Update: A stipulation of dismissal was filed by plaintiff’s counsel on March 15, 2017. The case was settled without any further hearing in the trial court.
On March 15, 2016, the Supreme Court of Ohio handed down a merit decision in Whetstone v. Binner, 2016-Ohio-1006. In a 4-3 opinion written by Chief Justice O’Connor, the court held that punitive damages can be awarded against the estate of a deceased tortfeasor, but only in cases in which liability has been determined while the tortfeasor is still alive. Justices Pfeifer, French and O’Neill joined the majority opinion. Justices O’Donnell and Lanzinger each wrote a dissent. Justice Kennedy joined both dissents. The case was argued October 28, 2015.
On June 29, 2010, Roxanne McClellan was babysitting at her home for Christine Whetstone’s two daughters, O.C. and L.C. who were just over five and two at the time. McClellan was the girls’ great-aunt. When Whetstone returned to pick the girls up, she entered a bedroom and found McClellan with one hand on O.C.’s neck, and the other with a pillow over her face. L.C. was asleep at the time. Whetstone struggled to free O.C. and fled the house with her two daughters.
Whetstone reported the incident to the police right away, and took O.C. to the emergency room. After the incident, Whetstone and her two daughters went to counseling, where all were diagnosed with posttraumatic stress disorder.
The Ensuing Lawsuit
On October 1, 2010, on behalf of her daughters and herself, Whetstone filed suit against McClellan for assault, false imprisonment, emotional distress, and loss of consortium. She sought compensatory and punitive damages from McClellan.
After McClellan failed to answer the complaint, on November 18, 2010, the trial court entered a default judgment against her, and set an evidentiary hearing on damages for January 6, 2011.
On December 29, 2010, McClellan moved to set aside the default judgment on the grounds that she had been unaware of the complaint until after the deadline for filing an answer had passed. She revealed that she had been diagnosed with terminal cancer and had been undergoing chemotherapy treatments for cancer since October of 2010. The damages hearing was postponed at her request.
On April 7, 2011, the court denied McClellan’s request for relief from the default judgment. McClellan died on April 22, 2011, before the damages hearing could be rescheduled. Erin Binner, McClellan’s daughter, was appointed administrator of McClellan’s estate, and was substituted as the party defendant in the case.
The trial court set and held a hearing on damages. At that hearing, the trial court awarded $1500 in compensatory damages to Whetstone and L.C., and $50,000 in compensatory damages to O.C., but declined to award punitive damages against McClellan’s estate. Since no punitive damages were awarded, the court did not award any attorney fees. At this hearing, while Binner argued that punitive damages should not be awarded because no evidence of malice was presented, she did not object to the request for punitive damages because McClellan had died.
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. Read the oral argument preview of this case here and an analysis of that decision here.
Key Statutes and Precedent
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.”)
R.C. 2315.21(Punitive damage statute. Subsection (C) (1) states punitive damages are not recoverable unless the actions of that defendant demonstrate malice or aggravated or egregious fraud or there was ratification by a principal.)
Cabe v. Lunich, 70 Ohio St.3d 598 (1994). (“The policy of awarding punitive damages in Ohio is both to punish the offending party and to set him up as an example to others, thereby deterring others from similar behavior.”)
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)).
G.J.D. v. Johnson, 552 Pa. 169, (1998). Punitive damages may be awarded following a tortfeasor’s death for three reasons: 1) Punitive damages still serve the general purpose of deterrence; 2) the heirs and beneficiaries of the deceased tortfeasor’s estate are in essentially the same financial position as they were before tortfeasor’s death; and 3) there are safeguards to protect against an arbitrary award, including jury instructions that clarify that the damages awarded by the jury will be imposed against the estate.
Niskanen v. Giant Eagle, Inc., 2009-Ohio-3626 (punitive damages are not an independent cause of action; they arise incident to compensable harm.)
All the justices agree that the purpose of punitive damages is not to compensate the plaintiff, but to punish the tortfeasor and deter similar conduct. They disagree on whether imposing punitive damages after the death of the tortfeasor serves as any kind of deterrence.
The majority was willing to accept the idea that an award of punitive damages against the estate of a deceased tortfeasor serves as a general deterrence.
Question of First Impression
By statute, if an injured plaintiff dies, any right to punitive damages survives if the plaintiff’s tort claim is continued by his or her personal representative. But what the court has never decided is whether punitive damages can be imposed against a deceased tortfeasor. As the majority notes, there is no statutory bar precluding this.
