT’S EXPERT, DR. JOHN
HOFFMAN [sic].
ASSIGNMENT OF ERROR NO. 3:
THE COURT OF CLAIMS ERRED TO THE
PREJUDICE OF PLAINTIFFS IN FINDING THAT
THE CONDUCT OF A THIRD PARTY WAS AN
INTERVENING ACT THAT WAS THE SOLE
CAUSE OF THE FIRE IN QUESTION AND THAT
THIS ACT WAS NOT FORESEEABLE.
7a
[{12] Plaintiffs’ first assignment of error asserts the trial
court erred by not holding the state’s discretionary function
immunity did not apply to plaintiffs’ negligence claim.
[{13] Under discretionary function immunity, “the state
cannot be sued for its legislative or judicial functions or the
exercise of an executive or planning function involving the
making of a basic policy decision which is characterized by
the exercise of a high degree of official judgment or
discretion. However, once the decision has been made to
engage in a certain activity or function, the state may be held
liable, in the same manner as private parties, for the
negligence of the actions of its employees and agents in the
performance of that activity or function.” Wallace, 96 Ohio
St.3d 266, 2002 Ohio 4210, 773 N.E.2d 1018, paragraph two
of the syllabus, approving Reynolds v. State (1984), 14 Ohio
St.3d 68, 14 Ohio B. 506, 471 N.E.2d 776, paragraph one of
the syllabus.
[{14] Applying Reynolds, the Wallace court noted:
* * * In this case, for example, Reynolds arguably
bars liability for the fire marshal’s actions if the
appellants’ harm resulted from a discretionary
executive decision to forgo a seasonal inspection; if,
on the other hand, the fire marshal’s negligent
performance of an inspection was the proximate cause
of the appellant’s harm, R.C. 2743.02(A)(1) allows
for liability against the state.
Id. at 36. (Footnote omitted: emphasis sic.)
[{15] Here, the fire marshal decided to postpone a
Seasonal inspection until after the “bust buy” was conducted.
(Tr. 1158-1159.) The state fire marshal’s decision to postpone
8a
the seasonal inspection was a discretionary executive decision.
See Wallace, 96 Ohio St.3d, at P36.
[416]Nevertheless, plaintiffs contend that after the “bust
buy” operation was completed, the original policy decision to
seasonably inspect the Ohio River Fireworks store remained
operative, and state fire marshal agents were negligent in
implementing this policy decision. Plaintiffs further contend
this alleged negligence proximately caused harm to plaintiffs.
————
[17] Here, the state fire marshal’s decision to postpone
a seasonal inspection of the Ohio River Fireworks store was
made after an earlier directive encouraged fire marshal
inspectors to make seasonal inspections of fireworks
establishments. Therefore, whether the earlier directive to
make a seasonal inspection of the Ohio River Fireworks store
was still operational within the original time parameters is
open to question. Additionally, after deciding to postpone the
seasonal inspection, whether the state fire marshal had a
reasonable amount of time before the fatal fire within which
to implement the seasonal inspection without incurring tort
liability is also debatable. See, e.g., Garland v. Ohio Dept. of
Trans. (1990), 48 Ohio St.3d 10, 12, 548 N.E.2d 233,
rehearing denied, 49 Ohio St. 3d 705, 551 N.E.2d 618
(“holding that once an agency has made a discretionary
decision, it has a reasonable amount of time to implement that
decision without incurring tort liability”). It was reasonable
to delay execution of the seasonal inspection until the “bust
buy” was conducted as stated above. Since the “bust buy”
was conducted on June 28, 1996, there then commenced a
reasonable time thereafter to implement the safety inspection.
It was not an abuse of discretion to fail to schedule the safety
inspection within five days thereafter (to the date of the fire)
as obviously schedules must be coordinated. Therefore, the
9a
trial court did not err in finding discretionary immunity
applicable.
[{18] Accordingly, plaintiffs’ first assignment of error is
unpersuasive and overruled.
[419] Plaintiffs’ third assignment of error asserts the trial
court erred by (1) finding Todd Hall’s act of igniting
fireworks with a lit cigarette was an intervening act that was
the sole cause of the fire, and (2) Todd Hall’s action was
unforeseeable.
[420] According to former R.C. 2743.02(A)(1):
The state hereby waives its immunity from liability
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 * * *.
[21] Toestablish actionable negligence between private
parties, a party must show duty, a breach of duty, and injury
proximately resulting therefrom. Texler v. D.O. Summers
Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677,
680, 1998 Ohio 602, 693 N.E.2d 271; Menifee v. Ohio
Welding Products, Inc. (1984), 15 Ohio St.3d 75, Tt; 32
Ohio B. 179, 472 N.E.2d 707; Wallace, 96 Ohio St.3d 266,
at 422.
[{22] Historically, the issue of foreseeability has been
viewed as a factor in both the duty element and proximate
cause element of a negligence claim. See, e.g., Palsgraf v.
Long Island RR. Co. (1928), 248 N.Y. 339, 162 N.E. 99
10a
(Andrews, J., dissenting); see, also, Dobbs, The Law of Torts
(2001) 451, Section 182 (observing that “Judge Cardozo and
the majority [in Palsgraf] insisted that the issue should be cast
in the terminology of duty [or negligence] and that the
substantive rules should relieve the defendant of liability if
harm to the plaintiff was unforeseeable. Judge Andrews and
the dissenters thought that the issue should be cast in the
terminology of proximate cause and that as a matter of
substantive law, foreseeability should not be determinative”).
(Emphasis sic.)
[423] “‘Duty, as used in Ohio tort law, refers to the
relationship between the plaintiff and the defendant from
which arises an obligation on the part of the defendant to
exercise due care toward the plaintiff.’” Wallace, 96 Ohio
St.3d 266, at 423, quoting Commerce & Industry Ins. Co. v.
Toledo (1989), 45 Ohio St.3d 96, 98, 543 N.E.2d 1188. “
‘There is no formula for ascertaining whether a duty exists.
Duty “* * * is the court’s ‘expression of the sum total of
those considerations of policy which lead the law to say that
the particular plaintiff is entitled to protection.” (Prosser, Law
of Torts (4th 3d.1971) pp. 325-326.) Any number of
considerations may justify the imposition of duty in particular
circumstances, including the guidance of history, our
continually refined concepts of morals and justice, the
convenience of the rule, and social judgment as to where the
loss should fall. (Prosser, Palsgraf Revisted (1953), 52
Mich.L.Rev. 1, 15).”’” Wallace, 96 Ohio St.3d 266, at 424,
quoting Mussivand v. David (1989), 45 Ohio St.3d 314, 318,
544 N.E.2d 265, quoting Weirum v. RKO Gen. Inc. (1975),
15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36. The
existence of a duty is a question of law for the court. Malone
v. Miami Univ. (1993), 89 Ohio App.3d 527, 530, 625
N.E.2d 640, jurisdictional motion overruled, 68 Ohio St. 3d
1410, 623 N.E.2d 567, citing Mussivand, supra.
lla
[424] Whether a duty exists depends on the foreseeability
of the injury. Menifee, supra, at 77. As stated in Menifee:
The test for foreseeability is whether a reasonably
prudent person would have anticipated that an injury
was likely to result from the performance or
nonperformance of an act. * * * The foreseeability of
harm usually depends on the defendant's knowledge.
* * *
Id. See, also, Wallace, 96 Ohio St.3d 266, at q23.
[425] When determining whether a defendant should
have recognized the risks involved, only those circumstances
that a defendant perceived, or should have perceived, at the
time of a defendant’s action should be considered. Menifee,
at 77.
[{26] Additionally, as stated in Fed. Steel & Wire Corp.
y. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171, 543 N.E.2d
769:
Ordinarily, there is no duty to control the conduct of
a third person by preventing him or her from causing
harm to another, except in cases where there exists a
special relationship between the actor and the third
person which gives rise to a duty to control, or
between the actor and another which gives the other
the right to protection. * * * Thus, liability in
negligence will not lie in the absence of a special duty
owed by a particular defendant.
Id. at 173-174. (Footnote omitted.) See, also, Restatement of
the Law 2d, Torts (1965) 122, Duty to Control Conduct of
12a
Third Persons - General Principle, Section 315;* Wallace, 96
Ohio St.3d 266, at 438 (state defendant, like any private
defendant, is protected by traditional tort concepts of duty,
and Ohio tort law “requires a special relationship in order to
satisfy the duty element in certain types of negligence actions,
such as actions based on failure to act or failure to control the
conduct of a third person”).
3 Comment c of Section 315 of the Restatement of the Law 2d,
Torts (1965), 122 provides that “[t]he relations between the actor
and a third person which require the actor to control the third
person’s conduct are stated in §§ 316-319. The relations between
the actor and the other which require the actor to control the
conduct of third persons for the protection of the other are stated in
§§ 314A and 320.” |
Sections 316 to 319 of the Restatement of the Law 2d, Torts
(1965), concern a duty of a parent to control conduct of a child;
duty of a master to control conduct of servant; duty of possessor of
land or chattels to control conduct of licensee; and duty of those in
charge of a person having dangerous propensities.
Section 314A of the Restatement of the Law 2d, Torts (1965),
concerns special relations giving rise to duty to aid or protect, e.g.,
duties of a common carrier, innkeeper, possessor of land who holds
it open to the public, and one who takes custody of another under
circumstances such as to deprive the other of normal opportunities
for protection.
Section 320 of the Restatement of the Law 2d, Torts (1965),
concerns a duty of a person having custody of another to control the
conduct of third persons.
Section 315 of the Restatement of the Law 2d, Torts (1965),
122 has been adopted as law in Ohio. Fed. Steel & Wire Corp.,
supra, at 173, fn. 1.
~ na
13a
[{27] Furthermore, as noted by this court in Evans v.
Ohio State Univ. (1996), 112 Ohio App.3d 724, 740, 680
N.E.2d 161, appeal not allowed, 77 Ohio St. 3d 1494, 673
N.E.2d 149:
Concerning criminal acts of a third party which the
defendant might reasonably anticipate, “the mere fact
that misconduct on the part of another might be
foreseen is not of itself sufficient to place the
responsibility upon the defendant.” Prosser & Keeton,
[Law of Torts (5 Ed.1984)] at 305. Rather, “it is only
where misconduct was to be anticipated, and taking
the risk of it was unreasonable, that liability will be
imposed for consequences to which such intervening
acts contributed.” Jd. at 313.
[{28] Here, the state fire marshal did not have a special
relationship with plaintiffs or Todd Hall that gave rise to a
duty to protect plaintiffs or control the action of Todd Hall.
See, generally, Restatement of the Law 2d, Torts (1965),
122, Section 315. Nor, based on the evidence, can we
conclude Todd Hall’s misconduct, i.e., deliberately igniting
the “crackling wheel” fireworks, was to be anticipated.
[429] Furthermore, based on our review of the evidence,
we find the objective of the June 28, 1996 visit to the Ohio
River Fireworks store was to conduct an undercover
investigatory operation, not a safety inspection and, on June
28, 1996, state fire marshal safety inspectors did not complete
a safety inspection of the fireworks store. See, also, Court of
Claims decision, at 16 (“defendant’s agents were on the
premises for the sole purpose of making a bust-buy and not to
perform an inspection”); Court of Claims decision, at 10
(“[a]lthough there was conflicting testimony at trial regarding
the amount of time Eifler and Baker remained in the store, it
l4a
is cfear that their objective was to complete the bust-buy
operation and that they did not perform a safety inspection on
June 28, 1996"); Wallace, 96 Ohio St.3d 266, at P7 (“none
of the three fire marshal agents who were present at the “bust
buy” conducted a fire safety inspection at any time that day”).
[{30] Nevertheless, plaintiffs contend on June 28, 1996,
state fire marshal agents were still negligent because state fire
marshal safety inspectors did not observe that the store’s
sprinkler system was allegedly shut down, a violation which,
according to plaintiffs, a reasonable, prudent fire marshal
safety inspector would have observed, and state fire marshal
safety inspectors did not take reasonable action to remedy this
alleged violation and other alleged violations, thereby
preventing plaintiffs’ harm.
[{31] Even assuming the sprinkler system’s alleged
shutdown was plainly visible, because the objective of the
June 28, 1996 visit to the fireworks store was to complete an
undercover investigatory operation, not a safety inspection,
and state fire marshal agents were faced with personal safety
concerns associated with the “bust buy” operation, we are not
persuaded that, under these circumstances, the fire marshal
safety inspectors breached a duty of reasonable care. See Tr.
404 (direct examination of Thomas E. Baker) (“Q. * * *
when you’re down in Scottown for this bust buy, is there a
reason that you didn’t remain on the site and conduct the kind
of walk-through inspection that you talked about before? A.
We were in a hostile situation down there. I felt for my life
and I did not want to go any farther, except to get out of
there”). See, also, Mussivand, supra, at 318 (“the common-
law duty of due care is that degree of care which an ordinarily
reasonable and prudent person exercises, or is accustomed to
exercising, under the same or similar circumstances”).
(Emphasis added.)
15a
({32] Accordingly, based on the foregoing, we conclude
state fire marshal agents did not breach a duty of reasonable
care to plaintiffs.
[433] Furthermore, even assuming on June 28, 1996, the
state fire marshal inspectors may have breached a duty of
reasonable care, to prevail on a claim of actionable
negligence,. plaintiffs are still required to prove by a
preponderance of the evidence that the state fire marshal’s
alleged negligence proximately caused plaintiffs harm. See,
e.g., Wallace, 96 Ohio St 3d 266, at P38, quoting Jean W. v.
Commonwealth (1993), 414 Mass. 496, 511-512, 610 N.E.2d
305 (“[a] plaintiff must also shoulder the burden of
establishing proximate cause, which could be exceedingly
difficult in cases where the governmental conduct alleged to
have caused injury is particularly attenuated or exacerbated by
intervening circumstances. ‘Especially in instances where the
public employee’s purported negligence stems from a failure
to prevent or mitigate a harmful situation that he did not
cause, a plaintiff’s burden of establishing proximate cause will
be significant’”).
