[Cite as Whetstone v. Binner, 2014-Ohio-3018.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


CHRISTINE MARIE WHETSTONE,                          JUDGES:
Individually and as Parent and Natural              Hon. W. Scott Gwin, P. J.
Guardian and Next Friend of OLIVIA                  Hon. John W. Wise, J.
CASTLE, Minor and LEA CASTLE,                       Hon. Patricia A. Delaney, J.
Minor

        Plaintiff-Appellant

-vs-                                                Case No. 13 CA 47

ERIN K. BINNER, Administrator of the
Estate of ROXANNE MCCLELLAN,
Deceased

        Defendant-Appellee                          OPINION




CHARACTER OF PROCEEDING:                         Civil Appeal from the Court of Common
                                                 Pleas, Case No. 10 CV 1247


JUDGMENT:                                        Reversed & Remanded



DATE OF JUDGMENT ENTRY:                          July 7, 2014



APPEARANCES:

For Plaintiff-Appellant                          For Defendant-Appellee

GRANT A. WOLFE                                   CHARLES M. ELSEA
300 East Broad Street, Suite 450                 STEBELTON, ARANDA & SNIDER
Suite 450                                        N. Broad Street, Suite 200
Post Office Box 1505                             Post Office Box 130
Columbus, Ohio 43216-1505                        Lancaster, Ohio 43130
Fairfield County, Case No. 13 CA 47                                                    2

Gwin, P.J.

      {¶1}   Plaintiff-Appellant Christine Marie Whetstone, Individually and as Parent

and Natural Guardian and Next Friend of Olivia Castle, Minor, and Lea Castle, Minor,

appeals the decision of the Court of Common Pleas of Fairfield County, Ohio, denying

their claims for punitive damages and attorney fees.

      {¶2}   Defendant-Appellee is Erin K. Binner, Administrator of the Estate of

Roxanne McClellan, Deceased.

                          STATEMENT OF THE FACTS AND CASE

      {¶3}   On October 1, 2010, Plaintiff-Appellant Christine Marie Whetstone,

individually and as parent and natural guardian and next friend of Olivia Castle, minor,

and Lea Castle, minor, filed a seven-count Complaint against Whetstone’s aunt,

Roxanne McClellan, setting forth claims for assault, battery, false and/or unlawful

imprisonment, and intentional infliction of emotional distress, on behalf of herself and

her two minor daughters, Olivia Castle and Lea Castle.

      {¶4}   On November 10, 2010, with no Answer or other responsive pleading

having been filed, Plaintiff-Appellant filed a Motion for Default and Request for Damages

Hearing. On November 18, 2010, Default Judgment was entered. A damages hearing

was set for January 6, 2010.

      {¶5}   On December 29, 2010, McClellan filed a Motion for Leave to Plead

alleging that the Complaint was received and signed for by McClellan's friend, Henry

Fisher, and that McClellan was unaware of the lawsuit until after the answer date. The

Motion further alleged that McClellan was receiving chemotherapy. McClellan

simultaneously filed a Motion requesting a continuance of the damages hearing, in
Fairfield County, Case No. 13 CA 47                                                     3


which she further indicated that she had been diagnosed with cancer in October of

2010. The trial court continued the hearing, but ultimately denied McClellan's Motion for

Leave to Plead.

       {¶6}   On May 5, 2011, Plaintiff-Appellant filed a Suggestion of Death indicating

that Roxanne McClellan died on April 22, 2011. Plaintiffs filed an Amended Motion for

Substitution of Party on November 14, 2011, indicating that Erin Binner, McClellan's

daughter, had been appointed administrator of McClellan's estate by the Fairfield

County Court of Common Pleas, Juvenile/Probate Division. The same was granted on

December 30, 2011.

       {¶7}   Following a substitution of counsel for the Estate, the matter was reset for

a hearing on damages on July 26, 2012. A damages hearing was held on July 26,

2012. On May 7, 2013, the trial court issued an Entry Regarding Damages. The trial

court's factual findings regarding compensatory damages are not in dispute, as neither

party has appealed the same.

