*1 he will continue pose a danger himself and others.
We find that the trial court’s order
recommitting appellant hospitaliza-
tion in a maximum security hospital
supported by clear and convincing
evidence.
This assignment of error is without
merit.
The judgment of the trial court is af-
firmed.
Judgment affirmed.
Jackson, P.J., J., Nahra, con-
cur.
(Nos. Decided 11999 and 12014 23, 1985.) October Henry Appellees al., et City Cross-Appellants, Akron, Appellant Cross-Appellee. Weimer, Henrys. E. Paul Rubinstein,
R.E. for Prudential In- Company. surance Rothal, city pros- Max assistant ecutor, city Akron. Baird, J. This cause came on before cross-appeal of the the court appeal of Henry family David city Akron from the trial court’s family awarding Henry order $165,500 against city of Akron. We affirm. explosion arose out of the
This case escaped had gas methane by the Hardy operated Road landfill completely city of Akron. city ad- Henry home. The destroyed a trial liability explosion; mitted extent of held to determine the addition, damages. In family’s action appropriation of Akron filed an Henry property which the value of action, jury disputed. In that $57,200. This ver- Henrys awarded the here. dict is not contested matter of Mfg. progeny, e.g., Enghauser awarded Co. explosion, $165,500. Engineering Of Ltd. total Eriksson award, $38,500 was to reimburse the behind the St. 3d 31. rationale *2 municipal family personal property lost in of common-law “abolition”1 forcing fire. This an in- subsequent immunity inequity is the of however, dispute; expense of in- award is not in nocent victim to bear a appeals judg- negligence municipal the remainder of the jury due to 34; the trial at Henrys dispute corporation. Enghauser, ment. The Haverlack, supra, municipality their claim for at- at 30. A court’s dismissal of damages. an in- torney punitive fees and absorb the cost of is better able to jury it causes than the individual victim. Cross-Assignments Haverlack, supra, at 30. of Error Enghauser nor Haverlack Neither “I. The trial court erred in refus- of the newfound parameters defines the rea- to allow to consider a litigant against right private of a as a attorney sonable fees and costs Supreme The Ohio Court municipality. component plaintiffs’ compensatory whether at has not ruled on the issue of damages. damages may be torney punitive fees or “II. The trial court erred strik- municipal corpora a against awarded ing plaintiffs’ punitive claim for dam- However, Chapter under R.C. tion. ages.” 2743, which the of Ohio waived by state action amounted The trial court’s immunity, Supreme Court sovereign the dismissal claim for at damages are not punitive has ruled that torney punitive damages. fees and In state, unless against recoverable order to affirm the dismissal of these by statute. Drain specifically authorized claims, appear beyond “it must doubt 54 Ohio St. 2d Kosydar (1978), v. complaint plaintiff can See, also, 657], O.O. 3d Berke 55-56 [8 prove entitling no set of facts him to ” Pub. Dept. Welfare University recovery. O’Brien 280], 3d In App. 2d 273-274 O.O. [6 Community Tenants 42 Union Drain, 55-56, the court ruled supra, at 223], syl St. 2d 242 Ohio Ranells v. Cleveland that the rationale of labus. We find that the trial court cor (1975), 41 St. 2d 1 O.O. rectly attorney ruled that neither fees with in the instance applies equal force punitive damages could nor be awarded sought are punitive where against municipal corporation. a against the state. Historically, the common-law doc municipal immunity precluded Ranells, trine of Supreme Court the Ohio liability on a cor part municipal that, par- a in the absence of statute held poration negligent recovery, for its conduct of authorizing such ticularly governmental functions. assessed damages could punitive concept abrogated by municipality. Adopting against a states,2 Supreme Portage Court in Haverlack v. reasoning of numerous Homes, court, 7-8, that: emphasized ” “ * * * * 4 judgment against of official or discretion.