[{34] “Proximate causation has been described as ‘some
reasonable connection between the act or omission of the
defendant and the damage the plaintiff has suffered.’” Queen
City Terminals, Inc. v. Gen. Am. Trans. Corp. (1995), 73
Ohio St.3d 609, 618, 1995 Ohio 285, 653 N.E.2d 661,
reconsideration denied, 74 Ohio St. 3d 1422, 655 N.E.2d
742, quoting Prosser & Keeton, Law of Torts (5 Ed.1984)
263, Section 41. “The rule of proximate cause *“requires that
the injury sustained shall be the natural and probable
consequence of the negligence alleged; that is, such
consequence as under the surrounding circumstances of the
particular case might, and should have been foreseen or
anticipated by the wrongdoer as likely to follow his negligent
l6a
act.”’” Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 143, 539
N.E.2d 614, quoting Ross v. Nutt (1964), 177 Ohio St. 113,
114, 203 N.E.2d 118, quoting Miller v. Baltimore & Ohio
Southwestern RR. Co. (1908), 78 Ohio St. 309, 325, 85 N.E.
499, 6 Ohio L. Rep. 109, overruled on other grounds, Schultz
v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4 Ohio B.
376, 447 N.E.2d 109. See, also, Mussivand, supra, at 321,'
modifying Jeffers, supra (“in Jeffers * * * we equated
foreseeability with proximate cause. This is misleading since
they are not equitable. Rather, in order to establish proximate
cause, foreseeability must be found”).
Unlike duty, which is a question of law, Malone, supra,
at 530, proximate cause has been described as “usually a
mixed question of law and fact to be determined by the jury,
under the instructions of the court, although, where the
controlling facts are undisputed or conceded, it may be a
question of law for the court.” Columbus Ry. Power & Light
Co. v. Pickles (1926), 28 Ohio App. 183, 188, 5 Ohio Law
Abs. 516, 162 N.E. 614, citing Davis, Agt. v. Atlas Assur.
Co. Ltd. (1925), 112 Ohio St. 543, 551, 3 Ohio Law Abs.
332, 147 N.E. 913, and Lake Shore & Michigan S. Ry. Co.
v. Liidtke (1904), 69 Ohio St. 384, 69 N.E. 653, 1 Ohio L.
Rep. 881-
Here, the trial court concluded that “the sole proximate
cause of plaintiffs’ injuries was Hall’s act of arson. Under the
totality of the circumstances, this court cannot find that the
criminal act of a third party was a foreseeable event for which
defendant can be found liable under a negligence theory.”
Court of Claims decision, at 18-19. However, earlier in its
decision, the trial court also stated:
* * *Given the lethal environment that developed
within thirty seconds after the fireworks were ignited,
eee een TT
17a
the court finds that even a fully functioning sprinkler
system would not have completely prevented plaintiffs’
injuries. However, the court also finds that
defendant’s argument that an operational sprinkler
system would have made little or no difference in the
outcome is implausible.
Id. at 5. (Emphasis added.)
[437] Thus, although the trial court concluded Todd
Hall’s arson was the sole proximate cause of plaintiffs’ harm,
Court of Claims decision, at 18-19, the trial court also
suggests an operational sprinkler system might have prevented
some of plaintiffs’ harm, id. at 5, thereby creating an
ambiguity by suggesting the lack of an operational sprinkler
system may have also been a proximate cause of plaintiffs’
harm.
[438] According to Restatement of the Law 2d, Torts
(1965) 465, Section 440:
A superseding cause is an act of a third person or
other force which by its intervention prevents the
actor from being liable for harm to another which his
antecedent negligence is a substantial factor in
bringing about.
See, also, Restatement of the Law 2d, Torts (1965), 465,
Section 441 (defining intervening force).
[439] In Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d
155, 6 Ohio B. 209, 451 N.E.2d 815, paragraph one of the
syllabus, approving and following Thrash v. U-Drive-It Co.
(1953), 158 Ohio St. 465, 110 N.E.2d 419, paragraph two of
the syllabus, the Ohio Supreme Court held:
18a
Whether an intervening act breaks the causal
connection between negligence and injury, thus
relieving one of liability for his negligence, depends
upon whether that intervening cause was conscious
and responsible agency which could or should have
eliminated the hazard, and whether the intervening
cause was reasonably foreseeable by the one who was
guilty of the negligence.
[140] Additionally, the Cascone court, quoting Mudrich
v. Standard Oil Co. (1950), 153 Ohio St. 31, 39, 90 N.E.2d
859, further observed:
“* * * If an injury is the natural and probable
consequence of a negligent act and it is such as should
have been foreseen in the light of all the attending
circumstances, the injury is then the proximate result
of the negligence. It is not necessary that the
defendant should have anticipated the particular
injury. It is sufficient that his act is likely to result in
an injury to someone. Neff Lumber Co. v. First
National Bank of St. Clairsville, Admr., 122 Ohio St.
302, 309, 171 N.E. 327.”
Cascone, at 159-160.
[441] “Traditionally, an intentional tort committed by a
third party constitutes an intervening act which supersedes the
negligence of the party creating the risk of harm, and relieves
that party from liability.” Volter v. C. Schmidt Co., Inc.
(1991), 74 Ohio App.3d 36, 37, 598 N.E.2d 35, jurisdictional
motion overruled sub nom. Volter v. Cincinnati, Inc., 62
Ohio St.3d 1441, 579 N.E.2d 214.
19a
[442] Sections 448 and 449 of the Restatement of the
Law 2d, Torts (1965) offer additional insight into the nature
of liability for third party acts. See, also, Fed. Steel & Wire
Corp., supra, at 176.
[443] According to Restatement of the Law 2d, Torts
(1965) 480, Intentionally Tortious or Criminal Acts Done
Under Opportunity Afforded by Actor’s Negligence, Section
448:
The act of a third person in committing an intentional
tort or crime is a superseding cause of harm to another
resulting therefrom, although the actor’s negligent
conduct created a situation which afforded an
opportunity to the third person to commit such a tort
or crime, unless the actor at the time of his negligent
conduct realized or should have realized the likelihood
that such a situation might be created, and that a third
person might avail himself of the opportunity to
commit such a tort or crime.‘
* Comments b and c to Section 448 of Restatement of the Law
2d, Torts (1965), at 481-482, discuss circumstances where a
defendant will be liable for the acts of third parties:
“b. When special grounds for anticipating criminal action by
third person. There are certain situations which are commonly
recognized as affording temptations to which a recognizable
percentage of humanity is likely to yield. So too, there are
situations which create temptations to which no considerable
percentage of ordinary mankind is likely to yield but which, if they
are created at a place where persons of peculiarly vicious type are
likely to be, should be recognized as likely to lead to the
commission of fairly definite types of crime. If the situation which
the actor should realize that his negligent conduct might create is of
either of these two sorts, an intentionally criminal or tortious act of
20a
[444] of the Law 2d, Torts (1965) 482, Tortious or
Criminal Acts the Probability of Which Makes Actor’s
Conduct Negligent:
If the likelihood that a third person may act in a
particular manner is the hazard or one of the hazards
which makes the actor negligent, such an act whether
innocent, negligent, intentionally tortuous, or criminal
does not prevent the actor from being liable for harm
caused thereby.”
the third person is not a superseding cause which relieves the actor
from liability.
“c. When actor’s negligence consists in creating risk of criminal
action by third person. The actor’s conduct may be negligent solely
because he should have recognized that it would expose the person,
land, or chattels, of another to an unreasonable risk of criminal
aggression. If so, it necessarily follows that the fact that the harm
is done by such criminal aggression cannot relieve the actor from
liability (see § 449). However, it is not necessary that the conduct
should be negligent solely because of its tendency to afford an
opportunity for a third person to commit the crime. It is enough that
the actor should have realized the likelihood that his conduct would
create a temptation which would be likely to lead to its commission.
“This is true although the likelihood that such a crime would be
committed might not be of itself enough to make the actor’s conduct
negligent, and the negligent character of the act arises from the fact
that it involves other risks which of themselves are enough to make
it unreasonable, or from such risks together with the possibility of
crime.”
* Comment a to Section 449 provides:
“This Section should be read together with § 302 B, and
the Comments to that Section, which deal with the
21a
[445] Here, even if state fire marshal agents had
performed a seasonal inspection of the Ohio River Fireworks
store prior to the fatal fire, such an inspection would not have
eliminated the hazard of Todd Hall’s intentional igniting of
fireworks within the store. Further, there is no evidence to
support a finding that state fire marshal agents knew, or
should have known, their alleged negligence would have
exposed plaintiffs to a risk of criminal aggression.
[446] Therefore, notwithstanding ambiguity contained in
the trial court’s decision concerning proximate cause, as a
matter of law, we cannot determine the trial court’s finding
that Todd Hall’s misconduct was the sole proximate cause of
plaintiffs harm is against the manifest weight of the evidence.
See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio
St.2d 279, 376 N.E.2d 578, syllabus (“judgments supported
by some competent, credible evidence going to all the
essential elements of the case will not be reversed by a
reviewing court as being against the manifest weight of the
evidence”); Seasons Coal Co., Inc. v. Cleveland (1984), 10
Ohio St.3d 77, 80, 10 Ohio B. 408, 461 N.E.2d 1273 (“an
appellate court should not substitute its judgment for that of
the trial court when there exists * * * competent and credible
foreseeable likelihood of the intentional or even criminal
misconduct of a third person as a hazard which makes the
actor’s conduct negligent. As is there stated, the mere
possibility or even likelihood that there may be such
misconduct is not in all cases sufficient to characterize the
actor’s conduct as negligence. It is only where the actor is
under a duty to the other, because of some relation between
them, to protect him against such misconduct, or where the
actor has undertaken the obligation of doing so, or his
conduct has created or increased the risk of harm through
the misconduct, that he becomes negligent.”
22a
evidence supporting the findings of fact and conclusions of
law rendered by the trial judge”).
[447] Accordingly, plaintiffs’ third assignment of error
is not persuasive and is overruled.
[448] Plaintiffs’ second assignment of error asserts the
trial court erred by relying on the testimony of Dr. George
Nichols, a defense expert witness, who based his opinion
upon the allegedly inadmissible prior opinion of Dr. John
Hoffmann, another defense expert witness. Specifically,
plaintiffs contend Dr. Hoffmann based his opinion upon an
out-of-court experiment that failed to substantially replicate
the conditions that existed at the time of the fatal fire.
Therefore, plaintiffs reason Dr. Hoffmann’s opinion lacked a
proper foundation and should have been excluded. Plaintiffs
further contend the facts that defense counsel asked Dr.
Nichols to assume were taken from Dr. Hoffmann’s earlier
opinion testimony and, therefore, Dr. Nichols’ opinion was
impermissibly based on the opinion of the other defense
expert witness, Dr. Hoffmann.
[449]. In general, courts should favor the admissibility of
expert testimony whenever such testimony is relevant and
Evid.R. 702 criteria are met. State v. Nemeth (1998), 82 Ohio
St.3d 202, 207, 1998 Ohio 376, 694 N.E.2d 1332. Generally,
a determination as to the admissibility of expert testimony is
a matter within the discretion of the trial court and will not be
disturbed absent an abuse of discretion. Miller v. Bike Athletic
Co. (1998), 80 Ohio St.3d 607, 616, 1998 Ohio 178, 687
N.E.2d 735, citing Calderon v. Sharkey (1982), 70 Ohio
St.2d 218, 436 N.E.2d 1008. However, a trial court’s
discretion is not unlimited. Miller, at 616. An “abuse of
discretion” implies that a court acted in “an unreasonable,
arbitrary, or unconscionable manner.” State ex rel. Sartini v.
23a
Yost, 96 Ohio St. 3d 37, 2002 Ohio 3317, at P21, 770 N.E.2d
584, citing State v. Herring (2002), 94 Ohio St.3d 246, 255,
2002 Ohio 796, 762 N.E.2d 940, reconsideration denied, 95
Ohio St. 3d 1423, 2002 Ohio 1737, 766 N.E.2d 163,
certiorari denied, 537 U.S. 917, 154 L. Ed. 2d 202, 123 S.
Ct. 301.
[450] According to Evid.R. 702:
A witness may testify as an expert if all of the
following apply:
* * *
(C) The witness’ testimony is based on reliable,
scientific, technical, or other specialized information.
To the extent that the testimony reports the result of a
procedure, test, or experiment, the testimony is
reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or
experiment is based is objectively verifiable or is
validly derived from widely accepted knowledge,
facts, or principles;
(2) The design of the procedure, test, or experiment
reliably implements the theory;
(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result.
[451] Here, plaintiffs contend Dr. Hoffmann’s out-of-
court experiment failed to substantially replicate the
conditions that existed at the time of the fatal fire when he
conducted his experiment and, therefore, the trial court should
have excluded Dr. Hoffmann’s opinion.
24a
[{52] In Miller, supra, the Ohio Supreme Court held in
paragraph two of the syllabus:
When an out-of-court experiment is not represented to
be a reenactment of the accident and deals with one
aspect or principle directly related to the cause or
result of the occurrence, the conditions of the accident
need not be duplicated.
[453] Additionally, in St. Paul Fire & Marine Ins. Co.
v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, 195
N.E. 861, paragraph one of the syllabus, the Ohio Supreme
Court held:
Evidence of experiments performed out of court,
tending to prove or disprove a contention in issue, is
admissible if there is a substantial similarity between
conditions existing when the experiments are made
and those existing at the time of the occurrence in
dispute; dissimilarities, when not so marked as to
confuse and mislead the jury, go to the weight rather
than the admissibility of the evidence.
