COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70520 ANN SUDNIK : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ANGELO CRIMI, et al : : Defendants-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 26, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 261166 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: DAVID J. ROSSI Attorney at Law DAVID J. ROSSI CO., L.P.A. 55 Public Square 900 Illuminating Building Cleveland, Ohio 44113 For defendants-appellees: WILLIAM F. SCHMITZ Attorney at Law KITCHEN DEERY & BARNHOUSE CO., L.P.A. 1100 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1999 TIMOTHY E. McMONAGLE, J.: This court is asked to decide whether defendants-appellees, the City of Mayfield Heights and its housing inspector, Dominic Celico (collectively "appellees" or individually as "city" or "Celico"), are liable to plaintiff-appellant, Ann Sudnik ("appel- lant"), as a result of a point-of-sale inspection required by the city and conducted by Celico. For the reasons that follow, we find that there is no such liability and affirm the decision of the Cuyahoga County Common Pleas Court that granted appellees' motion to dismiss. The record reflects that before appellant purchased a home in Mayfield Heights from Angelo and Carol Crimi, Celico conducted an inspection of the home as required by the city. As a result of this inspection, Celico noted several building code violations, whereupon he instructed that funds be placed in escrow until the violations were corrected. Nonetheless, appellant eventually purchased the home. Shortly after taking possession, appellant discovered several defects above and beyond those identified by Celico. As a result, she instituted the present action against the former owners, the realtor, and the realtor's agent as well as appellees. Appellant alleges in her complaint that appellees are liable to her because Celico conducted his inspection negligently, - 3 - recklessly, in bad faith, and with complete disregard for her safety. Appellees moved to dismiss appellant's claims against them based on the doctrine of sovereign immunity as set forth in the Political Subdivision Tort Liability Act, codified at R.C. 2744.01 et seq. The trial court granted this motion. Appellant, who had previously dismissed her claims against the realtor and the realtor's agent, proceeded to trial against the former owners only. At trial, the jury entered a verdict in appellant's favor and awarded her $30,410.00. Appellant timely appeals the dismissal of her claims against appellees and assigns the following error for our review: THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT ANN SUDNIK BY GRANTING DEFENDANTS-APPELLEES' MOTION TO DISMISS. In reviewing a motion to dismiss predicated on Civ.R. 12(B)(6), this court must accept as true the factual allegations of the complaint, and any reasonable inferences drawn therefrom must 1 be construed in favor of the non-moving party. It must appear beyond doubt that the plaintiff can prove no set of facts 2 warranting recovery. 1 Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 280; Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192; Thompson v. Cent. Ohio Cellular, Inc. (1994), 93 Ohio App.3d 530, 538. 2 O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, syllabus. - 4 - In this case, appellant contends that the doctrine of sover- eign immunity does not insulate a political subdivision or its employee from liability during the employee's performance of a point-of-sale inspection when the employee's acts or omissions are reckless, malicious, or in bad faith. Appellees maintain, on the other hand, that the provision of inspectional services is a governmental function for which they are immune from liability. They further argue on appeal that they owe no duty to appellant. The thrust of appellees' duty argument is that they owe no duty to appellant because the municipal ordinance requiring point- of-sale inspections was enacted to maintain housing standards and not to establish a duty to any particular resident. In support of 3 their argument, they rely on Delman v. Cleveland Heights , which held that a municipality and its employees owe no duty of care to a purchaser or seller when conducting point-of-sale inspections pursuant to municipal ordinance. In reaching its decision, the Delman court relied on the public duty doctrine, which implies that a housing inspector's duty is to the public and, as such, any failure to discharge that duty generally results in a public injury, not an individual one, in the absence of a special duty or relationship between the housing inspector and the private indi- vidual. According to this doctrine, a municipality could be liable 3 Delman v. Cleveland Heights (1989), 41 Ohio St.3d 1. - 5 - if a plaintiff is able to satisfy the special duty test set forth 4 in Sawicki v. Ottawa Hills. The public duty rule as it applies to municipalities, how- ever, has been superseded by the enactment of the Political Subdi- 5 vision Tort Liability Act, codified at R.C. Chapter 2744, et seq. Enacted in response to the judicial abrogation of common-law 6 sovereign immunity, the General Assembly determined that immedi- ate legislative action was necessary in order to preserve the 7 "public peace, health, and safety" and stated that: The reason for such necessity is that the protections afforded to political subdivisions and employees of political subdivisions by this act are urgently needed in order to ensure the continued orderly operation of local governments and the continued ability of local governments to provide public peace, health, and safety services to their residents. *** Subject to five limited exceptions, the Act shields from liability a political subdivision and its employees for acts or 4 Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222. 