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Punitive Damages Not Available to Plaintiff Unless Compensatory Damages Also Awarded

2008-0895.  Niskanen v. Giant Eagle, Inc., Slip Opinion No. 2009-Ohio-3626.
Summit App. No. 23445, 2008-Ohio-1385.  Judgment reversed, and judgment of the trial court reinstated.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-3626.pdf

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(July 30, 2009) In a decision announced today, the Supreme Court of Ohio held that a party in a negligence lawsuit may be awarded punitive damages only if that party has received an award of compensatory damages.

The Court also ruled that there is no per se rule barring a party accused of negligent (rather than intentional) tortious conduct from asserting a claim of self defense, and that trial courts should decide on a case-by-case basis whether the evidence presented supports a claim self-defense. The 6-1 majority decision, which reversed rulings by the 9th District Court of Appeals, was authored by Chief Justice Thomas J. Moyer.

In this case, Paul Niskanen of Summit County died from asphyxiation as a result being forcibly pinned to the ground for several minutes after fighting with employees and bystanders at a Giant Eagle grocery store in Rootsville. The violence was triggered when Paul was confronted by employees after leaving the store and starting to load groceries into his car without paying for them. Mary Niskanen, Paul’s mother, filed a wrongful death lawsuit against the store and individual employees involved in the incident.

Niskanen’s complaint originally alleged both negligent and intentional tort causes of action. On the date of trial, however, she dismissed all of the intentional tort claims and proceeded only on claims that Giant Eagle had negligently failed to train the store manager and other Rootsville employees in its company policies for dealing with shoplifters, had used excessive force in restraining Paul, and had spoliated evidence by erasing security camera footage of the incident.

At trial, Giant Eagle argued that it could not be held liable for damages arising from Paul’s injuries because store employees had been violently attacked by Paul when they confronted him in the parking lot, and his asphyxiation was an accident that occurred while they were acting in self-defense by subduing and restraining him until police arrived. Attorneys for Niskanen argued that while Paul’s own actions may have contributed to his injuries, his death was a direct result of Giant Eagle’s failure to train its employees in dealing with shoplifters and its employees’ use of excessive force to restrain Paul after he had ceased to be combative. 

The jury returned a general verdict finding that: 1) Giant Eagle was negligent in failing to train its workers; 2) store personnel were acting in self defense and did not unreasonably restrain Paul;  and 3) Paul was 60 percent responsible for his own injuries. As a result of the finding that Paul was more than 50 percent responsible for his own injuries, Mary Niskanen was precluded by Ohio’s comparative negligence law from recovering any compensatory damages based on the failure-to-train claim. Based on the absence of compensatory damages, the trial court ruled that Niskanen was also ineligible for any award of punitive damages and entered judgment in favor of Giant Eagle.

Niskanen appealed. The 9th District Court of Appeals reversed the trial court and remanded the case for a new trial. The appellate panel held that the judge should have instructed the jury to determine whether there had been a showing of “actual malice” with regard to the failure-to-train claim, because a jury finding of actual malice would have negated the finding of comparative negligence by Paul and entitled Mary Niskanen to recover both compensatory and possible punitive damages. The court of appeals also ruled that the jury should not have been instructed to consider Giant Eagle’s claim of self-defense, because such a defense cannot be asserted by a defendant claiming that its actions were accidental rather than intentional, and even if self-defense could be asserted it was “irrelevant” to Niskanen’s negligence claim based on failure to train employees.

Giant Eagle sought and was granted Supreme Court review of the 9th District’s rulings.

In today’s decision, Chief Justice Moyer wrote: “According to the jury interrogatories in this case, the jury found in Niskanen’s favor on only one cause of action, the negligent failure to train.  However, because the jury determined that Paul was also negligent and that he was 60 percent liable for his own death, Niskanen was precluded from recovering compensatory damages under that cause of action. ... Because she received no compensatory damages, Niskanen was simply ineligible for punitive damages, regardless of whether Giant Eagle acted with actual malice. Niskanen attempts to avoid this result by arguing that, under this court’s decision in Schellhouse v. Norfolk & W. Ry. Co. (1991) ...  ‘she is entitled to recover those compensatory damages without regard to Paul’s own negligence if the jury concludes that Giant Eagle exhibited recklessness or actual malice.’”