[454] . Here, based on our review of the record, we find
Dr. Hoffmann’s out-of-court experiment was not represented
to be a reenactment per se of the accident. Rather, Dr.
Hoffmann’s out-of-court experiment dealt with principles
concerning the release. of gaseous elements from the
“crackling wheel” fireworks during the fatal fire.
Furthermore, to the extent there were dissimilarities, the trial
court found these differences should be applied to the weight
of the evidence, instead of admissibility.
[{55] Applying Miller and St. Paul Fire & Marine Ins.
Co., we conclude the trial court’s admission of Dr.
25a
Hoffmann’s out-of-court experiment did not constitute an
abuse of discretion. Accordingly, plaintiffs’ contention that
Dr. Hoffmann’s opinion lacked a proper foundation is
unpersuasive.
[{56] Evid.R. 703 provides that “the facts or data in the
particular case upon which an expert bases an opinion or
inference may be those perceived by him or admitted in
evidence at the hearing.”
[457] In Burens v. Indus. Comm. (1955), 162 Ohio St.
549, 124 N.E.2d 724, paragraph one of the syllabus, the Ohio
Supreme Court held that “the hypothesis upon which an
expert witness is asked to state an opinion must be based upon
facts within the witness’ own personal knowledge or upon
facts shown by other evidence.”
[58] In this case, Dr. Nichols’ opinion testimony was
based upon evidence elicited by Dr. Hoffmann’s experiment
and testimony about the experiment that tended to establish
the assumption that was posed to Dr. Nichols. We find Dr.
Nichols’ opinion testimony to have been properly rendered.
See, e.g., State v. Volgares (May 17, 1999), Lawrence App.
No. 98CA6, 1999 Ohio App. LEXIS 2356, dismissed, appeal
not allowed, 86 Ohio St. 3d 1489, 716 N.E.2d 721, motion
for delayed appeal denied (2000), 89 Ohio St. 3d 1442, 731
N.E.2d 688, citing Price v. Daughtery (1982), 5 Ohio App.
3d 157, 160, 5 Ohio B. 339, 450 N.E.2d 296 (“an expert may
render an opinion based on a hypothetical question so long as
sufficient testimony regarding the facts of the hypothetical
have been introduced at trial”); Mulford-Jacobs v. Good
Samaritan Hosp. (Nov. 20, 1996), Hamilton App. No. C-
950634, 1996 Ohio App. LEXIS 5210, citing Price, supra
(“an expert may base his opinion on an assumption when the
assumption has an evidentiary basis upon which the jury can
26a
determine whether such facts have been established”). Cf.
Zelenka v. Indus. Comm. (1956), 165 Ohio St. 587, 594, 138
N.E.2d 667 (“it is well settled that the opinion of an expert
witness cannot be predicated either in whole or in part upon
the opinions, inferences and conclusions of others, whether
expert or lay witnesses”); Seley v. G.D. Searle & Co. (1981),
67 Ohio St.2d 192, 206, 423 N.E.2d 831 (observing that
Zelenka rule has been subjected to criticism).
[459] Therefore, plaintiffs’ second assignment of error
is unpersuasive and overruled.
[{60] Accordingly, having overruled all three of
plaintiffs’ assignments of error, we hereby affirm the
judgment of the Court of Claims of Ohio.
Judgment affirmed.
BROWN and McCORMAC, JJ., concur.
McCORMAC, J., retired of the Tenth Appellate District,
assigned to active duty under authority of Section 6(C),
Article IV, Ohio Constitution.
27a
APPENDIX C
SUPREME COURT OF OHIO
Case No. 2000-2178
[Decided September 4, 2002]
WALLACE ET AL.,
APPELLANTS,
v.
OHIO DEPARTMENT OF COMMERCE,
DIVISION OF STATE FIRE MARSHAL,
)
)
)
)
)
)
APPELLEE. )
)
APPEAL from the Court of Appeals for Franklin County,
No. 99 AP-1303.
SYLLABUS: SYLLABUS OF THE COURT
1. The public-duty rule is incompatible with R.C.
2743.02(A)(1)’s express language requiring that the state’s
liability in the Court of Claims be determined “in
accordance with the same rules of law applicable to suits
between private parties.” In negligence suits against the
State, the Court of Claims must determine the existence of
a legal duty using conventional tort principles that would
be applicable if the defendant were a private individual or
entity. (Hurst v. Ohio Dept. of Rehab. & Corr. [1995], 72
Ohio St.3d 325, 650 N.E.2d 104, and Anderson v. Ohio
28a
Dept. of Ins. [1991], 58 Ohio St.3d 215, 569 N.E.2d
1042, overruled to the extent inconsistent herewith;
Sawicki v. Ottawa Hills [1988], 37 Ohio St.3d 222, 525
N.E.2d 468, distinguished.)
2. The language in R.C. 2743.02 that the state shall “have its
liability determined * * * in accordance with the same
rules of law applicable to suits between private parties”
means that the state cannot be sued for its legislative or
judicial functions or the exercise of an executive or
planning function involving the making of a basic policy
decision which is characterized by the exercise of a high
degree of official judgment or discretion. However, once
the decision has been made to engage in a certain activity
or function, the state may be held liable, in the same
manner as private parties, for the negligence of the actions
of its employees and agents in the performance of that
activity or function. (Reynolds v. State [1984], 14 Ohio
St.3d 68, 14 OBR 506, 471 N.E.2d 776, paragraph one
of the syllabus, approved.)
JUDGES: COOK, J. DOUGLAS, F.E. SWEENEY and
PFEIFER, JJ., concur. DOUGLAS, J., concurs separately.
MOYER, 'C.J., RESNICK and LUNDBERG STRATTON,
JJ., dissent. LUNDBERG STRATTON, J., dissents.
COOK, J.
[{1] This case asks us to decide whether the state may
raise the public-duty rule as a bar to liability in an action in
the Court of Claims alleging negligent inspection by the Ohio
Department of Commerce, Division of the Fire Marshal (“fire
marshal”). Because the public-duty rule is inconsistent with
the express language of the Court of Claims Act, we hold that
the state may not.
29a
I
[42] On July 3, 1996, Todd Hall carried a lit cigarette
into the Ohio River Fireworks store in Scottown, Lawrence
County, Ohio. Before store employees could intervene, Hall
used the cigarette to ignite a stack of “crackling wheel”
fireworks. Those fireworks ignited other fireworks in the
store and caused a devastating fire, which killed nine people
and injured several others.! Although the store was equipped
with a sprinkler system, the system was disabled at the time
of the blaze.
[43] On the day of the fire, Flying Dragon, Inc., held a
valid fireworks wholesaler license, issued by the fire marshal,
to operate the Ohio River Fireworks store. As a condition of
licensure, James Saddler, a certified safety inspector
employed by the fire marshal, had inspected the Ohio River
Fireworks store in October 1995 as required by statute. See
R.C. 3743.16. During the mandatory licensing inspection,
Saddler had tested the store’s sprinkler system and found it to
be operational. Saddler noted no safety violations and
recommended approving the store’s license renewal
application.
[44] In addition to the mandatory annual licensing
inspection, Ohio River Fireworks was also subject to R.C.
3743.21(A), which authorizes the fire marshal to inspect a
licensed wholesaler’s premises at any time during the license
' A Lawrence County grand jury later indicted Hall on multiple
counts of involuntary manslaughter and aggravated arson. See State
v. Hall (2001), 141 Ohio App.3d 561, 564, 752 N.E.2d 318. Hall,
who suffers from a severe mental disorder, has been declared
incompetent to stand trial several times. Id. at 565-566, 752
N.E.2d 318
30a
period.” Prior to 1996, as a matter of internal policy, the
chief of the fire marshal’s code enforcement bureau
encouraged inspectors to make seasonal inspections of
fireworks establishments during the July 4th fireworks season
to ensure compliance with applicable statutes and safety
regulations. Under this policy, Saddler performed two such
seasonal inspections of the Ohio River Fireworks facility
during the spring of 1995 and found the store’s sprinkler
system to be functional. In May 1996, Daniel L. Lehman,
then acting as chief of the fire marshal’s code enforcement
bureau, reiterated the policy in an interoffice memorandum:
[45] “Although the annual licensing inspection is
conducted during the renewal period in the fourth quarter of
each calendar year, it is important to have every licensed
fireworks facility visited by an inspector between now and
July 4, 1996. The minimum acceptable level of activity is one
visit to each facility, and return visits should be as needed and
in consultation with the respective supervisor. The licensed
facilities should be appropriately monitored by these cursory
inspections to check for overall compliance during this peak
period.”
[{6] In June 1996, a commercial competitor of the Ohio
River Fireworks store informed the fire marshal that Ohio
River Fireworks was advertising and selling Class B
fireworks to individuals who were not authorized to purchase
them. See former R.C. 3743.45(B), 1995 Am.Sub.S.B. No.
?’R.C. 3743.21(A) provides: “The fire marshal may inspect the
premises, and the inventory, wholesale sale, and retail sale records,
of a licensed wholesaler of fireworks during the wholesaler’s period
of licensure to determine whether the wholesaler is in compliance
with Chapter 3743. of the Revised Code and the rules adopted by
the fire marshal pursuant to section 3743.18 of the Revised Code.”
3la
2, 146 Ohio Laws, Part IV, 7647 (forbidding licensed
wholesalers to sell Class B fireworks to an Ohio resident who
is not a licensed wholesaler, manufacturer, or exhibitor); see,
also, R.C. 3743.44(A) (setting forth similar restriction on
sales to nonresident purchasers).’ After learning of this
possible violation, Michael Kraft--then acting as the assistant
chief of the fire marshal’s code enforcement bureau--
organized a “buy bust” operation during which fire marshal
agents would attempt to purchase Class B fireworks without
a proper license. To prevent the planned operation from being
compromised, Kraft and Lehman postponed any seasonal
inspection of the Ohio River Fireworks store until after they
had completed the buy bust. As a result of this directive,
Saddler did not perform a seasonal inspection of the Ohio
River Fireworks facility prior to the fire.
[{7] Five days before the fatal fire, arson investigator
Donald Eifler posed as a customer at Ohio River Fireworks
and successfully purchased Class B fireworks without being
required to show authorization to do so. When the buy bust
was complete, Kraft retrieved the money used in the operation
for evidentiary purposes and ordered the store’s proprietor to
stop selling Class B fireworks to unauthorized purchasers.
None of the three fire marshal agents who were present at the
buy bust conducted a fire safety inspection at any time that
day.
> The statutory and regulatory nomenclature for fireworks has
since changed. The statutes now refer to Class B fireworks as
“1.4G fireworks.” In addition, fireworks that were formerly
referred to as “Class C fireworks” are now known as “1.3G
fireworks.” See Section 215, 1997 Am.Sub.H.B. No. 215, 147
Ohio Laws, Part I, 1353.
32a
[48] The appellants, persons injured in the fire and
administrators of the decedents’ estates, filed this lawsuit in
the Court of Claims, alleging negligence claims against the
fire marshal. The amended complaint alleged, among other
things, that the fire marshal was negligent in failing to
perform an adequate fire safety inspection on the date of the
buy bust and otherwise failing to comply with the internal
policy of conducting seasonal inspections during the peak
fireworks season. The appellants further alleged that a
reasonable inspection by the fire marshal would have revealed
the store’s inoperable sprinkler system and a host of other fire
hazards.
[49] Attrial, the appellants presented testimony indicating
that the store’s sprinkler system was turned off at the time of
the fire. The appellants also presented testimony suggesting
that the shutdown of the sprinkler system was not an isolated
occurrence: inspector Thomas Baker testified that he had
found the sprinkler system shut down during a “walk
through” he performed at the Ohio River Fireworks store in
July 1994. In addition, the appellants offered testimony from
two experts, who opined that the decedents would have had
a good chance of surviving the fire if the sprinkler system had
functioned properly. Another expert testified that any one of
the fire marshal agents who were present for the buy bust
could have easily determined whether the sprinkler system
was operational. This expert also added that a safety
inspection on the day of the buy bust would have revealed
several other fire hazards throughout the store that should
have been remedied.
[{10] Following a four-day trial limited to the issue of
liability, the Court of Claims ruled in favor of the fire
marshal. In its written opinion, the court gave three distinct
reasons for its decision. First, the court found that the fire
ee ee
33a
marshal’s failure to conduct an additional seasonal inspection
at the Ohio River Fireworks facility resulted from a “high
degree of discretion” exercised by Chief Lehman. The court
therefore concluded that liability was precluded by the
discretionary-function immunity recognized by this court in
Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506, 471
N.E.2d 776, paragraph one of the syllabus. Second, the court
found that the public-duty rule precluded liability against the
fire marshal. Invoking this court’s decision in Sawicki v.
Ottawa Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468, the
Court of Claims ruled that the fire marshal’s inspection duties
| were “owed to the general public” and that the appellants had
failed to establish a “special relationship” between them and
the fire marshal that would preclude application of the public-
duty rule. Finally, the Court of Claims decided that the
proximate cause of the appellants’ harm was Hall’s criminal
act of arson. The court concluded that this criminal act “could
not have been foreseen by a reasonably prudent person” and
thus broke any chain of causation that existed between any
negligence by the fire marshal and the harm suffered by the
appellants.
({11] The appellants appealed to the court of appeals,
which found the public-duty rule to be dispositive of the
action. The court of appeals held that statutes authorizing
inspections by the fire marshal were designed to protect the
public generally and not any particular individual. The court
; further agreed with the Court of Claims that there existed no
special relationship between the fire marshal and the injured
parties that would preclude application of the public-duty rule.
The court of appeals therefore affirmed the Court of Claims’
judgment based on the public-duty rule and declared the
appellants’ remaining assignments of error moot. The cause
is now before this court pursuant to the allowance of a
discretionary appeal.
nial bape able
Aron TN ats chs ANNE Wri eid an
34a
II
[{12] The principal focus of this appeal is the
applicability of the public- duty rule to actions against the
state and its agencies in the Court of Claims. The appellants
argue that the public-duty rule is inconsistent with R.C.