* action will lie tort [N]o course, Enghauser, supra, statutory municipal corporation at 36. Of omis for those acts or involving legislative grants immunity remain exercise viable. sions function, judicial an ex or the exercise of 2 See, generally, Annotation planning involving ecutive or function 448. The A.L.R. 4th four bases making policy of a basic decision which is rejected the our sister courts have assess- high degree characterized the exercise aof continually emphasized “It must immunity strongly gation sovereign assessed over damages are punitive rationale of Ranells indicates that adequate to com- that amount above in the context of survived such, they As injured party. pensate abrogation municipal immuni- judicial any nothing Therefore, less than a windfall punitive we hold that ty. When who receives them. plaintiff damages cannot be awarded — —being punish or deter reason for corporation. municipal exist, sup- the entire rationale ceases to As the trial court’s dismissal ” ** * collapses. them porting fees, attorney plaintiffs’ claim for the deterrent court noted that find that the trial court ruled punitive effect attributed to recovered attorney fees not be justification little for their award added A municipal corporation. against municipalities. It assumed only is entitled to if duty; official will do that a damages are awarded. Davis v. wrongdoing employee of a discipline (1959), 168 Ohio St. Tunison *3 indicated, are appropriate measures syllabus; 296], paragraph three 2d or through the electorate available (1977), 52 Langhorst v. Riethmiller Ohio responsible to elected officials 137, 142 101]; App. Colum 2d [6 6-7, Ranells, supra, at the electorate. (1975), v. 42 Finance Howard Ohio bus (Mo. Chappell Springfield v. citing 178, 183 174];Kapcsos 2d 2d St. O.O. 810, 814. 1968), 423 S.W. 2d Further 3d App. v. Hammond Ohio more, permit that the court indicated See, also, 140, 142. Stuart v. In Natl. damages ting punitive award of 63, (1982), App. 7 3d 70. demn. Co. Ohio against municipal corporations inap are punitive damages Since peo public policy in that the contravene tortfeasor, against municipal propriate bearing ple punish the burden of authorization, statutory absent very the public: persons ment are attorney may also not follows that to benefit from the exam who are The awarded unless authorized.3 Ranells, 6, citing supra, be set. ple to Henrys’ cross-assignments of error are (Fla. App. 1964), 160 v. Miami Fisher overruled. 57, 59, (1965), affirmed 172 So. So. 2d City’s Assignments The of Error 2d 455. and II I case, Ohio In the Drain Supreme Court extended Ranells lost “I. The trial court’s award for doctrine, prohibiting the assessment contrary was law. profits $18,000 damages municipalities, award for punitive jury’s “II. The The that to the of the state. fact profits unsupported by benefit was lost adopted speculation Supreme the reason Court evidence and based on mere abro- that ing statutory Ranells the evidence indicates after damages punitive damages against punitive municipal- (4)The ment of ities are: misfeasance would not deter municipal employees, who malfeasance punitive (1) The victims of an award the award the burden of would not bear are to damages people are same who damages. effect; the deterrent benefit from (2) taxing power The unlimited of a 3 Supreme expressed Court The Ohio awards; municipality would lead to excessive statutory implied to find an reluctance presumption municipal The is that fees awards. Sorin authorization duty punish officers will do their (1976), 2d Bd. 46 St. Edn. Ohio employees necessary; O.O. 180-181
372 Center, Brookridge Party v. Fisher profits net Inc. earned Foods, 12 failed Ohio 130. year and $4,188.10 in one challenge Defendant does damages.” mitigate expert, Coyne. the award credentials of the claims record, find evi Reviewing arguing such profits, of lost chimney sweeping busi dence that the contrary to both the law favorable disagree. going ness was a concern with at trial. We evidence offered Therefore, say we cannot profits prospects. plaintiff may A lost profits were too con lost tortious as a result of a defendant’s Brookridge naturally speculative for assessment. may duct if such Center, Inc., Party wrongful act at 136. There from