Update: On December 28, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“Would you say that any criminal act gives rise to civil recovery?” Chief Justice O’Connor, to plaintiff’s counsel.
On April 19, 2016, the Supreme Court of Ohio heard 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?”
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, and took her to Florida without her consent or her mother’s. 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.
The Ninth District unanimously affirmed the dismissal of the claim under R.C. 2307.50, but in a split decision reversed the dismissal of the claims pursuant to R.C. 2307.60. 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.
Read the oral argument preview of the case here.
R.C. 2307.60 Civil Action for Damages for Criminal Act
(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.”)
At Oral Argument
Judge James Jenson of the Sixth District Court of Appeals sat by assignment for Justice French, who recused herself from the case. Justices need give no reason publicly for recusal.
Douglas G. Leak, Hanna Campbell & Powell, LLP, Akron, for Appellant Akron Children’s Hospital
Audrey K. Bentz, Janik LLP, Cleveland, for Appellant Ellen Kaforey
Brian F. Lange, Bonezzi Switzer Polito & Hupp LPA, Cleveland, for Appellant Cleveland Clinic Children’s Hospital for Rehabilitation
Donald Screen, The Chandra Law Firm LLC, Cleveland, for Appellee Gary Kirsch, Guardian for Jessica Jacobson
The three defense counsel divided their time, and all argued. Their arguments will be summarized together, as they all stayed on message that R.C. 2307.60 does not create an independent civil action for damages caused by criminal acts.
R.C. 2307.60 is a jurisdictional statute that states that any person injured by a criminal act may recover damages pursuant to a civil cause of action authorized either by common law or statutory law. An example would be a person who was kidnapped could file a civil action for wrongful imprisonment. Rape could be pursued in a civil action for assault and battery.
The legislature’s intent is clear that in order to pursue an action for damages arising out of criminal acts, it must be pursued under a specific civil statute or under the common law. That is true regardless of whether there was a criminal conviction or not. The legislature has enacted many separate statutes, such as identity theft, and human trafficking, specifically allowing civil damages arising from criminal actions. If R.C. 2307.60 has the meaning appellees claim, there would be no need for any such statutes.
R.C. 2307.60 is merely the codification of the common law rule that civil actions are not merged into criminal actions. It is just a statute that permits damages. Blurring civil and criminal actions would be confusing and wrong. There are different burdens of proof, different elements, different statutes of limitations. It would be unclear how to prove a criminal violation in a civil action.
Plaintiff’s counsel began his argument by putting a blow-up of the statute on an easel by the podium, usually a bad idea, but in this case may have had some value, since all the arguments were focused on the statutory language. Jacobson’s argument is that under a plain reading of R.C. 2307.60, anyone injured by a criminal act has a civil action unless specifically excepted by law, which none of her claims were.
There are many specific statutes that authorize particular civil causes of action for particular criminal acts. R.C. 2703.6 is a catch-all provision. The Revised Code criminalizes more actions than it provides civil redress for, and the legislature wanted to ensure that all crime victims have some redress, even if not specifically addressed elsewhere in the code, which is exactly what this statute says. There are a host of appellate decisions in which a plaintiff has been permitted to invoke R.C. 2307.60, then plead and prove the elements of the crime, and recover civilly. There is no conviction requirement when relying on this statute.
R.C. 2307.60 is not just a damages provision, as the defendants argue. It confers a civil right of action. A careful reading of this statute shows that there are three rights conferred by it. The last two—when a party can get attorney fees, and when a party can recover punitive damages, are conditional. But the only restriction placed on the first right-which is the right to recover full damages in a civil action—is that the cause of action is not specifically excepted by law. That is a huge logical difference among the three provisions. R.C. 2307.60 is the civil action. There needn’t be a particular civil action specifically addressed. The defendants aren’t being sued civilly for kidnapping. They are being sued civilly for the damages resulting from the kidnapping.
