dissenting.
I sincerely have a great deal of sympathy in support of attempting to find a more adequate mode of recovery for the appellants than is currently provided by Ohio statutory law. However, in that the Ohio General Assembly has specifically spoken as to the state’s waiver of liability in tort, courts should show due deference to such enactments.
By way of the Court of Claims Act, the General Assembly waived the state’s sovereign immunity on a limited basis. R.C. 2743.01(A) and (B); 2743.02. Local governmental agencies, such as municipalities, counties, school districts, etc., were excluded from the state’s statutory waiver of immunity. In a series of cases, 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, this court judicially abrogated the common-law immunity of local governmental entities. In those instances this court was confronted with entities where sovereign immunity had not been abrogated by statute, as had the state’s immunity by way of the Court of Claims Act. This difference was recognized by language in Haverlack, wherein the majority concluded that “in the absence of a statute,” the immunity defense was not available to a municipality in an action for alleged negligence in the operation of a sewage treatment plant.
*72With the enactment of the Court of Claims Act, the General Assembly provided the manner and extent to which the state of Ohio may be sued. This action by the legislative body of this state, which was noted with approval by this court in Boggs v. State (1983), 8 Ohio St. 3d 15, should be adhered to in this matter, in that the Act reflects a policy decision by that branch of government so empowered by Section 16, Article I of the Ohio Constitution.
R.C. 2743.02(A), within the Court of Claims Act, waived the state’s immunity in a limited manner. This statutory provision did not create any new claims for relief against the state.
By virtue of being the statutory appellate court from the Court of Claims, the Tenth District Court of Appeals has had the opportunity to consider a number of cases involving the general issue presented herein. That court has on numerous occasions interpreted the limited waiver of state immunity as found in R.C. 2743.02(A). In Smith v. Wait (1975), 46 Ohio App. 2d 281 [75 O.O.2d 560], Judge Whiteside stated, at 283, that R.C. 2743.02(A) “* * * merely permits actions against the state to be brought which were previously barred by the doctrine of sovereign immunity, but such actions must be predicated upon previously recognized claims for relief, for which the state would have been liable except for sovereign immunity.”
Furthermore, in Spencer v. State (April 14, 1977), Franklin App. No. 76AP-1021, unreported, Judge Whiteside concurred by stating, at page 3, that R.C. 2743.02(A) “* * * merely consents to the state’s being sued for claims which otherwise would be barred by the doctrine of sovereign immunity. Essentially, such claims consist of common law claims for relief for breaches of common law duties.
“Plaintiff does not rely upon a common law duty or claim for relief but, rather, contends that liability is created by failure of state employees to perform statutory duties. A statute imposing duties upon the officers and employees of the state does not create a claim for relief in third persons against the state for breach of such duties by such state officers or employees unless the statute specifically provides therefor. Such statutes create no duty of the state to any particular person but, rather, create duties only to the public generally. In order for a claim against the state to be created by statute, the statute must specifically so provide.” See, also, Harris v. Pub. Util. Comm. (July 26, 1977), Franklin App. No. 77AP-256, unreported.
Accordingly, appellants would state a claim upon which relief could be granted against the state only if the claim would constitute a cause of action under the same rules of law which are applicable if the suit were between private parties. As noted by Judge Norris in the case sub judice: “* * * Under the circumstances of this case, the rule of law applicable to private parties, which is critical to plaintiffs’ stating a cause of action, is the rule that, in order for the defendant state to be liable to plaintiffs in negligence, it must have breached a duty owed to plaintiffs.”
*73The court then proceeded to note that at common law there was no duty of the state that would flow to these plaintiffs arising out of furlough practices. And, further, if any duty was to be found in favor of plaintiffs, it must be found within R.C. 2967.26(A) and (B). In reviewing the statute and its purpose, the court of appeals correctly determined that the statutory scheme had not been designed by the General Assembly for the purpose of affording protection to plaintiffs or the general public but, instead, was designed for its stated purpose of rehabilitating prisoners through a partial release program. The statute does not impose upon the state a duty owed to the plaintiffs and they cannot, therefore, under the allegations of their complaint prove any set of facts entitling them to recover.
In addition, a further consideration in the interpretation of the instant statute is that the action brought is not one which could have been brought between private parties inasmuch as such parties do not have the right, duty, or program to incarcerate, parole, or partially release criminals and juvenile offenders as does the state. In this regard, it must be remembered that the Court of Claims Act did not create new causes of action where none previously existed. Hahn v. Brown (Sept. 14, 1976), Franklin App. No. 76AP-389, unreported.
The liability which plaintiffs seek to impose upon the state is due to governmental action, and not actions committed by private parties who have no ability or duty to incarcerate or parole criminals. The majority, in its headlong dash to find liability against the state, illogically strains the interpretation of R.C. 2743.02 by differentiating between the discretionary decision-making process of granting parole, and the ministerial operation of keeping the parolee confined when not engaged in work or educational programs. There is absolutely no authority to support the majority opinion in this regard. The Court of Claims Act includes no such distinction nor does the case law from other states. The only case law reported in support of such philosophy deals with cases brought under the Federal Tort Claims Act which sets forth a specific discretionary/ministerial test. See Payton v. United States (C.A. 5, 1982), 679 F. 2d 475.
The statute under consideration here places the duty upon the Adult Parole Authority to make the original determination whether to place a prisoner on furlough based upon the finding that such prisoner is trustworthy. Once that determination is made, there is no statutory duty to make a continuing analysis of the trustworthiness of the person furloughed which would give rise to a duty to protect individual citizens.
The General Assembly’s determination to abolish the state’s immunity “in accordance with the same rules of law applicable to suits between private parties” (R.C. 2743.02[B]) takes into account the myriad of statutory functions imposed upon state agencies for the benefit of the public at large. The performance of these functions will be materially threatened by the majority’s position herein. The response of our state governmental agencies to such an expansive theory of liability could well *74be to reduce or eliminate the duties that they are willing to undertake which, in turn, could well jeopardize the health and safety of the general public. More importantly as it relates to the issues involved in the instant case, today’s decision that the state can be held liable in a furlough situation may well result in inmates remaining incarcerated for the full terms of their original sentences, the complete antithesis of what the General Assembly intended when it enacted R.C. 2967.26.
I would affirm the judgment of the court of appeals.
W. Brown, J., concurs in the foregoing dissenting opinion.