2743 .02(A)(1)’s express authorization of suits against the state
in the Court of Claims. Alternatively, the appellants argue
that the public-duty rule, if available as a defense to
negligence actions against the state, functions as a vestige of
state sovereign immunity and therefore violates Section 16,
Article I of the Ohio Constitution. Finally, the appellants
argue that even if the public-duty rule were statutorily and
constitutionally valid, the rule is inapplicable to the
circumstances in this case.
[{13] In Sawicki v. Ottawa Hills, 37 Ohio St.3d 222, 525
N.E.2d 468, this court addressed whether a municipality
could be held liable for negligently failing to provide adequate
police protection in response to a call for help from the victim
of an attempted rape and robbery. This court held that the
village of Ottawa Hills could not be held liable for the
negligence alleged because of the public-duty rule. This
common-law doctrine, which “originated at English common
law and was particularly applied to the office of [the] sheriff,”
precludes a private party from sustaining a cause of action
against a public officer for breach of a public duty. Id. at 229-
230, 525 N.E.2d 468; see, also, South v. Maryland (1855),
59 U.S. (18 How.) 396, 403, 15 L. Ed. 433. In other words,
a public entity owes a duty only to the general public when
performing its functions and is therefore not liable for torts
committed against an individual absent a special duty owed to
the injured person. See Stone v. North Carolina Dept. of
Labor (1998), 347 N.C. 473, 477-478, 495 S.E.2d 711;
35a
Fudge v. Kansas City (1986), 239 Kan. 369, 372, 720 P.2d
1093.
[14] | Various public-policy considerations are the
principal justification for the doctrine. Primary among these
is the protection of the public fisc from lawsuits tending to
second-guess the allocation of scarce resources. Sawicki, 37
Ohio St.3d at 231, 525 N.E.2d 468. Because individuals,
juries, and courts are “ill-equipped to judge governmental
decisions as to how particular community resources should be
or should have been allocated to protect individual members
of the public,” courts have used the public-duty rule to shield
public entities from the “severe depletion of those resources”
that could result from imposing liability for “every oversight
or omission” by a public official. Ezell v. Cockrell
(Tenn.1995), 902 S.W.2d 394, 398; see, also, Tipton v.
Tabor (S.D.1997), 1997 SD 96, 567 N.W.2d 351, 356. In
Sawicki, for example, this court observed that there were
“insufficient police resources to meet every need” and that
“police departments must be able to prioritize and create
responses without the benefit of hindsight.” Sawicki, 37 Ohio
St.3d at 231, 525 N.E.2d 468.
[{15] In adopting the public-duty rule, this court was also
careful to distinguish it from the defense of sovereign
immunity, which this court had abolished as a common-law
defense for municipalities and counties in a series of decisions
in the 1980s. See, e.g., Zents v. Summit Cty. Bd. of Commrs.
(1984), 9 Ohio St.3d 204, 9 OBR 516, 459 N.E.2d 881;
Strohofer v. Cincinnati (1983), 6 Ohio St.3d 118, 6 OBR 178,
451 N.E.2d 787; Enghauser Mfg. Co. v. Eriksson Eng. Ltd.
(1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228.
Whereas immunity was an absolute defense to liability when
applicable, the public-duty rule “comported with the
principles of negligence, and was applicable to the
36a
determination of the extent to which a statute may encompass
the duty upon which negligence is premised.” Sawicki, 37
Ohio St.3d at 230, 525 N.E.2d 468; see, also, Williams v.
State (1983), 34 Cal.3d 18, 22- 23, 192 Cal.Rptr. 233, 664
P.2d 137. Accordingly, the abrogation of common-law
immunity for municipalities did not eliminate the public-duty
rule, which “was coexistent at common law with the doctrine
of sovereign immunity.” Sawicki, 37 Ohio St.3d at 230, 525
N.E.2d 468.
[{16] The Sawicki court also recognized an important
common-law exception to the public-duty rule. If a “special
relationship” existed between the injured party and the public
official--such that the latter assumed an affirmative duty to act
on behalf of the former--then the public-duty rule would not
bar government liability. Id. at paragraph four of the syllabus;
see, also, Cuffy v. New York City (1987), 69 N.Y.2d 255, 513
N.Y.S.2d 372, 505 N.E.2d 937. “If a special relationship is
demonstrated, then a duty is established, and inquiry will
continue into the remaining negligence elements.” Sawicki, 37
Ohio St.3d at 230, 525 N.E.2d 468.
[{17] Following Sawicki, this court extended the public-
duty rule beyond the area of local law enforcement to bar
governmental liability for alleged negligence in connection
with various duties imposed by statute or municipal
ordinance. See, e.g., Delman v. Cleveland Hts. (1989), 41
Ohio St.3d 1, 534 N.E.2d 835 (point-of- sale housing
inspection); Commerce & Industry Ins. Co. v. Toledo (1989),
45 Ohio St.3d 96, 543 N.E.2d 1188 (firefighting by municipal
fire department); Williamson v. Pavlovich (1989), 45 Ohio
St.3d 179, 543 N.E.2d 1242 (enforcement of municipal
parking ordinance); but, cf., Brodie v. Summit Cty. Children
Serv. Bd. (1990), 51 Ohio St.3d 112, 118-119, 554 N.E.2d
1301 (finding public-duty rule inapplicable when statute
37a
imposed affirmative duty for the specific benefit of children).
And in later decisions, this court extended Sawicki beyond
actions involving local government. In at least two cases
decided in the decade following Sawicki, this court applied the
public-duty rule to foreclose liability in actions against the
state in the Court of Claims. See Hurst v. Ohio Dept. of
Rehab. & Corr. (1995), 72 Ohio St.3d 325, 650 N.E.2d 104
(applying public-duty rule to bar liability for negligently
failing to detain parole violator); Anderson v. Ohio Dept. of
Ins. (1991), 58 Ohio St.3d 215, 569 N.E.2d 1042 (applying
public-duty rule to bar liability for negligent liquidation of
assets).* And even though a handful of states have rejected
the public-duty rule as a bar to government liability,” a
* This court also analyzed application of the public-duty rule in
Ashland Cty. Bd. of Commrs. v. Ohio Dept. of Taxation (1992), 63
Ohio St.3d 648, 590 N.E.2d 730, a case in which numerous county
boards of commissioners, boards of education, and auditors sought
to hold the Tax Commissioner responsible for alleged misfeasance
in assessing and apportioning the values of certain property. A close
reading of Ashland, however, reveals that this court held that the
Court of Claims lacked subject matter jurisdiction. 63 Ohio St. 3d
at 651-653, 690 N.E.2d 730. Thus, the case’s subsequent
discussion of the public-duty rule was dicta.
> See, e.g., Adams v. State (Alaska 1976), 555 P.2d 235; Ryan
v. State (1982), 134 Ariz. 308, 656 P.2d 597; Leake v. Cain
(Colo. 1986), 720 P.2d 152; Commercial Carrier Corp. v. Indian
River Cty. (Fla.1979), 371 So. 2d 1010; Fowler v. Roberts
(La.1990), 556 So. 2d 1; Jean W. v. Commonwealth (1993), 414
Mass. 496, 610 N.E.2d 305; Maple v. Omaha (1986), 222 Neb.
293, 384 N.W.2d 254; Doucette v. Bristol (1993), 138 N.H. 205,
635 A.2d 1387; Schear v. Bernalillo Cty. Bd. of Commrs. (1984),
101 N.M. 671, 687 P.2d 728; Brennen v. Eugene (1979), 285 Ore.
401, 591 P.2d 719; Coffey v. Milwaukee (1976), 74 Wis.2d 526,
247 N.W.2d 132; DeWald v. State (Wyo.1986), 719 P.2d 643.
38a
majority of jurisdictions that have considered the question
apply the doctrine in some form.°
° £4a} See, e.g., Williams v. State (1983), 34 Cal.3d 18, 192
Cal.Rptr. 233, 664 P.2d 137; Shore v. Stonington (1982), 187
Conn. 147, 444 A.2d 1379; Morgan v. Dist. of Columbia
(D.C.App.i983), 468 A.2d 1306; Ruf v. Honolulu Police Dept.
(1999), 89 Haw. 315, 972 P.2d 1081; Kolbe v. State (lowa 2001),
625 N.W.2d 721; Fudge v. Kansas City, 239 Kan. 369, 720 P.2d
1093; Cracraft v. St. Louis Park (Minn.1979), 279 N.W.2d 801;
State ex rel. Barthelette v. Sanders (Mo.1988), 756 S.W.2d 536;
Coty v. Washoe Cty. (1992), 108 Nev. 757, 839 P.2d 97; Cuffy v.
New York City, 69 N.Y.2d 255, 513 N.Y .Supp.2d 372, 505 N.E.2d
937; Catone v. Medberry (R.1.1989), 555 A.2d 328; Steinke v.
South Carolina Dept. of Labor (1999), 336 S.C. 373, 520 S.E.2d
142; Tipton v. Tabor (S.D.1997), 1997 SD 96, 567 N.W.2d 351;
Rollins v. Petersen (Utah 1991), 813 P.2d 1156; Chambers-
Castanes v. King Cty. (1983), 100 Wn. 2d 275, 669 P.2d 451;
Benson v. Kutsch (1989), 181 W.Va. 1, 380 S.E.2d 36.
{4b} Five other states--Georgia, Indiana, Michigan, North
Carolina, and Vermont--have applied the public-duty rule in a more
limited fashion. The supreme courts in Georgia and Indiana have
expressly declined to apply the public-duty rule beyond the context
of police and emergency services. See Dept. of Transp. v. Brown
(1996), 267 Ga. 6, 8-9, 471 S.E.2d 849 (limiting Rome v. Jordan
[1993], 263 Ga. 26, 426 S.E.2d 861); Benton v. Oakland City
(Ind.1999), 721 N.E.2d 224, 232-234 (limiting Mullin v. S. Bend
{Ind. 1994], 639 N.E.2d 278). Similarly, the Michigan Supreme
Court recently refused to extend the public-duty rule beyond cases
involving the alleged failure of a police officer to protect a plaintiff
from a third person’s criminal acts. Beaudrie v. Henderson (2001),
465 Mich. 124, 134-142, 631 N.W.2d 308 (limiting White v.
Beasley [1996], 453 Mich. 308, 552 N.W.2d 1). The North
Carolina Supreme Court has embraced the public-duty rule in suits
against the state but has declined to extend it to suits against
municipalities. Compare Stone v. North Carolina Dept. of Labor,
347 N.C. at 477-479, 495 S.E.2d 711 (applying public-duty rule to
en ee
Lo Pith ie Mined nb Po ded
39a
[{18] Consistent with this line of cases, the state urges us
to affirm the lower courts’ application of the public-duty rule
in this case. Because the fire marshal’s inspection duties are
owed to the public at large and because the appellants have
failed to establish a special relationship as defined in Sawicki,
the state argues that the public-duty rule is as applicable in
this context as it was in the cases in which we have previously
applied it. In addition to the state’s arguments for affirmance,
we are also cognizant of cases from other jurisdictions that
have applied the public-duty rule to bar government liability
for an allegedly negligent fire inspection--the gravamen of the
appellants’ claim in this case. See, e.g., Stone, 347 N.C. at
480-482, 495 S.E.2d 711; Cracraft v. St. Louis Park
(Minn. 1979), 279 N.W.2d 801, 805-807. Despite all of these
factors militating in favor of continued application of the
public- duty rule to suits against the state, we cannot adhere
to the doctrine without first determining whether it has a place
within the statutory scheme created by the legislature in R.C.
Chapter 2743.
bar claim against the state arising out of negligent failure to conduct
fire safety inspection), with Thompson v. Waters (2000), 351 N.C.
462, 464-465, 526 S.E.2d 650 (declining to extend public-duty rule
to insulate county from liability for negligent building inspection).
The Vermont Supreme Court has apparently drawn the same
distinction as North Carolina. Compare Sorge v. State (2000), 171
Vt. 171, 762 A.2d 816, 819-820 (applying public-duty rule and
special- relationship exception to an action against the state alleging
negligent supervision of juvenile in custody), with Hudson v. E.
Montpelier (1993), 161 Vt. 168, 179, 638 A.2d 561 (expressly
declining to adopt the public-duty rule in an action alleging
negligence by municipal employees).
40a
iil
[419] Although this court has applied the public-duty rule
to suits against the state in the Court of Claims, this court has
not specifically analyzed whether application of the doctrine
is compatible with the express language contained in R.C.
Chapter 2743. Of specific importance is R.C. 2743.02(A)(1),
which states:
[420] “The state hereby waives its immunity from
liability 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
* * * ” (Emphasis added.)
[421] The parties do not dispute that R.C. Chapter 2743
does not “set forth” the public-duty rule as a limitation to the
state’s liability for tortious conduct. The viability of the
doctrine in suits against the state therefore depends on
whether we can fairly characterize the public-duty rule as a
rule of law “applicable to suits between private parties.”
More specifically, we must decide whether the public-duty
rule is compatible with the legal rules governing ordinary
negligence suits involving private parties in the common pleas
courts. We agree with the appellants that it is not.
[422] The appellants in this case seek to hold the fire
marshal responsible for damages on a negligent-inspection
theory of liability. It is well settled that the elements of an
ordinary negligence suit between private parties are (1) the
existence of a legal duty, (2) the defendant’s breach of that
duty, and (3) injury that is the proximate cause of the
defendant’s breach. Mussivand v. David (1989), 45 Ohio
AO le AS OY
4la
St.3d 314, 318, 544 N.E.2d 265. The duty element of
negligence, with which courts have linked the public-duty
rule, is a question of law for the court to determine. Id.