What Was On Their Minds
Is there any need for a conviction to win civil damages under this statute, asked Chief Justice O’Connor? Were there any criminal charges in this matter? Would a conviction just be an element of proof, and not something that would give rise to the underpinnings of the operation of R.C. 2307.60? Does every criminal act give rise to a civil recovery? What is an example of something specifically excepted by law? Later, she commented to plaintiff’s counsel that what she was hearing was the defendants know what they did, so they should be able to defend against it, when in reality, based on the pleadings, they didn’t know.
Wouldn’t the burden of proof under this statute be different from the burden of proof in the criminal action, asked Justice O’Donnell, noting that the burden was lesser in civil cases. Is there a civil cause of action for kidnapping? Or is this a battery or a false imprisonment? Later, he asked plaintiff’s counsel, who had acknowledged that there is a civil action for false imprisonment, why he thought plaintiff could allege a civil action for kidnapping. Why plead the criminal elements, when the statute refers to causes of action?Didn’t the trial court say that wasn’t permissible because the legislature hasn’t said that was a cause of action for which a person could recover money? Does plaintiff believe she can allege the criminal elements in the civil action on any charge, and that is authorized by the General Assembly? (answer from plaintiff’s counsel: yes.)
Did the court of appeals majority just ignore that part of the statute that said, if authorized by another section of the Revised Code or under the common law of this state, asked Justice Lanzinger? Is the term “criminal act” defined anywhere? Later, she commented that just because someone is charged does not mean that a criminal act has occurred, asking plaintiff’s counsel how an allegation without a definite conviction can be sufficient. When she added that a criminal act had not occurred unless there were a conviction, plaintiff’s counsel respectfully disagreed. (Professor’s note—remember the O.J. Simpson cases—murder charges and wrongful death?)
Shouldn’t victims of crimes in Ohio be able to recover damages from the criminals who have injured them, asked Justice O’Neill? Doesn’t the statute say anyone may recover damages unless specifically excepted by law? Are the criminal acts at issue here specifically excepted by law?
Civ. R. 12(B)(6) and Notice Pleading
What actually was pled in this case, asked Justice O’Donnell?
Was this a pleading problem, asked Justice Pfeifer? Weren’t all the defendants on notice of what the pro se plaintiff was actually alleging? All knew of the underlying facts that gave rise to the allegations? Couldn’t the complaint have been corrected once counsel was hired? Wasn’t the court of appeals really trying to say to the trial judge, you had a pro se complaint filed, instead of just knocking it out, you should have said you need to get a lawyer? Is there an underlying statute of limitations problem here? Ohio is a notice pleading state, and the defendants are on notice of what the plaintiff is after, so the trial court should let this go one more step?
If the plaintiff had pled false imprisonment under the common law would the case still have been dismissed, asked Justice Lanzinger? Would there have been a statute of limitations issue?
Didn’t the appeals court stretch R.C. 2307.60 to dimensions beyond what may have been intended, when it really should have just remanded the case to properly amend the complaint, asked Chief Justice O’Connor?
Doesn’t 12(B)(6) require everybody involved to accept as factually true that which is pled, asked Justice O’Neill, noting that the complaint alleged Jacobson was taken onto a plane against her will. How could a motion to dismiss be granted on those facts? Ignore the crime, and look at the facts, and the acts, he commented. You enticed me to get on a plane, you took me to Florida, it took me 8 years to get back. I want money.
The Actions in This Case
Were the criminal acts taking the child to Florida, asked Justice O’Donnell?
How it Looks from the Bleachers
To Professor Emerita Bettman
Like a win for the defense. I think a majority of the justices are going to reject the argument that R.C.2307.60 is some kind of catch all provision that independently creates a civil cause of action for any criminal act. Mr. Screen argued scrappily and valiantly, but I think his position is too much of a stretch. Damages can be recovered for criminal conduct, but the appropriate common law or statutory cause of action must be pled. As was cited numerous times in the argument, if the crime alleged is kidnapping, (which was one of the main ones alleged) the civil remedy is for the common law tort of false imprisonment. And I don’t think Mr. Screen ever satisfactorily answered Judge Jensen’s question about why, if his position was correct, the legislature passed specific statutes allowing civil damages to be recovered for criminal acts. Identity theft (R.C. 2913.49(J)), trafficking in persons (R.C. 2307.51) and willful damage or theft (R.C. 2307.61) were cited as examples, but there are many others.
