A Cap on Trust: The Ohio General Assembly Should Trust Ohioans to Make Tough Decisions

Author: Melissa Schuett, Associate Member, University of Cincinnati Law Review

Since the infamous “McDonald’s hot coffee” case in 1994,[1] tort reform legislation has led to the imposition of caps on damages in civil actions in many states across the country, including Ohio.  These caps require judges to disregard any amount a jury awards that is over the statutorily imposed limit. The purpose of this oversight is to avoid frivolous lawsuits and emotionally-driven plaintiff verdicts.  But the question remains whether this distrust of a jury’s ability to separate fact from emotion is inherently contradictory to state statutes that require a jury to decide whether to sentence a criminal defendant to death. Assuming the validity of tort reform, Ohio’s implementation of hard damage caps in civil cases creates an inconsistency with the trust afforded juries in criminal proceedings. This statutory contradiction in trust should be resolved by affording the same level of trust to Ohio civil juries as Ohio does to criminal juries; the General Assembly’s placement of stronger restraints on civil juries is contrary to the principals set forth in the Sixth Amendment, which places the greatest protection of a defendant in the purview of the jury.

Jury Limitations Relating to Civil Damage Caps[2]

In April 2005, tort reform legislation was passed in Ohio through Senate Bill 80.[3]  Codified in R.C. §2309, Senate Bill 80 prohibited a court from entering a judgment with a jury award in excess of the statutory limits or “caps.”[4]  Although the caps in Ohio do not limit compensatory damages from economic loss, such as medical bills or lost wages, the law does limit non-economic, non-catastrophic compensatory damages and punitive damages.[5]  A non-economic, non-catastrophic award is capped at $250,000 per plaintiff, or three times the economic loss, with a maximum award of $350,000 per plaintiff; each occurrence that is the basis of the tort action is limited to an award of $500,000.[6]

Jury Powers Relating to the Death Penalty[7]

In Ohio, the death penalty can only be imposed in a case of aggravated murder that includes at least one of ten aggravating circumstances.[8]  The U.S. Supreme Court provided that “any fact (other than prior conviction) that increases the maximum penalty for a crime must be . . . submitted to a jury, and proven beyond a reasonable doubt.”[9]  Accordingly, R.C. §2929 states that the jury and trial judge are responsible for determining whether to impose the death penalty.[10]  The jury is responsible for making an initial determination of whether one or more of the aggravating circumstances were proven beyond a reasonable doubt, and then, whether mitigating factors outweigh the aggravating circumstances. Under Ohio law, the trial judge bears limited responsibility in the imposition of the death penalty.  After the jury reaches a guilty verdict and recommends the death penalty, the judge is required to write a separate opinion explicitly stating which mitigating factors and aggravating circumstances the court considered in imposing the death penalty. [11] The jury’s imposition of the death penalty is advisory because the trial judge must independently consider whether the aggravating circumstances outweigh mitigating factors,[12] and the judge can override the death sentence where exceptional circumstances are present.[13]

Judicial and Legislative Limits on Civil and Criminal Juries

One of the major battle cries in favor of tort reform caps on non-economic damages is that juries award far more for minimal injuries than is warranted.[14]  At the root of this criticism is a strong distrust in the ability of juries to determine exactly how much a plaintiff should be awarded in damages.  This distrust is evident in the vast quantity of news articles written about the McDonald’s Coffee case.[15]  That case, which is one of the subjects of the documentary Hot Coffee,[16] concerned a 79-year-old woman who suffered severe burns to her legs and genitals after spilling hot coffee on herself while parked in a McDonald’s parking lot.[17]  The jury calculated the punitive damages at total coffee sales nationwide, awarding her a total of $2.9 million dollars.  This amount was later reduced by a judge but was widely identified as the perfect example of why we need tort reform.[18]  In the war of public opinion, the McDonald’s Coffee case seemed like an obvious example of a jury losing its way and awarding far too much money.