[{23] “Duty, as used in Ohio tort law, refers to the
relationship between the plaintiff and the defendant from
which arises an obligation on the part of the defendant to
exercise due care toward the plaintiff.” Commerce & Industry
Ins. Co., 45 Ohio St.3d at 98, 543 N.E.2d 1188; see, also,
Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217, 556
N.E.2d 505. This court has often stated that the existence of
a duty depends upon the foreseeability of harm: if a
reasonably prudent person would have anticipated that an
injury was likely to result from a particular act, the court
could find that the duty element of negligence is satisfied.
Texler v. D.O. Summers Cleaners & Shirt Laundry Co.
(1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 271; Commerce
& Industry, 45 Ohio St.3d at 98, 543 N.E.2d 1188; Menifee
v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, Tas
15 OBR 179, 472 N.E.2d 707. In addition, we have also
stated that the duty element of negligence may be established
by common law, by legislative enactment, or by the particular
circumstances of a given case. Chambers v. St. Mary’s
School (1998), 82 Ohio St.3d 563, 565, 697 N.E.2d 198;
Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 0.0.
274, 119 N.E.2d 440, paragraph one of the syllabus.
Admittedly, however, the concept of duty in negligence law
is at times an elusive one. As this court explained in
Mussivand:
[{24] “There is no formula for ascertaining whether a
duty exists. Duty ‘* * * is the court’s “expression of the sum
total of those considerations of policy which lead the law to
say that the particular plaintiff is entitled to protection.”
(Prosser, Law of Torts (4th ed.1971) pp. 325-326.) Any
42a
number of considerations may justify the imposition of duty
in particular circumstances, including the guidance of history,
our continually refined concepts of morals and justice, the
convenience of the rule, and social judgment as to where the
loss should fall. (Prosser, Palsgraf Revisited (1953), 52
Mich.L.Rev. 1, 15).’” Id., 45 Ohio St.3d at 318, 544
N.E.2d 265, quoting Weirum v. RKO Gen., Inc. (1975), 15
Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36. See,
generally, Palsgraf v. Long Island RR. Co. (1928), 248 N.Y.
339, 162 N.E. 99.
[425] In light of Mussivand’s explanation of the duty
element, there is a substantial argument that the public-duty
rule is merely an expression of policy that leads us to
conclude that private interests are not generally entitled to
protection against conduct by public officials performing
public duties. See Shore v. Stonington (1982), 187 Conn. 147,
152, 444 A.2d 1379. And were we deciding this case in the
same context in which we decided Sawicki--in an immunity
vacuum and applying purely common-law principles--we
might be more willing to decide that the public- duty rule
“comports with the principles of negligence” by aiding the
court in a determination of whether a duty imposed upon a
public employee “may encompass the duty upon which
negligence is premised.” Sawicki, 37 Ohio St.3d at 230, 525
N.E.2d 468. But unlike in Sawicki, our analysis of common-
law negligence principles here is tempered by statutory
dictates.
[426] To accept the state’s contention that the public-duty
rule is applicable here because it “determines whether a
defendant has any duty to begin with” ignores a vital feature
of the doctrine that is incompatible with R.C. 2743.02(A)(1).
The applicability of the public-duty rule depends upon the
public status of the particular defendant raising it as a bar to
43a
liability. In other words, only governmental entities and their
employees may rely on the rule. It is spurious logic to
conclude that a doctrine that is, by definition, available only
to public defendants can be consistent with a statute
mandating that suits be determined in accordance with rules
of law applicable to private parties. See Leake v. Cain
(Colo. 1986), 720 P.2d 152, 159-160 (holding that the public-
duty rule contravened Colorado statute providing that
“liability of the public entity shall be determined in the same
manner as if the public entity were a private person,”
Colo.Rev.Stat. 24-10-107); Brennen v. Eugene (1979), 285
Ore. 401, 411, 591 P.2d 719 (“any distinction between
‘public’ and ‘private’ duty is precluded by statute in this
state”). The limitation on liability occasioned by the public-
duty rule subjects a plaintiff suing in the Court of Claims to
a heightened burden of establishing the duty element of
negligence that would not exist if that same plaintiff were
suing a private defendant in common pleas court. See Adams
v. State (Alaska 1976), 555 P.2d 235, 242. Given the
unambiguous directive of R.C. 2743.02(A), there is no legal
or logical basis to conclude that the public-duty rule, which is
by definition unavailable to private litigants, can apply to suits
against the state in the Court of Claims.’
? Justice Lundberg Stratton’s dissenting opinion surmises that
our holding, which depends upon the statutory language of R.C.
2743.02(A), could lead to the “unintended consequence” of
invalidating Civ.R. 62(C), which permits the state to obtain a stay
of a judgment without the necessity of providing a bond. This
contention is remarkable, for our holding cannot lead to any such
result. It is one thing to say, as we do today, that a common-law
rule is incompatible with statutory language setting forth the general
public policy of Ohio in the area of suits in the Court of Claims. It
is quite another thing to contend that duly enacted rules or statutes
would be equally invalidated. See, e.g., Rockey v. 84 Lumber Co.
44a
[{27] In coming to this conclusion, we acknowledge the
contrary interpretation of R.C. 2743.02(A)(1) expressed over
twenty-five years ago in Shelton v. Indus. Comm. (1976), 51
Ohio App.2d 125, 5 O.0.3d 286, 367 N.E.2d 51. In Shelton,
also a case alleging an injury resulting from a negligent safety
inspection, the court of appeals opted for a narrower
interpretation of the language providing for state liability in
accordance with the same rules of law applicable to suits
between private parties:
[28] “Construing that provision more narrowly, one
could say that a private party’s duty to inspect and to enforce
safety standards is not created by statute, but only by virtue
of some other legal relationship and, hence, there is no rule
of law making a private party liable for a failure to perform
statutory duties of inspection and enforcement of safety
standards which were enacted to protect the health, safety,
and welfare of all of the citizens of Ohio.” 51 Ohio App. 2d
at 130, 5 0.0.3d 286, 367 N.E.2d 51.
[429] Using this reasoning, the court of appeals held that
an action could not lie against the Industrial Commission
when the breach of duty giving rise to governmental liability
arose only by statute. Other courts have used a similar mode
of analysis to reconcile the public-duty rule with statutory
waivers of sovereign immunity worded similarly to R.C.
(1993), 66 Ohio St.3d 221, 611 N.E.2d 789, paragraph two of the
syllabus (“The Ohio Rules of Civil Procedure, which were
promulgated by the Supreme Court pursuant to Section 5(B),
Article IV of the Ohio Constitution, must control over subsequently
enacted inconsistent statutes purporting to govern procedural
matters”); R.C. 1.51 (announcing general rule of construction that
specific provision controls over a general one when provisions are
in irreconcilable conflict).
45a
2743.02(A)(1). See, e.g., Stone, 347 N.C. at 478-479, 495
S.E.2d 711. At first glance, the Skelton line of reasoning may
carry with it some superficial appeal as a way to reconcile
R.C. 2743.02(A)(1) with the public- duty rule. We reject this
attempted reconciliation, however, because accepting it would
run contrary to other areas of Ohio tort law.®
[{30] Shelton’s reasoning operates on the unstated
premise that statutes creating duties for governmental actors
cannot satisfy the duty element for purposes of the state’s
liability for negligence because there are no statutory duties
that may similarly bind private parties. Cases from this court,
however, suggest otherwise. We have expressly stated that a
duty, for purposes of a negligence claim, may arise out of a
legislative enactment. Chambers, 82 Ohio St.3d at 565, 697
N.E.2d 198; see, also, Gelbman v. Second Natl. Bank of
Warren (1984), 9 Ohio St.3d 77, 79, 9 OBR 280, 458 N.E.2d
1262. And this court has cited statutory law as a means of
addressing whether the duty element was satisfied in
negligence suits against private parties. See, e.g., Mussivand,
45 Ohio St.3d at 320, 544 N.E.2d 265; Shroades v. Rental
Homes (1981), 68 Ohio St.2d 20, 22 0.0.3d 152, 427
N.E.2d 774. Thus, as a general matter, government actors are
not alone in having duties imposed upon them by statute. The
* Justice Lundberg Stratton’s dissent points to legislative silence
following Shelton as purported evidence of the General Assembly’s
endorsement of the court of appeals’ interpretation of R.C.
2743.02(A). A legislature does not, however, express its will by
failing to legislate. “‘The act of refusing to enact a law *** has
utterly no legal effect, and thus has utterly no place in a serious
discussion of the law.’” Rice v. CertainTeed Corp. (1999), 84 Ohio
St.3d 417, 421, 704 N.E.2d 1217, quoting United States v. Estate
of Romani (1998), 523 U.S. 517, 535, 118 S. Ct. 1478, 140 L. Ed.
2d 710 (Scalia, J., concurring in part and concurring in judgment).
46a
fact that a statute may impose a duty to act, even if a private
person would not have such a duty, “does no more than
identify the source of the duty.” Jean W. v. Commonwealth
(1993), 414 Mass. 496, 508, 610 N.E.2d 305 (Liacos, C.J.,
concurring); see, also, Beaudrie v. Henderson (2001), 465
Mich. 124, 140, 631 N.W.2d 308.
[431] Accordingly, we hold that the public-duty rule is
incompatible with R.C. 2743.02(A)(1)’s express language
requiring that the state’s liability in the Court of Claims be
determined “in accordance with the same rules of law
applicable to suits between private parties.” In negligence
suits against the state, the Court of Claims must determine the
existence of a legal duty using conventional tort principles
that would be applicable if the defendant were a private
individual or entity. This court’s decisions applying the
public-duty rule in actions brought in the Court of Claims are
necessarily overruled to the extent inconsistent with our
decision today.’
* Baum v. Ohio State Hwy. Patrol (1995), 72 Ohio St.3d 469,
650 N.E.2d, 1347, is not one of the cases that we overrule today. It
is true that Baum, which precluded liability for negligence arising
out of a state trooper’s operation of his vehicle while responding to
an emergency call, cited Sawicki for the proposition that “liability
under R.C. Chapter 2743 cannot be imposed since the action did
not result from the breach owed to the particular plaintiff.” Id. at
471-472, 650 N.E.2d 1347. Baum did not, however, involve the
public-duty rule. Baum held that the state was immune from liability
unless a state trooper committed willful or wanton misconduct while
operating his or her vehicle in response to an emergency call. Id.
at syllabus. If Baum had truly hinged on the public-duty rule, there
would have been no need for us to address whether the state was
entitled to an immunity defense. See Sawicki, 37 Ohio St.3d at 230,
525 N.E.2d 468.
47a
IV
[432] In declaring the public-duty rule inapplicable to
suits against the state in the Court of Claims, we are mindful
of the various public policies that courts have used to justify
application of the rule. Indeed, the public policies that this
court cited in Sawicki--the integrity of the public fisc and the
need to avoid judicial intervention into policy decisions--are
as significant now as they were when Sawicki was decided.
For several reasons, however, the policy rationales that have
supported application of the public-duty rule are not as
compelling when applied to suits against the state in the Court
of Claims.
[433] First, no matter what considerations of policy
support the judicial application of the public-duty rule, we
must remember that R.C. Chapter 2743 has legislatively set
forth the public policy of this state. That policy, expressed in
R.C. 2743.02(A)(1), is to allow suits against the state
according to the same rules as between private parties,
“except that the determination of liability is subject to the
limitations set forth in this chapter.” (Emphasis added.) As
we have stated previously, the public-duty rule is neither “set
forth” in R.C. Chapter 2743 nor a rule of law applicable to
suits between private parties. It is inappropriate for the court
to engraft the public-duty rule as an additional limitation on
liability that the General Assembly has not provided. If the
public-duty rule is to become a rule of substantive law
applicable to suits in the Court of Claims, it is the General
Assembly--the ultimate arbiter of public policy--that should
make it so by way of legislation."® It is not this court’s role
'0 See, e.g., Wilson v. Anchorage (Alaska 1983), 669 P.2d 569,
571 (noting that the Alaska legislature immunized public entities
a
48a
to apply a judicially created doctrine when faced with
statutory language that cuts against its applicability.
[434] Second, there are already important safeguards in
our jurisprudence that satisfy the public-policy concerns
addressed by the public-duty rule. In Reynolds v. State
(1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776, a
case in which this court squarely addressed the meaning of
R.C. 2743.02(A)(1), this court acknowledged that the state’s
potential liability under R.C. Chapter 2743 is not unbounded.
Analogizing to its earlier holdings concerning the limitations
on the abrogation of municipal immunity, this court rejected
the notion that the General Assembly’s abrogation of
sovereign immunity in’R-C. 2743.02 extended to essential
acts of governmental decisionmaking. Id. at 70, 471 N.E.2d
776; see, also, Enghauser Mfg. Co., 6 Ohio St.3d at 35, 6
OBR 53, 451 N.E.2d 228. Accordingly, this court held:
from liability based on negligent safety inspections of private
property following Adams, 555 P.2d 235, in which the Alaska
Supreme Court refused to recognize the public-duty rule); Clouse
v. State (2001), 199 Ariz. 196, 199, 16 P.3d 757 (noting that
Arizona legislature reinstated immunity for variety of public
functions following abrogation of the public-duty rule in Ryan v.
