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Donald Krieger et al. v. Cleveland Indians Baseball Co. et al., Case no. 2008-1463
8th District Court of Appeals (Cuyahoga County)
Disciplinary Counsel v. John Thaddeus Willard, Case no. 2009-0465
Butler County
Does Law Capping a City’s Liability for Noneconomic Damages at $250,000 Violate Plaintiffs’ Rights?
Donald Krieger et al. v. Cleveland Indians Baseball Co. et al., Case no. 2008-1463
8th District Court of Appeals (Cuyahoga County)
ISSUE: Does a tort reform statute capping the amount of noneconomic damages that a civil plaintiff may recover from a political subdivision at $250,000 other than in wrongful death cases violate plaintiffs’ constitutional rights to equal protection of the law and to have all factual issues in their cases, including the amount of damages, decided by a jury?
BACKGROUND: R.C. 2744.05(C)(1), a provision of Ohio’s “sovereign immunity” statute adopted as part of tort reform legislation, provides that except in wrongful death cases, a plaintiff may not recover more than $250,000 in noneconomic damages from a city or other political subdivision of the state, even if a jury should award damages in excess of that amount.
In this case, Donald Krieger and Clifton Oliver of Cleveland were part of a group of persons attending a Cleveland Indians baseball game at Jacobs Field on June 11, 2002. Near the conclusion of the game, While Krieger and Oliver were on a different level of the stadium, 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 another member of their party, Andrew Mendez, being interrogated by police and stadium security officers about the explosion. After identifying themselves as Mendez’s friends and submitting to being searched and questioned, Krieger and Oliver attempted to lodge a protest with stadium officials about the manner in which they and Mendez were being treated. Krieger and Oliver were placed under arrest 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, not allowed to shower or brush their teeth and subjected to verbal threats, harassment and sleep-deprivation by corrections officers.
Krieger and Oliver were each charged with three counts of aggravated arson and felonious assault. Prior to their bond hearing, the Cleveland police officer in charge of the case, Detective Ralph Peachman, told Krieger 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 made statements implicating Mendez. Krieger and Oliver both refused, stating that they had no knowledge of Mendez’s involvement with the explosion. The felony charges against them remained in place for seven months. All charges were dismissed by the prosecutor’s office in January 2003.
In June of 2003, Krieger and Oliver filed separate civil lawsuits, later consolidated, alleging false imprisonment, malicious prosecution and intentional infliction of emotional distress. 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. Pursuant to post-verdict motions, the trial court vacated the punitive damage awards on the basis that such damages are not authorized against a political subdivision, but added an award of pre-judgment interest on the compensatory damages based on the city’s failure to make any offer of settlement prior to trial.
The city appealed, alleging among other claims that the jury’s award of attorney fees was contrary to law, and that the city’s financial obligation to the defendants was limited by a tort reform provision enacted in 1985, R.C. 2744.05(C)(1), which imposes a cap of $250,000 on the amount of noneconomic damages that a civil plaintiff may recover from a political subdivision of the state other than in wrongful death cases. The 8th District Court of Appeals vacated the trial court’s award of attorney fees, but affirmed its awards of $400,000 in compensatory damage and pre-judgment interest to each plaintiff. In doing so, the appellate panel ruled that the $250,000 cap imposed by R.C. 2744.05(C)(1) is unconstitutional and therefore unenforceable because: (1) it infringes on a plaintiff’s right to have his claim, including the amount of his damages, decided by a jury; and (2) the different treatment the statute affords to wrongful death claimants as opposed to plaintiffs advancing other claims arbitrarily deprives the latter of equal protection of the law.
The city sought and was granted Supreme Court review of the 8th District’s rulings on the constitutionality of R.C. 2744.05(C )(1).
Attorneys for the city, supported by an amicus curiae (friend of the court) brief filed by the Ohio Attorney General, urge the Court to follow its recent decision in Arbino v. Johnson (2008). In Arbino, they note, the Court upheld the constitutionality of a $250,000 cap on noneconomic damages that may be recovered from a private defendant in a personal injury action that does not involve wrongful death or specified “catastrophic” injuries. They contend that the equal protection and right-to-a-jury claims advanced by Krieger and Oliver in this case are virtually identical to those rejected by the Arbino court, based on its finding that because the legislature has authority to determine whether various types of civil wrongs are grounds for a lawsuit in the first instance, lawmakers also have authority to place reasonable limits on the amount of damages that are recoverable for various causes of action. They note that in enacting R.C. 2744.05(C)(1), the legislature cited the need to limit the exposure of tax-supported public entities from potentially devastating economic losses resulting from excessive jury awards.
