A woman with terminal cancer was alive when found liable for assault and other offenses in a civil case, but died before a court determined the damages she owed for nearly suffocating a 5-year-old relative. The Ohio Supreme Court ruled today that the woman’s estate can be held responsible for punitive damages if a trial court awards that to the child and her family.

In the 4-3 decision, the Supreme Court ruled punitive damages can be imposed on a deceased wrongdoer in limited circumstances. Ohio joins the minority of states that allow estates to be assessed punitive damages, but the opinion authored by Chief Justice Maureen O’Connor noted the limited circumstance. Unlike any other case decided by other state high courts, this Ohio case involved a wrongdoer who was alive when declared legally responsible, but died before financial damages could be assessed.

Great-Aunt Caught Trying to Suffocate Child While Babysitting
In June 2010, Christine Whetstone dropped off her 5- and 2-year-old daughters at the home of their great-aunt Roxanne McClellan who was to babysit. Whetstone returned to find McClellan had one hand on the 5-year-old’s neck and a pillow over her face. Whetstone freed the child, grabbed her other daughter, and fled the home.

She reported the incident to police and took the girl to the emergency room, where a doctor noted a hemorrhage in her eye, scratches on her chin and chest, and a mark on her face. Whetstone and the two daughters attended counseling and were all diagnosed with post-traumatic stress disorder from the incident. Whetstone filed a lawsuit against McClellan charging assault, false imprisonment, emotional distress, and loss of consortium.

Whetstone sought compensatory damages for the costs of the incident and punitive damages. McClellan did not respond to the lawsuit, and the trial court awarded a default judgment to Whestone. About a month later, McClellan asked the court to vacate the judgment and postpone the damages hearing, adding that she had been diagnosed with terminal cancer and had been undergoing chemotherapy treatments around the time the case was filed. In April 2011, the trial court judge denied McClellan’s request and let the default judgment stand. The judge announced another hearing would be set to determine what damages should be awarded to Whetstone. Three weeks later McClellan died.

The court allowed Erin Binner, the administrator of McClellan’s estate, to be substituted as a party to the case and scheduled an April 2012 hearing to consider the damages. Binner argued that punitive damages should not be awarded because Whestone presented no evidence of malice by McClellan that would trigger eligibility for punitive damages.

In December 2012, the trial court awarded Whetstone about $50,000 in actual damages, but concluded punitive damages could not be assessed against the estate of a dead wrongdoer. Denying the punitive damages resulted in the court also denying Whetstone an award of attorney fees.

Whetstone appealed to the Fifth District Court of Appeals, which in a 2-1 decision, reversed the trial court, and found that assessing punitive damages against the estate of a dead wrongdoer is permissible. Binner appealed to the Supreme Court.

Timing of Death Important Factor in Assessing Damages
The Court majority stated the policy of awarding punitive damages in Ohio is to both punish the offending party and to deter others from similar behavior. Citing the Court’s 1994 Cabe v. Lunich decision, Chief Justice O’Connor wrote that the deterrence is intended to be both a specific punishment to the wrongdoer and an example to others in general.

Chief Justice O’Connor noted the majority of other state courts ruled punitive damages cannot be assessed against dead wrongdoers. She cited Pennsylvania as one of the states that does allow it. That court concluded the punishment still serves as a general example to deter others from malicious behavior, the estate would not have had the money available if the wrongdoer paid the damages while alive, and other safeguards protect against an arbitrary award.

Ohio has no statute preventing the imposition of punitive damages on a dead wrongdoer, Chief Justice O’Connor explained, and this case differs from the ones in other states that have rejected the award. In all of those cases, the wrongdoer was already dead before the court determined the person was liable. She wrote the distinction is important because the determination that the wrongdoer is legally responsible for compensable harm triggers the availability of punitive damages, and McClellan was alive when she was found responsible.

“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,” she wrote. “Therefore, McClellan, and her estate after her death, faced the potential award of punitive damages.”

Chief Justice O’Connor concluded that the Court did not decide whether McClellan’s action actually warranted punitive damages, but remanded the case to the trial court so that it could conduct a hearing and determine if punitive damages and attorney fees should be assessed.

Justices Paul E. Pfeifer, Judith L. French, and William M. O’Neil joined the opinion.

Dissent Finds No Value in Punishing Estate
Justices Terrence O’Donnell and Judith Ann Lanzinger wrote separate dissenting opinions both finding it inappropriate to assess punitive damages against the estate based on the actions of the wrongdoer, described in civil cases as the “tortfeasor.”

“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,” Justice O’Donnell wrote.

Justice O’Donnell noted the prior Ohio cases that stated the purpose of punitive damages was to punish and deter the particular offender and make that person an example to others. He disagreed with the Court majority’s attempt to separate punishment of individual and the goal of general deterrence.

Justice O’Donnell quoted from cases referencing the majority view of the courts deciding this issue across the United States, including those of the Supreme Court of Florida and New Mexico. He noted that the Supreme Court of Florida has stated: “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.”

Justice O’Donnell also explained that the dead cannot be punished or deterred, and as the New Mexico Supreme Court has stated, “[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.”

Justice Lanzinger would accept the position of a majority of states that punitive damages abate at the death of the wrongdoer.  She wrote that punitive damages are separate from a tort action and the primary goal of punitive damages is to punish and deter the future misconduct of a particular wrongdoer.

“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,’” Justice Lanzinger stated, citing the Supreme Court’s 1992 Detling v. Chockley decision.

If the punishment cannot be imposed on the deceased, no example can be made of the person, leaving only the innocent descendants to be used as the example, she concluded.

Justice Sharon L. Kennedy joined both dissents.

2014-1462. Whetstone v. Binner, Slip Opinion No. 2016-Ohio-1006.

View oral argument video of this case.

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