State [1982], 134 Ariz. 308, 656 P.2d 597); Persilver v. Louisiana
Dept. of Transp. (La.App.1991), 592 So. 2d 1344, 1347, fn. 2
(noting that Louisiana statute providing immunity for discretionary
acts supersedes Louisiana Supreme Court’s rejection of public-duty
rule in Fowler, 556 So. 2d 1); Barry, Brum v. Town of Dartmouth
and the Public Duty Rule: Navigating an Interpretive Quagmire
(2000), 41 B.C. L. Rev. 383, 410-413 (chronicling the
Massachusetts legislature’s reinstatement of some aspects of the
public-duty rule following judicial abrogation of the doctrine in
Jean W., 414 Mass. 496, 610 N.E.2d 305)
49a
[435] “The language in R.C. 2743.02 that ‘the state’ shall
‘have its liability determined * * * in accordance with the
same rules of law applicable to suits between private parties
* * *° means that the state cannot be sued for its legislative or
judicial functions or the exercise of an executive or planning
function involving the making of a basic policy decision
which is characterized by the exercise of a high degree of
official judgment or discretion. However, once the decision
has been made to engage in a certain activity or function, the
state may be held liable, in the same manner as private
parties, for the negligence of the actions of its employees and
agents in the performance of [that activity or function].”
Reynolds at paragraph one of the syllabus; accord Garland v.
Ohio Dept. of Transp. (1990), 48 Ohio St.3d 10, 11, 548
N.E.2d 233.
[436] The law as set forth in Reynolds, which we today
reaffirm, addresses public-policy concerns identical to those
that courts have used to justify the public- duty rule. That the
state already enjoys some measure of qualified immunity for
discretionary functions cuts against recognition of an
additional rule insulating public entities from liability merely
because of their public status. See Ryan v. State (1982), 134
Ariz. 308, 310, 656 P.2d 597 (holding that Arizona’s
statutory immunity for discretionary acts “should allay these
fears” that “people will be afraid to act in official capacities”
after abrogation of public-duty rule); Hudson v. E. Montpelier
(1993), 161 Vt. 168, 178-179, 638 A.2d 561 (declining to
adopt the public-duty rule as a means of limiting municipal
liability when qualified official immunity for discretionary
functions already existed). Even without the public-duty rule,
the state already enjoys a fair degree of protection from
litigious second-guessing of discretionary governmental
decisions that necessarily involve difficult choices about how
to allocate the state’s resources. In this case, for example,
50a
Reynolds arguably bars liability for the fire marshal’s actions
if the appellants’ harm resulted from a discretionary executive
decision to forgo a seasonal inspection; if, on the other hand,
the fire marshal’s negligent performance of an inspection was
the proximate cause of the appellants’ harm, R.C.
2743.02(A)(1) allows for liability against the state."
[437] Third, and perhaps imost significant, our rejection
of the public-duty rule’s application to suits in the Court of
Claims does not automatically open the floodgates to
excessive governmental liability. For one thing, the absence
of the public-duty rule will not automatically result in new
duties--and thereby new causes of action--that could impose
tort liability on the state. This court has previously stated that
“R.C. 2743.02(A) does not create a new right of action
against the state, but places the state upon the same level as
any private party.” McCord v. Ohio Div. of Parks &
Recreation (1978), 54 Ohio St.2d 72, 74, 8 O.0.3d 77, 375
N.E.2d 50. Thus, suits against the state are inherently limited
by the type of action asserted against it; if the cause of action
is not cognizable as between private parties, then there can
likewise be no state liability. For instance, actions (unlike this
case) that do not sound in tort but seek recovery purely for a
statutory violation will not necessarily lie against the state--
particularly if the statute in question provides no private right
'' Thus, Justice Resnick’s dissent grossly mischaracterizes (or
misunderstands) our holding by insisting that our decision subjects
the fire marshal to liability for “deciding to postpone a cursory,
discretionary, and seasonal inspection.” Infra at P52 (Resnick, J.,
dissenting). If the dissent’s contention were true, it would amount
to an implicit overruling of Reynolds. Our reaffirmation today of
the Reynolds syllabus--namely, the recognition that the state cannot
be held liable for highly discretionary decisions--refutes any such
claim.
Sla
of action. Cf. Smith v. Wait (1975), 46 Ohio App.2d 281,
283-286, 75 Ohio Op. 2d 560, 350 N.E.2d 431 (finding no
state liability in an action alleging violations of statutory
provisions concerning registration of securities).
[{38] For another thing, conventional negligence
principles already provide some measure of protection against
the possibility of the state becoming the de facto guarantor of
every injury somehow attributable to the actions of a state
tortfeasor. A state defendant, just like any private defendant,
remains protected by traditional tort concepts of duty,
including foreseeability and pertinent public-policy
considerations. Leake v. Cain, 720 P.2d at 160; Chambers-
Castanes v. King Cty. (1983), 100 Wn. 2d 275, 292, 669
P.2d 451 (Utter, J., concurring in the result). Moreover, our
tort law already requires a special relationship in order to
satisfy the duty element in certain types of negligence actions,
such as actions based on failure to act or failure to control the
conduct of a third person. See Littleton v. Good Samaritan
Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92, 529
N.E.2d 449: Hill v. Sonitrol of Southwestern Ohio, Inc.
(1988), 36 Ohio St.3d 36, 39, 521 N.E.2d 780; see, also, 2
Restatement of the Law 2d, Torts (1965) 116-122, Sections
314-315.'2 Thus, when a duty is neither imposed by statute
nor undertaken by an instrumentality of the state, the state
defendant is already insulated from liability based on a failure
to act. See, e.g., Juliano v. Ohio Dept. of Health (1985), 18
Ohio St.3d 303, 304, 18 OBR 350, 480 N.E.2d 817 (finding
2 Our recognition that this principle applies to both state and
private defendants renders puzzling the dissent’s claim that today’s
decision somehow imposes an affirmative duty to act upon state
defendants that would not exist for private defendants. See infra at
P90-93, 95-98, 104-106 (Resnick, J., dissenting). We have said
quite the opposite.
EE
52a
no liability for failure to inspect diving board when statute
imposed no such duty); cf. Lopatkovich v. Tiffin (1986), 28
Ohio St.3d 204, 207, 28 OBR 290, 503 N.E.2d 154 (snow
removal ordinance was at most a “duty to assist the city,” did
not “raise a duty on owners and occupiers to the public at
large,” and therefore could not form basis for negligence
liability). A plaintiff must also shoulder the burden of
establishing proximate cause, which could be exceedingly
difficult in cases where the governmental conduct alleged to
have caused injury is particularly attenuated or exacerbated by
intervening circumstances. “Especially in instances where the
public employee’s purported negligence stems from a failure
to prevent or to mitigate a harmful situation that he did not
cause, a plaintiff's burden of establishing proximate cause will
be significant.” Jean W. v. Commonwealth, 414 Mass. at
511-512, 610 N.E.2d 305 (Liacos, C.J., concurring); see,
also, Brennen, 285 Ore. at 408, 591 P.2d 719 (“the
requirement that the risk created by the activity of the
municipal agent fall with the ‘zone of foreseeability’ imposes
an additional limitation on the scope of governmental
liability”).
[§39] For all of these reasons, the public-policy rationales
that supported our adoption of the public-duty rule in Sawicki
do not carry the same force when analyzing whether the
doctrine should apply to suits against the state in the Court of
Claims. Given the legislature’s expression of public policy in
the text of R.C. 2743.02(A)(1) and the built-in safeguards
against excessive governmental liability already in place, we
find no reason to continue Sawicki’s extension to suits brought
under R.C. Chapter 2743."
'> Insofar as Sawicki dealt only with municipal liability, we
have no occasion to overrule it or any of our decisions applying the
53a
Vv
[440] For the foregoing reasons, we reject the public-duty
rule as a bar to the state’s liability for negligence in actions
brought in the Court of Claims. Because we hold that the
public-duty rule is inconsistent with the statutory language of
R.C. 2743.02(A)(1), we need not reach the appellants’
arguments challenging the constitutionality of the doctrine.
See State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d 1,
7, 716 N.E.2d 1114 (“Courts decide constitutional issues only
when absolutely necessary”). We also decline to address two
other issues raised by the parties on this appeal: (1) the
appellants’ proposition concerning the proper foreseeability
standard in assessing issues regarding proximate causation and
(2) the state’s alternate argument for affirmance based on the
fire marshal’s discretionary- function immunity. Because the
court of appeals held that the public-duty rule barred the
appellants’ claims, it had no occasion to reach these issues;
accordingly, we will leave those issues for the court of
appeals to resolve, if necessary, on remand.
[441] The judgment of the court of appeals is reversed,
and the cause is remanded for further proceedings not
inconsistent with this opinion.
Judgment reversed and cause remanded.
public-duty rule to actions not brought under R.C. Chapter 2743.
Various courts of appeals, however, have considered Sawicki
(among other cases) to have been legislatively superseded by the
General Assembly’s enactment of R.C. Chapter 2744. See, e.g.,
Sudnik v. Crimi (1997), 117 Ohio App.3d 394, 397, 690 N.E.2d
925: Franklin v. Columbus (1998), 130 Ohio App.3d 53, 59-60,
719 N.E.2d 592; Amborski v. Toledo (1990), 67 Ohio App.3d 47,
51, 585 N.E.2d 974.
54a
DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs separately.
MOYER, C.J., RESNICK and LUNDBERG STRATTON,
JJ., dissent.
LUNDBERG STRATTON, J., dissents.
DOUGLAS, J., concurring.
[442] Justice Cook has, with surgical skill, dissected the
so-called public- duty rule and, in the process, has shown why
the rule has no efficacy or relevance in Ohio. The intellectual
honesty of the opinion, drawing its conclusions from the facts
as opposed to trying to make the law and facts fit
preconceived notions, makes it difficult for the dissenters to
mount a credible argument in opposition to the majority
opinion. Perhaps that is why both dissents carry on, page after
page, citing fact patterns and cases that have no relevance to
the case at bar.
[443] Justice Cook has, for all to see and understand,
explained ‘the clear differences between the doctrine of
sovereign immunity as it applies to the state on the one hand,
and to municipalities on the other. Yet even though the case
now before us involves the state, both dissents continue to
confuse the concepts by citing and relying on the inapplicable
Sawicki v. Ottawa Hills (1988), 37 Ohio-St.3d 222, 525
N.E.2d 468--a case arising out of municipal tort liability. The
failure to grasp this basic distinction is why we now find the
law of Ohio to be confused in its application in these types of
cases.
55a
[444] It would be an easy task to respond to the dissents
point by point, but since they both start with a faulty premise
and go downhill from there, not much would be gained by
doing so. Just one statement from each should suffice.
[445] Justice Resnick, in discussing the doctrine of
sovereign immunity, states that “it functions to exempt
government from the usual liability that flows from the breach
of an established duty of care.” Well, yes, that is exactly what
it does. Justice Resnick says that that is OK. Many of us now
say that it is not OK. How one justifies that a governmental
entity can injure one of its citizens without liability but if the
same injury is caused by a fellow citizen liability attaches
escapes many of us and lies at the heart of our disagreement.
[446] Justice Stratton says about the majority opinion that
“the reasoning is so internally inconsistent that I find it
difficult to even argue against.” Now that is strange. A
proposition that is so internally inconsistent should be an easy
mark. It could be, of course, that the lack of any real law
contrary to the majority opinion is the reason it is difficult to
argue against.
[447] But it is not the issue of whether they are wrong
and we are right or vice versa that determines the outcome.
The outcome is determined by the law of this state and the
framers of our Constitution and makers of our statutes. It
should not escape interested readers that both dissents, by
necessity and convenience, ignore the real law in the case--
Section 16, Article I of the Ohio Constitution. In a separate
sentence, which seems to have no particular relevance to the
other sentence of the section, the framers provided that “suits
may be brought against the state, in such courts and in such
manner, as may be provided by law.” No limitations, other
than place and manner, are set forth. No sovereign immunity
’
S6a
exception. No public-duty exception. Nothing but simple
language--the state may be sued.
[448] Given the constitutional language, nothing more
was needed. But maybe just to be sure, the General Assembly
enacted R.C. 2743.02(A)(1), which provides that “the state
hereby waives its immunity from liability and consents to be
sued, and have its liability determined * * * in accordance
with the same rules of law applicable to suits between private
parties * * *.” Justice Cook has now explained what all of
that means. The dissenters have ignored the constitutional
language.
[449] Notwithstanding the constitutional language, the
dissenters say that there are limitations on the state’s liability
and that those limitations come dressed up as the “public-duty
rule.” If this premise is accepted, then it must logically follow
that without a corresponding amendment to the Constitution,
the General Assembly could provide that no suit could be
brought against the state. This obviously is not and could not
be the law.
[{50] Justice Cook has done the law a great service. The
opinion déserves to be supported, not denigrated. I
respectfully concur.
ALICE ROBIE RESNICK, J., dissenting.
[§51] I am hardly one who concedes infallibility to legal
precedent, however long or recently established. See, e.g.,
Wright v. Bloom (1994), 69 Ohio St.3d 596, 635 N.E.2d 31
(overruling paragraph two of the syllabus of Jn re Estate of
Thompson [1981], 66 Ohio St.2d 433, 20 0.0.3d 371, 423
N.E.2d 90); Clark v. Southview Hosp. & Family Health Ctr.
(1994), 68 Ohio St.3d 435, 438, 628 N.E.2d 46 (overruling
57a
paragraph four of the syllabus of Albain v. Flower Hosp.
[1990], 50 Ohio St.3d 251, 553 N.E.2d 1038). Nor am I
inclined to view preexisting conceptions of duty as immutable
or sacrosanct. See Estates of Morgan v. Fairfield Family
Counseling Ctr. (1997), 77 Ohio St.3d 284, 297-298, 673
N.E.2d 1311. But if our decisions are to afford any stability
or certainty to the law, then the principles they embrace--
those founded on sound reason and well suited to the interest
of justice--should not be discarded at will.