the expected follow competent, sup credible evidence to reasonably ascer and if the Isaly Dairy port profits; the award of lost we will Co. tainable. Zimmerman 465]; St. not reverse. See Seasons Coal Co. v. (1956), 165 Ohio 354 10 80. Traction Cleveland Ohio St. 3d v. Northern Ohio & LoSchiavo 61; we have reviewed the trial Bishop St. Light Co. 1943), profits. court’s instruction as (App. Co. lost v. East Ohio Gas trial that: on other court instructed Law Abs. reversed 541; Henry “Mr. has claimed that he has grounds (1944), (1966) 752, sweep- in his chimney suffered Corpus Secundum Juris Now, 44, 143. ing equipment Under business. Damages, Sections lost; however, law, Henry alleged David it is that there this statement of profits. has been profits his lost loss of Profits lost on entitled to chimney sweep interruption account of of an established plain- if the business. He had conducted business business be recovered certain, reasonably tiff makes it eighteen preceding months petent proof, what the profits and fire. His were amount of his lost *4 explosion actually and the resul loss is. caused the his business “You are also to future loss tant destruction of consider profits, find you to the “follow if from the evidence (necessary records secure that lost up” profits reasonably essential a service es certain patronage to the disruption telephone to continue into future.” tablishment), (2) Furthermore, business, duty plaintiffs’ service home and to losses, mitigate (3) injury Henry, both to their business and to David emotional, trial court physical which hindered instructed that: and hereby or miti “You are instructed ability his to conduct business damage gate principle to his fundamental losses [of] Furthermore, zoning regu person injured by the accident business. use lations business another is bound to reasonable care prohibiting light an make plaintiffs’ proscribe lot does not to their [sic] words, Bishop, supra, possible. at In profits. to minimize lost — me, mitigate was not and excuse minimize profits 365. The award lost and mitigate to law. in this situation. contrary permitted Similarly, the evidence in this case The are not to re- supports profits. the award of Plain main idle and thus enhance their dam- lost testimony ages. make ef- properly They tiffs introduced must reasonable forts, plain considering all circum- injury caused to stances, chimney sweep resume their chimney sweeping tiffs’ business. Fur to expert mitigate they introduced tes business in order profits. damages.” timony relative to lost The trial court instructed ing plaintiffs-appellees’ counsel to ex- the jury. closing in plain, argument, a witness’ assign- first and second absence trial where supporting no ments of error are not well-taken. presented evidence was at trial. “V. The trial court committed City’s Assignment Error III prejudicial in striking allowing “The trial in court erred language in plaintiffs-appellees’ closing consider award for argument which statements were made negligent infliction of serious emotional purpose exciting passion sole distress where plaintiffs-appellees failed prejudice and in the jury.” present evidence of severe and summation, counsel debilitating injuries.” emotional commented that: A cause of action for inflic negligent “ * * * Henry] testified that [Mrs. tion of severe emotional distress Well, she went Ripple. to Dr. we didn’t plaintiff-bystander stated where a ob Ripple’s And, hear Dr. testimony. Mr. accident, serves an appreciates peril good Weimer is a very attorney, very place, which took and suffers serious methodical, you can be if sure there distress which reasonably emotional anything help that would his clients’ Paugh foreseeable. v. Hanks cause, there was anything that was Ohio St. 3d 72. Emotional distress is wrong, anything that help would if serious is both. severe all, case at Dr. Ripple would have been debilitating; it is reasonably foreseeable here testify now.” where the was related to the In response, the Henrys’ counsel (if any) victim and where the shock stated: resulted from of the ac observation “I wanted desperately get cident emotional im