       {¶8}   Pursuant to Civil Rule 8(D), "Averments in a pleading to which a

responsive pleading is required, other than those as to the amount of damage, are

admitted when not denied in the responsive pleading." Thus, the following allegations in

the Complaint, not pertaining to damages, are deemed admitted herein:

       {¶9}   “On or about June 29, 2010, … Defendant also maliciously, wrongfully and

unlawfully choked, smothered and attempted to kill Plaintiffs minor child, Olivia Castle,

by holding the child down on a bed in a bedroom ... putting her hand over the child's

mouth, and smothering the child with a pillow ...”
Fairfield County, Case No. 13 CA 47                                                    4


      {¶10} The trial court awarded Christine Whetstone $500.00 in compensatory

damages for lost wages, Lea Castle $1,000.00 in noneconomic damages for past and

future emotional distress, and Olivia Castle $50,000.00 in noneconomic damages for

physical injury and past and future emotional harm and distress.

      {¶11} The court declined to impose punitive damages finding that they “cannot

be awarded against the estate of a tortfeasor who is deceased.” The court likewise

declined to award attorneys' fees based upon its finding that punitive damages cannot

be awarded against the estate of a tortfeasor who is deceased.

      {¶12} Appellant now appeals, assigning the following errors for review.

                                 ASSIGNMENTS OF ERROR

      {¶13} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S CLAIM

FOR PUNITIVE DAMAGES AGAINST DEFENDANT-APPELLEE AND/OR FAILING TO

AWARD APPELLANT PUNITIVE DAMAGES AGAINST DEFENDANT-APPELLEE.

      {¶14} “II. THE TRIAL COURT ERRED BY DENYING APPELLANT’S REQUEST

AND/OR CLAIM FOR ATTORNEY FEES AGAINST DEFENDANT-APPELLEE AND/OR

FAILING TO AWARD APPELLANT ATTORNEY FEES AGAINST DEFENDANT-

APPELLEE.”

                                               I.

      {¶15} In her First Assignment of Error, Appellant argues that the trial court erred

in finding that punitive damages cannot be awarded against the estate of a deceased

tortfeasor. We agree.

      {¶16} In Ohio, “the purpose of punitive damages is not to compensate a plaintiff,

but to punish and deter certain conduct.” Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d
Fairfield County, Case No. 13 CA 47                                                    5

638, 651, 635 N.E.2d 331 (1994); Dick v. Tab Tool & Die Co., Inc., 5th Dist. No. 2008-

CA-0013, 2008-Ohio-5145. “The policy for awarding punitive damages in Ohio * * * has

been recognized * * * as that of punishing the offending party and setting him up as an

example to others that they might be deterred from similar conduct.” Preston v. Murty,

32 Ohio St.3d 334, 512 N.E.2d 1174 (1987). The focus of the award should be the

defendant, and the consideration should be what it will take to bring about the twin aims

of punishment and deterrence as to that defendant. Dardinger v. Anthem Blue Cross &

Blue Shield, 98 Ohio St.3d 77, 102, 2002–Ohio–7113781.

      {¶17} In the instant case, as set forth above, the trial court denied Appellant’s

claim for punitive damages, finding that “punitive damages cannot be awarded against

the estate of a tortfeasor who is deceased.” The trial court cited the Common Pleas

Court case of Mongold v. Estate of Gilbert, 114 Ohio Misc.2d 32, 758 N.E.2d 1245

(Brown Cty. Com. Pl. Ct. 2000) in support of its holding.

      {¶18} In Mongold, supra, the trial court held:

             In Ohio, punitive damages are awarded to punish the

             offending party and set him up as an example to others that

             they might be deterred from similar conduct. See Preston, 32

             Ohio St.3d at 335, 512 N.E.2d at 1176. Agreeing with the

             majority, this court finds that the purpose of punishment

             cannot be separated from the purpose of deterrence.

             Through death, the tortfeasor is no longer subject to legal

             punishment. Without the punishment of the tortfeasor, the

             purpose of using the tortfeasor as an example to others to
Fairfield County, Case No. 13 CA 47                                              6


             deter their behavior is greatly diminished, if not completely

             frustrated. Effective deterrence cannot be achieved when

             punishment is impossible. For this reason, the deterrent

             function of punitive damages is insufficient to support an

             award when the tortfeasor dies before trial. Hofer v.