[452] Today’s majority, relying primarily on a statute that
is irrelevant to the matter at hand, suddenly abolishes a long-
established, well-respected, and prevalent legal doctrine ina
case that demonstrates, better than most others, the necessity
of its retention. By abandoning the so-called public-duty rule
in claims against the state, the majority subjects the fire
marshal to liability for deciding to postpone a cursory,
discretionary, and seasonal inspection at the Ohio River
Fireworks store in order to conduct a “buy bust” to expose
that facility’s illegal sale of more dangerous Class B fireworks
to unauthorized purchasers. By the same token, the majority’s
decision would apply to subject the fire marshal to liability
had he decided to conduct the inspection rather than the buy
bust and members of the public were subsequently harmed or
killed by Class B fireworks in the hands of an unauthorized
purchaser. It is exactly this kind of judicial interference with
governmental decision-making and deployment of community
resources that marks the public-duty doctrine as a cogent,
viable, and compelling feature of the common law. For these
and the following reasons, i must respectfully, but
strenuously, dissent.
[453] The ascendancy of the public-duty doctrine in this
country, and its concomitant “special-reiationship exception, ”
is often attributed to the United States Supreme Court's
58a
decision in South v. Maryland (1855), 59 U.S. (18 How.)
396, 15 L. Ed. 433. In that case, the plaintiff was abducted,
held for several days, and released only when he obtained the
ransom demanded by his kidnappers. According to the
plaintiff, the local sheriff knew he had been kidnapped and
where he was detained, yet did nothing to secure his release
or arrest the kidnappers. The plaintiff sued the sheriff on his
official bond, claiming that “the sheriff did not well and truly
execute and perform the duties required of him by the laws”
of the state of Maryland. 59 U.S. at 401, 18 How. 396, 15 L.
Ed. 433.
[454] The plaintiff received a judgment against the sheriff
in the circuit court, but the Supreme Court reversed the
award. In so doing, the high court held, “It is an undisputed
principle of the common law, that for a breach of a public
duty, an officer * * * is amenable to the public, and
punishable by indictment only.” 59 U.S. at 402-403, 18 How.
396, 15 L. Ed. 433. The court noted, however, that an
exception may lie where there exists a “special individual
right, privilege, or franchise in the plaintiff, from the
enjoyment of which he has been restrained or hindered by the
malicious act of the sheriff.” 59 U.S. at 403, 18 How. 396,
15 L. Ed. 433.
[455] A substantial majority of jurisdictions now adhere
to the principle that the duties of public officers and
employees ordinarily are owed exclusively to the body politic
with whom they contracted, and are enforceable only
administratively or by criminal proceedings. Those duties are
not owed to individuals who may be affected by their breach
but on whose behalf the employees have not assumed to act.
Accordingly, state or local governmental bodies cannot be
held liable at common law for the breach of a duty owed
generally to the public as such, but can be held liable for the
59a
breach of a duty owed specially to individual members of the
public. Correlatively, a governmental entity cannot be held
liable for negligence in failing to enforce or carry out its
public duties under a regulatory or penal statute absent a
special relationship between the government and the injured
plaintiff or a statutory provision to the contrary.
[456] At the heart of the public-duty doctrine lies an
assemblage of cogent policy considerations that operate to
define the extent to which it is economically and socially
feasible to subject governmental units to the loss-distributing
function of tort law. These considerations include most
prominently the need to preserve the already limited
governmental resources that are available to protect the public
health, safety, and welfare, the principle that courts should
not interfere with or second-guess the policy decisions made
by the other branches of government, particularly with regard
to the proper allocation of community resources and services,
and the likelihood that unlimited exposure to liability would
threaten effective governmental functioning for socially
desirable ends. Without the doctrine’s protection, the
government would be confronted with limitless,
unpredictable, and, in extreme circumstances, catastrophic
liability, which could drain the very resources that are needed
in the first instance to promote the public safety and welfare.
Aside from damages, governmental entities would incur
considerable expenses in defending the lawsuits. Most suits
will survive pretrial dismissal or summary judgment motions,
since the element of causation, which is almost always a
question of fact, will come to replace duty as the
determinative issue. In addition, a contrary rule, one whose
duty element is satisfied by foreseeability alone, would invite
judicial scrutiny of every action taken, as well as every action
that could have been but was not taken, by the other branches
of government that has some effect in the public domain.
60a
Such a rule would subject the entire panoply of policy and
enforcement decisions routinely made by the political
branches to judicial oversight every time a particular injured
plaintiff finds that its employees failed to properly execute
their public duties or ward against harm caused by a third
party. Moreover, in the absence of a special duty or
relationship, it has always been considered unjust and beyond
the function of tort law to impose a duty on any party to act
affirmatively to protect another from being harmed by a
condition or situation that the party neither created nor
exacerbated. There is no legitimate reason for dispensing with
this principle merely because the defendant is a governmental
body. It is the sum total of these and other considerations of
policy that has led the majority of courts to adopt the
doctrine’s essential general-duty/special-duty dichotomy. See
Shearer v. Gulf Shores (Ala:1984), 454 So. 2d 978; Williams
v. State (1983), 34 Cal.3d 18, 192 Cal.Rptr. 233, 664 P.2d
137; Shore v. Stonington (1982), 187 Conn. 147, 444 A.2d
1379; Namauu v. Honolulu (1980), 62 Hawaii 358, 614 P.2d
943; Ruf v. Honolulu Police Dept. (1999), 89 Haw. 315, 972
P.2d 1081; Ransom v. Garden City (1987), 113 Idaho 202,
743 P.2d 70; Kolbe v. State (lowa 2001), 625 N.W.2d 721;
Robertson v. Topeka (1982), 231 Kan. 358, 644 P.2d 458;
Ashburn v. Anne Arundel Cty. (Md.1986), 306 Md. 617, 510
A.2d 1078; Williams v. Mayor of Baltimore (2000), 359 Md.
101, 753 A.2d 41; Cracraft v. St. Louis Park (Minn.1979),
279 N.W.2d 801; Hage v. Stade (Minn.1981), 304 N.W.2d
283; State ex rel. Barthelette v. Sanders (Mo.1988), 756
S.W.2d 536; Jungerman v. Raytown (Mo.1996), 925 S.W.2d
202; Phillips v. Billings (1988), 233 Mont. 249, 758 P.2d
772; Frye v. Clark Cty. (1981), 97 Nev. 632, 637 P.2d 1215;
Coty v. Washoe Cty. (1992), 108 Nev. 757, 839 P.2d 97;
Motyka v. Amsterdam (1965), 15 N.Y.2d 134, 256 N.Y.S.2d
595, 204 N.E.2d 635; O’Connor v. New York City (1983), 58
N.Y.2d 184, 460 N.Y.S.2d. 485, 447 N.E.2d 33; Cuffy v.
ve een de
6la
New York City (1987), 69 N.Y.2d 255, 513 N.Y.S.2d 372,
505 N.E.2d 937; Stone v. North Carolina Dept. of Labor
(1998), 347 N.C. 473, 495 S.E.2d 711; Melendez v.
Philadelphia (1983), 320 Pa.Super. 59, 466 A.2d 1060;
Catone v. Medberry (R.1.1989), 555 A.2d 328; Barratt v.
Burlingham (R.1. 1985), 492 A.2d 1219; Orzechowski v.
Rhode Island (R.1.1984), 485 A.2d 545; Bellamy v. Brown
(1991), 305 S.C. 291, 408 S.E.2d 219; Steinke v. South
Carolina Dept. of Labor, Licensing & Regulation (1999), 336
S.C. 373, 520 S.E.2d 142; Washington v. Lexington Cty. Jail
(App.1999), 337 S.C. 400, 523 S.E.2d 204; Tipton v. Tabor
(S.D.1997), 1997 SD 96, 567 N.W.2d 351; Ezell v. Cockrell
(Tenn.1995), 902 S.W.2d 394; Vaquera v. Salas
(Tex.App.1991), 810 S.W.2d 456; Rollins v. Petersen (Utah
1991), 813 P.2d 1156; Sorge v. State (2000), 171 Vt. 171,
762 A.2d 816; Chambers-Castanes v. King Cty. (1983), 100
Wn. 2d 275, 669 P.2d 451; Oberg v. Dept. of Natural
Resources (1990), 114 Wn. 2d 278, 787 P.2d 918; Benson v.
Kutsch (1989), 181 W.Va. 1, 380 S.E.2d 36; Holsten v.
Massey (1997), 200 W.Va. 775, 490 S.E.2d 864; Walker v.
Meadows (1999), 206 W.Va. 78, 521 S.E.2d 801;
Annotation, Modern Status of Rule Excusing Governmental
Unit from Tort Liability on Theory That Only General, Not
Particular, Duty Was Owed under Circumstances (1985), 38
A.L.R.4th 1194; 57 American Jurisprudence 2d (2001) 137-
145, Municipal, County, School, and State Tort Liability,
Sections 102-105.
[457] According to appellants, however, there is a
growing perception that the doctrine “unjustifiably creates
inequitable and harsh results for plaintiffs,” which has “led an
increasing number of states to abandon the public duty
doctrine altogether.” In support, appellants cite decisions of
the high courts of the following ten states: Alaska, Arizona,
Colorado, Iowa, Nebraska, New Hampshire, New Mexico,
62a
Oregon, Wisconsin, and Wyoming. The majority also
discerns that “a handful of states have rejected the public-duty
rule as a bar to government liability,” listing decisions from
the same states with the exception of Iowa and the addition of
Florida, Massachusetts, and Louisiana.
[458] Yet a closer analysis reveals that the public-duty
doctrine has not been entirely discarded in all thirteen of these
states. Just last year, the Supreme Court of Iowa clarified that
it had never discarded the public-duty rule, while confirming
its continued adherence to the rule on public-policy grounds.
Kolbe, supra, 625 N.W.2d at 729-730. Thus, despite
appellants’ mistaken belief to the contrary, the majority
correctly lists lowa as a jurisdiction that continues to adhere
to the public-duty doctrine.
[59] In Brennen v. Eugene (1979), 285 Ore. 401, 591
P.2d 719, the Supreme Court of Oregon did indeed reject the
public-duty doctrine, but limited its decision to cases of active
governmental misfeasance. Thus, in distinguishing a number
of cases in which the public-duty doctrine was applied to
governmental inaction, such as a city’s failure to enforce its
housing code, the court stated:
[460] “These cases, which deal with a failure on the part
of public officials to act at all, involve considerations quite
different from those in a case such as this, where an act is
alleged to have been performed and performed negligently.
As a general rule, one is held to a higher standard of care
when he affirmatively acts than when he fails to act at all.
(461] “Because this case is not one of failure to act at all,
we express no opinion on the scope of governmental duty in
such a case.” (Citation omitted.) Id. at 409, 591 P.2d 719.
See, also, Dist. of Columbia v. Forsman (D.C.App.1990),
63a
580 A.2d 1314, 1317, fn. 5 (noting distinction and rejecting
Brennen “as authority for appellees’ position here,” where the
district allegedly failed to require an adjacent property owner
to obtain a demolition permit prior to commencing work that
led to the collapse of plaintiffs’ residence).
[{62] In Jean W. v. Commonwealth (1993), 414 Mass.
496, 610 N.E.2d 305, the Supreme Judicial Court of
Massachusetts rejected the public-duty rule on a four-to-three
vote, largely because of the confusing way in which the
doctrine had developed and been applied in Massachusetts.
Nevertheless, the court decided not to abolish the doctrine at
that time. Instead, the chief justice’s opinion announced the
court’s intention to abolish the doctrine at the end of the 1993
legislative session so as to give the Massachusetts legislature
an opportunity to preempt its decision by passing additional
limitations on governmental liability. If not for this
maneuver, the case may have been decided differently. Thus,
a swing vote in that case commented as follows:
[463] “I join in the Chief Justice’s opinion principally
because the abandonment of the public duty rule is made
prospective. * * *
[464] “From my point of view, the prospective nature of
the opinion recognizes that abandonment of the public duty
rule could lead to a deluge of lawsuits against governmental
entities, particularly municipalities, which will drain their
already limited resources. As I said in Cyran v. Ware, 413
Mass. 452, 455 [597 N.E.2d 1352] (1992), for example,
‘society would not favor, and public policy does not support,
a rule which would expose a municipality to liability for
damages every time its fire department does not, in plaintiff's
view, fight a fire satisfactorily. In busy urban areas such
exposure could be limitless, and in extreme circumstances (as
64a
recent events in Los Angeles illustrate), the potential cost of
such governmental liability could be catastrophic.’ In addition
to damages, governmental entities will incur considerable
costs to defend the lawsuits. Most of the suits will probably
survive summary judgment (since causation, the issue which
will be at the heart of most * * * actions under the new rule,
is almost always a question of fact). The costs of defense thus
will encompass fees and expenses for discovery, which in
present lawsuits is often lengthy and costly, and fees for trial
and appeals. The costs could have severe impact on public
treasuries. I am not persuaded that the Legislature either
intended or anticipated this result when G.L. c. 258 [the
Massachusetts Tort Claims Act] was enacted.” Id., 414 Mass.
at 523-524, 610 N.E.2d 305 (Greaney, J., concurring.)
[{65] In any event, the Massachusetts legislature
responded to the decision in Jean W. by codifying many
aspects of the public-duty rule, including a provision barring
liability for negligent inspections by public employees. See
Gallego v. Wilson (D.Mass.1995), 882 F. Supp. 1169, 1172;
Barry, Brum v. Town of Dartmouth and the Public Duty Rule:
Navigating an Interpretive Quagmire (2000), 41 B.C.L.Rev.
383, 410-413; Mass. Gen. Laws ch. 258, Section 10(f).
[{66] The decisions cited by appellants and the majority
in support of the rejection of the doctrine in Alaska, Arizona,
Colorado, and Louisiana have all been superseded or
abrogated by subsequent legislative action in those
jurisdictions as well. See Wilson v. Anchorage (Alaska 1983),
669 P.2d 569, 571; Clouse v. State (2001), 199 Ariz. 196,
199, 16 P.3d 757; Aztec Minerals Corp. v. Romer
(Colo. App.1996), 940 P.2d 1025, 1031, 25 Colo. Law. No.
