Burr v. Bd. of Cty. Comm'rs

23 Ohio St. 3d 69, 491 N.E.2d 1101 (1986)



A county will be held liable for the negligence of its employees and agents in the performance of their activities. 


Appellee adoptive parents filed a wrongful adoption civil action against defendant county board, the welfare department and its officials, and a former employee of the same. They claimed that fraudulent acts were committed against them during the course of the adoption of their son. They alleged that the defendant offered them a child that was declared to be healthy, had a healthy mother, and was born in a city hospital - when in fact, the child was born in a mental institution to mentally retarded parents and had inherited their mental deficiencies.

A jury returned a verdict in favor of the adoptive parents, and that judgment was affirmed by the Court of Appeals of Stark County (Ohio). The respondents contended that the court of claims had exclusive jurisdiction over damage claims by adoptive parents asserted against them. They also argued that the trial court erroneously excluded certain evidence that tended to establish state statutory oversight and funding of the county welfare department.


Does the doctrine of sovereign immunity apply to defendants, being a political subdivision, in an action for fraud?




In this case, the court held that if a plaintiff proves each element of fraud, then the doctrine of sovereign immunity cannot shield a political subdivision from liability due to the fraudulent acts made by its subordinates and agents while in the performance of their functions. Parenthetically, the court held that the elements of fraud are: “(a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance.”

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