[Cite as Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-
Ohio-5030.]




   OLIVER ET AL., APPELLEES, v. CLEVELAND INDIANS BASEBALL COMPANY
       LIMITED PARTNERSHIP ET AL.; CITY OF CLEVELAND, APPELLANT.
       [Cite as Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership,
                        123 Ohio St.3d 278, 2009-Ohio-5030.]
Trials — Damages — R.C. 2744.05 — Cap                   on noneconomic compensatory
        damages in action against a political subdivision does not violate the right
        to a jury trial or the right to equal protection under the law.
    (No. 2008-1463 — Submitted June 16, 2009 — Decided October 1, 2009.)
APPEAL from the Court of Appeals for Cuyahoga County, Nos. 89314, 89428, and
                   89463, 176 Ohio App.3d 410, 2008-Ohio-2183.
                                 __________________
                               SYLLABUS OF THE COURT
The limit on noneconomic compensatory damages in R.C. 2744.05(C)(1) does not
        violate the right to a jury trial or the right to equal protection under the
        law.
                                 __________________
        MOYER, C.J.
                                             I
        {¶ 1} This case began with the detonation of an explosive device during
a Cleveland Indians baseball game; the explosion injured four persons. Appellees
Donald Krieger and Clifton Oliver were arrested at the stadium and were taken
into police custody, along with a third person with whom they had attended the
game, on suspicion of their involvement in the explosion.1 While in custody,



1. The third person is Andrew Mendez, who was subsequently convicted for detonating the
device.
                                 SUPREME COURT OF OHIO




appellees suffered from poor conditions in the jail and harsh treatment by the
jailers.
           {¶ 2} Although a grand jury indicted appellees on several counts of
aggravated arson and felonious assault, these charges were later dismissed by the
Cuyahoga County Prosecuting Attorney.                  Appellees’ arrests and detention
adversely impacted their jobs and mental and physical health.
           {¶ 3} Appellees successfully sued the city of Cleveland, appellant, for
malicious prosecution, false arrest and imprisonment, and intentional infliction of
emotional distress. The jury awarded each plaintiff $400,000 in compensatory
damages and $600,000 in punitive damages. The trial court vacated the punitive-
damages award as impermissible against the city. The trial court overruled the
city’s motion, which cited the damage caps in R.C. 2744.05(C)(1), to reduce the
compensatory-damages award to $250,000 for each plaintiff.                      The court of
appeals affirmed the award of compensatory damages, holding that R.C.
2744.05(C)(1) is unconstitutional because it violates a plaintiff’s right to a jury
trial and the Equal Protection Clause of the United States Constitution. Krieger v.
Cleveland Indians Baseball Co., 176 Ohio App.3d 410, 2008-Ohio-2183, 892
N.E.2d 461, ¶ 69.2 For the reasons that follow, we reverse the judgment of the
court of appeals and hold that R.C. 2744.05(C)(1) does not violate the
constitutional right to a jury trial or the constitutional guarantees of equal
protection.
                                               II
           {¶ 4} R.C. 2744.05(C)(1) places a $250,000 limit on noneconomic
compensatory damages (those damages that do not represent “actual loss” to an


2. In their memoranda to this court, appellees and their amicus have asserted that R.C.
2744.05(C)(1) is unconstitutional on due process grounds, yet this issue was not addressed by the
court of appeals. This issue was not proposed in a proposition of law, nor have we accepted such
a proposition of law. Accordingly, we decline to address the due process issue.




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injured party) awarded against political subdivisions.                    The city of Cleveland
argues that the limits should apply to reduce appellees’ damage award because
appellant is a political subdivision. The court of appeals did not analyze R.C.
2744.05(C)(1) but followed a previous decision of its court, Gladon v. Greater
Cleveland Regional Transit Auth. (Mar. 10, 1994), Cuyahoga App. No. 64029,
1994 WL 78468,3 in holding R.C. 2744.05(C)(1) to be unconstitutional. Krieger,
176 Ohio App.3d 410, 2008-Ohio-2183, 892 N.E.2d 461, at ¶ 68.
         {¶ 5} The court of appeals did not consider the opinion of this court in
Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d
420. In Arbino, we reviewed a statute similar to R.C. 2744.05(C)(1), but in a
different chapter of the Revised Code, R.C. 2315.18. Id. at ¶ 4. Although the
statute at issue differs from the statute in Arbino in that R.C. 2744.05 applies to
damage awards against political subdivisions, not private litigants, the purpose
and effect of the statute in Arbino and the statute in this case are the same—to
limit compensatory-damage awards for noneconomic harm.4



3. Although we had accepted Gladon for review, we did not address the constitutionality of R.C.
2744.05(C), because we found a procedural error at trial and remanded the case, thereby avoiding
an advisory opinion on the constitutional question. Gladon v. Greater Cleveland Regional Transit
Auth. (1996), 75 Ohio St. 3d 312, 662 N.E.2d 287, fn. 1. In this case, the constitutional questions
are ripe for review.