12 220; Persilver v. Louisiana Dept. of Transp.
(La.App.1991), 592 So. 2d 1344, 1347, fn. 2.
65a
[467] Finally, even the most ardent and ingenious
proponent of the rule’s abolition would be hard-pressed to
argue that it no longer exists in Florida. As noted by the
majority, the Supreme Court of Florida rejected the public-
duty rule in Commercial Carrier Corp. v. Indian River Cty.
(Fla. 1979), 371 So. 2d 1010, 1015-1016. Nevertheless, the
court was impressed by the notion that “ ‘in any organized
society there must be room for basic governmental policy
decision and the implementation thereof, unhampered by the
threat or fear of sovereign tort liability.’ “ Id., 371 So. 2d at
1019, quoting Evangelical United Brethren Church v. State
(1965), 67 Wn. 2d 246, 254, 407 P.2d 440. Accordingly, the
court replaced the public-duty rule with a “discretionary-
function exception” to Florida’s statutory waiver of sovereign
immunity. Rather than utilizing the public-duty/special-duty
dichotomy to determine governmental tort liability, the
discretionary-function exception “distinguishes between the
‘planning’ and ‘operational’ levels of decision-making by
governmental agencies.” Id., 371 So. 2d at 1022.
[{68] Ina series of cases decided on April 4, 1985, the
Florida Supreme Court endeavored to clarify the law of
governmental tort liability, particularly with regard to the
planning/operational dichotomy it created in Commercial
Carrier Corp. See Trianon Park Condominium Assn., Inc. v.
Hialeah (Fla.1985), 468 So. 2d 912; Reddish v. Smith
(Fla.1985), 468 So. 2d 929; Everton v. Willard (Fla.1985),
468 So. 2d 936; Carter v. Stuart (Fla.1985), 468 So. 2d 955;
Duvall v. Cape Coral (Fla.1985), 468 So. 2d 961; Daytona
Beach v. Huhn (Fla.1985), 468 So. 2d 963; Rodriguez v.
Cape Coral (Fla.1985), 468 So. 2d 963.
[469] As relevant here, Florida’s high court clarified that
although governmental entities are not immune from liability
for their operational activities, neither are they automatically
66a
subject to liability for acts or omissions that occur at the
operational level of government. “In order to subject the
government to tort liability for operational phase activities,
there must first be either an underlying common law or
statutory duty of care in the absence of sovereign immunity.”
Trianon Park Condominium Assn., 468 So. 2d at 919.
[{70] In determining that the city had no underlying duty
of care to inspect for building code violations in Trianon
Park, the court stated: “The enforcement of building codes
and ordinances is for the purpose of protecting the health and
safety of the public, not the personal or property interests of
individual citizens. * * * Statutes and regulations enacted
under the police power to protect the public and enhance the
public safety do not create duties owed by the government to
citizens as individuals without the specific legislative intent to
do so.” Id., 468 So. 2d at 922.
[{71] In determining that a deputy sheriff had no
underlying duty of care to arrest a drunk driver in Everton,
the court explained:
[472] “We recognize that, if a special relationship exists
between an individual and a governmental entity, there could
be a duty of care owed to the individual. * * * In such a case,
a special duty to use reasonable care in the protection of the
individual may arise. See, e.g., Schuster v. City of New
York, 5 N.Y.2d 75, 154 N.E.2d 534, 180 N.Y.S.2d 265
(1958).
[473] “A law enforcement officer’s duty to protect the
citizens is a general duty owed to the public as a whole. The
victim of a criminal offense, which might have been
prevented through reasonable law enforcement action, does
not establish a common law duty of care to the individual
67a
citizen and resulting tort liability, absent a special duty to the
victim. This majority view was expressed by the United States
Supreme Court in its early decision in South v. Maryland, 59
U.S. (18 How.) 396, 15 L. Ed. 433 (1855).” Id., 468 So. 2d
at 938.
[474] Thus, as one Florida Supreme Court justice stated,
“Today the majority embraces the very analysis explicitly
quashed in Commercial Carrier.” Trianon Park Condominium
Assn., 468 So. 2d at 924 (Ehrlich, J., dissenting). And as
observed by another, “Careful readers will recognize, absent
the labeling, the substance of the [public duty] doctrine.” Id.,
468 So. 2d at 926 (Shaw, J., dissenting).
[475] It would therefore appear that the number of states
willing to discard all vestiges of the public-duty rule has not
increased to 12 or 13, but has actually dwindled to about 4 or
5 at the most.
[{76] Moreover, the argument that the public-duty rule
should be abandoned because of the hardship it causes to
plaintiffs has “been raised before and rejected. It is true that
some individuals will suffer substantial hardship as a result of
their inability to recover for their injuries from a municipality
that negligently fails to enforce its own regulations. The
deleterious impact that such a judicial extension of liability
would have on local governments, the vital functions that they
serve, and ultimately on taxpayers, however, demands
continued adherence to the existing rule. All the more is this
so when there has been reliance for decades on this doctrine
for purposes of municipal fiscal planning. If liability to
individuals is to be imposed on municipalities for failure to
enforce statutes or regulations intended for the general
welfare, that imposition should come from the Legislature.”
68a
O’Connor vy. City of New York, 58 N.Y.2d at 192, 460
N.Y.S.2d 485, 447 N.E.2d 33.
[{77] When we first adopted the public-duty rule to
determine a municipality’s tort liability in Sawicki v. Ottawa
Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468, we had
already abolished the judicially created doctrine of municipal
immunity in Enghauser Mfg. Co. v. Eriksson Eng. Ltd.
(1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228. We
explained: “Rather than being an absolute defense, as was
sovereign immunity, the public duty rule comported with the
principles of negligence, and was applicable to the
determination of the extent to which a statute may encompass
the duty upon which negligence is premised. * * * It can
therefore be concluded that the public duty rule is an
independent doctrine and, consequently, survives the
abrogation of sovereign immunity.” Sawicki, 37 Ohio St.3d
at 230, 525 N.E.2d 468.
[{78] When the court applied the public-duty rule to
claims against the state in Anderson v. Ohio Dept. of Ins.
(1991), 58 Ohio St.3d 215, 569 N.E.2d 1042, and Hurst v.
Ohio Dept. of Rehab. & Corr. (1995), 72 Ohio St.3d 325,
650 N.E.2d 104, the state had already waived its immunity
from liability under R.C. 2743.02. Consistent with Sawicki,
we naturally determined that the public-duty rule is a defense
independent of sovereign immunity and, therefore, is
unaffected by the waiver of state immunity. Anderson, 58
Ohio St.3d at 218, 569 N.E.2d 1042; Hurst, 72 Ohio St.3d at
329, 650 N.E.2d 104. |
[{79j According to the majority, however, Anderson and
Hurst should have been decided differently from Sawicki
because the state, in waiving its immunity under R.C.
2743.02(A)(1), consented to be sued, and have its liability
sinsek hit esata dla saa
69a
determined, “in accordance with the same rules of law
applicable to suits between private parties. “Thus, while the
public-duty rule may have survived the abrogation of
municipal immunity, as held in Sawicki, a different inquiry is
required to determine whether the rule survives the waiver of
state immunity under R.C. 2743.02(A)(1).
[{80] This analysis must fail, however, because it
proceeds from a false premise. In order to distinguish
Anderson and Hurst from Sawicki, it must necessarily be
shown that R.C. 2743.02(A)(1)’s waiver of state immunity is
distinguishable from Enghauser’s abrogation of municipal
immunity. In other words, R.C. 2743.02(A)(1) must be
interpreted to impose a broader or different liability on the
state than Enghauser imposes on municipalities. This is the
majority’s unstated yet essential premise, for without it there
is no basis on which to avoid Sawicki’s holding that the
public-duty rule survives the abrogation of sovereign
immunity.
[{81] Yet in Reynolds v. State (1984), 14 Ohio St.3d 68,
70, 14 OBR 506, 471 N.E.2d 776, the very case upon which
the majority relies to support the second paragraph of its
syllabus, we specifically rejected this interpretation of R.C.
2743.02, stating that “the abrogation of the sovereign
immunity of the state, which was accomplished by the passage
of R.C. 2743.02, is not significantly different from the
common-law abrogation of municipal sovereign immunity
accomplished by this court [in Enghauser].” We then held
that the language in R.C. 2743.02 that the state shall “have its
liability determined * * * in accordance with the same rules
of law applicable to suits between private parties” means
essentially the same thing as Enghauser held with regard to
the abrogation of municipal immunity. Compare Reynolds, at
paragraph one of the syllabus, with Enghauser, 6 Ohio St.3d
a a
70a
31, 6 OBR 53, 451 N.E.2d 228, at paragraph two of the
syllabus.
[482] There is, therefore, no substantial difference
between R.C. 2743.02(A)(1)’s waiver of state immunity and
Enghauser’s abrogation of municipal immunity. To the
contrary, R.C. 2743.02(A)(1) imposes the same liability on
the state that Enghauser imposes on municipalities. Thus, in
determining the viability of the public-duty rule, there is no
valid basis on which to distinguish suits against the state from
suits against municipalities.
[483] On a more basic level, there is no reciprocal
reiationship between R.C. 2743.02(A)(1) and the public-duty
rule. Sovereign immunity is a defense that bars only the
enforcement of civil liability. Conceptually, it does not deny
the existence of a duty or the wrongfulness of government
conduct. Instead, it functions to exempt government from the
usual liability that flows from the breach of an established
duty of care. The sovereign-immunity doctrine may readily
admit of the existence of a tort because it applies nonetheless
to disallow all liability within the limits of the immunity.
[{84] In waiving the state’s immunity from liability, R.C.
2743.02(A)(1) does nothing more than remove this
exemption, thereby exposing the state to liability for those
acts or omissions that would have been actionable at common
law but for its immunity. The statute does not expressly
abolish the public-duty rule, nor does it purport to define
negligence, establish duties, or create new causes of action.
It leaves these matters for judicial determination in
accordance with the same common-law principles that govern
the liability of private parties. R.C. 2743.02(A)(1) does not,
therefore, obviate the plaintiff's burden of establishing the
elements of actionable negligence.
Tla
[485] The liability of any defendant charged with
negligence is premised on the existence and breach of a duty
owed to the person claiming injury. In determining the
existence of any duty, courts must inevitably consider the
status of the parties involved, including their relationships to
one another and society at large, and then make a social
judgment as to whether and what extent the plaintiff's
interests are entitled to legal protection against the defendant’s
conduct. The considerations of policy that inhere in this
determination will necessarily vary and shift depending on the
nature of the duty for which legal recognition is sought.
[{86] In ascertaining the existence of a public duty,
courts must therefore consider the relationship between
government and its citizens and decide whether public policy
supports a rule that would subject the government to liability
every time one of its employees fails to enforce a statute or
regulation intended for the general welfare. Viewed in this
light, the public-duty rule is but a conclusory expression of
these considerations that lead us to answer this inquiry in the
negative. It is basically a function of those common-law
principles that inhere in the determination of duty and, as
such, lies beyond the reach of either the application or the
abrogation of sovereign immunity.
[487] This is why the two doctrines--sovereign immunity
and public duty--are considered to be independent of one
another, so that the abrogation of one does not affect the
viability of the other. This is also why most courts have
adopted or retained the public-duty rule, as we did in
Anderson and Hurst, despite the passage of statutes similar to
R.C. 2743.02 in their respective jurisdictions. See, e.g.,
Washington v. Lexington Cty. Jail, 337 S.C. at 404-405, 523
S.E.2d 204; Walker v. Meadows, 206 W.Va. at 83, 521
S.E.2d 801; Stone v. N. Carolina Dept. of Labor, 347 N.C.
72a
at 478, 495 S.E.2d 711; Tipton v. Tabor, 567 N.W.2d at 356-
357; Holsten v. Massey, 200 W.Va. at 780-784, 490 S.E.2d
864; Ezell v. Cockrell, 902 S.W.2d at 399; Denis Bail Bonds,
Inc. v. State (1993), 159 Vt. 481, 622 A.2d 495; J & B Dev.
Co., Inc. v. King Cty. (1983), 100 Wn. 2d 299, 304, 669
P.2d 468; Cracraft v. St. Louis Park, 279 N.W.2d at 803-
806; Motyka v. Amsterdam, 15 N.Y .2d at 138, 256 N.Y.S.2d
595, 204 N.E.2d 635; 57 American Jurisprudence 2d, supra,
Municipal, County, School, and State Tort Liability, Sections
92 and 93.
[488] The majority argues, however, that this view of the
public-duty rule as a function of duty “ignores a vital feature
of the doctrine that is incompatible with R.C. 2743.02(A)(1).
The applicability of the public-duty rule depends upon the
public status of the particular defendant raising it as a bar to
liability. In other words, only governmental entities and their
employees may rely on the rule. It is spurious logic to
conclude that a doctrine that is, by definition, available only
to public defendants can be consistent with a statute
mandating that suits be determined in accordance with rules
of law applicable to private parties.” (Emphasis sic.)
[489] This analysis is conceptually upside down. In
passing R.C. 2743.02(A)(1), the General Assembly
incorporated the common-law rules of negligence. The
applicable common-law rule that is relevant here provides that
actionable negligence depends upon the breach of a duty owed
by the defendant to the injured plaintiff. The application of the
public-duty rule is dependent upon the public status of the
particular defendant who invokes it because the duty that is
sought to be imposed on that defendant depends solely on the
defendant’s public status. It is the alleged duty, not the rule,
that in the first instance brings the defendant’s public status
73a
into play. The rule simply responds to the public nature of the
duty for which legal recognition is sought.
[{90] Moreover, the rejection of the public-duty rule will
actually result in the state having its liability determined in
accordance with rules of law that are not applicable in suits
brought against private tortfeasors. Private parties do not owe
a duty of protection
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