JESSICA SIMPKINS, et al., Plaintiffs-Appellees/Cross-Appellants v. GRACE BRETHREN CHURCH OF DELAWARE, OHIO, Defendant-Appellant/Cross-Appellee
Case No. 13 CAE 10 0073
COURT OF APPEALS, DELAWARE COUNTY, OHIO, FIFTH APPELLATE DISTRICT
August 8, 2014
[Cite as Simpkins v. Grace Brethren Church of Delaware, 2014-Ohio-3465.]
JUDGES: Hon. W. Scott Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. Patricia A. Delaney
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County Court of Common Pleas, Case No. 12 CV C 05 0605. JUDGMENT: Affirmed in Part, Reversed and Remanded in Part.
For Plaintiffs-Appellees/Cross-Appellants
JOHN K. FITCH, 580 South High St., Ste. 100, Columbus, OH 43215
DAVID A. FITCH, 9211 Hawthorn Point, Westerville, OH 43082
STEPHEN FITCH, 65 East State Street, Ste. 1000, Columbus, OH 43215
For Defendant-Appellant/Cross-Appellee
WILLIAM CURLEY, JAMES DORGAN III., 10 West Broad Street, Ste. 2400, Columbus, OH 43215
{¶1} Appellant/Cross-Appellee and Appellees/Cross-Appellants appeal the judgment by the Delaware County Court of Common Pleas.
Facts & Procedural History
{¶2} In March of 2008, appellee/cross-appellant Jessica Simpkins (“Simpkins“) was raped by Brian Williams (“Williams“), the senior pastor at Sunbury Grace Brethren Church (“Sunbury“). Williams pled guilty to two counts of sexual battery in violation of
{¶3} On May 25, 2012, Simpkins re-filed the case in Delaware County Court of Common Pleas against Delaware Grace and Anderson. The complaint alleged that, for a number of years, Williams was employed as a youth pastor by Delaware Grace; that in the early 1990‘s Delaware Grace learned that Williams had engaged in sexually inappropriate sexual conduct with a minor female associated with Lexington Grace Brethren Church but took no action; that in 2001, Delaware Grace learned that Williams had made inappropriate sexual comments to and inappropriately touched a female he
{¶4} Delaware Grace and Anderson filed motions for summary judgment. On March 20, 2013, the Delaware County Common Pleas Court issued a judgment entry incorporating the Ross County judgment entry on summary judgment and dismissing the claims for intentional infliction of emotional distress, breach of fiduciary duty, willful wanton and reckless misconduct, punitive damages, negligence, and respondeat superior. As such, the trial court granted summary judgment to Anderson on all counts. The trial court granted summary judgment to Delaware Grace on all counts except one and permitted a trial on negligent hiring, retention, or supervision, or negligent recommendation, promotion or support. The trial court set the case for trial on June 11, 2013.
{¶5} During the preliminary discussions with the trial court, the parties indicated there was some confusion with the trial court‘s summary judgment entry regarding whether the foreseeability of Williams’ conduct was a factual issue to be submitted to the jury. From the bench on June 11, 2013 and in a written entry on June 12, 2013, the trial court issued a revised summary judgment entry stating that, “to the extent that any
{¶6} The trial commenced on June 11, 2013. April Brown, fka Jokela (“Brown“) testified that she attended Lexington Grace Brethren Church (“Lexington Grace“) in Richland County and, in the early 1990‘s, when she was between 13 and 16 years of age, her church went on a joint mission trip with Delaware Grace. Williams was the youth pastor of Delaware Grace at the time. Brown testified that while at a concert during the mission trip, Williams started rubbing her shoulders, moved his hand down her back between her shirt and the overalls she was wearing, and continued to move his hand down right at her panty line so his hand was on her skin on her lower back and the top area of her buttocks. Brown jerked forward and left the concert.