4. {¶ a} R.C. 2315.18(B)(2) reads:
   {¶ b} “[T]he amount of compensatory damages that represents damages for noneconomic loss
that is recoverable in a tort action under this section to recover damages for injury or loss to person
or property shall not exceed the greater of two hundred fifty thousand dollars or an amount that is
equal to three times the economic loss, as determined by the trier of fact, of the plaintiff in that tort
action to a maximum of three hundred fifty thousand dollars for each plaintiff in that tort action or
a maximum of five hundred thousand dollars for each occurrence that is the basis of that tort
action.”
   {¶ c} R.C. 2744.05(C)(1) provides:
   {¶ d} “There shall not be any limitation on compensatory damages that represent the actual loss
of the person who is awarded the damages. However * * * damages that arise from the same cause
of action, transaction or occurrence, or series of transactions or occurrences and that do not
represent the actual loss of the person who is awarded the damages shall not exceed two hundred
fifty thousand dollars in favor of any one person.”




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        {¶ 6} R.C. 2315.18(B) contains an exception to the limits on
noneconomic damages for those persons who suffer “catastrophic injuries,” see
id. at ¶ 47, but R.C. 2744.05(C) does not. We find this difference between the
statutes to be no obstacle to the application of the reasoning of Arbino to this case.
The difference has no bearing on our analysis of the effect of R.C. 2744.05 on the
constitutional right to a jury trial. Nor does this difference affect our rational-
basis review of the statute for equal protection purposes, for the reasons explained
below. Therefore, we will apply the reasoning of Arbino in this case.
                              A. Right to trial by jury
        {¶ 7} In Arbino, we considered the effect of the damage caps on the right
to a jury trial. We founded our analysis on the principle that the fact-finding of a
jury is inviolate for those causes for which the right is preserved. Arbino, 116
Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 35. The right ensures that
a jury’s fact-finding function is not invaded, ignored, or replaced. Id. at ¶ 37. But
we noted that “the right to a trial by jury does not extend to the determination of
questions of law.” Id. Therefore, we reasoned that while a jury determines the
amount of damages as a matter of fact, the actual award may be reduced by the
application of a statute as a matter of law, akin to altering awards through
remittiturs or statutory treble damages. Id. at ¶ 38-40. Thus, in Arbino, we held
that the statutory limit on noneconomic damages in R.C. 2315.18(B)(2) is applied
as a matter of law and does not intrude upon the fact-finding function of the jury.
Id. at ¶ 40-42.
        {¶ 8} Accordingly, Arbino stands for the proposition that a court does
not usurp the role of the jury in contravention of Section 5, Article I of the Ohio
Constitution or the Seventh Amendment to the United States Constitution when it
applies a statutory limit on noneconomic damages to the facts found by the jury.
Id. This proposition is true for R.C. 2744.05(C)(1) just as it was for the statute in
Arbino. A court does not intrude into the jury’s fact-finding when applying R.C.




                                          4
                                January Term, 2009




2744.05; instead, the court applies the limit as a matter of law to the facts found
by the jury. Therefore, the limit on noneconomic damages in R.C. 2744.05(C)(1)
does not unconstitutionally restrict the right to a jury trial under Section 5, Article
I of the Ohio Constitution or the Seventh Amendment to the United States
Constitution.
                                B. Equal protection
       {¶ 9} The Ohio and federal equal protection analysis applied in Arbino is
applicable in this case as well. As in Arbino, there is no fundamental right or
protected class at issue here, and R.C. 2744.05(C)(1) is facially neutral. 116 Ohio
St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 64-66. Therefore, we review the
statute to determine whether it has a rational basis. Id. R.C. 2744.05(C)(1) will
pass constitutional muster under the Ohio and United States Constitutions if it is
rationally related to a legitimate government purpose. Id. at ¶ 66.
       {¶ 10} We have upheld a different subsection of R.C. 2744.05 under the
rational-basis standard in the equal protection context. Menefee v. Queen City
Metro (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181. We held that the “state has
a valid interest in preserving the financial soundness of its political subdivisions.”
Id., citing Shapiro v. Thompson (1969), 394 U.S. 618, 633, 89 S.Ct. 1322, 22
L.Ed.2d 600. That same state interest supports R.C. 2744.05(C). A limit on the
damages for which a political subdivision may be liable is rationally related to the
purpose of preserving the financial integrity of political subdivisions. Therefore,
R.C. 2744.05(C)(1) is rationally related to a legitimate government interest.
       {¶ 11} Nevertheless, appellees argue that R.C. 2744.05(C)(1) should be
considered unconstitutional under rational-basis review because the statute is
arbitrary and unreasonable. This is so, according to appellees, because (1) the
statute assigns a fixed measure of damages in all cases, thereby “impos[ing] the
cost of the intended benefit to the public * * * upon those most severely injured,”
citing Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 59, citing



