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Damages Caps Upheld Again (Political Subdivisions)

The $250,000 cap on noneconomic damages in RC 2744.05(C)(1) does not violate the right to a jury trial or the right to equal protection under the law.  Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030.  The court followed its decision in Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948. (See Post on Arbino).

The Constitution.  Article I Section 5 of the Ohio Constitution, and the Seventh Amendment to the United States Constitution protect the right to a jury in civil cases.

Right to trial by jury.  The rationale is that juries decide facts, and the limitation on damages is a question of law. Thus, the statute does not infringe upon the jury’s role as fact-finder.

Equal Protection.  A statute is valid if it is rationally related to a legitimate government purpose.  The court held:  “The state has a valid interest in preserving the financial soundness of its political subdivisions.”   Also, since the State has the authority to prohibit all tort actions against political subdivisions, it is neither arbitrary nor unreasonable for the State to limit the amount that can be recovered against a political subdivision.      

Date of Decision:  1 Oct 2009

Majority: Moyer; Lundberg-Stratton; O’Connor; Lanzinger; Cupp

Dissent:  O’Donnell; Pfeifer

Jeffrey Beausay

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Negligence of Minors

Can a person under the age of 18 be “negligent?”  Recall that negligence is the failure to exercise ordinary care for the safety of others.  Well, the answer is:  it depends how old the minor is.  Infants under seven years of age are “incapable of negligence;” children between 7 and 14 are presumed to be incapable of negligence, but the presumption can be rebutted by showing that the child is of sufficient maturity and capacity to avoid danger and make intelligent judgments with regard to the activity in which s/he had engaged; children 14 and older are capable of negligence, but the issue must be determined by the jury. 

In Wheaton v. Conkle (1937), 57 Ohio App. 373, the court stated:

This proposition is supported by the case of Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St., 283, 20 N. E., 466, 3 L. R. A., 385, which has never been reversed and is now the law of this state, dealing with the degree of care required of children. On page 289 of the opinion it is stated:

“Children constitute a class of persons of less discretion and judgment than adults, of which all reasonably informed men are aware. Hence ordinarily prudent men, reasonably expect that children will exercise only the care and prudence of children, and no greater degree of care should be required of them than is usual under the circumstances, among careful and prudent persons of the class to which they belong.”

In the case of Fightmaster v. Mode, 31 Ohio App., 273, 167 N. E., 407, at page 281, we note the following:

“1. In the application of the doctrine of contributory negligence to children, in actions by them, or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that of adults; and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them, is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances. * * *.

“Children are not chargeable with the same care as persons of mature years. Although children are required to exercise ordinary care to avoid the injuries of which they complain, such care, as applied to them, is that degree of care which children of the same age, education and experience, of ordinary care and prudence, are accustomed to exercise under similar circumstances.”

In Cleveland, C., C. & St. L. Ry. Co. v. Grambo, Sr., Admr., 103 Ohio St., 471, 134 N. E., 648, 20 A. L. R., 1214, at page 476, it is held:

“The standard governing such negligence on the part of a youth is not the same as that of an adult.”

This request, when carefully read, does not say that Section 6310-36, General Code, had no application to Anson Wheaton, aged fifteen. It does say that in the jury’s determination of any violation of the section by him that he is only required to exercise such care as one of his age, of ordinary care and prudence, is accustomed to exercise under similar circumstances.

Some other cases on point are:

  • Foulke v. Beogher (2006), 166 Ohio App.3d 435, 2006-Ohio-1411
  • Rolling Mill Co. v. Corrigan (1889), 46 Ohio St. 283 
  • Lake Erie & Western R.R. Co. v. Mackey (1895), 53 Ohio St. 370
  • Holbrock v. Hamilton Distributing, Inc. (1967), 11 Ohio St.2d 185

Jeffrey Beausay  

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Open and Obvious Hazards

Where a danger is “open and obvious,” a landowner owes no duty of care to individuals lawfully on the premises.  Armstrong v. Best Buy Co., Inc. (2003), 99 Ohio St.3d 79, 2003-Ohio-2573.  The owner or occupier may reasonably expect that persons entering the premises will discover those dangers, and take appropriate measures to protect themselves.”  Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642, 644.

