Update: On March 15, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
Read the analysis of the oral argument here.
On October 28, 2015 the Supreme Court of Ohio will hear oral argument in the case of Christine Marie Whetstone v. Erin K. Binner, Administrator of the Estate of Roxanne Mcclellan, Deceased, 2014-1462. At issue in this case is whether punitive damages against a deceased tortfeasor’s estate are permitted.
Christine Whetstone, individually and on behalf of her minor children Lea and Olivia Castle, filed suit against Whetstone’s aunt, Roxanne McClellan claiming assault, battery, false imprisonment, and intentional infliction of emotional distress, arising out of a physical attack by McClellan on the two girls. McClellan never answered, and a default judgment was entered against her. After a damages hearing was set, McClellan filed a motion for leave to plead, asserting that she was not properly put on notice of the lawsuit and had been receiving chemotherapy. McClellan’s motion was denied but the damages hearing was continued.
In the interim, McClellan died and her daughter, Erin Binner, was appointed administrator of McClellan’s estate. At the damages hearing, the trial court awarded Whetstone and her children a total of $51,500.00 in compensatory damages but declined to award punitive damages or attendant attorney fees against McClellan’s estate.
In a split decision, the Fifth District reversed the trial court’s decision and found that punitive damages could be assessed against a deceased tortfeasor’s estate. In this issue of first impression in Ohio, the majority opinion, authored by Judge Scott Gwinn, and joined by Judge Patricia Delaney, acknowledged that the majority view from other jurisdictions is not to allow punitive damages against a deceased tortfeasor because the primary purpose of such damages—deterrence- cannot be met if the tortfeasor is deceased, and unfairly punishes innocent beneficiaries of the estate. But the appeals court found the minority view—that punitive damages survive the death of the tortfesor and may be pursued against the estate—more persuasive. The court found that the statutory language of Ohio’s survival statute and the opinion in Rubeck compel the conclusion that “all causes of action, including all elements of recovery, survive as if the deceased party were still alive both on behalf of the estate of the decedent and against the estate of the tortfeasor.”
Judge Roger Wise dissented, finding that since the purpose of punitive damages is to punish and deter the actual tortfeasor, neither purpose can be met once the tortfeasor dies, and punishing the estate is too far removed.
R.C. 2305.21 (Ohio’s Survival Statute which reads, “In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.”)
R.C. 2311.21 (“Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a judge of a county court for misconduct in office, which shall abate by the death of either party.”)
Sivit v. Vill. Green of Beachwood, L.P., 2015-Ohio-1193 (The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 651, 635N.E.2d 331 (1994)).
Dardinger, Exr., v. Anthem Cross & Blue Shield Et Al. 2002-Ohio-7113 (In assessing punitive damages and their overarching purpose, “the plaintiff remains a party, but the de facto party is our society, and the jury is determining whether and to what extent we as a society should punish the defendant.”)
Rubeck Exr., v. Huffman 54 Ohio St. 2d 20 (1978) (When a decedent has a right to punitive damages before his death, that right passes to his estate under Ohio’s Survival Statute.)
Ranells, Admx., et al., v. City of Cleveland 41 Ohio St. 2d (1975) (“It must be continually emphasized that punitive damages are assessed over and above that amount adequate to compensate an injured party. As such, they are nothing less than a windfall to any plaintiff who receives them. When their reason for being—to punish or deter— ceases to exist, the entire rationale supporting them collapses”)
Individual Business Services, Inc. v. Carmack, 2009 WL 8235882 (Montgomery Cty. Com. Pl. Ct. 2009 (language of survival statute authorizes survival of a claim both in favor of a decedent entitled to a claim and also against a decedent liable for such a claim. Purpose of punitive damages is not just to deter an individual defendant, but to provide an example to others to deter similar conduct.)
First, Binner submits that the purpose of punitive damages is to punish and deter certain conduct. The dead cannot be punished nor deterred. Acknowledging that this case is one of first impression, Binner relies on the common law, which forbids the imposition of punitive damages on the estate of a dead person, and on the Second Restatement of Torts, where punitive damages are unavailable against the estate of a deceased tortfeasor. Binner argues this is the majority position in the country on this subject, and should be adopted here.
Second, Ohio’s survival statute should not be read to include punitive damages. The concept of recovery against the dead is a relatively new one. At common law tort liability (unlike contract liability) abated at death. Ohio has never adopted a universal scheme allowing all causes of action to continue unabated, and Ohio’s survival statute should not be so construed. The history, language, and subsequent lack of amendment to Ohio’s survival statute conclusively demonstrate that the Fifth District’s holding that “all causes of action, including all elements of recovery, survive as if the deceased party were still alive” is incorrect. The General Assembly never intended to allow punitive damages to be awarded against estates of deceased tortfeasors.