                                          5
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Morris v. Savoy (1991), 61 Ohio St.3d 684, 690-691, 576 N.E.2d 765, and State
ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451,
490, 715 N.E.2d 1062; and (2) the statute does not contain an exception for
catastrophic injuries as does R.C. 2315.18(B).              We find these arguments
unpersuasive.
        {¶ 12} As a preliminary matter, we note that appellees are making a facial
challenge to R.C. 2744.05(C)(1), because they cannot claim that the lack of a
catastrophic-injury exception in the statute impacts their lawsuit.                   The
catastrophic-injury exception in R.C. 2315.18(B)(3) is for “(a) [p]ermanent and
substantial physical deformity, loss of use of a limb, or loss of a bodily organ
system; [or] (b) [p]ermanent physical functional injury that permanently prevents
the injured person from being able to independently care for self and perform life-
sustaining activities.” We find nothing in appellees’ complaint or the record that
would place their injuries in these categories. Therefore, their challenge in this
regard must be viewed as a facial challenge.5
        {¶ 13} In order for a statute to be facially unconstitutional, it must be
unconstitutional in all applications. Arbino, 116 Ohio St.3d 468, 2007-Ohio-
6948, 880 N.E.2d 420, ¶ 26, citing Harrold v. Collier, 107 Ohio St.3d 44, 2005-
Ohio-5334, 836 N.E.2d 1165, ¶ 37, and United States v. Salerno (1987), 481 U.S.
739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697.              In Arbino, the statute capped
noneconomic damages for those persons who were injured but whose injuries
were not so serious as to be excluded from the caps under R.C. 2315.18(B)(3).
Nevertheless, we held that the statute was neither unreasonable nor arbitrary. Id.
at ¶ 61.      Similarly, the damage limits for noneconomic harm in R.C.
2744.05(C)(1) are neither unreasonable nor arbitrary, at least with regard to



5. Notwithstanding this conclusion, we observe that the conduct of certain employees of the
Cleveland Police Department and in particular defendant Peachman was reprehensible.




                                            6
                                 January Term, 2009




persons suffering noncatastrophic injuries. Therefore, the statute has at least
some valid application and will survive the facial challenge.
        {¶ 14} Moreover, we would not hold the statute unconstitutional if
appellees had presented an as-applied challenge for arbitrariness. The cases relied
upon by appellees—Morris, Sheward, and Arbino—are distinguishable from this
case. While those cases suggest that it is arbitrary or unreasonable to impose an
across-the-board limitation on noneconomic damages, those cases dealt only with
lawsuits between private litigants.
        {¶ 15} R.C. 2744.05(C), however, applies only to damage awards against
political subdivisions. We have already held that the General Assembly could
have prohibited all tort actions against political subdivisions. Menefee, 49 Ohio
St.3d at 29, 550 N.E.2d 181. Therefore we cannot say that it is arbitrary or
unreasonable for the General Assembly to allow some recovery in tort actions.
        {¶ 16} Accordingly, we hold that R.C. 2744.05(C)(1) does not violate the
constitutional guarantee of equal protection under the law.
                                          III
        {¶ 17} We reverse the judgment of the court of appeals. The limit on
noneconomic compensatory damages in R.C. 2744.05(C)(1) does not violate the
right to a jury trial or the right to equal protection under the law.
        {¶ 18} We are unable to apply the limit in R.C. 2744.05(C)(1) to the
award based upon the record before us. Therefore, we remand the cause to the
trial court for further proceedings consistent with this decision.
                                                                     Judgment reversed
                                                                  and cause remanded.
        LUNDBERG STRATTON, O’CONNOR, LANZINGER, and CUPP, JJ., concur.
        PFEIFER, J., dissents.
        O’DONNELL, J., dissents for the reasons stated in his dissenting opinion in
Arbino v. Johnson & Johnson.