“Niskanen confuses both the law in this area and the facts of her case. In Schellhouse,we held that ‘in a civil action for tort or wrongful death, a finding by the jury that a plaintiff (or plaintiff’s decedent) was comparatively negligent will not defeat or diminish the recovery of damages where the defendant’s intentional tort, committed with actual malice, proximately caused the injury.’ … However, the record shows that Niskanen dismissed all of the intentional-tort claims presented in her amended complaint on the morning of trial. Further, the jury interrogatories reveal that, of the remaining causes of action, the jury found in her favor only on the claim of negligent failure to train. Niskanen now appears to be arguing that she pursued a theory of malicious conduct throughout, but that does not somehow transform her negligence cause of action into an intentional tort, and it certainly does not mean that she succeeded on an intentional-tort action at trial. The simple fact is that the jury found in her favor only on a negligence cause of action, and punitive damages are available in negligence actions only if compensatory damages are awarded.  R.C. 2315.21(C)(1) and (2). Because the jury did not award her any compensatory damages, Niskanen may not recover punitive damages.”

With regard to the 9th District’s ruling that Giant Eagle should not have been permitted to assert a claim of self-defense, the Chief Justice cited the Supreme Court’s 1997 holding in Goldfuss v. Davidson that: “‘In reviewing a record to ascertain whether sufficient evidence exists to support the giving of an instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction.’ ... Thus, the issue of whether self-defense applies to a particular tort claim is to be determined on a case-by-case basis by examining whether the evidence supports the defense; there is no per se rule against asserting self-defense in negligence actions.”

Applying that analysis to this case, the Chief Justice wrote that if the trial court’s self-defense instruction was intended to address Niskanen’s failure-to-train claim, it was in error because Giant Eagle’s failure to train its employees in dealing with shoplifters occurred long before the events at issue and was not performed in response to Paul’s actions. He noted, however, that the error was harmless because the jury’s finding that Paul was 60 percent responsible for his own injuries eliminated any possible award of compensatory damages to Niskanen on the negligent failure to train cause of action regardless of whether the jury considered the issue of self-defense.

With regard to Niskanen’s claim based on undue restraint, Chief Justice Moyer wrote: “The restraint at issue here occurred after Giant Eagle’s employees attempted to detain Paul outside the store for shoplifting.  Instead of submitting to the employees’ requests to stop, Paul punched both the first employee who came toward him and the manager who intervened, and also fought with two passersby who came to the aid of the employees. After a short but intense altercation, the men held Paul on the ground as he continued to struggle. These facts present sufficient evidence to support the self-defense instruction issued by the trial court under the Goldfuss analysis.”

The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Justice Paul E. Pfeifer dissented, stating that in his view Paul Niskanen did not initiate the violence that resulted in his death but rather attempted to leave the scene and only fought with store employees when they initiated a physical confrontation.  He wrote: “A man is dead over a bag of groceries. ... Self-defense should not have been available as an affirmative defense to Giant Eagle in this case.  The majority rightly recognizes that ‘to the extent that the trial court offered the self-defense instruction for [the negligent failure to train] claim, it erred.’  I disagree, however, with the majority’s conclusion that this error was harmless. The jury made a tight call as to ultimate blame in this case, attributing 60 percent of the proximate cause to Niskanen and 40 percent to Giant Eagle. The jury’s belief that Giant Eagle had self-defense available to it as an affirmative defense could easily have played a pivotal role in assigning the ultimate percentages.

Justice Pfeifer also disagreed with majority’s conclusion that self-defense was relevant to Niskanen’s claim for undue restraint. He wrote: “A jury instruction regarding self-defense was superfluous, contradictory and confusing; the right of store employees to proactively detain a suspected shoplifter under R.C. 2935.041 is at odds with the reactive nature of self-defense. The trial judge’s instruction conflated reasonableness of restraint and self-defense. The defense to a claim of undue restraint is that the degree of restraint employed was reasonable. Giant Eagle did not require another legal excuse, self-defense, to try to legitimize its role in this tragedy. The court of appeals correctly ordered a new trial.”

Scott D. Livingston, 412.471.3490, for Giant Eagle, Inc.

Steven A. Goldfarb, 216.621.0150, for Mary Niskanen.