5 See Colling v. Franklin Cty. Children Serv. (1993), 89 Ohio App.3d 245, 253; Amborski v. Toledo (1990), 67 Ohio App.3d 47; Smith v. Minnick (1990), 68 Ohio App.3d 619; Soltesz v. DiCamillo (Feb. 15, 1996), Cuyahoga App. No. 69048, unreported. 6 See Franks v. Lopez (1994), 69 Ohio St.3d 345, 347. 7 Am.Sub.H.B.No. 176, Section 8. - 6 - 8 omissions related to a governmental function. Included as a 9 governmental function is the provision of inspection services. The five statutory exceptions are set forth in R.C. 2744.02(B), of which appellant relies on subdivision (B)(5). This exception provides that a political subdivision can be liable for injury or loss when liability is expressly imposed upon the polit- 10 ical subdivision by a section of the Revised Code. 8 R.C. 2744.02(A)(1) provides, in relevant part: *** Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, *** or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. 9 R.C. 2744.01(C)(2)(p) provides: The provision *** of inspection services of all types, including, but not limited to, inspections in connection with building, zoning, sanitation, fire, plumbing, and electrical codes, and the taking of actions in connection with those types of codes, *** ; *** 10 R.C. 2744.02(B)(5) provides, in relevant part: In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, *** or loss to persons or property when liability is expressly imposed upon the political subdivision by a section of the Revised Code, *** . Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue or be sued. - 7 - Appellant maintains that the section that imposes liability upon appellees is R.C. 2744.03(A)(6)(b), which provides, in perti- nent part: *** [T]he employee is immune from liability unless one of the following applies: *** (b) His acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner. Before addressing whether this section falls within the exception provided by R.C. 2744.02(B)(5), it is necessary to point out that R.C. 2744.03(A)(6)(b) is not relevant to appellant's claims against the city. To the contrary, this subsection removes from immunity the acts or omissions of employees of political subdivisions. By its very terms, subsection (A)(6) applies only to 11 individual employees and not to political subdivisions and, therefore, has no effect on the alleged liability of the city. Because appellant has not demonstrated any other section potentially relevant to imposing liability on the city, the city possesses immunity with regard to appellant's claims against it. What remains to be determined is whether this subsection imposes liability upon Celico in his individual capacity. The statutory framework of R.C. Chapter 2744 compels this court to conclude that R.C. 2744.03(A)(6)(b) does not impose lia- bility upon Celico. As discussed above, R.C. 2744.02(A) grants a 11 Fabrey v. McDonald Village Police Dept. (1994), 70 Ohio St.3d 351, 355-356. - 8 - political subdivision and its employees immunity for the provision of inspection services by virtue of R.C. 2744.01(C)(2)(p). This immunity can only be removed if one of the five narrowly-defined exceptions set forth in R.C. 2744.02(B) is applicable. Once immunity is removed, a political subdivision can assert the defenses listed in R.C. 2744.03(A) to restore immunity. With the 12 exception of R.C. 2744.03(A)(6)(c), these defenses do not, however, afford an independent basis from which to impose liabil- ity so as to come within the exception contained in R.C. 13 2744.02(B)(5). To the contrary, the defenses and immunities provided in R.C. 2744.03(A) only become relevant once an exception 14 to immunity applies. Because appellant cannot demonstrate that any section of the Ohio Revised Code specifically imposes liability upon appellees while performing their point-of-sale inspection for the residence ultimately purchased by appellant, appellant fails to satisfy the exception provided in R.C. 2744.02(B)(5). Consequently, the immunity provided by R.C. 2744.02(A) applies, and the trial court correctly granted appellees' motion dismissing appellant's claims against them. 12 This subsection removes immunity for an employee where "[l]iability is expressly imposed upon the employee by a section of the Revised Code." 13 See, e.g., Farra v. Dayton (1989), 62 Ohio App.3d 487, 496- 497; but, cf. Brkic v. Cleveland (1995), 100 Ohio App.3d 282, 287. 14 Farra, supra, at 497. - 9 - Accordingly, appellant's sole assignment of error is over- ruled. Judgment affirmed. - 10 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J. and TERRENCE O'DONNELL, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .