[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Whetstone v. Binner, Slip Opinion No. 2016-Ohio-1006.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-1006
            WHETSTONE, APPELLEE, v. BINNER, ADMR., APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as Whetstone v. Binner, Slip Opinion No. 2016-Ohio-1006.]
Tort actions―Damages―Death of tortfeasor―Where liability has been
        determined while tortfeasor was alive, punitive damages are available to
        plaintiff after tortfeasor’s death, and where otherwise appropriate, award
        may be imposed against tortfeasor’s estate.
   (No. 2014-1462—Submitted October 28, 2015—Decided March 15, 2016.)
              APPEAL from the Court of Appeals for Fairfield County,
                           No. 13 CA 47, 2014-Ohio-3018.
                               _____________________
        O’CONNOR, C.J.
        {¶ 1} In this appeal, we address whether punitive damages can be awarded
against the estate of a deceased tortfeasor. We conclude that a punitive-damages
award is available in the limited circumstances presented here.
                            SUPREME COURT OF OHIO




                           RELEVANT BACKGROUND
       {¶ 2} On June 29, 2010, Christine Whetstone dropped off her daughters,
O.C. and L.C., at the home of their great-aunt, Roxanne McClellan, who was to
baby-sit. The girls were just over five and two years old, respectively. When
Whetstone returned to McClellan’s home, she entered a bedroom and found
McClellan with one hand on O.C.’s neck and the other hand holding a pillow over
O.C.’s face. Whetstone struggled with McClellan and eventually was able to free
O.C. Whetstone fled the house with O.C. and L.C., who had remained asleep in
the bedroom during the incident.
       {¶ 3} Whetstone immediately reported the incident to the police and took
O.C. to the emergency room. There, the physician noted O.C.’s injuries, including
a mark on her cheek, scratches on her chin and chest, and a hemorrhage in her eye.
       {¶ 4} Whetstone and her daughters attended counseling after the incident.
All three were eventually diagnosed with posttraumatic stress disorder. Whetstone
reported that she had nightmares, anxiety, and anger, while her daughters had
trouble sleeping and continued to fear McClellan.
       {¶ 5} On October 1, 2010, Whetstone, individually and on behalf of her
daughters, filed a civil suit against McClellan for assault, false imprisonment,
emotional distress, and loss of consortium. She requested compensatory and
punitive damages.
       {¶ 6} On November 18, 2010, after McClellan failed to respond to the
complaint, the trial court entered a default judgment against McClellan. The court
scheduled an evidentiary hearing on damages for January 6, 2011.
       {¶ 7} On December 29, 2010, McClellan moved for relief from the default
judgment, asserting that she was unaware of the complaint until after the deadline
for filing an answer had passed. She disclosed that she had been diagnosed with
terminal cancer and had been undergoing chemotherapy treatments since October
2010, and she requested a postponement of the damages hearing because she was




                                        2
                                January Term, 2016




scheduled for a treatment on the same day as that hearing. The hearing was
postponed.
        {¶ 8} On April 7, 2011, the court denied McClellan’s request for relief from
the default judgment and stated that it would reschedule a damages hearing by
separate entry.
        {¶ 9} McClellan died on April 22, 2011, before the damages hearing was
rescheduled. On December 30, 2011, the court granted Whetstone’s motion to
substitute Erin Binner, the administrator of McClellan’s estate, as a party.
        {¶ 10} In April 2012, the court scheduled a damages hearing at Whetstone’s
request. Binner obtained counsel and the parties engaged in discovery. The
damages hearing commenced on July 26, 2012, and concluded on December 3,
2012.
        {¶ 11} At the damages hearing, the court heard testimony from Whetstone,
O.C., and Dawn McCoy, a licensed clinical social worker who provided counseling
services to Whetstone and her daughters. Binner appeared and was represented by
counsel. The parties filed posthearing briefs containing their closing arguments.
Notably, although Binner argued that punitive damages should not be awarded
because no evidence of McClellan’s malice had been presented, she did not object
to the request for punitive damages on the basis of McClellan’s death either during
the hearing or in the posthearing brief.
        {¶ 12} On May 7, 2013, the trial court awarded limited compensatory
damages to Whetstone and L.C. and $50,000 in compensatory damages to O.C.
The court concluded that punitive damages could not be properly awarded against
the estate of a deceased tortfeasor. Because punitive damages were not awarded,
the court determined that attorney fees were also unavailable.
        {¶ 13} The Fifth District Court of Appeals reversed, holding that an award
of punitive damages against a deceased tortfeasor is permissible under Ohio law.
2014-Ohio-3018, 15 N.E.3d 905, ¶ 26. The appellate court remanded for the trial




                                           3
                             SUPREME COURT OF OHIO




court to determine whether to impose punitive damages and a corresponding award
of attorney fees.
       {¶ 14} We accepted the estate’s discretionary appeal on whether punitive
damages can be awarded against the estate of a deceased tortfeasor. 141 Ohio St.3d
1473, 2015-Ohio-554, 25 N.E.3d 1080.
                                     ANALYSIS
       {¶ 15} The purpose of punitive damages is twofold; to punish the tortfeasor
and to deter similar conduct. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638,
651, 635 N.E.2d 331 (1994). “The policy of awarding punitive damages in Ohio is
both to punish the offending party and to set him up as an example to others, thereby
deterring others from similar behavior.” Cabe v. Lunich, 70 Ohio St.3d 598, 601-
602, 640 N.E.2d 159 (1994). In other words, deterrence is intended to be both
specific to a particular tortfeasor and general as an example to others.
       {¶ 16} Ohio law is well settled that punitive damages are available for
personal injury or property loss caused by malice or “ ‘ “intentional, reckless,
wanton, willful and gross acts.” ’ ” Rubeck v. Huffman, 54 Ohio St.2d 20, 23, 374
N.E.2d 411 (1978), quoting Columbus Fin., Inc. v. Howard, 42 Ohio St.2d 178,
184, 327 N.E.2d 654 (1975), quoting the appellants’ brief. Pursuant to R.C.
2305.21, the right to punitive damages continues when an injured plaintiff has died
and the plaintiff’s claim is pursued by a representative of his or her estate. Id. But
the specific question before the court here—whether punitive damages can be
imposed against a deceased tortfeasor—is a matter of first impression in this court.
       {¶ 17} The appellate court correctly noted that the majority of other
jurisdictions prohibit punitive-damages awards against a deceased tortfeasor.
2014-Ohio-3018, 15 N.E.3d 905, ¶ 23; see In re Estate of Vajgrt, 801 N.W.2d 570,
576-577 (Iowa 2011). Some jurisdictions have adopted this approach through
legislative enactments, and others through court rulings. Id. at 576. “The reasoning
behind these decisions is essentially that the primary purposes of imposing punitive




                                          4
                                January Term, 2016




damages are not furthered when the tortfeasor is deceased,” because the deterrence
element of awarding punitive damages is speculative if there is a perception that
the estate, rather than the tortfeasor, is being punished. G.J.D. v. Johnson, 552 Pa.
169, 172-173, 713 A.2d 1127 (1998).
       {¶ 18} Nonetheless, a minority of jurisdictions have allowed recovery of
punitive damages when the tortfeasor has died. 2014-Ohio-3018, 15 N.E.3d 905,
¶ 25; Vajgrt at 577. The Pennsylvania Supreme Court in G.J.D. summarized the
reasoning of the minority approach in three main points. First, even when the
tortfeasor dies, punitive damages still serve the general purpose of deterrence.
G.J.D. at 176. Second, the heirs and beneficiaries of the deceased tortfeasor’s estate
“are in essentially the same financial position as if the tortfeasor were living at the
time damages were awarded,” because an award prior to death would have reduced
the assets available to the estate. Id. at 176-177. And third, there are safeguards to
protect against an arbitrary award, including jury instructions that clarify that the
damages awarded by the jury will be imposed against the estate. Id. at 177.
       {¶ 19} In Ohio, there is no statutory provision that precludes imposing
punitive damages on a deceased tortfeasor. We note that the cases from states that
have adopted the majority view that were cited by the appellate court do not involve
a tortfeasor who was alive at the time the trial court entered judgment on the issue
of the tortfeasor’s liability. 2014-Ohio-3018, 15 N.E.3d 905, ¶ 23. Rather, in each
of the cited cases, the tortfeasor had died prior to a judgment or jury verdict on
liability. This distinction is significant because the availability of punitive damages
is triggered by liability for compensable harm.
       {¶ 20} Punitive damages are not an independent cause of action; rather, they
arise incident to compensable harm. Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d
486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 12-13. Punitive damages are available in
a tort action when compensatory damages are recoverable and the defendant’s
actions or omissions demonstrate malice or aggravated or egregious fraud. R.C.




                                          5
                               SUPREME COURT OF OHIO




2315.21(C)(1) and (2). The plaintiff bears the burden to establish entitlement to
punitive damages by clear and convincing evidence. R.C. 2315.21(D)(4). But an
award of punitive damages is not automatic. Even when a plaintiff can establish
entitlement to punitive damages, whether to impose punitive damages, and in what
amount, is left to the trier of fact.
        {¶ 21} Here, the trial court entered a default judgment on November 18,
2010, five months before McClellan’s death in April 2011.               And prior to
McClellan’s death, the trial court denied her request for relief from the default
judgment.     Pursuant to Civ.R. 8(D), there could be no dispute regarding
McClellan’s liability as alleged in the complaint because those allegations were
deemed admitted when not denied in a responsive pleading. 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. Therefore, McClellan, and her estate
after her death, faced the potential award of punitive damages.
        {¶ 22} The liability determination against McClellan triggered the
availability of compensatory and punitive damages while McClellan was alive.
Following the entry of default judgment, all that remained was a damages hearing
in order for the trier of fact to determine the amount of damages, if any.
        {¶ 23} But for the postponement of the damages hearing at McClellan’s
request, the damages hearing could have occurred while McClellan was alive. Even
after her death, Binner participated in the hearing on damages as a representative
of McClellan’s estate. The trial court awarded compensatory damages, but sua
sponte declined to award punitive damages due to McClellan’s death. It was error
to do so.
        {¶ 24} We conclude that in cases in which liability has been determined
while the tortfeasor is alive, punitive damages are available to the plaintiff. To hold
otherwise would send a message that by delaying a damages hearing, a defendant




                                          6
                                January Term, 2016




or his or her estate might avoid the award of punitive damages. Allowing an award
of punitive damages when liability has been determined prior to a tortfeasor’s death
still accomplishes the general deterrence purpose of such awards. See G.J.D., 552
Pa. at 176 (“The deterrent effect on the conduct of others is no more speculative in
the instant case than in cases where the tortfeasor is alive”).
       {¶ 25} McClellan’s death is not without relevance in the punitive-damages
context, however. At a punitive-damages hearing, the trier of fact may consider
that McClellan is not present to testify and that a punitive-damages award will be
imposed against the estate. See id. at 177.
       {¶ 26} We do not reach whether McClellan’s actions warrant a punitive-
damages award in any amount. We conclude only that a hearing on punitive
damages can proceed.
                                    CONCLUSION
       {¶ 27} For the foregoing reasons, we affirm the judgment of the court of
appeals, and we remand to the trial court for a hearing on punitive damages and
attorney fees.
                                                                   Judgment affirmed
                                                                  and cause remanded.
       PFEIFER, FRENCH, and O’NEILL, JJ., concur.
       O’DONNELL, J., dissents with an opinion in which KENNEDY, J., joins.
       LANZINGER, J., dissents with an opinion in which KENNEDY, J., joins.
                                _________________
       O’DONNELL, J., dissenting.
       {¶ 28} Respectfully, I dissent.
       {¶ 29} The purpose of punitive damages is to punish the tortfeasor and deter
certain conduct. Sivit v. Village Green of Beachwood, L.P., 143 Ohio St.3d 168,
2015-Ohio-1193, 35 N.E.3d 508, ¶ 7. Because the purpose of awarding punitive
damages is to punish the tortfeasor, in my view, punitive damages may not be




                                           7
                             SUPREME COURT OF OHIO




awarded against the estate of a tortfeasor. Such an assessment does not serve that
purpose.
                          Facts and Procedural History
       {¶ 30} Christine Whetstone, individually and on behalf of her two minor
daughters, filed a complaint against her aunt, Roxanne McClellan, for assault,
battery, false imprisonment, emotional distress, and loss of consortium. McClellan
did not respond to the complaint, and as a result, the trial court entered a default
judgment against her and scheduled a hearing on damages. McClellan moved for
relief from the default judgment and requested a continuance of the damages
hearing because it had been scheduled on the same day as one of her cancer
treatments. The trial court denied the motion for relief and determined that the
continuance request was moot because the court did not rule on it until after the
hearing date had passed. The court notified the parties that it would reschedule the
damages hearing. However, before it did so, McClellan died, and as a result, the
trial court substituted Erin Binner, the administrator of her estate, as a party. The
court then awarded compensatory damages to Whetstone and her daughters but sua
sponte ruled that it could not award punitive damages against the estate of a
tortfeasor and therefore also could not award attorney fees.
       {¶ 31} In a two-to-one decision, the Fifth District Court of Appeals reversed
the trial court and adopted the position of a minority of courts in other states that
punitive damages may be assessed against a tortfeasor’s estate.
       {¶ 32} Binner now appeals that judgment.
                                Law and Analysis
       {¶ 33} “ ‘The purpose of punitive damages is not to compensate a plaintiff,
but to punish and deter certain conduct.’ ” (Emphasis added.) Sivit, 143 Ohio St.3d
168, 2015-Ohio-1193, 35 N.E.3d 508, ¶ 7, quoting Moskovitz v. Mt. Sinai Med.
Ctr., 69 Ohio St.3d 638, 651, 635 N.E.2d 331 (1994). This court has stated:




                                         8
                                January Term, 2016




        “[A] punitive damages award is more about [the] defendant’s
        behavior than the plaintiff’s loss.” [Wightman v. Consol. Rail Corp.,
        86 Ohio St.3d 431, 439, 715 N.E.2d 546 (1999).] 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.


(Emphasis added.) Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d
77, 2002-Ohio-7113, 781 N.E.2d 121, ¶ 178. We have also stated that the “purpose
of punitive damages is to punish the offending party and make the offender an
example to others so that they might be deterred from similar conduct.” (Emphasis
added.) State Farm Mut. Ins. Co. v. Blevins, 49 Ohio St.3d 165, 168, 551 N.E.2d
955 (1990).
        {¶ 34} The majority attempts to separate the goals of punishment and
deterrence as to a specific tortfeasor from the goal of general deterrence and
concludes that “[a]llowing an award of punitive damages [against a tortfeasor’s
estate] when liability has been determined prior to a tortfeasor’s death still
accomplishes the general deterrence purpose of such awards.” Majority opinion at
¶ 24.
        {¶ 35} The Supreme Court of Florida has explained:


        “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




                                           9
                               SUPREME COURT OF OHIO




        awards deter other prospective tortfeasors, especially if the criminal
        laws fail to do so.”


(Emphasis added by Florida Supreme Court.) Lohr v. Byrd, 522 So.2d 845, 846
(Fla.1988), quoting Byrd v. Lohr, 488 So.2d 138, 139 (Fla.App.1986); see also Doe
v. Colligan, 753 P.2d 144, 146 (Alaska 1988) (“general deterrence depends
significantly upon the punishment function of an award of punitive damages. Since
the deceased tortfeasor cannot be punished, the general deterrent effect becomes
speculative at best * * *”).
        {¶ 36} The dead cannot be punished or deterred, and “[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.” Jaramillo v. Providence Washington Ins. Co., 117 N.M. 337, 345, 871
P.2d 1343 (1994).
                                    Conclusion
        {¶ 37} Assessing punitive damages against a tortfeasor’s estate neither
punishes the tortfeasor nor deters similar conduct. The judgment of the appellate
court should be reversed, and the judgment of the trial court should be reinstated.
        {¶ 38} For these reasons, I dissent.
        KENNEDY, J., concurs in the foregoing opinion.
                                _________________
        LANZINGER, J., dissenting.
        {¶ 39} Even assuming that general deterrence is on equal footing with the
goals of punishing and deterring the tortfeasor by awarding punitive damages, none
of these purposes is served by meting out punishment to the dead. Because I believe
that punitive damages cannot be imposed against the estate of a deceased tortfeasor,
I respectfully dissent.




                                         10
                                January Term, 2016




       {¶ 40} Until the Fifth District Court of Appeals’ decision in this case, Ohio
courts have taken the position that punitive damages were not available against a
deceased tortfeasor. Mongold v. Estate of Gilbert, 114 Ohio Misc.2d 32, 36, 758
N.E.2d 1245 (C.P.2000); Friedman v. Labos, 23 Ohio Law Abs. 217, 1936 WL
2151, at *6 (7th Dist.1936). Other jurisdictions believed this to be so. Firestone v.
Galbreath, 895 F.Supp. 917, 933 (S.D.Ohio 1995); Boyd v. Smith, S.D.Ohio No.
2:12-CV-814, 2014 WL 1050080, *11 (Mar. 14, 2014), fn. 3; Kovac v. Barron,
2014 IL App (2d) 121100, 6 N.E.3d 819, ¶ 87; Crabtree ex rel. Kemp v. Estate of
Crabtree, 837 N.E.2d 135, 138 (Ind.2005), fn. 3; In re Vajgrt, 801 N.W.2d 570,
576 (Iowa 2011), fn. 3.
       {¶ 41} I respectfully dissent from the decision to affirm the departure from
Ohio’s previous position. I would hold instead that punitive damages abate at the
death of the tortfeasor, which is the majority view in the United States.
Fehrenbacher v. Quackenbush, 759 F.Supp. 1516, 1521-1522 (D.Kan.1991);
Sanchez v. Marquez, 457 F.Supp. 359, 364 (D.Colo.1978); Doe v. Colligan, 753
P.2d 144, 146 (Alaska 1988); Evans v. Gibson, 220 Cal. 476, 489-490, 31 P.2d 389
(1934); Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938-940 (D.C.1995);
Lohr v. Byrd, 522 So.2d 845, 846-847 (Fla.1988); Morris v. Duncan, 126 Ga. 467,
470, 54 S.E. 1045 (1906); Crabtree, 837 N.E.2d at 138-140; Stewart v. Estate of
Cooper, 102 S.W.3d 913, 915-916 (Ky.2003); Edwards v. Ricks, 30 La.Ann. 926,
928 (1878); Prescott v. Knowles, 62 Me. 277, 279 (1874); Thompson v. Estate of
Petroff, 319 N.W.2d 400, 408 (Minn.1982); Hewellette v. George, 68 Miss. 703,
710, 9 So. 885 (1891), overruled on other grounds, Glaskox ex rel. Denton v.
Glaskox, 614 So.2d 906, 907 (Miss.1992); Allen v. Anderson, 93 Nev. 204, 207-
209, 562 P.2d 487 (1977); Jaramillo v. Providence Wash. Ins. Co., 117 N.M. 337,
344-346, 871 P.2d 1343 (1994); Gordon v. Nathan, 43 A.D.2d 917, 352 N.Y.S.2d
464, 465 (1974); Harrell v. Bowen, 179 N.C.App. 857, 859-860, 635 S.E.2d 498
(2006); Morriss v. Barton, 200 Okla. 4, 12, 190 P.2d 451 (1947); Ashcraft v.




                                         11
                            SUPREME COURT OF OHIO




Saunders, 251 Or. 139, 142-144, 444 P.2d 924 (1968); Aldrich v. Howard, 8 R.I.
125, 127 (1864); Olson-Roti v. Kilcoin, 653 N.W.2d 254, 260-262 (S.D.2002);
Hayes v. Gill, 216 Tenn. 39, 48-49, 390 S.W.2d 213 (1965); In re Estate of Garza,
725 P.2d 1328, 1330 (Utah 1986); Dalton v. Johnson, 204 Va. 102, 107, 129 S.E.2d
647 (1963); McWilliams v. Bragg, 3 Wis. 424, 431 (1854); Parker v. Artery, 889
P.2d 520, 525 (Wyo.1995); State Farm Mut. Auto. Ins. Co. v. Maidment, 107 N.M.
568, 761 P.2d 446 (1988).
       {¶ 42} Punitive damages are not part of, and are solely incident to, the
underlying cause of action. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638,
650, 635 N.E.2d 331 (1994). They may be considered only after compensable harm
from the cause of action is established. Id. I do not believe that punitive damages
are an inherent part of a tort action: they are an award separate from compensation
for injury and are separately tried with separate burdens of proof.            R.C.
2315.21(D)(4) (clear and convincing evidence). The primary goal is to punish the
defendant and deter the defendant from further misconduct.
       {¶ 43} 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.” (Emphasis added.)
Detling v. Chockley, 70 Ohio St.2d 134, 136, 436 N.E.2d 208 (1982), overruled on
other grounds, Cabe v. Lunich, 70 Ohio St.3d 598, 640 N.E.2d 159 (1994). When
punishment cannot be imposed on the deceased tortfeasor, no example is made.
       {¶ 44} The only persons left to be used as an “example” are the tortfeasor’s
innocent descendants, and equity generally demands that the innocent not be
punished for the wrongdoings of another. See Newport v. Fact Concerts, Inc., 453
U.S. 247, 267, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (retribution should be visited
upon the shoulders of the wrongdoer himself, not on blameless third parties, for the
wrongdoer’s unlawful conduct); W. Union Tel. Co. v. Smith, 64 Ohio St. 106, 117,




                                        12
                                  January Term, 2016




59 N.E. 890 (1901) (in cases in which “the punishment may not fall upon the actual
wrongdoer * * * great care should be taken that such damages are not imposed
unless all the conditions for their recovery are present”).
           {¶ 45} For the foregoing reasons, I would follow the view of the majority
of states, and I would reverse the decision of the court of appeals.
           KENNEDY, J., concurs in the foregoing opinion.
                                 _________________
           Rinehart, Rishel & Cuckler, Ltd., and Grant A. Wolfe, for appellee.
           Stebelton, Aranda & Snider, L.P.A., and Charles M. Elsea, for appellant.
           Landskroner Grieco Merriman, L.L.C., and Drew Lagando, urging
affirmance for amicus curiae Landskroner Foundation for Children.
           The Dicello Law Firm and Robert F. DiCello; and Rourke & Blumenthal
and Jonathan R. Stoudt, urging affirmance for amicus curiae Ohio Association for
Justice.
                                 _________________




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