The plaintiff’s best hope is the argument that Ohio is a notice pleading state, the facts stated in the complaint, while inartfully written, clearly put all the defendants on notice of the conduct that gave rise to the lawsuit, and the trial court should have allowed the complaint to be amended. Justice O’Neill seemed ready to buy that position. And while Justice Pfeifer seemed sympathetic to that argument, he didn’t seem ready take the step of saying R.C. 2307.60 could be used as an independent civil action, but seemed to feel that the complaint had to be crafted in terms of specific civil causes of action.
I’ve written many times that I don’t think divided arguments work well, but in this case all three defense counsel were very effective in staying on message.
Finally, as a former torts professor, the arguments in this case, while probably wonky to many, interested me for other reasons—and that is the use of criminal statutes to prove negligence per se in civil cases. I taught my students time and again that while it never hurts for the plaintiff to try to do this, courts generally do not like mixing civil and criminal precepts. This same hesitancy will likely determine the outcome here.
To Student Contributor Connie Kremer
After the briefs, this seemed like a win for the appellants, and the oral arguments did little to sway my opinion. I think the court will decide that R.C. 2307.60 does not independently authorize a civil action for criminal acts.
Douglas Leak, for Akron Children’s Hospital, bore the brunt of the justices’ logistical questioning, and he kept to the theme that R.C. 2307.60 merely codified the common law rule that civil actions are not merged into criminal actions. Audrey Bentz, for Ellen Kaforey, highlighted the possible confusion for a jury which—if R.C. 2307.60 were held to independently authorize a civil action for criminal acts—would have to grapple with the differing burdens of proof in criminal and civil charges. What would also apparently be a battle for the jury are the undefined elements of a proposed overreaching civil claim under R.C. 2307.60 as addressed extensively during Mr. Screen’s oral argument.
The best argument for the appellee seems to be the plain language argument that R.C. 2307.60 “is written in the negative,” as was brought up by Justice O’Neill during Ms. Bentz’s oral argument. Don Screen, for Jessica Jacobson, made efforts to capitalize on this argument, pointing out that there were sections of the Revised Code that did expressly prohibit a civil action, referencing R.C. 2307.60. However, the justices overall did not seem compelled by this argument, questioning the General Assembly’s subsequent actions in expressly allowing a civil cause of action flowing from specific criminal acts. A glaring hole in this plain language contention was addressed by Justice Pfeifer who noted that the redress was in a “civil action” which is inherently not present where a plaintiff argues under a criminal cause of action. Brian Lange, for Cleveland Clinic, in his short rebuttal, maintained the contention of the appellants that, under no circumstances, could a claim arising solely under R.C. 2307.60 be sufficiently plead to survive a 12(B)(6) motion.
The potential implications of an expired statute of limitations arose on more than one occasion in these arguments. While Mr. Screen, for Jessica Jacobson, contends that this pleading does not seek to circumvent a statute of limitations, it seems to be a compelling concern. The elements of the civil action, including statute of limitations, are nowhere to be found in an overreaching civil cause of action as proposed by Mr. Screen. Mr. Screen would have civil recovery flow from civil proof of the elements of the criminal act. I find this, at a minimum, troubling, and I think the justices will as well. I would be interested to see a comparison of the criminal claims asserted and possible civil claims (not asserted) in this case—for example, how do the elements of kidnapping compare to those of wrongful imprisonment or battery? Specifically, how does the statute of limitations compare for the alleged criminal acts and their apparent corresponding civil claims (Mr. Screen responded that “there may well be” an underlying statute of limitations problem in this case)? These are ultimately questions for another day, as their implication (or lack thereof) depends on the court’s decision as to whether or not R.C. 2307.60 independently establishes a civil cause of action.