Attorneys for Krieger and Oliver, supported by an amicus brief entered by the Ohio Association for Justice (formerly the Ohio Academy of Trial Lawyers), argue first that Arbino should be reversed as wrongly decided because they say it improperly abandoned several earlier decisions in which the Supreme Court had rejected as unconstitutional similar attempts by the legislature to impose limits on the damages that a plaintiff may recover to an amount that is lower than the damages awarded by a jury.
However, if the Court declines to abandon Arbino, they argue that it should still distinguish the sovereign immunity statute at issue in this case from the private lawsuit tort reform statute upheld in Arbino. They note that the Arbino decision cited multiple research studies and other data the legislature had set forth as evidence that limiting damage awards in private lawsuits was necessary to sustain the economic health of Ohio businesses and industries. They also note that in upholding the 2005 tort reform statute at issue in Arbino, the Court cited numerous changes the legislature had made to ameliorate provisions in earlier tort reform bills that this Court had rejected as unconstitutional. They point out that the legislative history of R.C. 2744.05(C)(1) includes no similar citations to research showing that noneconomic damage awards have caused or threaten to cause serious financial harm to political subdivisions in Ohio. They argue that in the absence of any data supporting the need for a cap on noneconomic damages against public entities, the Court should affirm the 8th District’s ruling that R.C. 2744.05(C)(1) is unconstitutional because it arbitrarily deprives plaintiffs of the right to be compensated by a negligent or malicious government actor for the full amount of damages determined by a jury.Contacts
Jerome A. Payne, 216.664.2800, for the City of Cleveland.
John J. Spellacy, 216.241.0520, for Donald Krieger.
Attorney Discipline
Disciplinary Counsel v. John Thaddeus Willard, Case no. 2009-0465
Butler County
The Board of Commissioners on Grievances & Discipline has recommended that the license of Hamilton attorney John T. Willard be suspended for one year, with the full term of suspension stayed on conditions, for professional misconduct arising from Willard’s participation in a “foreclosure rescue” business in which he accepted client referrals and shared legal fees with non-attorneys who engaged in the unlicensed practice of law.
The board found that in collaborating with the non-attorney owners of Foreclosure Alternatives, a business that contracted to negotiate with mortgage lenders on behalf of homeowners against whom foreclosure actions had been filed, Willard violated the state attorney discipline rules that prohibit aiding a non-lawyer in the unauthorized practice of law; forming a partnership with a non-attorney; sharing legal fees with a non-attorney and requesting a third party to promote or recommend an attorney’s professional services. The board dismissed two other counts of professional misconduct that were included in the complaint filed against Willard by the Office of Disciplinary Counsel.
Willard has not objected to the board’s findings or its recommended sanction.
Disciplinary counsel has filed objections asking the Court to reinstate the two additional counts dismissed by the board and to impose a one-year license suspension with six months stayed as the appropriate sanction for Willard’s rule violations. Counsel argues that a more severe penalty is appropriate, pointing to one case referred to Willard by Foreclosure Alternatives in which they say he violated his fiduciary duty to client homeowners by failing to notify them that their lender had already obtained a default foreclosure judgment against them and sale of their property was imminent.
Attorneys for Willard respond that the board properly dismissed charges that he agreed to represent a client in a matter for which he was not qualified and that he intentionally failed to pursue the objectives of the client in the default judgment case. They note that no evidence was presented suggesting that there was anything Willard or any other attorney could have done for the default clients by the time their case was referred to him. They also point out that the sanction proposed by the disciplinary board, a stayed one-year suspension, is the same as that imposed in a virtually identical case, Cincinnati Bar Assn. v. Mullaney, and note that the attorney in Mullaney had accepted improper client referrals in approximately 2,000 foreclosure cases, while Willard had done so in only 28 cases.
Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
Rick L. Weil, 513.731.1311, for John Willard.
These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.