             Lavender. 679 S.W.2d at 478 (Spears, J., dissenting).

Id. at 114 Ohio Misc.2d 32, 35-36.

      {¶19} In support of its position, Appellant cites this Court to a more recent

Common Pleas Court decision out of Montgomery County, Individual Business

Services, Inc. v. Carmack, 2009 WL 8235992 (Montgomery Cty. Com. Pl. Ct. 2009),

which rejected the holding in Mongold, reasoning:

             The Plaintiffs point to binding authority, namely the language

             of Ohio Rev. Code Section 2305.01 as well as decisions of

             the Ohio Supreme Court, to support the contention that it is

             entitled to punitive damages and attorney fees in this case.

             The Ohio Survivorship Statute specifically provides that

             "causes of action for ... fraud ... shall survive ...

             notwithstanding the death of the person entitled or liable

             thereto." Ohio Rev. Code 2305.21. Although the statutory

             language does not directly address the right to punitive

             damages or attorney fees, they are an inherent component

             of a cause of action for fraud, and the death of Mr. Carmack
Fairfield County, Case No. 13 CA 47                                                 7


              has no impact on the plaintiffs’ right to pursue such damages

              from his estate.

                     ln addition, and on a somewhat related point, the Ohio

              Supreme Court has recognized that where a decedent had a

              right to punitive damages before his death, that right passes

              to his estate under Ohio Rev. Code section 2305.21. Rubeck

              v. Huffman (1978), 54 Ohio St.2d 20, 23. Since the statutory

              language explicitly authorized the survival of such a claim

              not only in favor of a decedent "entitled" to a claim, but also

              against     a   decedent   "liable"   for   such   a   claim,   the

              aforementioned reasoning dictates the survival of Plaintiffs

              claim against the Estate of Robert Carmack. Moreover, the

              Ohio Supreme Court has made it clear in other decisions

              that the purpose of punitive damages is not just to punish an

              individual defendant. Punitive damages are also designed to

              provide "an example to others that they might be deterred

              from similar conduct." Preston v. Murty (1987), 32 Ohio St.3d

              334, 335.

       {¶20} The Individual Business Services case cited by Appellant cites Ohio’s

survivor statute in support of its finding. This statute provides:

              In addition to the causes of action which survive at common

              law, causes of action for mesne profits, or injuries to the

              person or property, or for deceit or fraud, also shall survive;
Fairfield County, Case No. 13 CA 47                                                   8


              and such actions may be brought notwithstanding the death

              of the person entitled or liable thereto.

R.C. 2305.21.

       {¶21} The Court in Individual Business Services acknowledged that such statute

is silent as to punitive damages but found that such damages were a component of a

cause of action for fraud and allowed the same.

       {¶22} It appears that the issue of whether the recovery of punitive damages is

permitted against a deceased tortfeasor’s estate is an issue of first impression at the

Appellate level in the state of Ohio, though this issue has been addressed by courts and

legislatures in other jurisdictions.

       {¶23} The majority of other jurisdictions disallow punitive damage recoveries

after the tortfeasor has died. (See Idaho Code Ann. § 5–327(1) (West, Westlaw through

2011 Chs. 1–335); Vt. Stat. Ann. tit. 14, § 1454 (West, Westlaw through 2011 Sess. No.

28); Fehrenbacher v. Quackenbush, 759 F.Supp. 1516, 1521–22 (D.Kan.1991)

(applying Kansas law); Sanchez v. Marquez, 457 F.Supp. 359, 364 (D.Colo.1978)

(applying Colorado law) (currently codified at Colo.Rev.Stat. Ann. § 13–20–101(1)

(West, Westlaw through July 1, 2011)); Doe v. Colligan, 753 P.2d 144, 146 (Alaska

1988); Evans v. Gibson, 220 Cal. 476, 31 P.2d 389, 395 (1934) (subsequently codified

at Cal.Civ.Proc.Code § 377.42 (1992)); Jonathan Woodner Co. v. Breeden, 665 A.2d

929, 938–40 (D.C.1995); Lohr v. Byrd, 522 So.2d 845, 846–47 (Fla.1988); Morris v.