Negligence Per Se Exception

The open and obvious defense does not apply if the defendant was “negligent per se” for violating a safety statute.  See Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, para. 25; Chambers, 82 Ohio St.3d at 567-8.

Violation of Ohio Basic Building Code:  In Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, the Ohio Supreme Court held that an open and obvious hazard does not create liability (i.e., an injured person cannot recover), even if the hazard is a violation of the Ohio Basic Building Code.  The basis for this distinction is that statutes “reflect public policy,” whereas administrative rules are created by administrative agency employees who act to implement the General Assembly’s public policy decisions.

Danger Created by Independent Contractor:  An independent contractor who creates a dangerous condition on real property is not relieved of liability under the doctrine which exonerates an owner or occupier of land from the duty to warn those entering the property concerning open and obvious dangers on the property.”  Simmers v. Bentley Constr. Co. (1992), 64 Ohio St.3d 642.

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Caps on Damages: Medical Malpractice

Under Ohio law, in medical malpractice cases (i.e., not personal injury or wrongful death cases), the amount one can recover for non-economic losses caused by a negligent physician or other healthcare provider is capped (limited).  See RC 2323.43.  The caps are as follows:

A. Catastrophic Injuries:  $500,000/plaintiff/$1Million/Occurrence

“Catastrophic” Defined:  A permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or a permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities.

B. Non-Catastrophic Injuries:  The greater of $250,000 or 3 times the plaintiff’s economic losses (up to $350,000/plaintiff) or a maximum of $500,000 per occurrence.  

RC 2323.43 went into effect on April 11, 2003.

Comments:

First, there is no cap on economic damages, such as medical expenses, loss of income, future medical care, etc.  The caps only apply to non-economic damages, such as pain and suffering, emotional distress, mental anguish, etc. 

The Ohio Supreme Court will need to determine if these caps comply with the Ohio Constitution.  The Court already has upheld the personal injury caps (See Post on PI caps), but the PI caps do not apply to ”catastrophic injuries” as defined in the statute; in medical malpractice cases, on the other hand, the caps are higher than those imposed in non-catastrophic cases.

TJB’s Opinion

I’m sure you would like to know how I feel about damages caps.  I have no problem imposing damages caps, so long as the caps are fair and reasonable.  For example, I feel that the personal injury damages caps for non-catastrophic injuries (see RC 2315.18) are reasonable; they protect a defendant against an outlandish jury verdict for non-catastrophic injuries.  But there must be an exception for severe injuries, and the cap needs to be substantial in such cases (i.e. much more than the RC 2315.18 or 2323.43 caps).  If you were seriously injured and had a permanent disability, these caps are not nearly sufficient to cover the losses that might accompany such injuries.  That’s my opinion.

Jeff Beausay

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Negligence Per Se

Negligence is a failure to do what the reasonable person would do under the same or similar circumstances.  We also refer to this as the “standard of care.”  The standard of care to be exercised for the protection of others can be established by legislative enactment, judicial decision, or by the facts and circumstances of the case.

Where a statute or ordinance imposes a specific duty, or prohibits certain conduct, for the protection of others, and the failure to perform that duty, or the violation of the prohibited act, results in injury to another, the person is “negligent per se” or negligent “as a matter of law.”  See Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367; Swoboda v. Brown (1935), 129 Ohio St. 512.

The violation of an administrative rule does not constitute negligence per se; however, such a violation may be admissible as evidence of negligence.  Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563; Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495 (The open and obvious doctrine may be asserted as a defense to a claim of liability arising from a violation of the Ohio Basic Building Code.”)

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Frivolous Lawsuits

We often hear about “frivolous lawsuits” burdening our court dockets. This is just overblown media hype; frivolous claims are prohibited under Ohio law, and are very rare.

RC 2323.51 (effective 2001) prohibits frivolous conduct of any kind in the filing of a civil action.  ”Frivolous conduct” is defined in the statute as follows:

  • Conduct that serves merely to harass or maliciously injure another party, or is for another improper purpose;
  • Conduct that is not warranted under existing law, cannot be supported by a good faith argument for a change of existing law, or for the establishment of new law;
  • Allegations that have no evidentiary support or are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

So the next time someone tells you that we need to crack down on frivolous lawsuits, tell them we already did, about a decade ago.

