When tort defendants die, should any punitive damages claim die with them?

|The Volokh Conspiracy |

In last week's Whetstone v. Binner, Roxanne McClellan had tried to smother her 5-year-old great-niece, whom she was babysitting. Christine Whetstone, the great-niece's mother, managed to arrive just in time to save her daughter. She later sued McClellan for (among other things) assault, on her daughters' and her own behalf; she argued that they all had been "diagnosed with posttraumatic stress disorder" and that she "had nightmares, anxiety, and anger, while her daughters had trouble sleeping and continued to fear McClellan." McClellan failed to defend the case, so Whetstone got a summary judgment.

A month later, "McClellan moved for relief from the default judgment, asserting that she was unaware of the complaint until after the deadline for filing an answer had passed. She disclosed that she had been diagnosed with terminal cancer and had been undergoing chemotherapy treatments since [a month before the default judgment] and she requested a postponement of the damages hearing because she was scheduled for a treatment on the same day as that hearing. The hearing was postponed."

Four months after that, "the court denied McClellan's request for relief from the default judgment and stated that it would reschedule a damages hearing by separate entry." Two weeks later, McClellan died.

The trial court held that McClellan's death voided the punitive damages judgment, but last week the Ohio Supreme Court reversed, by a 4-3 vote. From the majority:

[T]he majority of other jurisdictions prohibit punitive-damages awards against a deceased tortfeasor. Some jurisdictions have adopted this approach through legislative enactments, and others through court rulings. "The reasoning behind these decisions is essentially that the primary purposes of imposing punitive damages are not furthered when the tortfeasor is deceased," because the deterrence element of awarding punitive damages is speculative if there is a perception that the estate, rather than the tortfeasor, is being punished.

Nonetheless, a minority of jurisdictions have allowed recovery of punitive damages when the tortfeasor has died…. First, even when the tortfeasor dies, punitive damages still serve the general purpose of deterrence. Second, the heirs and beneficiaries of the deceased tortfeasor's estate "are in essentially the same financial position as if the tortfeasor were living at the time damages were awarded," because an award prior to death would have reduced the assets available to the estate. And third, there are safeguards to protect against an arbitrary award, including jury instructions that clarify that the damages awarded by the jury will be imposed against the estate.

In Ohio, there is no statutory provision that precludes imposing punitive damages on a deceased tortfeasor. We note that the cases from states that have adopted the majority view that were cited by the appellate court do not involve a tortfeasor who was alive at the time the trial court entered judgment on the issue of the tortfeasor's liability. Rather, in each of the cited cases, the tortfeasor had died prior to a judgment or jury verdict on liability. This distinction is significant because the availability of punitive damages is triggered by liability for compensable harm….

Here, the trial court entered a default judgment on November 18, 2010, five months before McClellan's death in April 2011. And prior to McClellan's death, the trial court denied her request for relief from the default judgment…. Thus, the court determined before McClellan's death that she was liable for assault, false imprisonment, emotional distress, and loss of consortium and that these acts were committed with malice and were egregious. Therefore, McClellan, and her estate after her death, faced the potential award of punitive damages.

The liability determination against McClellan triggered the availability of compensatory and punitive damages while McClellan was alive. Following the entry of default judgment, all that remained was a damages hearing in order for the trier of fact to determine the amount of damages, if any.

But for the postponement of the damages hearing at McClellan's request, the damages hearing could have occurred while McClellan was alive. Even after her death, Binner participated in the hearing on damages as a representative of McClellan's estate. The trial court awarded compensatory damages, but sua sponte declined to award punitive damages due to McClellan's death. It was error to do so.

We conclude that in cases in which liability has been determined while the tortfeasor is alive, punitive damages are available to the plaintiff. To hold otherwise would send a message that by delaying a damages hearing, a defendant or his or her estate might avoid the award of punitive damages. Allowing an award of punitive damages when liability has been determined prior to a tortfeasor's death still accomplishes the general deterrence purpose of such awards…. "The deterrent effect on the conduct of others is no more speculative in the instant case than in cases where the tortfeasor is alive[.]" …

McClellan's death is not without relevance in the punitive-damages context, however. At a punitive-damages hearing, the trier of fact may consider that McClellan is not present to testify and that a punitive-damages award will be imposed against the estate….

From Justice O'Donnell's dissent, joined by Justice Kennedy:

Because the purpose of awarding punitive damages is to punish the tortfeasor, in my view, punitive damages may not be awarded against the estate of a tortfeasor. Such an assessment does not serve that purpose….

[When the tortfeasor is dead,] "The punishment actually is inflicted upon [the tortfeasor's] heirs. Separation of the 'punitive' and 'exemplary' aspects of [punitive damages] awards is unjustified because general deterrence logically depends upon the perception of punishment suffered by the wrongdoer. When that punishment is diffused and unjustly inflicted upon the innocent, through a doctrine analogous to attainder, the deterrent effect is frustrated. It is unrealistic to suppose that such awards deter other prospective tortfeasors, especially if the criminal laws fail to do so."

The dead cannot be punished or deterred, and "[w]hen the tortfeasor cannot be punished for his culpable behavior, punitive damages no longer have the desired effect and, therefore, the victim loses the legal entitlement to recover those damages." …

From Justice Lanzinger's dissent, also joined by Justice Kennedy:

General deterrence is accomplished by imposing punishment on the tortfeasor. "The rationale for allowing punitive damages has been recognized in Ohio as that of punishing the offending party and setting him up as an example to others that they might be deterred from similar conduct." When punishment cannot be imposed on the deceased tortfeasor, no example is made.

The only persons left to be used as an "example" are the tortfeasor's innocent descendants, and equity generally demands that the innocent not be punished for the wrongdoings of another…. [R]etribution should be visited upon the shoulders of the wrongdoer himself, not on blameless third parties, for the wrongdoer's unlawful conduct[.] …

(I blogged about the intermediate appellate decision in this case in 2014.)