dissenting.
{¶ 108} I do not believe that the language in R.C. 2743.02 that requires that the state shall “have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties” conflicts with the public-duty rule. I would continue to adhere to the public-duty rule pursuant to Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468, and its progeny. Therefore, I respectfully dissent.
{¶ 109} The majority reasons that the language in R.C. 2743.02 that states that a lawsuit against the state must be determined in accordance with the “same rules of law applicable to suits between private parties” conflicts with the public-duty rule because the public-duty rule is a defense that applies only to the government. Thus, the majority interprets the phrase “same rules of law” to mean that a statute cannot affect the state differently than it would affect private parties. I believe that the majority misconstrues the language of R.C. 2743.02.
{¶ 110} The majority in the second paragraph of its syllabus excludes judicial and legislative functions from the waiver of immunity, but I simply cannot follow its logic as to why these areas fall outside the language of “suits between private parties,” while a public duty is somehow included. The reasoning is so internally inconsistent that I find it difficult to even argue against.
{¶ 111} The General Assembly waived the state’s immunity from liability when it enacted R.C. 2743.02. However, R.C. 2743.02 does not create “new rights or causes of action.” Reese v. Ohio State Univ. Hosp. (1983), 6 Ohio St.3d 162, 163, 6 OBR 221, 451 N.E.2d 1196. “[I]t only provides a remedy for existing duties where the state was previously immune from suit and a private party under similar circumstances would have been liable.” (Emphasis added.) Shel*299ton v. Indus. Comm. (1976), 51 Ohio App.2d 125, 130, 5 O.O.3d 286, 367 N.E.2d 51.
{¶ 112} In Shelton, the court addressed whether the language in R.C. 2743.02(A)(1), that made the state liable in accordance with the same rules of law applicable between private parties, permitted an injured worker to sue the Industrial Commission for failure to enforce safety standards. 51 Ohio App.2d 125, 5 0.0.3d 286, 367 N.E.2d 51. The court held that because there was no statutory duty among private parties to inspect and enforce safety standards, the injured worker could not sue the Industrial Commission because such an action did not exist between private parties before the waiver of immunity.
{¶ 113} The majority states that the Shelton “reasoning operates on the unstated premise that statutes creating duties for governmental actors cannot satisfy the duty element for purposes of the state’s liability for negligence because there are no statutory duties that may similarly bind private parties.” The majority then dismisses the Shelton reasoning, recognizing that “government actors are not alone in having duties imposed on them by statute.”
{¶ 114} The language waiving sovereign immunity “should be construed reasonably to at least make sure that before the public treasury is emptied the result was intended by the legislature.” Oregon v. Ferguson (1978), 57 Ohio App.2d 95, 102, 11 O.O.3d 94, 385 N.E.2d 1084. The majority’s analysis fails to recognize that some statutes that are enacted for the welfare of the public generally can be imposed only on the state. Shelton, 51 Ohio App.2d at 131, 5 O.O.3d 286, 367 N.E.2d 51, see, also, Stone v. North Carolina Dept. of Labor (1998), 347 N.C. 473, 495 S.E.2d 711. Therefore, statutes that impose these public duties are not applicable in suits between private parties. Oregon, 57 Ohio App.2d at 101-102, 11 O.O.3d 94, 385 N.E.2d 1084; Stone, 347 N.C. at 478, 495 S.E.2d 711. Because these public-duty statutes impose duties only upon the government and not on private parties, they may not be the basis for an action against the state because they are not “in accordance with the same rules of law applicable to suits between private parties.”
{¶ 115} The public-duty rule is a defense that applies only where a lawsuit against the state is based upon a law that imposes a public duty on the state. See Hurst v. Ohio Dept. of Rehab. & Corr. (1995), 72 Ohio St.3d 325, 650 N.E.2d 104; cf. Brodie v. Summit Cty. Children Serv. Bd. (1990), 51 Ohio St.3d 112, 119, 554 N.E.2d 1301 (child-abuse statute imposes specific duty on state to each allegedly abused child; thus, the public-duty rule is not applicable). Therefore, the requirement in R.C. 2743.02 that the state’s liability be determined according to the same rules of law that apply to suits between private parties does not conflict with the public-duty rule.
Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley, Paul M. De Marco, Robert A. Steinberg, D. Arthur Rabourn and Jane H. Walker, for appellants. Betty D. Montgomery, Attorney General; Stephen P. Carney, Associate Solicitor, William C. Becker, Randall W. Knutti and Rebecca L. Thomas; Assistant Attorneys General, for appellee. Vorys, Safer, Seymour & Pease, L.L.P., Duke W. Thomas, Anthony J. O’Malley and Marcel C. Duhamel, urging reversal for amicus curiae OHA: The Association of Hospitals and Health Systems.{¶ 116} Further, I believe that the majority’s holding could have unintended consequences. R.C. 2743.02 also requires courts to apply the same rules of procedure that apply between private parties. Reese, 6 Ohio St.3d at 164, 6 OBR 221, 451 N.E.2d 1196. Civ.R. 62, which applies to lawsuits between private parties, treats the state differently from private persons when seeking a stay upon an appeal. Under Civ.R. 62, the state is provided an automatic stay without the requirement of bond, while a private person must post bond. State ex rel. State Fire Marshal v. Curl (2000), 87 Ohio St.3d 568, 722 N.E.2d 73. According to the majority’s reasoning, Civ.R. 62(C), which permits a stay in favor of the state without bond, would no longer be applicable because it treats the state differently from other private parties. I do not believe that the General Assembly intended the nullification of rules or statutes solely because they treat the state differently.
{¶ 117} Finally, the Tenth District Court of Appeals, first in Shelton and later in Ferguson, invited the General Assembly to correct the court’s interpretation that the state could not be sued pursuant to statutes where the duty was owed only to the public generally if it disagreed with these judgments. Shelton, 51 Ohio App.2d at 131, 5 0.0.3d 286, 367 N.E.2d 51; Ferguson, 57 Ohio App.2d at 102, 11 0.0.3d 94, 385 N.E.2d 1084, 1088. Despite this invitation, the General Assembly has taken no such action.
{¶ 118} Because I strongly believe that the majority’s interpretation is clearly not what the General Assembly intended, I invite the General Assembly to clarify whether they intended the phrase, “suits between private parties,” to abrogate the public-duty rule.
{¶ 119} Therefore, I would affirm the judgment of the court of appeals. Accordingly, I respectfully dissent.
Jenks, Surdyk, Oxley, Turner & Dowd Co., L.P.A., Robert J. Surdyk and James Ickes, urging affirmance for amici curiae Public Entities Pool of Ohio and Ohio Township Association Risk Management Authority.