OHIO TRIAL MAGAZINE ARTICLE
Am. Sub. S. B. No. 120
By Kenneth J. Knabe
I. SUMMARY
Am. Sub. S. B. No. 120 (S. B. 120) is a new tort regulation which erases over a century of Ohio jurisprudence. A copy of S. B. 120 is attached to this Article. Under S. B. 120, joint and several liability is reduced or eliminated; uncollectible percentages of fault are lost to liable non-parties; the comparative negligence statute is repealed and replaced with a Acontributory fault@ standard; and Acontributory negligence@ is now admissible in a strict product liability claim.
S. B. 120 eliminates the long established doctrine of full recovery for the plaintiff and actually creates unnecessary litigation; plaintiff=s attorneys must now sue all possible liable parties or lose that percentage of negligence. S. B. 120, per OATL member, Richard C. Alkire, should be titled - The Defense Lawyer=s Entitlement Act. S. B. 120's draconian provisions place Ohio law somewhere before 1880 or the pre-industrial revolution. S. B. 120 is open to constitutional attack (See VI, infra).
II. EFFECTIVE DATE
S. B. 120 applies only to torts that occur on or after April 9, 2003; it is not retroactive. (See S. B. 120 Section 3.)
III. JOINT AND SEVERAL LIABILITY
(A) Prior Law
Under the doctrine of joint and several liability, each joint tortfeasor can be held responsible for plaintiff=s entire damages. This widely accepted doctrine furthers the tort system goals in two ways:
- The tortfeasor must accept full responsibility and cannot escape liability by showing someone else is also liable.
- The wrongfully injured plaintiff can obtain full satisfaction of damages without limitation or restriction upon the number of defendants contributing.
Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d 38, 44.
Ohio=s statutory right to contribution or indemnity against a joint tortfeasor mitigated this responsibility. (Newly repealed ''2307.31-32; Fidelholtz v. Peller (1998), 81 Ohio St.3d 197, at 202.)
The Ohio Supreme Court, as early as 1880, recognized joint and several liability as Ohio=s common law:
- The general rule undoubtedly is, that where damage is caused by the
joint or concurrent wrongful acts of two or more persons, they may be
prosecuted therefore jointly or severally.@
Transfer Co. v. Kelly (1880), 38 Ohio St.86, 90.
This doctrine is as sound today as it was in 1880.*
(B) S. B. 120's New Joint and Several Restrictions (''2307.22-23)
These new joint and several provisions apply to a Atort action@ ('2307.22(A)(1)). A
Plaintiff=s damages are now classified as Aeconomic loss@ and Anoneconomic loss@. Noneconomic loss is pain and suffering ('2307.011(F)). Economic loss is medical bills, expenses, wages, property damage, or other actual expenditures ('2307.011(C)).
S. B. 120's joint and several liability changes are as follows:
- Joint and several liability never exists for noneconomic loss ('2307.22(C)).
- Joint and several liability exists only for economic loss when a defendant is more than 50% negligent, except in an Aintentional tort@ [defined in '2307.011(D) to exclude employer intentional torts] ('2307.22(A)(1) & (3)).
* S. B. 350 and joint and several liability, Dennis Lansdowne, Bernard Friedman Seminar, Cleveland Academy of Trial Attorneys, February 27, 1997. - 3. Thus, no joint and several liability exists for any defendant whose negligence is 50% or less; that defendant is only liable for its proportionate share of the economic and noneconomic loss ('2307.22(B)). However, see the exception in preceding no. 2.
Finally, a jury can now attribute a portion of Atortious conduct@ to liable non-parties. Liable non-parties are delineated in '2307.011(H) as a person from whom the plaintiff does not seek recovery in this action and includes those who have settled, been dismissed, or who were not a party to the tort action whether or not that person could have been a party, if the name of the person has been disclosed prior to trial ('2307.23(A)(2)). Under previous law, a jury could only apportion a percentage of negligence among the parties to a lawsuit. See Eberly v. A.P. Controls, Inc. (1991), 61 Ohio St. 3d 27 and newly repealed '2315.19.
(C) Examples
Negligence claim: plaintiff is negligent free with no liable non-parties.
Defendant A: 55% Tortious Conduct
Defendant B: 45% Tortious Conduct
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)
Defendant A is jointly and severally liable for 100% of the economic loss since AA@ is over 50% negligent ($500,000 economic). AA@ is only liable for its individual share of the noneconomic loss since joint liability never exists for noneconomic loss ($500,000 X .55 = $275,000 noneconomic). Plaintiff=s maximum recovery from AA@ is $775,000. Prior to S. B. 120, Plaintiff could recover the full $1,000,000 from AA@ under joint and several liability.