here, Ripple absolutely he refused to pact. Paugh, supra. — testify in the give court or have Defendant claims that And, testimony office. he said he failed to introduce evidence of severe go jail days for 10 instead debilitating emotional distress. testifying prior because of a experience thorough review of the And, he had in a courtroom. he would evidence, ample record reveals give testimony.” testimony lay witnesses and the explanation, Prior to this defen- plaintiffs’ physician, support finding dants’ interposed timely objec- counsel the plaintiffs suffered severe emo tion. The trial court objec- overruled the tional distress as a result the city’s tion, but instructed counsel negligent conduct. We will not reverse very to be brief. competent the award where and credible We do not the explanation condone supports evidence each plain element of non-appearance, of witness’ unsup- Co., tiffs’ claim. Seasons Coal *5 ported However, by evidence. in this 80. case, the city’s attorney raised the sub- The city’s assignment third of error ject by his comment on Ripple’s Dr. is overruled. Furthermore, absence. the record City’s The Assignments of Error reflects that he was aware IY and V emphatic reasons for the doctor’s un- willingness testify.4 Finally, trial “IV. The trial court erred in allow- “ * ** witnesses, should be opposing party exercised in [C]aution to call permitting counsel practice permitted only to comment on the failure where should call Henrys’ surprised by plaintiffs’ counsel decision to admonished court it witness, that Dr. Moorstein as a response. brief in his
to be own, expert new did not retain of motion In the context dis- allegedly Henrys’ in to the emotional a counsel’s relative trial based had conduct, claim, plaintiffs has held tress because this court flammatory con Dr. represented they that would not call of whether determination that the the verdict to taint Moorstein. duct was sufficient lies within prejudice passion with sup However, record does court. Lance trial discretion sound answers to port these claims. Plaintiffs’ 3d 297. App. (1983), 9 Ohio Leohr July on interrogatories, filed defendant’s reverse reviewing court will Before Dr. was reveal that Moorstein discre the trial court’s exercise of city The treating physician. listed clearly demon tion, must the record plaintiffs thereby put was on notice that improper argument highly strate Fur might call the doctor a witness. Larrissey v. jury. tends to inflame city it surprised, if the Lines, Truck Norwalk requested a should have continuance Lance, supra, O.O.238]; St. 207 Nickey Dr. v. Brown depose Moorstein. explanation Dr. 298. Neither 34. examples nor Ripple’s absence case indicate the record in this does not support a city by will presented Dr. testimony that the of Moorstein judgment. of the trial court’s reversal surprising as to war so to the defendant assignment of city’s fifth As to the Nickey, supra, at 34. rant exclusion. error, object plain did not defendant The claims that the doctor’s city also when at a time closing arguments tiffs’ excluded testimony have been should any stricken the trial court could have comply failed to because the have argument or could objectionable they produce with a court order that There made a corrective instruction. expected to reports expert witnesses fore, claim of consider this will not called. did 51 Ohio v. Williams error. State Moorstein; their report have a from Dr. 98]; v. Gor 2d 112 State St. what did not produce failure to St. 2d 45 don exclusion not mandate the possess does 180]. court testimony. The trial of the doctor’s assign- fifth The fourth and Dr. correctly permitted Moorstein are not well-taken. ments of error testify. VI Error City’s Assignment The er- assignment Defendant’s sixth allowing “The court erred trial ror is not well-taken. expert witness to plaintiffs-appellees’ City’s Assignment Error VII did not testify plaintiffs-appellees discovery with comply requests with permitting “The erred by court regard expert witness.” the trial court The claim here that for loss of use of their as well as home permit- prejudicial temporary housing expenses.”