Duncan, 126 Ga. 467, 54 S.E. 1045, 1046–47 (1906) (subsequently codified at

Ga.Code Ann. § 9–2–41 (West, Westlaw through 2011 Reg. Sess.)); Crabtree ex rel.

Kemp v. Estate of Crabtree, 837 N.E.2d 135, 138–40 (Ind.2005); Stewart v. Estate of
Fairfield County, Case No. 13 CA 47                                                  9

Cooper, 102 S.W.3d 913, 915–16 (Ky.2003); Edwards v. Ricks, 30 La.Ann. 926, 928

(1878); Prescott v. Knowles, 62 Me. 277, 279 (1874) (currently codified at Me.Rev.Stat.

Ann. tit. 18–A, § 3–818 (West, Westlaw through 2011 1st Reg. Sess.)); Wilkins v.

Wainwright, 173 Mass. 212, 53 N.E. 397, 397–98 (1899) (currently codified at Mass.

Gen. Laws Ann. ch. 230, § 2 (West, Westlaw through 2011 1st Annual Sess. Ch. 67));

Thompson v. Estate of Petroff, 319 N.W.2d 400, 408 (Minn.1982); Hewellette v.

George, 68 Miss. 703, 9 So. 885, 887 (1891) (subsequently codified at Miss.Code Ann.

§ 91–7–235 (West, Westlaw through 2011 legislative sessions)), overruled on other

grounds by Glaskox ex rel. Denton v. Glaskox, 614 So.2d 906, 907 (Miss.1992);

Tietjens v. Gen. Motors Corp., 418 S.W.2d 75, 88 (Mo.1967); Allen v. Anderson, 93

Nev. 204, 562 P.2d 487, 489–90 (1977) (subsequently codified at Nev.Rev.Stat. Ann. §

41.100(2) (West, Westlaw through 2010 Special Sess.)); Jaramillo v. Providence Wash.

Ins. Co., 117 N.M. 337, 871 P.2d 1343, 1350–52 (1994); Gordon v. Nathan, 43 A.D.2d

917, 352 N.Y.S.2d 464, 465 (1974) (currently codified at N.Y. Est. Powers & Trusts Law

§ 11–3.2(a)(1) (McKinney, Westlaw through 2011 Sess.)); Harrell v. Bowen, 179

N.C.App. 857, 635 S.E.2d 498, 500 (2006); Mongold v. Estate of Gilbert, 114 Ohio

Misc.2d 32, 758 N.E.2d 1245, 1247–49 (Ohio Ct.C.P.2000); Morriss v. Barton, 200

Okla. 4, 190 P.2d 451, 459–60 (1947); Ashcraft v. Saunders, 251 Or. 139, 444 P.2d

924, 926–27 (1968) (currently codified at Or.Rev.Stat. Ann. § 30.080 (West, Westlaw

through 2011 emergency session)); Aldrich v. Howard, 8 R.I. 125, 127 (1864) (currently

codified at R.I. Gen. Laws Ann. § 9–1–8 (West, Westlaw through Jan. 2010 Sess. Ch.

321)); Olson–Roti v. Kilcoin, 653 N.W.2d 254, 260–62 (S.D.2002); Hayes v. Gill, 216

Tenn. 39, 390 S.W.2d 213, 217 (1965); In re Estate of Garza, 725 P.2d 1328, 1330
Fairfield County, Case No. 13 CA 47                                                    10

(Utah 1986); Dalton v. Johnson, 204 Va. 102, 129 S.E.2d 647, 650–51 (1963)

(subsequently codified at Va.Code Ann. § 8.01–25 (West, Westlaw through 2011 Reg.

Sess.)); McWilliams v. Bragg, 3 Wis. 424, 431 (1854) (currently codified at Wis. Stat.

Ann. § 895.02 (West, Westlaw through 2011 Act 31)); Parker v. Artery, 889 P.2d 520,

524–25 (Wyo.1995); State Farm v. Maidment, 107 N.M. 568 (1998).              Further, the

Restatement of Torts advises that the death of the tortfeasor terminates liability for

punitive damages. Restatement of the Law 2d, Torts, Section 926 (1977).