Defendant B is only individually liable since AB@=s negligence is 50% or less. ($500,000 X .45 = 225,000 economic) ($500,000 X .45 = 225,000 noneconomic). The maximum recovery from AB@ is $450,000. Prior to S. B. 120, Plaintiff could recover the full $1,000,000 from AB@ under joint and several liability.
Other harsh results will occur. Assume Defendant A was a liable non-party or insolvent. The maximum Plaintiff could recover is $450,000 from Defendant B. This new law erodes over a century of Ohio jurisprudence by punishing the negligent free Plaintiff and awarding the tortfeasor, Defendant B, who is at fault and caused damage to the under-compensated Plaintiff.
IV. COMPARATIVE NEGLIGENCE
(A) Prior Law
S. B. 120 repealed Ohio=s modified comparative negligence statute - '2315.19 (S. B. 120, Section 2.). Under repealed '2315.19, if plaintiff was 50% or less negligent, plaintiff could recover full damages less plaintiff=s percentage of negligence. If plaintiff was 51% or more negligent, plaintiff lost. A seldom used exception in repealed '2315.19 eliminated joint and several liability for noneconomic damages only when plaintiff was comparatively negligent.
(B) S. B. 120's New Contributory Fault Defense (''2315.32-36)
S. B. 120:
- Repeals Ohio=s comparative negligence statute and substitutes the affirmative defense of plaintiff=s Acontributory fault@ in a negligence or tort claim involving injury or death, but does not apply to product liability claims ('2315.32(A)) (see Section V infra);
- Contributory fault includes plaintiff=s contributory negligence, other contributory tortious conduct, comparative negligence, or express or implied assumption of the risk. ('2307.011(B)). Express assumption of the risk occurs when the plaintiff expressly agrees or contracts with the defendant not to sue for any future injuries which might be caused by defendant=s negligence. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780. Implied assumption of the risk occurs when plaintiff has knowledge of a condition which is obviously dangerous and voluntarily exposes himself/herself to that risk of injury. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780, and Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 174-75, 258 N.E.2d 597. Repealed '2315.19 also merged contributory negligence and implied assumption of risk defenses per Anderson v. Ceccardi, supra. However, express assumption of the risk was a complete bar to recovery, per common law. Note - Is express assumption of the risk now merged into comparative negligence by its inclusion in this definition of a contributory fault?
- Retains Ohio=s modified comparative negligence standard, but reduces plaintiff=s recovery by a percentage of liability attributable to liable non-parties; ('2315.33) Consequently, a plaintiff still recovers if the plaintiff=s contributory fault is 50% or less than the combined tortious conduct of all other parties and liable non-parties. However, apportioning fault to liable non-parties is another radical departure from existing Ohio law. See Eberly v. A-P Controls, Inc., supra. (See Section III(B)(4), supra).
- Incorporates the preceding changes in joint and several liability. (See Section III(B), supra) (''2315.34(D), 2315.35; 2315.36; 2307.011(K)).
- Eliminates the defense of plaintiff=s contributory fault in an intentional tort claim ('2315.32(B)]. However, the intentional tort definition in '2307.011(D) excludes employer intentional torts. Defendant employers may attempt to assert contributory fault defense in employer intentional tort claims. However, any statute that abrogates the common law must be strictly construed and the language must clearly show that intent. Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284. Plaintiff=s contributory fault could only apply to employer intentional tort claims as an exception to the exception. Absent an express provision that plaintiff=s contributory fault is a defense to an employer intentional tort claim, the common law applies, precluding this defense.
(C) Examples
Example 1:
Negligence claim:
Defendant A: 50% Tortious Conduct
Defendant B: 25% Tortious Conduct
Plaintiff: 25% Contributory Fault
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)
Plaintiff=s $1,000,000 total award is reduced by Plaintiff=s 25% contributory fault to $750,000.00. Defendant A is only individually liable for its proportionate share of Plaintiff=s award ($1,000,000 X .50 = $500,000). Defendant B is also only individually liable for its proportionate share of plaintiff=s award ($1,000,000 X .25 = $250,000). No joint and several liability exists since neither defendant is greater than 50% negligent.
Assume Defendant A is a liable non-party or uncollectible. $500,000 of Plaintiff=s $750,000 award is lost. The maximum plaintiff can collect is $250,000 from Defendant B.
Example 2:
Negligence claim:
Defendant A: 10% Tortious Conduct
Defendant B: 10% Tortious Conduct
Other Liable Non-Parties: 29% Tortious Conduct
Plaintiff: 51% Contributory Fault
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)
Plaintiff loses: 51% or more negligent.
