Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

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Posts tagged Damages
“Profit Over People” Prevails Again

             Unfortunately, in Simpkins v. Grace Brethren Church of Delaware, 2016-Ohio-8118 the principle of “profit over people” prevailed yet again.   If there was ever a set of facts to declare as unconstitutional the non-economic damages caps of R.C. 2315.18, this was the case. 

              In Simpkins, the plaintiff brought a lawsuit against a church for its pastor’s actions in forcing oral and vaginal intercourse with her who, at the time of being raped, was 15 years old.   The jury found that the plaintiff was entitled to $3,651,378.85 in compensatory damages, which included the following: $1,378.85 for past economic damages, $150,000 for future economic damages, $1,500,000 for past non-economic damages, and $2,000,000 for future non-economic damages.   

              The trial court, in applying R.C. 2315.18(B)(2), reduced the plaintiff’s non-economic damages from $3.5 million to $350,000 and, accordingly, entered a judgment in plaintiff’s favor for $500,000; which is $3.1 million dollars less than a jury of her peers awarded her.  So why did the court do that?

              As Ohio Supreme Court noted in it’s decision in Simpkins, “[t]he General Assembly enacted R.C. 2315.18 as part of a broader tort-reform bill . . . effective April 7, 2005.  In support of those reforms, the General Assembly recognized the state’s interest in ‘a fair, predictable system of civil justice’ that preserves the rights of injured parties while curbing frivolous lawsuits, which increase the costs of doing business, threaten Ohio jobs, drive up consumer costs, and may hinder innovation.”   In other words, the General Assembly was more interested in protecting corporate interests than those harmed by them; which in Simpkins, means a child rape victim is just too much of a drain on the economy to merit a full-value award as decided by a jury of her peers. 

              Revised Code 2315.18(B)(1) does not place a cap on economic damages; meaning out-of-pocket expenses such as medical bills, loss of wages, or other expenses incurred as a result of the injury.   In Simpkins, the plaintiff’s economic damages were $1,378.85 (the jury also awarded $150,000 for future economic damages).   This is not necessarily unexpected as a rape victim’s economic injuries pale in comparison to the non-economic harm.    Revised Code 2315.18(A)(4) states non-economic harm includes “pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.”

              Unfortunately for the plaintiff in Simpkins, R.C. 2315.18(B)(2) caps non-economic damages that can be recovered at the greater of $250,000 or an amount that is three times the economic loss to a maximum of $350,000.   Sounds confusing, right?   If the jury only found $1,378.85 in economic loss, the plaintiff’s recovery would only be $251,378.85.   This is because 3x the economic loss = $4,136.55; so the $250,000 dollar cap would apply.  However, the jury also found $150,000 in future economic damages.  With this in mind, 3x economic damages = $454,136.55.   As that amount exceeds the $350,000 maximum, the trial court reduced the non-economic damages accordingly. 

              As you can imagine, the plaintiff in Simpkins appealed the substantial reduction of her award claiming the damage caps, as applied to her, were unconstitutional.   Quite literally, the Court found “[w]e do not consider here whether there may exist any set of facts under which application of the statutory damage caps would prove unconstitutional. We conclude only that R.C. 2315.18(B) is constitutional as applied to the facts before us . . . .”  In doing so, the Ohio Supreme Court upheld this outrageous outcome. 

              Think about this for a second: in Ohio, we empower jurors to determine whether or not an individual’s life is worth condemning for their crimes yet we do not trust them to determine the full-value of a person’s injuries.   Of course, this is because the General Assembly was more concerned about the costs of doing business, jobs, consumer costs, and innovations; and not protecting people who are harmed by wrongful and negligent conduct.

              This was not lost on Justice O’Neill, as he stated in his dissent: “[t]his child was raped in a church office by a minister, and a duly empaneled jury established an appropriate level of compensation for the loss of her childhood innocence. We have no right to interfere with that process. Shame on the General Assembly. The children are watching. And I for one do not like what they are seeing.”  

              Nor was it lost on Justice Pfeifer: “’[t]ort reform,’ however misguided and unconstitutional, was designed to protect doctors and corporate interests. . . . Today, we learn that ‘tort reform,’ not surprisingly, had unintended consequences. It turns out that ‘tort reform’ (and the justices who sanctioned it) also ensured that rapists and those who enable them will not have to pay the full measure of the damages they cause—even if they rape a child. It is past time for the General Assembly (and this court) to reconsider ‘tort reform’ and return the authority to determine damages to juries, where it rightfully and constitutionally belongs.”

            If you think this is an unjust result, contact your senator and representative and demand change.

            If you have been injured by the wrongful acts or negligence of another, contact me for a no cost, no obligation consultation and case evaluation; I will fight for you. 

How to Protect Yourself BEFORE a Bicycle Accident

For cyclists, this week served as yet another painful reminder of the vulnerability that we face every time we roll out onto the roadway and the catastrophic harm that can be caused for ourselves and our families.   While I trust most cyclists are careful, it is the distracted driver, the impatient driver, or the drunk driver that we have to worry about.   Their actions (and reactions) are completely out of our hands.  