       {¶24} In their decisions, these courts reasoned that the primary purposes of

imposing punitive damages are not furthered if the tortfeasor is deceased because the

element of deterrence requires a perception by others that the tortfeasor is being

punished. See Parker at 525 (Wyo.); State Farm at 449 (N.M.); Lohr at 846 (Fla.)

Some of the majority courts also opine that the imposition of punitive damages punishes

the innocent estate and beneficiaries rather than the tortfeasor and that therefore the

element of deterrence becomes diffused and is speculative at best. See Quackenbush

at 1521 (D.Kan.); State at 449 (N.M.); Lohr at 846 (Fla.).

       {¶25} A minority of courts in other states have held that a claim for punitive

damages survives the death of a tortfeasor and may be pursued against his estate.

See Haralson v. Fisher Surveying, Inc., 201 Ariz. 1, 31 P.3d 114 (2001); G.J.D., et al. v.

Johnson, 552 Pa. 169, 713 A.2d 1127 (1998); Penberthy v. Price, 281 Ill.App.3d 16, 666

N.E.2d 352 (1996); Tiller v. Lippert, 275 Mont. 1, 909 P.2d 1158 (1996); Hofer v.

Lavender, 679 S.W.2d 470 (Tex. 1984); Perry v. Melton, 171 W.Va. 397, 299 S.E.2d 8

(1982).   The minority view emphasizes the general deterrence aspect of punitive

damages. For example, in Penberthy v. Price, the court noted that punitive damages
Fairfield County, Case No. 13 CA 47                                                      11


serve to punish the tortfeasor and to deter the tortfeasor and others from engaging in

like conduct. 281 Ill.App.3d 16, 666 N.E.2d 352 (1996).

       {¶26} We are persuaded by the approach adopted by the minority of courts in

other states and find that there is no per se prohibition against the imposition of punitive

damages against a deceased tortfeasor. In Ohio, the common law rule that certain

causes of action abate upon the tortfeasor’s death has been abrogated by R.C. 2305.21

which provides that, “in addition to the causes of action which survive at common law,

causes of action for mesne profits, or injuries to the person or property, or for deceit or

fraud, also shall survive; and such actions may be brought notwithstanding the death of

the person entitled or liable thereto.” Further, the Ohio Supreme Court has recognized

that where a decedent had a right to punitive damages before his death, that right

passes to his estate under Ohio Rev. Code section 2305.21. Rubeck v. Huffman, 54

Ohio St.2d 20, 23, 374 N.E.2d 411 (1978). The language of R.C. 2305.21 and Robeck

decision does not expressly allow or disallow punitive damages against an estate.

However, under the R.C. 2305.21 and the Rubeck ruling by the Ohio Supreme Court, all

causes of action, including all elements of recovery, survive as if the deceased party

were still alive both on behalf of the estate of decedent and against the estate of the

tortfeasor.

       {¶27} In addition, the death of the tortfeasor does not completely thwart the

purposes underlying the award of punitive damages. As noted by the Ohio Supreme

Court, the purpose of punitive damages is to punish and deter certain conduct and the

policy of awarding punitive damages is to punish the offending party and setting him or

her up as an example to others so they might be deterred from similar conduct.
Fairfield County, Case No. 13 CA 47                                                       12

Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 651, 635 N.E.2d 331 (1994);

Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987).                The imposition of

punitive damages on a decedent’s estate serves to deter others from similar conduct.

Further, we are not persuaded by the argument that imposing punitive damages

punishes the innocent beneficiaries of the estate.          It stands to reason that the

tortfeasor’s beneficiaries have no right or entitlement to more than the tortfeasor would

have had he or she lived and a judgment for punitive damages been imposed. Finally,

as noted by the courts adopting the minority view, safeguards exist to protect against

the arbitrary imposition of punitive damages such as a jury instruction that the award of

punitive damages is being imposed against the estate or a remittiur by the trial judge.