V. PRODUCT LIABILITY
(A) Prior Law
Under Ohio common law applying Section 402(A) of the Restatement of the Law 2d, Torts (1965), comparative negligence was not a defense to a strict product liability claim. Bowling v. Heil Co. (1987), 31 Ohio St.3d 277. In Bowling v. Heil, supra, the Court (Judge Moyer concurring) conducted an exhaustive analysis of strict products liability as it relates to comparative negligence. The Court held that comparative negligence is Afundamentally inapplicable@ to strict product liability claims. Bowing v. Heil, 31 Ohio St.3d at 286. Borrowing from a holding from a Colorado Court, the Court stated AProducts liability under '402(A) does not rest upon negligence principles, but rather is premised on the concept of enterprise liability for casting a defective product into the stream of commerce***Thus, the focus is upon the nature of the product, and the consumer's reasonable expectations with regard to that product, rather than on the conduct either of the manufacturer or of the person injured because of the product. Bowling v. Heil, Ohio St.3d at 285.
(B) S. B. 120's New Product Liability Defenses (''2315.41-46)
The new product liability defenses are as follows:
- AContributory negligence@ is now a defense to a statutory product liability claim under '2367.71 et seq. ('2315.43). Thus, strict product liability is effectively eliminated since no obvious advantage exists over negligence theories; manufacturers now have free reign to focus on the conduct of the worker - not the safety of the machine or product. The costs are no longer borne by the manufacturer and ultimately, by the users, but rather by the consumer-victim.
- A contributory negligent plaintiff can still recover if plaintiff's percentage of negligence is 50% or less than the combined tortious conduct proximately caused by all defendants and liable non-parties ('2715.43; 2307.23). However, attributing an uncollectible percentage of fault to liable non-parties radically changes Ohio product liability law. See Eberly v. AP Controls, supra. (Section III(B)(4), supra).
- Express or implied secondary assumption of the risk may be asserted as a complete bar to a product liability claim ('2315.42(A)). This is in accord with prior Ohio law, except in a negligent design claim or when the plaintiff had to encounter the risk in the normal performance of plaintiff's job duties. In negligent design claims, implied/secondary assumption of the risk merged with comparative negligence. See Carrel v. Allied Products Corp., supra, and Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, 451 N.E.2d 780. In Creamons v. Willmar (1991), 57 Ohio St.3d 145, the Ohio Supreme Court held that implied/secondary assumption of the risk does not apply when the plaintiff must encounter that risk in the normal performance of plaintiff's required job duties. Creamons stated that Ohio should move into the >Twentieth Century=@ Creamons, supra, 57 Ohio St.3d at 149. Section 2315.42 should be strictly construed not to change this existing common law. Otherwise, this legislation returns Ohio to the Nineteenth Century - that would be the 1800's!
- Incorporates the joint and several liability changes (See Section III).
(C) Examples:
Example 1:
Product Liability Claim:
Defendant A: 15% Tortious Conduct
Defendant B: 25% Tortious Conduct
(previously entered into a settlement agreement with plaintiff)
Product Distributor Defendant: 20% Tortious Conduct
(dismissed without prejudice)
Employer: 20% Tortious Conduct
(dismissed without prejudice since no intentional tort claim could be proven)
Product Manufacturer: 20% Tortious Conduct
(not sued since could not be served under the Hague Convention)
Total: 100%
Award: $1,000,000 ($500,000 economic loss/$500,000 noneconomic loss)
Under this scenario, plaintiff would only be able to receive $150,000 from Defendant A. This example illustrates issues associated with the meaning of tortious conduct and proximately caused injury. Arguments will have to be made that it makes no sense to include Defendants within an interrogatory against whom a judgment could not be obtained, since the court would be without jurisdiction or because a valid claim does not exist against them. Thus, their conduct could not be considered tortious, and they could not be considered to have proximately caused injury.
VI. CONTRIBUTION/INDEMNITY
S. B. 120's newly enacted ''2307.25-29 provides the following:
- Existing Ohio law on contribution and indemnity contained in '2307.31-33 is repealed . (S. B. 120, Section 2.).
- A joint tortfeasor who has paid more than that tortfeasor's proportionate share of the common liability has a right of contribution only for the excess of that tortfeasor's proportionate share ('2307.25(A)).
- No right of contribution exists for joint tortfeasors who commit an Aintentional tort@ ('2307.25(A)). Note, however, that the definition of Aintentional tort@ excludes employer intentional tort claims ('2307.011(D)).