I previously posted an article titled “What to do if You’re Involved in a Bicycle Accident” which you should check out first.   What that article does not address is the steps you should take before an accident happens to protect yourself and your family afterwards.   In other words, buy as much insurance as you can reasonably afford.  While this is not a comprehensive discussion on the issue of insurance, or the available types, here are a few types of insurance that you should absolutely have if you’re a cyclist:   

  • Life Insurance:         Kalamazoo, MI.  West Baltimore, MD.  Brooklyn, NY.  Brecksville, OH.   The list can go on.   Purchasing a life insurance policy will provide your family some semblance of financial security in the event tragedy strikes and will compensate, at least for a time, the shortfall of income resulting from your loss.
  • Disability Insurance:             It is not difficult to understand that, even if you are fortunate enough to survive a bicycle accident, your injuries may be catastrophic and leave you disabled.   If you are no longer able to work and earn an income to support your family, disability insurance will help you stay afloat by providing monthly payments during the period as set forth in the policy.   A short-term policy usually is for payments less than one year whereas a long-term policy can vary but may be as long as until you reach a retirement age. 

Life insurance and disability insurance are two types of policies that are wise to have as they provide financial support for injuries that go beyond a bicycle accident (i.e. major health issue or some other type of injury) and, more likely than not, have no relation to fault for the injury.   

For a motorist in Ohio, the law requires that they have at least $25,000/$50,000 in coverage.   This means that the policy limit per individual is $25,000 and the policy limit per occurrence is $50,000.   For example, even if your damages exceed $25,000, the insurance company is only required to pay $25,000 leaving you holding the bag for the rest.   What if a motorist plows into a pack of cyclists?  Splitting up $50,000 among all injured parties would be woefully inadequate to compensate them for their injuries.   Worse yet, what if the motorist has no coverage at all.

One way to protect yourself is to insure that you have uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) on your own auto policy.   DO NOT remove it to save a few dollars on your monthly premium.  Here’s how it works:

  • Uninsured Motorist Coverage (UM):     UM coverage comes into play if the motorist does not have any insurance at all.    Unfortunately, this is all too common.   In this event, you can make a claim against your own insurance policy for your damages.  If you purchased a $100,000 UM/UIM policy, this means you can recover up to $100,000.
  • Underinsured Motorist Coverage (UIM):             UIM coverage comes into play if the motorist does not have enough insurance to compensate you for your injuries.   Let’s assume that a motorist’s policy is $25,000/$50,000.    You have a $100,000 UM/UIM policy.   In this case, you will be able to recover up to the difference between the two policies under your UIM policy (i.e. $25K from driver and $75K from UIM).   If your UIM coverage equals the motorist’s coverage (i.e. both 100K policies) you cannot claim UIM coverage.  A NOTE OF CAUTION:  If the motorist’s carrier tenders the policy limits and you accept without notifying your UIM carrier, you may very well foreclose your claim for UIM coverage.   As such, it is important to read your policy and consult with an attorney before making such decision.   

Finally, if you own a home, consider purchasing an umbrella policy to go along with your home and auto insurance.   Most policies provide a minimum of $1,000,000 in coverage and do not cost more than a replacement tube per month. 

If you have sustained an injury in a bicycle accident, please contact Scott for a no cost, no obligation consultation and case evaluation. 

Suing the State: Political Subdivision Tort Liability

If you were injured by the conduct of an employee or agent of a city, county, or other government entity, bringing a suit for damages can be difficult.   Historically, individuals could not sue the government in tort as it was immune from liability.   In 1985, however, the Ohio General Assembly enacted R.C. § 2744, the Political Subdivision Tort Liability Act, paving the way for political subdivisions of the State of Ohio to be sued in limited circumstances.      

A political subdivision has been defined as “a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state.”

To determine whether or not a political subdivision is liable in tort requires a three-step analysis.  The first step provides a general grant of immunity, stating that “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.”    Governmental functions typically involve functions like police, fire, public education, and maintenance of roads.   Proprietary functions typically involve functions like operating a zoo, public stadium, or utility system.   Once you determine what type of function the political subdivision was engaged, you move on to step two.

The second step of the immunity analysis focuses on the exceptions to immunity located in R.C. 2744.02(B) which are:

1.       Negligent operation of a motor vehicle, unless the police officer, firefighter, or ambulance personnel operating the vehicle was responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct;

2.       Negligent conduct of employees while carrying out a proprietary function;

3.       A municipality’s failure to keep roads and sidewalks free from nuisance;

4.       Injury or loss that occurs on or within buildings used for governmental functions and is caused by the negligence of the municipality’s employees; and

5.       Any other situation in which liability is expressly imposed by the Revised Code.

In order to establish liability, a plaintiff must establish one of the five exceptions exist, otherwise the political subdivision will be immune.   However, even if a plaintiff establishes one of the five exceptions exist, it does not mean that the political subdivision will be liable.  

The third and final step of the immunity analysis provides that immunity may be reinstated if a political subdivision can successfully assert one of the defenses to liability listed in R.C. 2744.03 which are summarized as:

1.       Immune if the employee involved was engaged in judicial, quasi-judicial, prosecutorial, legislative, or quasi-legislative function;

2.       Immune if the employee conduct was required or authorized by law or was necessary or essential to the exercise of powers of the political subdivision or employee;

3.       Immune if the employee conduct was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee;

4.       Immune from liability if the injury was to a person who was convicted of a criminal offense and, at the time of injury, was performing community work service;

5.       Immune from liability if the injury resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.

In addition to the defenses listed in R.C. 2744.03, an employee of a political subdivision is also immune, personally, unless it can be shown that the employee's acts or omissions were:

1.       Manifestly outside the scope of the employee's employment or official responsibilities; or

2.       With malicious purpose, in bad faith, or in a wanton or reckless manner.

If you were injured by the conduct of an employee or agent of a city, county, or other government entity, please contact Scott for a no cost, no obligation consultation and case evaluation.