{¶7} Brown initially told her friend Jason about the incident during the trip and told her mother, Mary Storz (“Storz“), about the incident when she returned home. Jason Saxton testified that April was upset and shaken up and told him that day that Williams attempted to put his hand up her shirt and then down her pants. Storz reported the incident to Lexington Grace. Brown and Storz testified that there subsequently was a meeting at Lexington Grace between Brown, Storz, Brown‘s youth pastor, Williams, and other Delaware Grace officials. Brown could not remember the names of the individuals who attended from Delaware Grace, but thought it was a
{¶8} Robin Weixel (“Weixel“) fka McNeal testified that she attended Delaware Grace when Williams was the youth pastor. In 2002, when she was eighteen (18) years old, Weixel applied to go on a mission trip and had to meet with a pastor as part of the application process. When she met with Williams, he did several things Weixel felt were inappropriate: shared the details of his sex life with his wife with Weixel; told Weixel that “most men view women as a thing to be fucked;” shared with Weixel his view on women dressing provocatively; used his finger to trace around the outside of the tank top she was wearing over her shoulder; and told her he could get away with having sex with her right there and then in his office, but his guilty conscience would stop him. Weixel reported the incident to Anderson and, during a meeting with Williams and Anderson, Williams told her he did not remember saying those things, but if he did, he was sorry.
{¶9} Anderson testified that in 2002 he was the acting senior pastor at Delaware Grace and was on the elder board. Anderson confirmed that though Williams was leaving to be the senior pastor at Sunbury, he remained on the payroll at Delaware
{¶10} Gary Underwood (“Underwood“), senior pastor at Delaware Grace since October of 2004, testified that Anderson never told him about the 2002 incident and no records reflect the 2002 incident or the earlier 1990‘s incident. Underwood confirmed that Delaware Grace provided financial support and guidance to Sunbury after Delaware Grace decided to “plant” a Grace Brethren church in the town of Sunbury. Underwood stated that Williams’ behavior was inappropriate and should have been reported. Underwood would not have supported Williams as pastor of Sunbury if he had known about the Brown and/or Weixel incident.
{¶11} Williams testified he rubbed Brown‘s shoulders on the mission trip. He remembers after the incident meeting with David Martin, Jeff Gill, Brown, and the pastor from Lexington Grace. Williams confirmed he was inappropriate with Weixel when he made a statement about having sex with her and when he traced the outline of her tank top. Anderson reprimanded him verbally for his conduct. Williams assumed the board
{¶12} Gene Simpkins testified that, prior to the incident, Simpkins was happy, bubbly and cheery and, after the incident, she was angry, demanding, and withdrawn. Due to the incident, Gene Simpkins stated he lost his trust in the church and missed how his daughter used to act.
{¶13} Simpkins testified that on March 6, 2008, when she was fifteen (15) years old, she went to a counseling session with Williams. Simpkins had been attending Sunbury since her freshman year in high school. At the counseling session on March 6, 2008, Williams closed the door, dropped his pants, and told Simpkins to suck his penis, which Simpkins eventually did. Simpkins tried to get away, but Williams blocked the door, pushed her to the ground, removed her pants, and inserted his penis into her vagina. Simpkins testified that, after the incident, it was hard for her to go back to school because everyone was talking about her. She briefly saw a counselor for nightmares about being kidnapped or raped. After Simpkins graduated high school, she played basketball in college until she had to quit due to an injury. She is currently working full-time as a cashier. Simpkins got good grades in college. When asked how the incident affected her, Simpkins testified that she thinks about the incident two to
{¶14} Jeffrey Smalldon (“Smalldon“), a clinical psychologist, testified that he interviewed Simpkins three times and diagnosed her with chronic post traumatic stress disorder and dysthymic disorder (low grade depression). Smalldon stated that Simpkins does not want to talk about the incident, is distrustful of men, is afraid of the dark, and has anxiety. Smalldon concluded that Simpkins is in need of long-term treatment.
{¶15} Robin Frey, the bookkeeper at Delaware Grace since 2002 testified that, through the incident date of March of 2008, monthly payments were made from Delaware Grace to Sunbury, though those payments reduced in amount each year.
{¶16} David Martin (“Martin“), who sat on the elder board at Delaware Grace in the late 1980‘s and early 1990‘s, said he never saw or heard Williams do or say anything inappropriate. Martin recalls having a meeting with Williams, a girl, the girl‘s mother, and a pastor from another church. Martin testified that, at the meeting, Williams apologized and Martin thought the issue had been resolved.