- A tortfeasor who enters into a settlement with plaintiff is not entitled to contribution from another joint tortfeasor whose liability is not extinguished by the settlement ('2307.25(B)).
- Recovery of a judgment against one tortfeasor does not discharge other tortfeasors from loss unless the full judgment is satisfied ('2307.25(A)).
- A defendant who enters into a good faith settlement with the plaintiff, has no liability for contribution to another joint tortfeasor ('2307.28(B)).
- A good faith release or covenant to one joint tortfeasor does not discharge other joint tortfeasors unless the terms otherwise provide ('2307.28(A) & '2307.28(B)). Accordingly, release only that party and not Aall liable parties@; also, specifically preserve your claims against Aall other parties@.
- A joint tortfeasor receives full credit for all sums already recovered by the plaintiff in settlement or covenant, except when it would result in plaintiff's receiving less than the total amount of compensatory damages ('2307.28). This changes the holding under Fidelholtz v. Peller, 81 Ohio St.3d 197 (1998) and former '2307.32(F), which provided that a set-off occurred only when the settling tortfeasor admitted Aliability in tort@.
VII. S. B. 120 - CONSTITUTIONAL IMPLICATIONS
(A) Article 1, '16 - Open Courts
Ohio Constitution Art. 1, '16 states AAll Courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law and shall have justice administered without denial or delay@.
This powerful Open Court's provision is also called: ARight to a Remedy@, ADue Process@, or ADue Course of Law@.
The doctrine of joint and several liability is rooted in this provision. The Ohio Supreme Court held that Aa person wrongfully injured in his person is entitled, in the administration of justice, to full satisfaction without limitation or restriction upon the number of defendants contributing to cause such injury@. Diamond v. Davis Bakery, Inc. (1966), 8 Ohio St.2d, 38, 44. The Diamond Court held that a covenant not to sue a joint tortfeasor failed to release another joint tortfeasor.1
Also, a fundamental tort principal is to make the plaintiff whole for his/her injuries. Fantozzi v. Sandusky Cement Products Co. (1992), 64 Ohio St.3d 601.
S. B. 120's restricts or eliminates joint and several liability; this denies plaintiff full recovery or remedy. This same result occurs by apportioning fault to liable non-parties. (See the examples in Section III(C), supra).
A negligent free plaintiff is the best plaintiff to mount a constitutional attack on S. B. 120's joint and several and liable non-parties changes. See for example, Transfer Co. v. Kelly, 36 Ohio St. 86 (1880).
These provisions may also violate the jury's inviolate authority to determine the amount of damages. See Art I, '5; Galayda v. Lake Hosp. Sys., Inc. (1994), 71 Ohio St.3d.
(B) Art. I, '19(A) - Wrongful Death
Ohio Constitution Art. 1 '19(A) provides the amount of damages recoverable by civil action in the courts for death caused by the wrongful act, neglect, or default of another shall not be limited by law.
S. B. 120 applies to wrongful death actions ('2307.011(E) and 2307.011(K)) and unconstitutionally limits the plaintiff's damages by eliminating joint and several liability and recovery for percentages attributed to liable non-parties. (See example in Section III(C), supra).
(C) Art. IV, '5(B) - Separation of Powers Art. II, '32
Art. IV, '5(B) provides: AThe Supreme Court shall prescribe rules governing practice and procedure in all courts of the state which rules shall not abridge, enlarge, or modify any substantive right@, and A(a)ll laws in conflict with such rules shall be of no further force and effect after such rules have taken effect.@ Also, Art. II, '32 prohibits the General Assembly from exercising judicial power.
A defendant can raise the liability of non-parties as an affirmative defense any time before trial ('2307.23(C)). This unconstitutionality conflicts with controlling Ohio Civil Rule 12 that requires all defenses must be raised in a responsive pleading or by applicable Motion. (See also, Civil Rule 8)
In Rocky v. 84 Lumber Co. (1993), 66 Ohio St.3d, 221, the Court held: AThe Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court pursuant to Section 5(B) Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern procedural matters.@
Legislative infringing on the Court's rule-making power is a violation of the separation of powers and was one of the primary reasons for the Court determined that S. B. 350 was unconstitutional in State ex rel. Ohio Academy of Trial Lawyers, et al. v. Sheward (1999), 86 Ohio St.3d 451 at page 491. Note that the application of S. B. 120's restrictions on recovery are via jury interrogatories. This may also infringe on the Court's powers.
If you can find any other infringement upon the Rules of Civil Procedure or Evidence in S. B. 120, the Court will readily find the statute unconstitutional as a violation of the Separation of Powers, per Sheward, supra.
A similar liable non-party rule in Michigan was struck down under this theory. Staff v. Johnson, 242 Mich. App. 321 (2000)3.