Unlike tort reform, legislation to remove a jury’s ability to impose the death penalty after trial is not an option.  In Ring v. Arizona, the Supreme Court of the United States struck down Arizona’s capital sentencing scheme because Arizona law prohibited the imposition of the death penalty unless a judge made further findings with regard to the presence of aggravating or mitigating factors in a separate hearing.[19]  A judge could impose the death penalty where she found at least one aggravating circumstance without substantial mitigating factors.[20] However, the Court held that after a jury trial, the Sixth Amendment requires a jury, not a judge, to decide whether aggravating circumstances necessary for the imposition of the death penalty are present.[21]

In Ohio, both non-economic damages caps and the imposition of the death penalty are first decided by the jury and then reviewed by the judge.  However, in a civil case the judge is mandated to enter a judgment at or below the statutory limit, regardless of the amount set by the jury; whereas, in a criminal case, the judge is afforded at least some level of discretionary review of the jury’s decision.  This imbalance in trust is also contradictory in light of the difference in applicable burdens; in a criminal case, the burden of proof is beyond a reasonable doubt, while in a civil action, it is a preponderance of the evidence.  Therefore, in matters where less evidence is required to meet the requisite burden, juries are trusted less.

This disparate level of trust in juries is not only inverse to the corresponding burdens of proof, but also to the weight of the outcome. The General Assembly signaled a mere reluctance to trust juries by placing a minimal judicial check on a jury’s death penalty decision, where the outcome is life or death and the burden is beyond a reasonable doubt.  But the General Assembly took drastic steps to check the jury’s power in civil cases where the question is purely monetary and the burden is only a preponderance of the evidence. The legislature took the question of damages completely out of the jury’s hands, once the non-economic damages reach the set amount.

This is not to say that those advocating for tort reform don’t have legitimate concerns about ad hoc jury awards.  However, those concerns can be alleviated without vitiating our society’s historical trust in juries. For example, Indiana created the requirement that in medical malpractice cases f the medical evidence is first submitted to a panel of three practicing Indiana physicians, two of which must be in the same field as the defendant.[22] The panel reviews the evidence and issues an expert opinion on the case in order to advise parties of the strength of their case before undergoing the cost of a trial. Notably, in the McDonald’s Coffee case the judge lowered the jury award to $500,000 without any tort reform statutes in place.[23]

In civil trials, where the legislature is not bound by the protection of the jury power in Ring’s application of the Sixth Amendment, the legislature has abrogated the jury’s power to decide the appropriate penalty. However, the absence of this constitutional protection does not justify the current disproportionate legislative distrust of civil juries. Thus, the General Assembly created an unnecessary inconsistency in the law that should be resolved in favor of placing trust in Ohio jury members.

Conclusion

In Ohio, the legislature trusts juries to make difficult decisions regarding a defendant’s liability or guilt after appropriately weighing the credible evidence and applying the applicable burden of proof.  The General Assembly seems reticent to trust juries in both civil and criminal trials, but its trust of juries is inverse to the corresponding burden of proof. While consistent in its application of limits on the scope a jury’s power, the legislature is inconsistent in its trust of a jury’s ability to consider aggravating circumstances and correctly impose a penalty. As long as the trial judge concurs that the imposition of the death penalty is warranted, the jury’s judgment in matters of life and death remains intact. A similar level of trust should be afforded civil juries to determine monetary damages in order to alleviate this imbalance.

Thus, the fact that the General Assembly has placed stronger restraints on civil juries, where the burden of proof is low, is contrary to the principals set forth in the Sixth Amendment and Ring that place the utmost protection of a defendant in the hands of the jury. The General Assembly cannot reasonably say that a jury is capable of weighing evidence where, for example, a child has been murdered, but is not capable of weighing evidence where a plaintiff has suffered non-economic damages when a restaurant’s coffee is too hot. Under the presumption that the goals of tort reform are desirable, Ohio should find a way to accomplish these goals without creating a statutory contradiction in the trust placed in Ohio juries.


[1] Liebeck v. McDonald’s Restaurants, 1994 Extra LEXIS 23 (Bernalillo County, N.M. Dist. Ct. 1994), 1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. 1994).

[2] States with some form of non-economic damage caps between $250,000 and $750,000 are:

Alabama, Alaska, California, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, North Carolina, North Dakota, Nevada, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Wisconsin, and West Virginia. American Tort Reform Association, Noneconomic Damages Reform, available at http://www.atra.org/issues/noneconomic-damages-reform.

[3] S.B. 80, 125th Gen. Assembly (Ohio 2004).

[4] Ohio Rev. Code § 2315.18 (2001).

[5] Id.  Catastrophic injuries represent  Ohio Rev. Code § 2315.18(B)(3) (2001):

(3) There shall not be any limitation on the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action to recover damages for injury or loss to person or property if the noneconomic losses of the plaintiff are for either of the following:

(a) Permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system;

(b) Permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.

There is an exception for punitive damages where the plaintiff proves the defendant demonstrated malice or aggravated or egregious fraud or knowingly authorized, participated in, or ratified actions/omissions of an agent or servant, AND the trier of fact determined the amount of recoverable compensatory damages.  Id.

