Oral Argument Preview: Does R.C. 2307.60 independently authorize a civil action for criminal acts? Jessica Jacobson v. Ellen Kaforey et al.

Update: On December 28, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

On April 19, 2016, the Supreme Court of Ohio will hear oral argument in the case of Jessica Jacobson v. Ellen Kaforey et al., 2015-1340. The case was accepted on certified conflict to determine whether R.C. 2307.60 establishes a civil cause of action for violation of any criminal statute. The precise question certified is “does the current version of R.C. 2307.60 independently authorize a civil action for damages caused by criminal acts, unless otherwise prohibited by law?”

Case Background

Jessica Jacobson, then a minor, was hospitalized from April 18, 2001 through May 30, 2001 at Akron Children’s Hospital and Cleveland Clinic Children’s Hospital for Rehabilitation (“CCCHR”). Ellen Kaforey, an attorney, was appointed conservator for Jacobson’s mother by the court. Based on the actions of Jacobson’s mother while Jacobson was hospitalized, the Summit County Children’s Services Board obtained custody of Jacobson. Once discharged from the hospital, Children’s Services arranged for Jacobson to move to Florida to live with her maternal uncle.

When she became an adult, nearly eleven years after her hospitalization, on September 18, 2012, Jacobson filed a pro se complaint alleging that while she was under the care of Akron Children’s Hospital and CCCHR, the three defendants kept her from having contact with her mother, in violation of R.C. 2307.50. Relying on R.C. 2307.60, she sought civil damages for alleged violations of criminal statutes for kidnapping, child enticement, and unlawful restraint..

The Defendants each separately filed a motion to dismiss pursuant to Civ.R. 12(B)(6), which the trial court granted.

In a decision written by Judge Cannon, joined by Judge Moore, the Ninth District affirmed the dismissal of the claim under R.C. 2307.50, but reversed the dismissal as it pertained to the claims pursuant to R.C. 2307.60. Judge Carr agreed with the first part of the decision, but disagreed that R.C. 2307.60 creates an independent cause of action, and dissented from that part of the opinion. During the appeal of the case, Jacobson was declared incompetent by the Probate Court, and her stepfather, Gary Kirsch was named as her guardian and substituted as party plaintiff.

The court accepted this case on conflict certification. The certified conflict question is  “Does the current version of RC. 2307.60 independently authorize a civil action for damages caused by criminal acts, unless otherwise prohibited by law?”

Justice French has recused herself from this appeal. Judge James Jenson of the Sixth District Court of Appeals has been assigned to hear this case in her stead.

Key Statutes

RC 2307.60(A)(1) (“Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.”)

RC 2307.50 (Civil action to recover damages for interference with the parental or guardianship interest.)

Conflict Cases

There are numerous conflict cases which can be accessed here, in the court order certifying the conflict in this case.

Kaforey’s Argument

Ohio courts have consistently held that absent an express authorization in the statute, there is no automatic civil liability for violation of a criminal act. The legislature never intended for R.C. 2307.60 to create an independent cause of action, which is demonstrated by the plain language of the statute. The plain language of the statute relies upon, and references, other provisions of the Revised Code, because R.C. 2307.60 was intended to be a jurisdictional statute and not a stand alone cause of action. Ohio courts have interpreted R.C. 2307.60 as a codification of the common law rule that a civil action is not merged into a criminal prosecution for the same acts that form the basis of the civil action.

The legislative history, while limited, supports Kaforey’s assertions, and no court has construed R.C. 2307.60 in the same manner as the Ninth District. Further, there are specific examples in the Revised Code, such as R.C. 2307.611, for victims of identity theft, where the legislature affirmatively created an independent civil cause of action. That would not be necessary if the legislature intended R.C. 2307.60 to create an independent right of civil action for all damages stemming from criminal acts.  So unless the legislature expressly sets forth a civil action based on the violation of a criminal statute, or a similar civil action already exists, there can be no civil cause of action for violation of a criminal statute.