committed witness, Moorstein, ting plaintiffs’ argues Defendant that argues it was testify. use of award for loss of their home appears adverse, could have been testimony witness witness would be procured and it is a fair produce inference him.” did not and for that reason party conduct of the under all of the cir- (Footnote omitted.) Corpus Juris Secun Trial, (1955) 361, cumstances that he knew or believed 184. Section dum *6 duplicative appropriation of the court is af- judgment of the trial Henrys compensated for the firmed. and land. deprivation of their home their impres Judgment a case
Apparently, this is of first affirmed. city urges this court sion in Ohio. The Mahoney, J., involving this matter to cases analogize concurs. personal proper
the total destruction of cases, J., part in and George, ty. Under those a could concurs part. not recover for loss of use of in dissents Hayes Freight Lines, property. Inc. v. J., concurring. It with
Tarver Mahoney, 60], paragraph stare syllabus; of the In the basis of one reluctance and on sley I decision con- v. Mitchell in the decisis concur pre- assignments 108-109 O.O. 2d of error cerning 430]. Henrys. The current state by the sented is a clear distinction there such that we must of the law is pf prop- personal loss between total corpora- private distinguish between automobile, as erty, such public corporations and tions property, such as one’s total loss real can’t we at least punitive damages. Why gen- property home and Personal land. and allow the exception create an and erally replaceable relatively easily part plainant to recover real quickly, purchase whereas damages in cases compensatory of his involves complicated estate is more this where such as Fur- significant a of time. investment against otherwise be recoverable would case, in did not private corporation? from they prohibited know would parties while the have Additionally, (and, returning to Road Hardy their site try agreed for the sake convenience therefore, purchase wouldhave new aas method of case “appropriation” home) replacement lot as well as a until measuring Henrys’ damages in- June 1984. the trial court’s home, not be it should loss of their jury clearly structions limited occa- forgotten their losses were which could awarded for city’s negligence by the sioned neces- loss use the reasonable and gave upon their home. This trespass sary expenses for time between the very personal action them causes of 21,1984, explosion, March and the time natural, in foresee- them which resulted replacement Henrys moved into consequential dam- probable able and home. ages. Many of the items of were
If the were not awarded hardships, disruptions and in- due to the shock, loss flowing for their conveniences whole, home, they arising be made from hav- fear and uncertainties incurred tem under expenses blown out from their home overlap porary housing Concededly were not offset some of these them. indistinguishable seller. the cost of their new home from loss with or are award, therefore, proper distress. of use or emotional damages in that served to measure of P.J., Web Pryor concurring part
make the whole. George, (1970),23 St. 2d 104 O.O. with the dissenting part. ber I concur syllabus. disposition paragraph majority except one assignment assignment Defendant’s seventh seventh of error: by permitting error is overruled. erred “The court *7 money, or secured a deposit of damages recover for loss of use money, compensation of their ‘full’ home as means com- well as temporary housing expenses.” pensation, and a landowner is entitled to taking de facto occurred interest on the value property of the 21,1984, establishing on March the date taking taken the time of the chargeable became until the paid, date the owner either or against it. the award is made available to the Here the award consisted of controlling principle owner. The $57,200 compensation plus rule, interest that constitutionally interest must 21, from March 1984 and an award, additional paid on the is that it shall com- $10,000 approximately as com- menee from the date the owner loses pensation for the loss of use of their property.” (Footnotes use of his omit- property. This improper creates an ted.) multiple recovery. Under the facts of this case it is evi- 2d, 4 Restatement Law Torts dent appellees compen- received full (1979) Section Comment o $57,200 sation an plus states: They interest. were not further entitled “Loss Ordinarily chattel. award for the loss of use of this recovery there is no for loss of use of a property same nor for substitute hous- property] chattel point after the ing. [real The matter should be remanded to time at which the fixed the trial court for a deduction those loss, since in the measure of is multiple damages wrongfully assessed subject included interest on the matter city. as well as proximate- for losses ly resulting from the loss of use. On the hand, as an alternative to interest detention,
during period the dam- ages can include an amount Hospital Bethesda and Deaconess expenses procuring necessary City Association, Appellant, substitute [temporary housing] or for Appellee. Montgomery, the value of the use aof substitute until replacement subject matter can made, as stated in Comment § c.”
Either appellees are entitled to just compensation plus interest taking date of the
entitled to recover for the loss of use of
their property which necessarily in- rental;
cludes an amount for not both.
These alternative recoveries are mutu-
ally Thus, exclusive. recovery of one recovery
denies of the other.
Also informational on this point is Jurisprudence 514- Domain, Eminent Section 365:
“Under the Ohio pro- constitutional stating
vision that where private proper-
ty use, shall be taken for a first be made shall therefor
pensation