[6] Ohio Rev. Code § 2315.18(B)(2) (2001).  For a helpful summary, see also http://www.thelyonfirm.com/blog/2012/12/07/ohio-tort-reform-damages-summary/.

[7] States with the death penalty:

Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming.

[8] Ohio Rev. Code §§ 2903.01 (2001) and 2929.04 (2002). The death penalty may only be imposed in Ohio where one or more of the following aggravating circumstances “is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code and proved beyond a reasonable doubt:”

1. Assassination of the president of the U.S., a person in the line of succession to the U.S. president, the governor, lieutenant governor, president-elect U.S., vice president-elect U.S., governor-elect, lieutenant governor elect, or a candidate for any of the offices listed above.

2. Murder for hire.

3. The murder was committed by the defendant to escape detection, apprehension, trial, or punishment for another crime.

4. The defendant committed the offense while under detention or after escaping detention.

5. Defendant was previously convicted of an offense that included purposeful killing or an  attempt to kill another as an essential element, or the offense at hand involved the purposeful killing or attempted killing of more than one person.

6. The victim was a law enforcement officer engaged in her official duties, which the defendant had reasonable cause to know, or the defendant specifically sought to kill a law enforcement officer.

7. The offense at hand was committed while the defendant was committing, attempting to commit, or fleeing after committing kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and Defendant was the principal offender in the aggravated murder or committed the aggravated murder with prior calculation and design.

8. The victim was a witness in another criminal proceeding killed to prevent the victim from testifying or in retaliation for testifying.

9. The victim was under 13.

10. The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit terrorism. Ohio Rev. Code § 2929.04 (2002).

[9] Apprendhi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting from Jones v. U.S., 526 U.S. 277, 243, n. 6 (1999)).

[10] Ohio Rev. Code § 2929.03(C)(b) (2002).

[11] State v. Powell, 132 Ohio.St. 3d 233, 274 (2012) (citing Ohio Rev. Code § 2929.03(F)).

[12] State v. Jenkins, 15 Ohio St. 3d 164, 200-01 (1984); see Ohio Rev. Code § 2929.03(D)(2) (2002).

[13] Ohio Rev. Code § 2929.03(C)(b) (2002). After the jury recommends the death penalty for the defendant, the court must find by proof beyond a reasonable doubt that the aggravating circumstances outweighs the mitigating factors in order for a defendant to receive a sentence of death. Where a defendant pleads guilty, a 3-judge panel is authorized to sentence the defendant; the 3-judge panel can only impose the death penalty where the panel makes a unanimous finding. Ohio Rev. Code § 2929.03(D)(3) (2002).

[14] See Rachel M. Janutis, The Struggle Over Tort Reform and the Overlooked Legacy of the Progressives, 39 Akron L. Rev. 943, 968 (2006).

[15] See e.g. Aric Press & Ginny Carroll, Are Lawyers Burning America?, 125 Newsweek 1, 32 (Mar. 20, 1995); Justice Gets Burned in Coffee Case, Salt Lake Tribune (Sept. 16, 1994).

[16] Group Entertainment (2011).

[17] Micheal Y. Park, Famous Food Lawsuits Worthy of ‘Better Call’ Saul Goodman, Huffington Post, (Oct. 4, 2013), available at http://www.huffingtonpost.com/bon-appetit/famous-food-lawsuits-wort_b_4024898.html.

[18] The case was also famously mocked on the show Seinfeld.

[19] 536 U.S. 584, 584 (2002). This differs from the Ohio scheme in that in Ohio, the jury first decides whether to recommend the death penalty after determining the aggravating circumstances exist and are not outweighed by any mitigating factors. After that, the trial judge essentially verifies the jury’s finding with regard to weighing the aggravating circumstances and mitigating factors.

[20] Id.

[21] Id. at 585.

[22] Bruce D. Jones, Unfair and Harsh Results of Contributory Negligence Lives in Indiana: The Indiana Medical Malpractice System and the Indiana Comparative Fault Act, 6 Ind. Health L.Rev. 107, 113 (2009). The panel also includes a non-voting attorney who acts as a support to the panel members. Id.

[23] Jillian Berman, McDonald’s Hot Coffee Controversy Is Back With Another Burn Lawsuit, The Huffington Post (Nov. 1, 2013) http://www.huffingtonpost.com/2013/11/01/mcdonalds-hot-coffee-suit_n_4192626.html.

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