{¶17} Rita Boham (“Boham“) is a member of Delaware Grace who frequently went on youth trips with Williams as a female staff member. Boham never saw or heard him do or say anything appropriate. Boham testified that Jeff Gill contacted her after a trip in the 1990‘s and Jeff Gill and Martin asked her if anything inappropriate happened on the trip. Boham told them Williams and another female staff raced around and
{¶18} Jeff Gill (“Gill“) was the senior pastor at Delaware Grace from 1982 to 2002. Gill testified that when he met with the pastor at Lexington Grace regarding the Brown incident, he told the other pastor he would investigate Brown‘s claims. Williams told Gill that Brown was angry with him and that he only rubbed her shoulders. Gill and Martin interviewed the other adults on the trip and they said many people were rubbing each other‘s shoulders. When Gill and Martin met with Brown, Storz, and the other pastor, Williams read a statement. Gill testified that he did not say “let‘s keep this quiet to protect our brother.” Gill felt the issue was resolved that day after Williams read his statement.
{¶19} The jury found Delaware Grace negligent and specifically found Delaware Grace was aware of the past behavior of Williams and failed to do a proper investigation and documentation of the previous two incidents and, as a result, Williams was empowered to a greater responsibility as senior pastor at Sunbury. The jury returned a verdict in favor of Simpkins for $1,378.85 for past economic damages, $1,500,000 for past non-economic damages, $150,000 for future economic damages, and $2,000,000 for future non-economic damages for a total of $3,651,378.85. The jury also returned a verdict for Simpkins’ father in the amount of $75,000 for loss of consortium.
{¶20} After the jury returned their verdict, the parties filed briefs on damages. On August 5, 2013, the trial court issued a judgment entry applying a setoff of $1,378.85 in connection with the settlement with Sunbury, applied Ohio‘s damages cap statute of
{¶21} “I. WILLIAMS’ PRIOR MISCONDUCT WAS, AS A MATTER OF LAW, INSUFFICIENT TO MAKE HIS SUBSEQUENT RAPE OF SIMPKINS FORESEEABLE.
{¶22} “II. A TRIAL COURT MUST GIVE A PARTY‘S REQUESTED JURY INSTRUCTION IF IT IS A CORRECT STATEMENT OF THE LAW AS APPLIED TO THE FACTS OF THE CASE. IN THIS CASE, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GIVE APPELLANT‘S PROPOSED JURY INSTRUCTIONS ON: (A) PLAINTIFFS’ CLAIM FOR NEGLIGENT PROMOTION, RECOMMENDATION AND SUPPORT, AND (B) THE ISSUE OF FORESEEABILITY.
{¶23} “III. IN A TORT CASE WHERE PLAINTIFF‘S DAMAGES WERE CAUSED BY AN INTENTIONAL RAPE BY A CHURCH PASTOR AND THE ALLEGED NEGLIGENCE OF THE PASTOR‘S PRIOR EMPLOYER,
{¶25} Appellee/Cross-appellant Simpkins assigns the following as error:
{¶26} “I. THE TRIAL COURT ERRED IN REDUCING THE JURY VERDICT FOR JESSICA SIMPKINS’ NON-ECONOMIC DAMAGES AS
{¶27} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DGBC ON THE ISSUE OF PUNITIVE DAMAGES.
{¶28} “III. THE TRIAL COURT ERRED IN HOLDING THAT JESSICA SIMPKINS SUFFERED A SINGLE “INJURY OR LOSS” FOR PURPOSES OF APPLYING
{¶29} “IV. THE TRIAL COURT ERRED IN RULING THAT JESSICA SIMPKINS SUFFERED A SINGLE INJURY OR LOSS AS THAT RULING VIOLATES THE OHIO CONSTITUTION.
{¶30} “V. THE TRIAL COURT ERRED IN REFUSING TO AWARD JESSICA SIMPKINS’ FULL DAMAGES PURSUANT TO
I.