G.J.D., et al. v. Johnson, 552 Pa. 169, 176, 713 A.2d 1127 (1998).

       {¶28} Accordingly we find that the question of whether punitive damages are

appropriate in a particular case should be resolved by the trier of fact.

       {¶29} Appellant’s First Assignment of Error is sustained.

                                                II.

       {¶30} In her Second Assignment of Error, Appellant argues that the trial court

erred in denying her request for attorney fees based on its ruling that punitive damages

are not recoverable against decedent. We agree.

       {¶31} The Ohio Supreme Court has stated that if a trier of fact determines that

punitive damages are proper, “the aggrieved party may also recover reasonable

attorney fees.”   Columbus Finance, Inc. v. Howard, et al., 42 Ohio St.2d 178, 327

N.E.2d 654 (1975). Accordingly, the trial court erred in denying Appellant’s request for

attorney fees based solely on its ruling that punitive damages are not recoverable
Fairfield County, Case No. 13 CA 47                                             13


against decedent.      Based on this Court’s disposition of Assignment of Error I,

Appellant’s second assignment of error is sustained.

      {¶32} For the foregoing reasons, the judgment of the Court of Common Pleas of

Fairfield County is reversed, and the cause is remanded to the court for further

proceedings consistent with this decision.


By: Gwin, P.J.

Delaney, J. concurs.

Wise, dissents.
Fairfield County, Case No. 13 CA 47                                                      14

Wise, J., dissenting

       {¶33} I respectfully dissent from the majority opinion. The purposes of punitive

damages in the state of Ohio are not designed to compensate victims, but to punish and

deter conduct. Upon the death of the tortfeasor, the law can no longer punish him or her

from similar conduct in the future. Since punishment is no longer possible, deterrence is

the only remaining goal. Since deterring the actual tortfeasor is no longer a possibility or

a necessity, it is likewise no longer possible to hold him or her out as an example to

deter others. Punishing his or her Estate is one step removed and therefore waters

down or dilutes any such deterrent effect. Assessing punitive damages against an

estate serves to neither punish nor deter the tortfeasor. I believe that separating the

punishment from the deterrent aspect frustrates the purpose of punitive damages and

that any deterrence would be speculative at best.

       {¶34} I would therefore join the majority of other jurisdictions in finding that the

purposes of punitive damages are thwarted upon the death of the tortfeasor. (See Idaho

Code Ann. § 5–327(1) (West, Westlaw through 2011 Chs. 1–335); Vt. Stat. Ann. tit. 14,

§ 1454 (West, Westlaw through 2011 Sess. No. 28); Fehrenbacher v. Quackenbush,

759 F.Supp. 1516, 1521–22 (D.Kan.1991) (applying Kansas law); Sanchez v. Marquez,

457 F.Supp. 359, 364 (D.Colo.1978) (applying Colorado law) (currently codified at

Colo.Rev.Stat. Ann. § 13–20–101(1) (West, Westlaw through July 1, 2011)); Doe v.

Colligan, 753 P.2d 144, 146 (Alaska 1988); Evans v. Gibson, 220 Cal. 476, 31 P.2d

389, 395 (1934) (subsequently codified at Cal.Civ.Proc.Code § 377.42 (1992));

Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938–40 (D.C.1995); Lohr v. Byrd,

522 So.2d 845, 846–47 (Fla.1988); Morris v. Duncan, 126 Ga. 467, 54 S.E. 1045,
Fairfield County, Case No. 13 CA 47                                                15


1046–47 (1906) (subsequently codified at Ga.Code Ann. § 9–2–41 (West, Westlaw

through 2011 Reg. Sess.)); Crabtree ex rel. Kemp v. Estate of Crabtree, 837 N.E.2d

135, 138–40 (Ind.2005); Stewart v. Estate of Cooper, 102 S.W.3d 913, 915–16

(Ky.2003); Edwards v. Ricks, 30 La.Ann. 926, 928 (1878); Prescott v. Knowles, 62 Me.

277, 279 (1874) (currently codified at Me.Rev.Stat. Ann. tit. 18–A, § 3–818 (West,

Westlaw through 2011 1st Reg. Sess.)); Wilkins v. Wainwright, 173 Mass. 212, 53 N.E.

