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Plaintiffs Strike Out on Damage Caps

March 1, 2010

Ohio - Damages

Key Points:

  • Ohio Supreme Court upheld constitutionality of caps on non-economic compensatory damages against political subdivisions.
  • In holding that caps on non-economic compensatory damages against political subdivisions were constitutional, Ohio Supreme Court relied heavily on an earlier case upholding similar caps in a case involving private litigants.
  • Ohio Supreme Court reviewed caps on non-economic compensatory damages against political subdivisions on a rational basis standard and not a strict scrutiny standard.

 

Take me out to the ball game,
Take me out with the crowd.
Buy me some peanuts and cracker jack,
I don't care if I never get back,
Let me root, root, root for the home team,
If they don't win it's a shame.
For it's one, two, three strikes, you're out,
At the old ball game.

--From 'Take Me Out to the Ballgame' by Jack Norworth

No doubt Don Krieger, Clifton Oliver, and Andrew Mendez sang 'Take Me Out to the Ballgame,' the traditional fare for the Seventh Inning Stretch in ballparks across America, at Cleveland's Jacobs Field on June 11, 2002. After all, the Cleveland Indians were beating the Philadelphia Phillies and looked to be on their way back to a .500 record after an early season skid. Unfortunately for Krieger, Oliver, and Mendez, they are less likely to remember that day's Indians starter (Bartolo Colon) than they are the litigation that was born on that summer day.

Krieger, Oliver, and Mendez were part of a group attending the game; the group's seats were in the upper deck in right field, but Krieger and Oliver left Mendez and moved to some open seats in the lower deck. Near the conclusion of the game, an explosive device was dropped from the upper deck and detonated at ground level. When Krieger and Oliver returned to the upper deck, they observed Mendez being interrogated by police and stadium security. After identifying themselves as Mendez's friends and submitting to a search and questioning, Krieger and Oliver lodged a protest with stadium officials about how they and Mendez were treated. Krieger and Oliver were arrested.

Krieger and Oliver were each charged with three counts of aggravated arson and felonious assault and held in jail for four days. During that time they were given only paper jumpsuits to wear, placed in cockroach-infested cells without a cot, mattress or blanket, were not allowed to shower or brush their teeth, and were subjected to verbal threats, harassment, and sleep deprivation by corrections officers.

Prior to their bond hearing, the Cleveland police officer in charge of the case, Detective Ralph Peachman, told Krieger's and Oliver's attorneys that he knew they had nothing to do with the explosion and said charges against them would be dropped if they implicated Mendez. Krieger and Oliver refused. The felony charges against them remained in place for seven months and were finally dismissed by the prosecutor's office in January 2003. Mendez was subsequently convicted.

In June of 2003, Krieger and Oliver filed separate civil lawsuits, later consolidated, alleging false imprisonment, malicious prosecution, and intentional infliction of emotional distress (Oliver v. Cleveland Indians Baseball Co., Ltd., (2009), 2009-Ohio-5030, 915 N.E.2d 1205). A jury returned judgment against the City of Cleveland on all claims and awarded each plaintiff $400,000 in compensatory damages, $600,000 in punitive damages, and reasonable attorney's fees. On post-verdict motions, the trial court vacated the punitive damage awards on the basis that such damages were not authorized against a political subdivision, but refused to apply the non-economic damage cap set forth in R.C. §2744.05(C)(1) to reduce compensatory damages to $250,000 for each plaintiff.

Revised Code §2744.05(C)(1) places a $250,000 limit on damages that "do not represent the actual loss of the person who is awarded the damages." Actual losses include wages and compensation, medical expenses, expenses to repair or replace damaged property, and other expenses the court might determine represent an actual loss incurred by the plaintiff. Actual losses do not include attorney fees, pain and suffering, loss of consortium, mental anguish, or any other similar intangible loss.

The Eighth District Court of Appeals affirmed the trial court's decision and held the statute unconstitutional because it violated a plaintiff's right to a jury trial under the Ohio Constitution and the Equal Protection Clause of the United States Constitution. The Ohio Supreme Court reversed the judgment of the Court of Appeals and found the statute constitutional. In so doing, the Supreme Court relied heavily on its decision in Arbino v. Johnson & Johnson, (2007), 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, where it had previously upheld the constitutionality of a similar statute limiting non-economic compensatory damages in lawsuits between private litigants.

As in Arbino, the Supreme Court noted that the fact-finding role of a jury is "inviolate for those causes for which the right is preserved," but went on to state that "while a jury determines the amount of damages as a matter of fact, the actual award may be reduced by the application of a statute as a matter of law ...." Thus, as the statutory limits are applied as a matter of law, they do not intrude upon the fact-finding function of the jury and do not usurp the role of the jury in contravention of either the Ohio or United States Constitutions.

The Supreme Court next swung away at the plaintiffs' equal protection argument. Finding that no fundamental right or protected class was at issue, the Supreme Court reviewed the statute on a rational basis standard. The Supreme Court concluded that the statute's $250,000 limit was rationally related to preserving the financial integrity of political subdivisions. Further, the Court noted that because it had already held that the General Assembly could have prohibited all tort actions against political subdivisions in Menefee v. Queen City Metro, (1990), 49 Ohio St.3d 27, 29, it was not arbitrary or unreasonable for the General Assembly to allow limited recovery in tort actions.

Oliver represents a rare "three up, three down" strike out for the plaintiff's bar. Strike one: no violation of the Ohio Constitution; strike two: no violation of the United States Constitution; and strike three: an affirmation of the Supreme Court's prior decision upholding non-economic compensatory caps in lawsuits between private litigants. All in all, a pretty good day at the ballpark.

* John is an associate in the firm's Akron, Ohio, office. He can be reached at (330) 255-0042 or jmheffernan@mdwcg.com.

Defense Digest, Vol. 16, No. 1, March 2010

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