{¶31} Delaware Grace argues that the trial court erred in denying their motions for directed verdict and motion for judgment notwithstanding the verdict because the
Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict
{¶32} A trial court‘s decision on a motion for directed verdict presents a question of law, which an appellate court reviews de novo. Groob v. Keybank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170. Civil Rule 50 provides for a motion for directed verdict, which may be made at the opening statement of the opponent, at the close of opponent‘s evidence, or at the close of all the evidence. Upon receiving the motion, the trial court must construe the evidence most strongly in favor of the party against whom the motion is directed. Civil Rule 50(A)(4). If the trial court finds on any determinative issue reasonable minds could come but to one conclusion on the evidence submitted, then the court shall sustain the motion and direct the verdict as to that issue. A directed verdict is appropriate where a plaintiff fails to present evidence from which reasonable minds could find in plaintiff‘s favor. See Hargrove v. Tanner, 66 Ohio App.3d 693, 586 N.E.2d 141 (9th Dist. 1990).
{¶33} The standard for granting a motion for judgment notwithstanding the verdict under Civil Rule 50(B) is the same used for granting a Civil Rule 50(A) directed verdict. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271 (1998); Wagner v. Roche Laboratories, 77 Ohio St.3d 116, 121, 671 N.E.2d 252, 256 (1996). In other words, as long as substantial competent evidence supports the non-moving party, and reasonable minds could reach different conclusions about that evidence, the motion must be denied. See Strother v. Hutchinson, 67 Ohio St.2d 282, 284-85, 423 N.E.2d 467 (1981); Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). In reviewing a motion for JNOV, courts do not consider the weight of the evidence or the witness credibility; rather, courts consider the much narrower legal question of whether sufficient evidence exists to support the verdict. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271 (1998); Wagner v. Roche Laboratories, 77 Ohio St.3d 116, 121, 671 N.E.2d 252, 256 (1996).
Negligence & Foreseeability
{¶34} Negligent retention, supervision, hiring, and/or promotion are negligence-based torts which require proof of the basic elements of negligence: duty, breach, proximate cause, and damages. Abrams v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516 (10th Dist.). The existence of a duty in a negligence case is a question of law for a court to determine and there is no formula for ascertaining whether such a duty arises. Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). When considering a claim based upon negligent hiring or retention, the issue of whether a duty is owed is based upon the foreseeability of the injury. Evans v. Ohio State University, 112 Ohio App.3d 724, 680 N.E.2d 161 (10th Dist. 1996). The existence of an employer-employee relationship imposes a duty upon the employer to prevent foreseeable injury to others by exercising reasonable care to refrain from employing an incompetent employee. Chapa v. Genpak, LLC, 10th Dist. Franklin No. 12AP-466, 2014-Ohio-897. Injury is foreseeable if a defendant knew or should have known that his act was likely to result in harm to someone. Mudrich v. Standard Oil Co., 153 Ohio St.31, 39, 90 N.E.2d 859 (1950).
{¶36} Upon our de novo review, we find no error by the trial court to deny the motions for directed verdict and motion for judgment notwithstanding the verdict as the prior conduct of Williams was not, as a matter of law, insufficient to make his 2008 conduct foreseeable. In this case, the two prior incidents which Delaware Grace became aware of both consisted of sexual misconduct and involved minor females being supervised or counseled by Williams as a church employee either at the church or at a church camp. In light of this similar prior conduct, we find the totality of the circumstances indicates that a reasonable jury could have found that Delaware Grace should have reasonably foreseen the 2008 incident. Reasonable minds could also differ as to whether Delaware Grace took reasonable steps to protect Simpkins and whether these incidents should have influenced the church‘s retention and promotion of Williams to Sunbury. There is a need for the trier of fact to weigh and determine witness credibility regarding these issues. Because reasonable minds could have reached different conclusions on whether the 2008 incident was foreseeable, the trial court properly denied the motions for directed verdict and motion for judgment notwithstanding the verdict. Delaware Grace‘s first assignment of error is overruled.
{¶37} Delaware Grace argues the trial court erred in refusing to give a specific jury instruction they requested on negligent promotion/recommendation/support and erred in refusing to give their requested jury instruction on foreseeability.