Court Adopts Minority View on this Issue
The majority view in the country is clearly that punitive damages abate at the death of the tortfeasor. But as Chief Justice O’Connor notes in the court’s majority opinion, none of those cases involve a tortfeasor who was alive at the time the trial court entered judgment on the tortfeasor’s liability. To her, that was very significant here, and distinguishing, because punitive damges are not an independent cause of action; rather they arise incident to a compensable harm.
The trial court determined, albeit by default judgment, before McClellan died, that she was liable for assault, false imprisonment, emotional distress, and loss of consortium, and that these acts were committed with malice. So once McClellan became liable for the tort claims filed against her, that triggered the potential for both compensatory and punitive damages while she was still alive. In other words, the potential for a punitive damage award “vested” once liability was determined, which was while McClellan was still alive. And had the damages hearing not been postponed (at McClellan’s request) the damges hearing might have occurred while she was still alive.
The majority concluded that “allowing an award of punitive damages when liability has been determined prior to a tortfeasor’s death still accomplishes the general deterrence purpose of such awards,” noting that to hold otherwise would “send a message that by delaying a damages hearing, a defendant or his or her estate might avoid the award of punitive damages.”
There has already been a hearing on compensatory damages in which the plaintiffs received $51,500. The case was remanded back to the trial court for a hearing on punitive damages and attorney fees. The court noted that it ventured no opinion on whether punitive damages were warranted in this case; only that a hearing on punitive damages could proceed.
Relevance of McClellan’s Death
The court noted that at the punitive damages hearing, the trier of fact may consider that McClellan is not present to testify and that any punitive damages award will be imposed against the estate. I assume this means in the event of a jury trial in such cases (the hearing in this case was to the court) a jury instruction on these points would be warranted.
The dissenters do not believe that punitive damages can be imposed against the estate of a deceased tortfeasor. This is the majority view in the United States.
Justice O’Donnell’s Dissent
To Justice O’Donnell, since the purpose of punitive damages is to punish the tortfeasor, awarding them against the estate of a deceased tortfeasor does not serve that purpose, nor, in his opinion, does it deter similar conduct. He does not buy the majority’s general deterrence rationale. Quoting from a 1994 New Mexico Supreme Court decision in Jaramillo v. Providenc Washington Ins. Co., O’Donnell wrote, “the dead cannot be punished or deterred, and ‘[w]hen the tortfeasor cannot be punished for his culpable behavior, punitive damages no longer have the desired effect and, therefore, the victim loses the legal entitlement to recover those damages.’”
Justice Lanzinger’s Dissent
Justice Lanzinger also believes punitive damages should die with the dead. In a major point of disagreement with Chief Justice O’Connor, Lanzinger believes punitive damages are not an inherent part of a tort action, but rather an award separate from compensation for an injury, separately tried, with a separate burden of proof, to be determined only after compensable harm from the cause of action has been established. That makes the fact that the tortfeasor was still alive when liability only was determined lose its significance.
As for the goal of deterrence, general deterrence sets the tortfeasor up as an example to deter others. But once the tortfeasor is dead, no punishment can be imposed, or example made. The burden of deterrence falls unfairly on innocent descendants, and “equity generally demands that the innocent not be punished for the wrongdoings of another,” Lanzinger wrote.
Justice Kennedy joined both dissents.
Here’s what I wrote after argument:
“I teach torts, but am having a hard time predicating this one. I did not sense consensus among the justices here. Justice O’Neill is clearly the most solidly in Whetstone’s camp, believing, as he commented early on, that diminishing the size of a deceased tortfeasor’s estate would send exactly the right message to others who are contemplating similar action. Justice Lanzinger seemed least swayed by that position, as was apparent from her questioning. She kept coming back to the fact that only a small number of states have adopted the position taken by the majority in the court of appeals, allowing punitive damages to be assessed against the estate of a deceased tortfeasor…
“A core of the justices—Pfeifer, French, and the Chief (although not at first) seemed willing to entertain a narrower resolution here—to allow the punitive damages in this case because liability was assessed against McClellan while she was still alive, albeit by way of a default judgment. The court could hold that in this limited circumstance, punitive damages could be assessed, with the personal representative defending the tortfeasor’s position at the damages hearing…”
I guess that was a pretty good call, although I would have voted with the dissenters in this case. I see no deterrent purpose in assessing punitive damages against the estate of a dead tortfeasor. I’m willing to predict that the court is not going to extend this holding to a case where the tortfeasor dies before liability is assessed.
The blog shall watch and report on what happens on remand in this case.