# Petition for Writ of Certiorari — Wallace v. Ohio Department of Commerce, Division of State Fire Marshal > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0983%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 927 ## Text \ § & Gout, U.S. (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 ee PE ee ere Cee eee ee 17 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 Vi STATUTES ee ss RPO 5b kw ee ag ee Ow ee 1 RAT TSN Ce Sartre Panes selene ae iss PORE) ke ee Wa cae eee ae 3, 8, 16 a Tees. Tee” indie 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 The court of appeals’ opinion suggests that this directive merely encouraged, as opposed to required, seasonal inspections. ETAT LA NOPE NAR ROE NT a a aa Bes Mae Aer hn Ait ba 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0983%3A1. Public record. Not legal advice.