{¶38} The trial court has the duty to instruct the jury on the applicable law on all issues raised by the pleadings and evidence, and it must give jury instructions that correctly and completely state the law. Pallini v. Dankowski, 17 Ohio St.2d 51, 245 N.E.2d 353 (1969); Marshall v. Gibson, 19 Ohio St.3d 10, 482 N.E.2d 583 (1985), Groob v. Keybank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170. A jury charge should be “a plain, distinct and unambiguous statement of the law as applicable to the case made before the jury by the proof adduced.” Marshall, 19 Ohio St.3d at 12, 482 N.E.2d 583. Furthermore, “[a] charge ought not only be correct, but it should also be adapted to the case and so explicit as not to be misunderstood or misconstrued by the jury.” Id. Ordinarily, a trial court should give requested jury instructions if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusions sought by the instruction. Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575 N.E.2d 828 (1991).
{¶39} The giving of jury instructions is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist. 1993). In order to find an abuse of discretion, we must determine that the trial court‘s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Whether the jury instructions
Negligent Recommendation, Retention, Promotion Instruction
{¶40} Delaware Grace argues the trial court erred in failing to give the specific negligent recommendation, retention, and promotion instruction it requested. To prove the claims of negligent hiring, retention, supervision, retention, or promotion, a plaintiff must establish: (1) the existence of an employment relationship, (2) the employee‘s incompetence, (3) the employer‘s actual or constructive knowledge of the incompetence, (4) the employer‘s act causing the plaintiff‘s injuries, and (5) the employer‘s negligence in hiring, retaining, or supervising the employee as the proximate cause of the plaintiff‘s injuries. Clifford v. Licking Baptist Church, 5th Dist. Licking No. 09 CA 0082, 2010-Ohio-1464. Negligent supervision and retention are negligence-based torts which require proof of the basic elements of negligence; and the elements as listed above “correspond with the basic elements of negligence - duty, breach, proximate cause, and damages.” Abrams v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516 (10th Dist.); Ball v. Stark, 10th Dist. Franklin No. 11AP-177, 2013-Ohio-106.
{¶41} In this case, the trial court provided the jury with the instruction for negligence, including an instruction on duty, ordinary care, the test for foreseeability, proximate cause, and damages. These basic elements of negligence correspond directly to the elements listed in the instruction requested by Delaware Grace. Accordingly, we find the trial court did not err in refusing to give the instruction as a trial
Foreseeability
{¶42} Delaware Grace further contends the trial court erred in failing to give their requested instruction on foreseeability. The trial court gave the standard Ohio Jury Instruction for foreseeability. The trial court then added a sentence that “foreseeability for future intentional criminal conduct requires stronger knowledge than foreseeability of other possible future conduct.” Delaware Grace sought an instruction consisting of the standard Ohio Jury Instruction for foreseeability plus an additional sentence that “the foreseeability of a criminal act depends on the knowledge of the defendant, which must be determined by the totality of the circumstances, and it is only when the totality of the circumstances are somewhat overwhelming that the defendant will be held liable.” Delaware Grace asserts this sentence is a correct statement of law and is required by our decision in March v. Steed Enterprises, Inc. 5th Dist. Muskingum No. CT2012-0058, 2013-Ohio-4448.
{¶43} While we agree Delaware Grace‘s instruction is a correct recitation of the law pursuant to our decision in the March case, the March decision was not issued until October 2, 2013, several months after the June 2013 trial was held in this case. Accordingly, the trial court did not abuse its discretion in failing to give the foreseeability instruction requested by Delaware Grace.
{¶44} Delaware Grace‘s second assignment of error is overruled.
{¶45} Delaware Grace argues the trial court erred in failing to require the jury to apportion liability between Williams and Delaware Grace. We agree.