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Uninsured/Underinsured Motorist Coverage: What is it?

Suppose you are injured in an auto accident caused by the negligence of another driver, and the driver at fault does not have automobile liability insurance.  Hopefully, in this situation, you bought uninsured motorist (UM) coverage when you obtained your own automobile insurance.  If so, you are entitled to recover your damages from your own insurance company, under the uninsured motorist coverage.

Now suppose the driver at fault has insurance, but only has the state minimum coverage, $12,500 per person, $25,000 per accident.  If your claim is worth more than $12,500, the driver at fault is underinsured.  Hopefully, in this situation, you bought underinsured motorist coverage (sometimes referred to as UIM or UDM coverage), which will pick up where the liability coverage leaves off.  If, for example, your UM coverage limit is $50,000 per person, you can recover your damages up to that limit:  $12,500 from the liability carrier; $37,500 from your UM carrier.

Bottom line:  UM coverage is very good coverage to have.  And believe it or not, it’s not that expensive, so get it if you can, and ask your agent how much you should have.

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UM: Other Owned Vehicle

If you own two cars, but only insure one of them, you cannot recover uninsured/underinsured motorist (UM) benefits if, when you were injured, you were occupying the car you chose not to insure.  To guard against this, most insurance companies have what is called an “Other Owned Vehicle” exclusion in their policies.  These exclusions are enforceable, and have been upheld by the Ohio Supreme Court.  See Lager v. Miller-Gonzalez, 120 Ohio St.3d 47, 2008-Ohio-4838.

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Dog Bites and Other Animal Attacks

R.C. 955.28(B) states that “[t]he owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was *** teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property.” R.C. 955.28 does not provide for the award of punitive damages. Tynan v. Hanlon (1959), 110 Ohio App. 77, 79.  “R.C. 955.28 does not establish negligence per se. Rather, the statute establishes liability without regard to fault or the dog owner’s negligence.” Allstate Ins. Co. v. U.S. Assoc. Realty, Inc. (1983), 11 Ohio App.3d 242, 246, citing Hirschauer v. Davis (1954), 98 Ohio App. 479, affirmed (1955), 163 Ohio St. 105; Silverglade v. Von Rohr (1923), 107 Ohio St. 75.  “In order to maintain a strict liability cause of action under R.C. 955.28(B), the plaintiff must establish: (1) that the defendant is the owner, keeper or harborer of the dog; (2) that the injury was proximately caused by the dog’s actions; and (3) the monetary amount of the damages.” Bowman v. Stott, 9th Dist. No. 21568, 2003-Ohio-7182, at ¶8, citing Hirschauer v. Davis (1955), 163 Ohio St. 105, paragraph three of the syllabus; Stuper v. Young (May 15, 2002), 9th Dist. No. 20900, at *4.

“Under the common law, a plaintiff suing for damages inflicted by a dog under a theory of general negligence must show: (1) the defendant owned or harbored the dog; (2) the dog was vicious; (3) the defendant knew of the dog’s viciousness; and (4) the defendant was negligent in keeping the dog.” Bowman at ¶19, citing Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25-26. Punitive damages may be awarded in a common law action against the dog owner. Rothenbusch-Rhodes, supra, at ¶38, citing Tynan, 110 Ohio App. at 7

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Consortium

There are several types of consortium.  Consortium essentially is a derivative claim, meaning that a person can recover money damages for severe injuries to a loved one.

Parental/Filial Consortium

In Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, the Ohio Supreme Court held:

1. A parent may recover damages, in a derivative action against a third-party tortfeasor who intentionally or negligently causes physical injury to the parent’s minor child, for loss of filial consortium. Consortium includes services, society, companionship, comfort, love and solace.

2. In Ohio, a minor child has a cause of action for loss of parental consortium against a third-party tortfeasor who negligently or intentionally causes physical injury to the child’s parent. Consortium includes society, companionship, affection, comfort, guidance and counsel.

Spousal Consortium

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