Third, Binner hones in on the true purposes of punitive damages, which is punishment and deterrence. These purposes are thwarted, not satisfied, by imposing such damages against the estate of a deceased tortfeasor, by punishing innocent beneficiaries. Why should the beneficiaries be punished for acts that they never committed? The real purpose behind punitive damages is to punish the defendant-a purpose completely vitiated by death. Inherently, the same reasoning holds true for deterrence. Punishing the innocent serves no deterrent purpose.
Finally, Binner argues that imposing punitive damages against an estate violates due process.
First, there is a distinction to be made between “specific deterrence” where the goal is designed to stop an individual tortfeasor from recidivism and “general deterrence” where the goal is to deter others in society from committing same or similar acts. The very premise of punitive damages focuses on “general deterrence.” The general deterrence in this case is impactful—if a tortfeasor’s estate is assessed punitive damages, perhaps the tortfeasor will think twice before engaging in malicious or willful acts. This holding will not punish the beneficiaries of the estate, as they are in no worse shape than they would have been had McClellan lived through the damages hearing.
Second, Ohio’s survival statute inherently preserves the recovery available to tort victims. Furthermore, the actual judgment was entered against McClellan while she was still alive. Technically, once default is entered against a defendant who fails to timely move or plead, a plaintiff is entitled to both compensatory and punitive damages established.
Finally, Whetstone argues that any due process argument in the case was waived for failure to raise it below. Alternatively, Whetstone argues the issue is not ripe for consideration, because the issue of punitive damages has not yet been determined.
Binner’s Proposed Proposition of Law
Punitive damages may not be imposed against the estate of a deceased tortfeasor.
Whetstone’s Proposed Counter Proposition of Law # 1
The purpose of punitive damages is not to compensate a plaintiff but to punish the guilty, deter future misconduct, and to demonstrate society’s disapproval. At the punitive-damages level, it is the societal element that is most important. Dardinger v. Anthem Blue Cross & Blue Shield (2002), 98 Ohio St.3d 77, 10
Whetstone’s Proposed Counter Proposition of Law # 2
Permitting the imposition of punitive damages against the estate of a deceased tortfeasor does not contravene the purposes of punitive damages, but rather, furthers the most important purpose of punitive damages, which is to demonstrate society’s disapproval of the tortfeasor’s malicious, wanton or reckless acts or omissions and deter the commission of such acts or omissions by others.
Whetstone’s Proposed Counter Proposition of Law # 3
Ohio Revised Code Section 2305.21 should be liberally construed to provide that all causes of action, including all elements of recovery, survive as if the deceased party were still alive, both on behalf of the estate of the decedent and against the estate of the tortfeasor.
Whetstone’s Proposed Counter Proposition of Law # 4
The failure of an appellant to raise an issue or argument at the intermediate appellate court level results in a waiver of the issue or argument when first raised before the Ohio Supreme Court.
Whetstone’s Proposed Counter Proposition of Law # 5
The failure of an appellant to move or plead to a plaintiff’s complaint, being held in default by a trial court, and failing to appeal the granting of default at the intermediate appellate court level, results in a waiver of affirmative defenses that might have otherwise been asserted by an appellant, and prohibits the raising of said affirmative defenses as an argument or issue before the Ohio Supreme Court.
Whetstone’s Proposed Counter Proposition of Law # 6
Appellant’s due process argument must fail, even if it had not been waived, because it is not ripe for consideration.
Amici in Support of Whetstone
Amicus, the Ohio Association for Justice (OAJ) filed a brief in support of Whetstone. In its brief, the OAJ echoes many of the same arguments submitted by Whetstone. Specifically, the overarching purpose of punitive damages in Ohio has long been recognized as a deterrent for conduct of citizens generally. The deterrent effect of such damages is not changed by the death of an individual culpable defendant. Nowhere does the Ohio Revised Code prohibit an award of punitive damages against an estate. Furthermore, there are ample procedural protections in place to ensure against unfair punitive damages awards against an estate.
Amicus, the Landskroner Foundation for Children (Landskroner) is a non-profit charitable organization that promotes positive childhood development, supports child safety in the home, and advocates for children in need. Landskroner also submits that Ohio’s public policy in awarding punitive damages is to deter others from committing same or similar acts. The deterrent effect in this case is to let wrongdoers know that “their estates may be reduced by damage assessments—and so their, children, grandchildren, and other heirs will receive less from the estate.”
Student Contributor: Austin LiPuma