397, 397–98 (1899) (currently codified at Mass. Gen. Laws Ann. ch. 230, § 2 (West,

Westlaw through 2011 1st Annual Sess. Ch. 67)); Thompson v. Estate of Petroff, 319

N.W.2d 400, 408 (Minn.1982); Hewellette v. George, 68 Miss. 703, 9 So. 885, 887

(1891) (subsequently codified at Miss.Code Ann. § 91–7–235 (West, Westlaw through

2011 legislative sessions)), overruled on other grounds by Glaskox ex rel. Denton v.

Glaskox, 614 So.2d 906, 907 (Miss.1992); Tietjens v. Gen. Motors Corp., 418 S.W.2d

75, 88 (Mo.1967); Allen v. Anderson, 93 Nev. 204, 562 P.2d 487, 489–90 (1977)

(subsequently codified at Nev.Rev.Stat. Ann. § 41.100(2) (West, Westlaw through 2010

Special Sess.)); Jaramillo v. Providence Wash. Ins. Co., 117 N.M. 337, 871 P.2d 1343,

1350–52 (1994); Gordon v. Nathan, 43 A.D.2d 917, 352 N.Y.S.2d 464, 465 (1974)

(currently codified at N.Y. Est. Powers & Trusts Law § 11–3.2(a)(1) (McKinney, Westlaw

through 2011 Sess.)); Harrell v. Bowen, 179 N.C.App. 857, 635 S.E.2d 498, 500 (2006);

Mongold v. Estate of Gilbert, 114 Ohio Misc.2d 32, 758 N.E.2d 1245, 1247–49 (Ohio

Ct.C.P.2000); Morriss v. Barton, 200 Okla. 4, 190 P.2d 451, 459–60 (1947); Ashcraft v.

Saunders, 251 Or. 139, 444 P.2d 924, 926–27 (1968) (currently codified at Or.Rev.Stat.

Ann. § 30.080 (West, Westlaw through 2011 emergency session)); Aldrich v. Howard, 8

R.I. 125, 127 (1864) (currently codified at R.I. Gen. Laws Ann. § 9–1–8 (West, Westlaw
Fairfield County, Case No. 13 CA 47                                                  16

through Jan. 2010 Sess. Ch. 321)); Olson–Roti v. Kilcoin, 653 N.W.2d 254, 260–62

(S.D.2002); Hayes v. Gill, 216 Tenn. 39, 390 S.W.2d 213, 217 (1965); In re Estate of

Garza, 725 P.2d 1328, 1330 (Utah 1986); Dalton v. Johnson, 204 Va. 102, 129 S.E.2d

647, 650–51 (1963) (subsequently codified at Va.Code Ann. § 8.01–25 (West, Westlaw

through 2011 Reg. Sess.)); McWilliams v. Bragg, 3 Wis. 424, 431 (1854) (currently

codified at Wis. Stat. Ann. § 895.02 (West, Westlaw through 2011 Act 31)); Parker v.

Artery, 889 P.2d 520, 524–25 (Wyo.1995); State Farm v. Maidment, 107 N.M. 568

(1998); see also Restatement (Second) of Torts §§ 908 cmt. a, 926(b) (1979).

      {¶35} In these decisions, the courts reasoned that the primary purposes of

imposing punitive damages are not furthered if the tortfeasor is deceased because the

element of deterrence requires a perception by others that the tortfeasor is being

punished. (See Parker at 525 (Wyo); State Farm at 449 (N.M.); Lohr at 846 (Fla). “Since

the purpose of punitive damages is to punish the wrongdoer for his acts ... and to deter

him from the commission of like wrongs in the future, the reason for such damages

ceases to exist with his death.” Whelan v. Rallo, 52 Cal.App.4th 989, 60 Cal.Rptr.2d

876, 877 (1997).

      {¶36} While mindful that certain situations could arise where public policy could

support an award of punitive damages based on deterrence to the public as a whole, I

find that those issues of public policy belong in the realm of the legislature, not the

courts.


                                               ________________________________
                                               HON. JOHN W. WISE