                                           7
                             SUPREME COURT OF OHIO




                              __________________
       PFEIFER, J., dissenting.
                              Right to Trial by Jury
       {¶ 19} In Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-
6948, 880 N.E.2d 420, which also addressed whether a cap on compensatory
damages violates the right to a jury trial, I dissented and wrote, “ ‘So long as the
trial by jury is a part of our system of jurisprudence, its constitutional integrity
and importance should be jealously safeguarded. The right of trial by jury should
be as inviolate in the working of our courts as it is in the wording of our
Constitutions.’ Gibbs v. Girard (1913), 88 Ohio St. 34, 47, 102 N.E. 299. Instead
of jealously safeguarding the right to trial by jury, the majority opinion in this
case eviscerates it by holding constitutional a statute that enables courts to ‘enter
judgments in disregard of the jury’s verdict.’ Sorrell v. Thevenir (1994), 69 Ohio
St.3d 415, 422, 633 N.E.2d 504. Instead of jealously safeguarding the right to
trial by jury, the majority opinion [concludes] that juries can meaningfully
determine only facts that do not conflict with predetermined assessments of the
General Assembly. Instead of jealously safeguarding the right to trial by jury, the
majority opinion ‘cleans the scalpel for the legislature to cut away unrestrainedly
at the whole field of tort redress.’ Meech v. Hillhaven W., Inc. (1989), 238 Mont.
21, 52, 776 P.2d 488 (Sheehy, J., dissenting).” Arbino at ¶ 163. Today the
majority opinion allows the cutting to continue.
       {¶ 20} Once again, a majority of this court concludes that a statute may
amend an inviolate constitutional right, even though we have previously stated
that “[t]he right of trial by jury, being guaranteed to all our citizens by the
Constitution of the state, cannot be invaded or violated by either legislative act or
judicial order or decree.” Gibbs, 88 Ohio St. 34, 102 N.E. 299, at paragraph two
of the syllabus. See Section 5, Article I, Ohio Constitution (“The right of trial by
jury shall be inviolate * * *”). Once again, a majority of this court suggests that a




                                         8
                                January Term, 2009




cap on damages is nothing more than remittitur and ignores that “the sole reason
remittitur does not violate the right to a trial by jury is that remittitur cannot be
granted without the consent of the prevailing party.” Arbino, 116 Ohio St.3d 468,
2007-Ohio-6948, 880 N.E.2d 420 (Pfeifer, J., dissenting), citing Wightman v.
Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 444, 715 N.E.2d 546. Once again,
a majority of this court illogically suggests that because “the treble-damages
provisions of R.C. 901.51, 1331.08, 1345.09, 2307.61, 2923.34(E), and 4905.61,
which increase a jury award, have never been held to infringe the right to a trial
by jury, [then decreasing] a jury award, ‘cannot logically violate that right.’ ” Id.
       {¶ 21} And once again, I state that “a statute that authorizes a judge to
ignore or change factual findings deprives litigants ‘of the benefits of Trial by
Jury’ and must be declared unconstitutional.” Id. at ¶ 169. R.C. 2744.05(C)(1)
unconstitutionally invades the province of the jury by replacing a damages award
determined by a jury with a predetermined cap imposed by the General Assembly.
I would affirm the judgment of the court of appeals on this issue.
                                 Equal Protection
       {¶ 22} The majority opinion states that “[t]he Ohio and federal equal
protection analysis applied in Arbino is applicable in this case as well.” This
conclusion ignores one basic fact: in the Arbino case, the majority opinion was
working with findings of fact supplied by the General Assembly, whereas in this
case, the General Assembly did not issue findings of facts. Instead, the majority
opinion supplied its own single finding of fact and did so without commenting on
the lack of legislative findings of fact or the creation of its own judicial finding of
fact. Applying the equal protection analysis in the Arbino case to this case is
unreasonable given the lack of legislative findings of fact in this case.
       {¶ 23} I would affirm the judgment of the court of appeals because the
caps imposed by R.C. 2744.05(C)(1) violate the right to trial by jury. I dissent.
                               __________________



                                          9
                              SUPREME COURT OF OHIO




          James Burke Jr., John J. Chambers, and Sean P. Allan, for appellee Clifton
Oliver.
          John J. Spellacy and Sean P. Allan, for appellee Donald Krieger.
          Robert J. Triozzi, Director of Law, Joseph F. Scott, Chief Assistant
Director of Law, and Jerome A. Payne Jr., Assistant Director of Law, for
appellant.
          Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
and David M. Lieberman, Deputy Solicitor, urging reversal for amicus curiae
state of Ohio.
          Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for
amicus curiae Ohio Association of Justice.
                             ______________________




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