{¶46}
Vicarious Liability
{¶47} The trial court‘s first reason for denying Delaware Grace‘s request for an instruction and jury interrogatories on apportionment was its determination that
Sections
2307.22 and2307.23 of the Revised Code do not affect any other section of the Revised Code or the common law of this state to the extent that the other section or common law makes a principal, master, or other person vicariously liable for the tortious conduct of an agent, servant, or other person. For purposes of Section2307.22 of the Revised Code, a principal and agent, a master and servant, or other persons having a vicarious liability relationship shall constitute a single party when determining percentages of tortious conduct in a tort action in which vicarious liability is asserted.
{¶48} The Supreme Court of Ohio has stated that, “an employer or principal is vicariously liable for the torts if its employees or agents under the doctrine of respondeat superior.” Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712. Further, that it is “axiomatic that for the doctrine of respondeat superior to apply, an employee must be liable for a tort committed in the scope of his employment.” Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991), quoting Strock v. Pressnell, 38 Ohio St.3d 207, 527 N.E.2d 1235 (1988).
{¶49} In Ohio, negligent hiring, supervising, and retention are separate and distinct from torts from other theories of recovery such as negligent entrustment and respondeat superior and an employer can be held independently liable for negligently
{¶50} Accordingly, a church may be held liable for both the negligence of its employees who are acting in the scope of their employment as well as their own negligence. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991). Further, courts examining causes of action for negligent hiring, retention, supervision, or promotion, analyze them separately from respondeat superior or vicarious liability causes of action, which require a scope of employment analysis. See Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991); Clifford v. Licking Baptist Church, 5th Dist. Licking No. 09 CA 0082, 2010-Ohio-1464; DiPietro v. Lighthouse Ministries, 159 Ohio App.3d 766, 2005-Ohio-639, 825 N.E.2d 630 (10th Dist.). While an employer may be held vicariously liable for acts of their employees in the scope of the employment, Ohio courts have generally held an intentional tort such as sexual assault or rape, “which in no way facilitates or promotes the employer‘s business, is so far outside the scope of employment that employers should not be held liable for such acts under the doctrine of
{¶51} In this case, as made clear by the trial court‘s original judgment entry and amended judgment entry on summary judgment, the only cause of action submitted to the jury was negligence by Delaware Grace in hiring, retaining, or supervising Williams, or in recommending, promoting, and supporting his hiring and retention by Sunbury. The trial court granted summary judgment to Delaware Grace on Simpkins’ cause of action for respondeat superior for the actions of Williams while in the scope of his employment. As noted above, unlike in a respondeat superior or vicarious liability cause of action, there is no requirement to prove in Simpkins’ negligent hiring, retention, promotion, support, recommendation, or supervising cause of action that Williams’ conduct occurred within the scope of employment. The only cause of action submitted to the jury was based on Delaware Grace‘s own independent negligence. Accordingly, we find the trial court erred in declining to provide the apportionment instruction and interrogatories based upon the vicarious liability exception contained in
Waiver of Affirmative Defense & Constitutionality of Statute
{¶52} The trial court also declined to give the jury the apportionment instruction because it found that Delaware Grace did not timely raise
It is an affirmative defense for each party to the tort action from whom the plaintiff seeks recovery in this action that a specific percentage of the tortious conduct that proximately caused the injury or loss to person or property * * * is attributable to one or more persons from whom the plaintiff does not seek recovery in this action. Any party to the tort action from whom the plaintiff seeks recovery in this action may raise an affirmative defense under this division at any time before the trial of the action.
{¶54} Pursuant to the liberal pleading requirements of
{¶55} In this case, the second defense in Delaware Grace‘s answer is that, “in the event that liability on the part of either of these Defendants is established [Delaware Grace or Anderson], each Defendant is liable for only that portion of Plaintiff‘s damages caused by his or her own proportionate share of fault.” Further, approximately two-and-a-half weeks before trial, Delaware Grace filed a “Notice of Intent to Seek Apportionment.” Based upon the notice pleading rules set forth in
{¶56} The trial court also declined to give the apportionment instruction because it declared
{¶57} In this case, prior to the empaneling of the jury, Delaware Grace requested the trial court include in its jury instructions an instruction on apportionment of liability. The trial court indicated it would reserve its final ruling on the issue, but stated it felt the apportionment statute was not applicable in this case because it is a vicarious liability issue so Delaware Grace and Williams are treated as one person. Subsequently, near the end of the trial when there was a hearing regarding jury instructions and objections thereto, the trial court, for the first time and without it being raised by Simpkins, found
{¶58} We find the trial court erred when it sua sponte found
{¶59} Based on the foregoing, we sustain Delaware Grace‘s third assignment of error and find the trial court erred in refusing to allow the jury to consider apportionment.
