dissenting. I hereby dissent from the opinion of the majority in accord with the dissents in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, 31; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 37; and Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, 126.
As I stated in Enghauser and Strohofer, there are certain activities undertaken by municipalities which should, even in the absence of general immunity, still be given immunity. In addition to immunity for judicial and legislative actions, there should be immunity afforded the discretionary actions of municipal employees which involve the essentials of government, such as are to be found within the instant case where this employee of the *212city was carrying out the requirements of the Columbus Building Code. I specifically stated in Strohofer at 127 that: “The very good reason for this exception is that governmental officials should be able to carry out the essential functions of government without the fear of being second-guessed by the courts for the exercise of free and independent judgment in so acting. To hold municipalities liable in these circumstances would stifle the process of municipal government.”
In Hargrove v. Coco Beach (1957), 96 So. 2d 130, the Florida Supreme Court judicially abolished governmental immunity by holding that municipal corporations are liable for the negligence of municipal employees while acting within the scope of their employment. However, the court limited the broad implications of its decision by further stating at 133:
“We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; and Akin v. City of Miami, Fla. (1953), 65 So. 2d 54.”
It should be noted that Akin v. Miami, supra, in regard to which the Florida Supreme Court limited its decision in Hargrove, held that the exercise of the power of a municipality to grant a building permit or license is a function for which the city should not be held liable in tort for its wrongful refusal to issue a permit or license. Thus, the Supreme Court of Florida recognized the discretionary governmental function of building code enforcement and specifically retained governmental immunity for such function.
Likewise the Supreme Court of New Hampshire in its decision in Hurley v. Hudson (1972), 112 N.H. 365, 296 A. 2d 905, which abolished governmental immunity in that state, stated at 369-370:
. “Nor would the planning board be liable on the basis that it failed to enforce the town’s ordinance requiring adequate drainage, since the enforcement of laws in general, and zoning ordinances in particular, is certainly the kind of discretionary, ‘governmental’ activity which as a general proposition ought not to lead to tort liability. Hermer v. Dover [(1965), 106 N.H. 534, 215 A. 2d 693], supra; 2 Harper and James, [Law of Torts (1956)] supra s. 29.6, at 1623; Prosser, [Torts (4 Ed. 1971)] supra s. 131, at 979; 18 McQuillin, [Municipal Corporations (3 Ed. 1963)] supra s. 53.36, at 211-12; 3 Rathkopf, The Law of Zoning and Planning, 82-3 (3 Ed. 1972); 4 California Law Revision Commission, Recommendation Relating to Sovereign Immunity 817 (1963).”
Establishing these types of exceptions to the general abrogation of governmental immunity where the city through its employees is exercising a discretionary governmental function, would place Ohio in a more tenable position as followed by many other states.
Locher, J., concurs in the foregoing dissenting opinion.