Note that similar provisions on joint and several liability were contained in S. B. 350, which was struck down in Sheward, supra. A violation of separation of power also occurs when the legislators pass laws which the Court has already decreed unconstitutional. However, Sheward never directly addressed this portion of S. B. 350.
(D) Art. II, '15(D) - One Subject Rule
Art. II, '15(D) provides ANo bill shall contain more than one subject....@
In Sheward, the Court found that S. B. 350 violated the one subject rule because it contained numerous diverse provisions and the commonality of purpose was attenuated. Under Sheward, the more blatantly unrelated provisions (Alog rolling@), the more likely the law is unconstitutional.
S. B. 120 addresses numerous topics previously addressed. It also contains specials sections on:
1. roller rink liability ('4171.10); 2. a potential liability for a minor's temporary permit ('4507.07); and 3. liability for a taxpayer aggrieved by the Department of Taxation in the Court of Claims ('5703.54).
S. B. 120 amends ''1775.14; 2315.08; 4171.10; 4507.07; and 5703.54; enacts ''2307.011, 2307.22, 2307.23, 2307.24, 2307.25, 2307.26, 2307.27, 2307.28, 2307.29, 2315.32, 2315.33, 2315.34, 2315.35, 2315.36, 2315.41, 2315.42, 2315.43, 2315.44, 2315.45, and 2315.46; and repeals ''2307.31, 2307.32, 2307.33, 2315.19, and 2315.20. Thus S. B. 120 amends, enacts, or repeals thirty sections of the Ohio Revised Code.
The Constitutional one subject limitation is liberally construed in favor of the General Assembly. However, it appears, at the very least, that the General Assembly obviously Alog rolled@ the provisions on roller rink liability, temporary permits, and taxpayer liability.
(E) Due Process/Equal Protection
Under due process and/or equal protection, a rational basis test exists if a fundamental right is not involved. Under the rational basis test, the challenger of the statute must prove that the statute is arbitrary and unreasonable. See Morris v. Savoy (1991), 61 Ohio St.3d 684; Mominee v. Scherbarth (1986), 28 Ohio St.3d 270; and Schwan v. Riverside Methodist Hospital (1983), 6 Ohio St.3d 300. Morris v. Savoy, supra, holds that AEqual protection of the laws require the existence of reasonable grounds for making a distinction between those within and those outside a designated class.@ Morris, 61 Ohio St.3d at 699, citing State v. Buckley (1968), 16 Ohio St.2d 128. The challenger must demonstrate there was no rational basis for a creation of the class or that those within the class were not being treated equally in furtherance of a legitimate governmental interest.4
S. B. 120 may violate equal protection since the joint and several liability restrictions only apply to tort actions, and not to partnerships ('1775.14). Also, what rational basis exists for determining that joint and several liability only applies to economic damages v. noneconomic damages or to the over 50% negligent defendant v. the 49% or 50% negligent joint defendant.
If a fundamental right is involved, a strict scrutiny test requires a compelling government justification. Sorrell v. Thevenir (1994), 69 Ohio St.3d 415. If S. B. 120 violates Ohio's constitutionally protected Open Court/Right to Remedy provision, argue a strict scrutiny standard.
- Challenge the constitutionality of S. B. 120 in your Complaint. Remember to serve a copy of your Complaint on the Attorney General. Remember.
- Sue everyone who is liable in sight - otherwise, a jury may award a percentage of negligence to a liable non-parties leaving your plaintiff with no recovery.
- Sue several John Does within the statute of limitations. Remember you have a year to name and personally serve your John Does.
- File early and discover the identity and specific negligent acts of all liable non-parties within the statute of limitations; you can then add them to the lawsuit.
- Remember, the defendant must actually identify any liable non-parties by name before the trial.
- Argue that liable non-parties cannot engage in tortious conduct that proximately caused injury, especially if the Court lacks jurisdiction or a valid claim does not exist against them.
- If the suggestion above fails, request the Court to assess at least a directed verdict standard for all liable non-parties. Remember, the defendant has the burden of proving any contributory fault upon the plaintiff and the defendant should also have the burden of proving fault upon liable non-parties.
- Maximize recovery - Break down and request recovery on each and every element of economic loss ('2307.011(C)) and noneconomic loss ('2307.011(F)). Remember the noneconomic loss elements in Fantozzi, supra - loss of enjoyment of life and basic activities are missing from the statutory definition of noneconomic damages in '2307.011(F) - include them!
- When partially settling with a joint tortfeasor, release only that tortfeasor and preserve all claims against all other liable parties.