IV.
{¶60} Delaware Grace next argues the trial court erred in failing to grant its motion for new trial because future economic loss was not supported by the evidence as Simpkins testified she did not have current plans to seek mental health treatment.
{¶61}
{¶63} In this case, Smalldon testified that Simpkins would need weekly counseling for one year, monthly counseling for five years, and ten times per year in the foreseeable future after that. Smalldon stated counseling costs $200 per session. Further, Smalldon testified Simpkins should see a psychiatrist five times per year for ten years at $300 per session. Delaware Grace filed a motion for new trial or a remittitur to the amount testified by Smalldon ($60,000) rather than the $150,000 in future economic loss awarded by the jury. The trial court denied the motion for new trial, but granted the remittitur in the amount of $60,000.
{¶64} We find the trial court did not abuse its discretion in denying the motion for new trial and instead granting the remittitur. The testimony by Smalldon was evidence that reasonably establishes the amount likely to be incurred for future medical treatment. Simpkins did not testify she would never seek out mental health counseling
Cross-Assignment of Error I
{¶65} Simpkins argues the trial court erred in reducing the jury verdict for noneconomic damages as
{¶66} A party raising an as applied constitutional challenge alleges that “the application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional.” Yajnik v. Akron Dept. of Health, Housing Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632. “The practical effect of holding a statute unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to render it utterly inoperative.” Id. To prevail on a constitutional challenge to the statute as applied, the challenger has the burden of presenting clear and convincing evidence of a presently existing set of facts that make the statute unconstitutional when applied to those facts. Groch v. General Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377. The Ohio Supreme Court defined the
{¶67} In this case, Simpkins makes substantially the same arguments as set forth by the plaintiff in Arbino, but instead of arguing
{¶68} When the constitutionality of legislation is in question, we must interpret the applicable constitutional provisions and “acknowledge that a court has nothing to do with the policy or wisdom of a statute” as this is the exclusive province of the legislative branch of government. State ex rel. Ohio Congress Parents & Teachers v. State Board of Education, 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148.
Right to Trial by Jury
{¶69} Simpkins argues
{¶70} In Arbino, the Ohio Supreme Court found as long as the fact-finding process is not intruded upon and the resulting findings of fact are not ignored or replaced by another body‘s findings, awards may be altered as a matter of law and the right to a jury trial does not extend to the determination of questions of law. Id. Accordingly, a court does not violate a plaintiff‘s right to trial by jury when it applies a statutory limit on noneconomic damages
{¶71} In this case, the jury made its findings of fact and the trial court, as a matter of law, applied the limits imposed by
Open Courts and Right to a Remedy
{¶72} Simpkins contends that, as applied,
{¶73} In Arbino, the plaintiff argued
{¶74} In this case, Simpkins is not denied a meaningful remedy as she is entitled to recover economic damages and $350,000 in noneconomic damages. While the statute prevents her from obtaining the same dollar figure she may had received prior to
Due Process
{¶75} Simpkins contends
{¶76} As considered in Arbino,
{¶77} Under Ohio law, a tort plaintiff may recover unlimited compensatory damages for noneconomic losses if the plaintiff has sustained either “permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or “permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.”
{¶78} We find there is not clear and convincing evidence that the damages cap is unreasonable or arbitrary as to Simpkins. While there may be nonphysical injuries the effects of which approximate those listed in
Equal Protection
{¶79} Simpkins contends
{¶80} In Arbino, the Court determined
{¶81} Simpkins has failed to present clear and convincing evidence that the damages caps is unreasonable or arbitrary as applied to her with regards to equal protection. As discussed above, while there may be nonphysical injuries the effects of which approximate the effect of a permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanently prevents a plaintiff from begin able to independently care for herself and perform life-sustaining activities, that is not what the evidence shows in this case.
