Reynolds v. State

Clifford F. Brown, J.

The reasons for incarcerating a convicted felon are multiple, such as rehabilitation and punishment. It is unquestioned that one of the reasons felons are incarcerated is for the protection of society. R.C. 2967.26 is a statute designed to give greater flexibility to Ohio’s prison system in the attempt to help rehabilitate prisoners. The statute does not, however, ignore the other reasons prisoners are set apart from society. This is self-evident from the language of R.C. 2967.26(B), which requires the state to confine a furloughed prisoner during any nonworking periods. A breach of this duty by the state officials responsible for the supervision of furloughed prisoners is negligence per se.1 The Court of Claims dismissed the plaintiffs’ complaint, finding that R.C. 2743.022 does not create a cause of action against the state in this area, and further that because there was no penalty provision contained in R.C. 2967.26, the state cannot be held accountable to private individuals for the negligent supervision of a furloughed prisoner. The Court of Appeals for Franklin County affirmed this dismissal for the reason that the state breached no duty owed to plaintiffs.

R.C. 2743.02 was enacted by the Ohio General Assembly in 1975 as part of the Court of Claims Act. It limited the immunity of the state of *70 Ohio. With the passage of the Act, individuals can sue the state and have liability determined with the same rules of law applicable to suits between private parties. The courts below have interpreted this abrogation of immunity to be different from the recent abrogation of municipal sovereign immunity found in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, and Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31.

We disagree. The abrogation of the sovereign immunity of the state, which was accomplished by the passage of R.C. 2743.02, is not significantly different from the common-law abrogation of municipal sovereign immunity accomplished by this court.3 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 such activities.

Under the above standard plaintiffs may not maintain an action against the state for its decision to furlough a prisoner. However, once such a decision has been made pursuant to R.C. 2967.26, a cause of action can be maintained against the state for personal injuries proximately caused by the failure to confine the prisoner during non-working hours in accordance with R.C. 2967.26(B).4 Such a failure to confine is negligence per se,5 and is ac *71 tionable pursuant to R.C. 2743.02.6 Dismissal of plaintiffs’ action on a Civ. R. 12(B)(6) motion was reversible error.

Therefore, the judgment of the court of appeals is reversed and the cause remanded to the Court of Claims for further proceedings in accordance with the opinion of this court.

Judgment reversed and cause remanded.

Celebrezze, C.J., Sweeney and J. P. Celebrezze, JJ., concur. Locher, J., concurs in judgment only. W. Brown and Holmes, JJ., dissent.

The violation of a statute does not necessarily constitute negligence per se. The statute violated must contain a specific requirement to do or to omit to do a defined act. The statute need not, however, contain a specific civil penalty provision before its violation can constitute negligence per se. See Heidle v. Baldwin (1928), 118 Ohio St. 375, and Swoboda v. Brown (1935), 129 Ohio St. 512 [2 O.O. 516], at paragraph four of the syllabus.

R.C. 2743.02 states in pertinent part:

“(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 * *

Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, at paragraph two of the syllabus, states in pertinent part:

“* * * no tort action will lie against a municipal corporation for those acts or omissions involving the exercise of a legislative or judicial function 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, municipalities will be held liable, the same as private corporations and persons, for the negligence of their employees and agents in the performance of the activities.”

See Shroades v. Rental Homes, Inc. (1981), 68 Ohio St. 2d 20 [22 O.O.3d 152], where this court found that a violation of R.C. 5321.04, which imposes duties on a landlord to make repairs and do whatever is necessary to keep premises in a fit and habitable condition, constitutes negligence per se and is actionable even though such statute does not provide for tort recovery. Such reasoning is analogous to the present case.

See fbosser, Law of Torts (4 Ed. 1971) 200-201, Section 36, which reads in pertinent part:

“Once the statute is determined to be applicable — which is to say, once it is interpreted as designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation — the great majority *71 of the courts hold that an unexcused violation is conclusive on the issue of negligence, and that the court must so direct the jury. The standard of conduct is taken over by the court from that fixed by the legislature, and ‘jurors have no dispensing power by which to relax it,’ except in so far as the court may recognize the possibility of a valid excuse for disobedience of the law. This usually is expressed by saying that the unexcused violation is negligence ‘per se,’ or in itself. The effect of such a rule is to stamp the defendant’s conduct as negligence, with all the effects of common law negligence, but with no greater effect. There will still remain open such questions as the causal connection between the violation and the harm to the plaintiff * *

See Claypool v. Mohawk Motor Inc. (1951), 155 Ohio St. 8 [44 O.O. 27],