In a major case from Ohio, the state's Supreme Court has decided that a fire department being sued for failing to make a proper inspection cannot use the public-duty doctrine as a defense in a negligence action. This column will describe the Ohio case itself. A following column will describe the impact of such a case on a jurisdiction, and how some other states have handled the same issue.

The public-duty doctrine acts to limit the liability of governments in a negligence action and is a rule of substantive law, not merely a defense such as sovereign immunity. The doctrine is described in both the majority and dissenting opinions in Wallace v. Ohio Dept. Of Commerce, Div. Of State Fire Marshal, 96 Ohio St.3d 266, 2002-Ohio-4210. In Wallace, the court was faced with a “negligent inspection claim.” A fire occurred in a fireworks retail facility that had a license and had been inspected, including its sprinkler system. As the court described the fire:

“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. Experts testified that the sprinkler system would have limited or prevented the injuries.”

Unfortunately, the system was not functional at the time of the fire and the normal annual inspection had not been conducted. The reasons were unusual because it was a policy of the fire marshal's office to inspect such facilities just before the Fourth of July holiday. However in this case the inspection was delayed due to a regulatory/criminal investigation of the site's sales activities:

“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…. 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 [acting chief of the code enforcement bureau Daniel] Lehman postponed any seasonal inspection of the Ohio River Fireworks store until after they had completed the buy bust.”

It is not clear from the case report why the safety inspection should be delayed for this law enforcement purpose, or why the fire marshal's office would be doing the undercover “sting” operation. But the result was disastrous.

“As a result of this directive, [certified safety inspector James] Saddler did not perform a seasonal inspection of the Ohio River Fireworks facility prior to the fire…. 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.”

This failure to conduct an inspection was the core of the negligence claim in the litigation. Since experts were willing to testify that the sprinkler systems would have saved lives, the critical issue was the duty owed by the state fire marshal to the public. The lower court made the traditional ruling that “public duties” do not give rise to a negligence claim:

“[T]he 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.”

The lower court found other grounds for defending the action but only the public-duty doctrine was analyzed by the court of appeal and the Ohio Supreme Court. The plaintiffs appealed to the court of appeals, which also found that the public-duty rule prevented the lawsuit:

“Statutes authorizing inspections by the fire marshal were designed to protect the public generally and not any particular individual. The [appeals] 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”

As the appeals court stated, the public-duty rule “precludes a private party from sustaining a cause of action against a public officer for breach of a public duty…. 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.”

The public-duty rule is based on public policy and is separate from the defense of sovereign or governmental immunity. It is derived from the doctrine of negligence itself. However, when the case reached the Ohio Supreme Court, that court had to decide whether the statute by which Ohio had abandoned governmental immunity also had eliminated the public-duty rule. The court quoted the statute:

“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, except that the determination of liability is subject to the limitations set forth in this chapter….”

The issue for the court was whether this statute eliminating immunity for the government also eliminated the public-duty doctrine, which is a substantive rule of negligence law, not merely a defense. The 4-3 majority decided that the statute had eliminated the public-duty doctrine. To get to that conclusion the court had to analyze the concept of duty in negligence law.

“The duty element of negligence, with which courts have linked the public-duty rule, is a question of law for the court to determine. 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. Admittedly, however, the concept of duty in negligence law is at times an elusive one. As this court explained in Mussivand, 45 Ohio St.3d at 320, 544 N.E.2d 265:

“‘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.’… 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.”’…

“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.”

The majority does not really analyze the doctrine in terms of negligence liability but instead simply determines that the statute's language is decisive in eliminating the doctrine:

“The applicability of the public-duty rule depends upon the public status of the particular defendant raising it as a bar to liability. In other words, only governmental entities and their employees may rely on the rule. It is spurious logic to conclude that a doctrine that is, by definition, available only to public defendants can be consistent with a statute mandating that suits be determined in accordance with rules of law applicable to private parties. Accordingly, we hold that the public-duty rule is incompatible with … 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.’”

As noted, this is a conclusion with little analysis. However, the remainder of the decision then flows almost automatically. The majority did claim that the elimination of the defense of public duty did not automatically impose liability. The implications of that statement will be analyzed in a future column. The dissenting opinions use strong language that illustrates just how contentious this case was:

“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 in a 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.”

The dissent quoted the Supreme Court of the United States for the rationale for the public-duty doctrine:

“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.” Id. 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.” Id. at 403, 18 How. 396, 15 L.Ed. 433.

The dissent also noted that the vast majority of states uphold the doctrine:

“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 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….

“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….

“This is why the two doctrines — sovereign immunity and public duty — are considered to be independent of one another, so that the abrogation of one does not affect the viability of the other. This is also why most courts have adopted or retained the public-duty rule, as we did in Anderson and Hurst, despite the passage of statutes similar to R.C. 2743.02 in their respective jurisdictions.”

Having read this decision repeatedly, and comparing it to decisions from other jurisdictions, I am convinced that neither side did the homework necessary to create a compelling argument in its favor.

In the first place, it might be argued that the postponement of the inspection created a “special duty” in this particular case, in that the customers were imperiled by the law enforcement activity. Focusing on this issue might have avoided the entire discussion.

But in any case, the entire opinion leaves the reader unconvinced. The majority, while quoting the words of the statute, failed to analyze the intent of the legislature in passing the statute. Did the legislature really intend to put this unprecedented liability on the government? The dissent is equally strong on rhetoric and weak on analysis of the common law concept of duty.

Clearly what has happened in the area of public liability is a failure to analyze the implications of either imposing or avoiding liability for negligent inspections. A future column will explore the policy issues and explain how other states have recently decided the same issues, in areas separate from the fire service.