{¶ 48} I concur in the majority's disposition of appellants' first assignment of error as it relates to the seller, Hughes. However, I believe that caveat emptor does not apply to appellants' claims against appellees Findeiss Realty Company and Zemba Brothers Ltd., for the rationale set forth in this court's opinion in Schmiedebusch v. Rako Realty,Inc., 2005-Ohio-4884, 2005 WL 2266701.1 Therein, this court did not require fraud or fraudulent misrepresentation as a necessary prerequisite to overcoming the application of caveat emptor. *Page 352 Rather, we found that caveat emptor does not apply when the real estate agent fails to disclose to his or her clients any fact that was known or should have been known by the agent and that is material to the transaction.
{¶ 49} Having concluded that the trial court erred in giving the caveat emptor instruction as to Findeiss and Zemba, the next issue becomes whether appellants were prejudiced as a result.
{¶ 50} In interrogatory No. 8, the jury found that Zemba made no negligent representation to appellants. Appellants' claim against Zemba rests upon the statement in Zemba's report that the septic system was working fine when, in fact, Zemba could not locate the septic tank. The report never represented that the septic tank was found. After the lines were flushed, the system gave no indication that it was not working. Based upon the evidence, the jury was free to find that Zemba had made no negligent misrepresentation. Thus, I find that no prejudice accrued to appellants as a result of the erroneous instruction on caveat emptor as it relates to Zemba.
{¶ 51} However, I do find that prejudice resulted to appellants as a result of the erroneous instruction as to Findeiss. I do so despite the jury's response to interrogatory No. 12, wherein they found that appellants were 60% comparatively negligent. Having been misinstructed about appellants' duty to investigate with regard to the caveat emptor defense, I find that the jury's response to-interrogatory No. 12 is necessarily tainted as a result. I agree with appellants' assertion that the law does not require appellants to hire inspectors to inspect their inspectors.
{¶ 52} Accordingly, I would sustain appellants' first assignment of error as it relates to Findeiss and overrule it as it applies to Zemba and Hughes.
{¶ 53} I also respectfully dissent from the majority's disposition of appellants' second assignment of error. I acknowledge that there is ample testimony to suggest that Shaeffer did not act recklessly or wantonly, let alone with actual malice. There is also evidence that appellants may not have detrimentally relied on Shaeffer's representations. Nevertheless, there exists sufficient testimony that, if believed, could support a claim for punitive damages. Specifically, Shaeffer admitted that she was required to be familiar with the Muskingum County Health Department Regulations concerning septic systems and she had to make sure that the inspection met those regulations, including locating a septic tank on the property. Shaeffer stated in her deposition that she knew there was no septic system on the property because Zemba stated in their report that the septic tank could not be located. Despite knowing this, Shaeffer told Mrs. Pettit that the sewage went into the city sewer and that appellants were "good to go," because the inspection passed. Although at trial Shaeffer denied most of the *Page 353 statements that Mrs. Pettit attributed to her, I believe that this credibility call lies with the jury. It is undisputed that the sewage did not go into the city sewer but rather into the river. It should be left to a jury to decide whether Shaeffer made the statements attributed to her by Mrs. Pettit and if the statements are found to have been made, whether those statements were made recklessly and/or wantonly.
1 The majority opinion cites Schmiedebusch in paragraph 21-22 of its opinion.