Finally, it would be neither practical nor efficient to allow civil suits to flow from R.C. 2307.60 on its own, as the defendants and courts would have little or no notice as to the basis upon which the suit stems.

Akron Children’s Hospital’s Argument

It is undisputed that civil actions exist at common law for damages caused by criminal acts. Further, R.C. 2307.60 states that civil actions exist for damages caused by criminal acts. However, the Ninth District’s holding drastically exceeds the express language of R.C. 2307.60, and conflicts with the majority of Ohio courts.

Jacobson alleges violations of the criminal statutes for unlawful restraint, criminal kidnapping, and criminal child enticement. The proper avenue for Jacobson would be to plead the civil equivalent of these crimes.

R.C. 2307.60 is not a vehicle for pleading a civil claim for a violation of all criminal statutes. Civil and criminal causes of action have been and should remain distinctly separate.

CCCHR’s Argument

Ohio courts have consistently held that the violation of a criminal statute does not independently give rise to a civil claim for relief. Courts have held that R.C. 2307.60 alone does not create a civil cause of action; rather, a plaintiff must assert a common law or statutory claim separate and apart from R.C. 2307.60 to assert a claim for civil damages based on a criminal act. The legislature has not changed this interpretation. R.C. 2307.60 is a jurisdictional statute that provides that a civil action does not merge into a criminal prosecution.

The legislature, though it has enacted numerous statutes setting forth civil causes of action for specific criminal statutes, has not done so with respect to the criminal acts of unlawful restraint, kidnapping, or child enticement.

The Ninth District’s interpretation of R.C. 2307.60 would allow plaintiffs to circumvent statutes of limitation, tort damages cap, and would cause uncertainty regarding the elements of a cause of action and finality of judgments and settlements. Defendants would be subject to multiple suits and potentially to further liability in matters that were previously resolved.

Allowing the Ninth District’s interpretation to stand would blur the lines between civil and criminal proceedings. The Ninth District’s interpretation is contrary to longstanding precedent and is a departure from Ohio law.

Jacobson’s Argument

Appellants committed the crimes of kidnapping, unlawful restraint, and child enticement when, without privilege to do so, they interfered with the custody rights of Jessica’s mother, refused to permit contact, and transported Jessica to Florida without her or her mother’s consent.

The plain language of R.C. 2307.60(A)(1) creates a civil right of action in favor of anyone who has been injured by a criminal act. The addition of the word “has” in the current, amended version of the statute, solidifies this interpretation-it guarantees that a victim of crime will have civil redress. Plus, the “and” in the “and may recover full damages” clause supplements that guarantee.

The right to the civil action itself is not conditioned on outside rules or laws. Provided that the claimant can demonstrate the injury and criminal act expressly required by R.C. 2307.60(A)(1), the court need not find outside authorization for the civil suit as the appellants would suggest.

Use of R.C. 2307.60 does not usurp the State’s exclusive authority to initiate criminal prosecutions; it merely authorizes recovery of damages resulting from criminal acts.

The court should apply R.C. 2307.60 in accordance with its plain meaning and allow Jacobson to continue a civil action for damages resulting from criminal acts.

Kaforey’s Proposed Proposition of Law

Revised Code 2307.60 is not an independent cause of action and merely codifies that a civil action is not automatically merged into a criminal proceeding.

Akron Children’s Hospital Proposed Proposition of Law

Revised Code 2307.60 does not independently authorize a civil action for violations of all criminal statutes based on the pleading of a criminal statute in a civil complaint, but merely codifies the common law principle that a civil action is not automatically merged into a criminal proceeding.

CCCHR’s Proposed Proposition of Law

The current version of R.C. 2307.60 does not independently authorize a civil action for damages caused by criminal acts, unless otherwise prohibited by law.

Student Contributor: Connie Kremer

This entry was posted in Damages, Ohio Supreme Court Watch, Oral Argument Preview, Student Contributors and tagged , . Bookmark the permalink.