{¶82} Accordingly, since Simpkins has shown that she suffered a permanent, non-physical injury, the issue is whether
{¶83} Based upon the foregoing, we find the trial court did not err in reducing the jury verdict for noneconomic damages as
Cross-Assignment of Error II
{¶84} Simpkins argues that the question of whether Delaware Grace‘s conduct warranted an award of punitive damages is an issue for the trier of fact when considering the evidence and thus the trial court erred in granting summary judgment on punitive damages. We agree.
{¶85} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).
{¶86} When reviewing a trial court‘s decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review
{¶87} The award of punitive damages in tort actions is currently governed by Ohio statute.
{¶88} Punitive damages are recoverable in a negligent hiring, supervision, or retention case. A. Doe v. First Presbyterian Church (USA), 126 Ohio App.3d 358, 710 N.E.2d 367 (5th Dist. 1998); Stephens v. A-Able Rents Co., 101 Ohio App.3d 20, 654 N.E.2d 1315 (8th Dist. 1995). Even where a plaintiff proves a claim of negligent hiring, supervision, or retention, the plaintiff must establish malice (as defined above) before he is entitled to recover punitive damages. Id.
{¶89} In this case, the trial court granted summary judgment on punitive damages based upon the Ross County ruling that punitive damages could not be
{¶90} Delaware Grace argues there is no evidence from which a jury could award punitive damages because there is no evidence of conscious disregard for Simpkins’ rights and safety. We disagree and find that reasonable minds could differ on whether Delaware Grace‘s conduct demonstrated a conscious disregard for Simpkins’ rights and safety having a greater probability of substantial harm such that the issue of punitive damages may be submitted to the jury. See A. Doe v. First Presbyterian Church (USA), 126 Ohio App.3d 358, 710 N.E.2d 367 (5th Dist. 1998). In Brown and Stotz‘s depositions, they testified that the Delaware Grace officials at the meeting, including the senior pastor and someone from the board of elders, made light of the incident. Stotz‘s affidavit provides that she heard a Delaware Grace official state they should “keep things silent to protect our brother.” Gill was the senior pastor and member of the board of elders and did not make a report of the Brown incident and placed nothing in Williams’ file regarding the incident. Anderson, a senior pastor and a member of the elder board, knew about the Weixel incident and also knew that Williams continued to work with young women at the church. Underwood stated he would not have supported Williams as pastor at Sunbury if he would have known about the
{¶91} Accordingly, we find a genuine issue of material fact exists as to whether Delaware Grace showed a conscious disregard for the rights and safety of Simpkins that has a great probability of causing substantial harm. Simpkins’ second assignment of error is sustained.
Cross-Assignments of Error III and IV
{¶92} Simpkins argues the trial court erred in finding that she suffered a single “injury or loss” for purposes of
{¶93}
{¶94} Simpkins further argues even if Ohio‘s damage cap statute is constitutional, the trial court erred when it applied the cap to two separate “occurrences”
{¶95} Simpkins’ argument assumes that she sustained two separate incidents and is not compensated for one of them. However, as discussed above, this assumption is inconsistent with the evidence, as the oral and vaginal penetration occurred in one setting only a minute or so apart and Smalldon‘s testimony did not differentiate their effect on Simpkins. This is a single course of wrongful conduct at the same time and place and there is no evidence Simpkins suffered separate, different, or additional damage from any separate part of the sexual assault.
{¶96} Accordingly, the trial court did not err in determining a single cap applied for purposes of
Cross-Appellant‘s Assignment of Error V
{¶97} Simpkins argues the trial court erred in applying the damage cap in
{¶98}
{¶99} Based on the foregoing, we affirm in part and reverse and remand in part the judgment entries of the Delaware County Common Pleas Court. Delaware Grace‘s first, second, and fourth assignments of error are overruled. Delaware Grace‘s third assignment of error is sustained. Simpkins’ first, third, fourth, and fifth assignments of error are overruled. Simpkins’ second assignment of error is sustained.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur