Civil Lawsuits Can Be Based on Most Criminal Acts
Civil lawsuits can be filed based on claims of being victimized by a criminal act, even when financial compensation is not specifically authorized by law, the Ohio Supreme Court ruled today.
The Supreme Court addressed whether the current version of an Ohio statute permits a civil lawsuit based on any criminal act, or if the law simply reinforces a long-standing legal principle that limits lawsuits based on the type of criminal act committed. Writing for the Court majority, Justice William M. O’Neill indicated that R.C. 2307.60 is “plain and unambiguous” and allows for a civil action for damages that result from any criminal act, unless a suit is specifically prohibited by law.
The decision resolves conflicting interpretations among Ohio courts, and reverses a ruling by the Summit County Common Pleas Court that decided Jessica Jacobson could not file a civil lawsuit against Akron Children’s Hospital, Cleveland Clinic Children’s Hospital for Rehabilitation, and attorney Ellen C. Kaforey, who was an appointed conservator to Jacobson’s mother. Jacobson’s lawsuit alleged the crimes of unlawful restraint, kidnapping, and child enticement by Kaforey and the hospitals when Jacobson was 7 years old.
Justice Sharon L. Kennedy issued a concurring opinion, finding R.C. 2307.60 is ambiguous. She explained the 1985 legislative history that accompanied the statute shows that the General Assembly authorized civil lawsuits based on criminal acts.
In a dissenting opinion, Justice Terrence O’Donnell maintained that R.C. 2307.60 is simply an update in the Ohio Revised Code that continues to permit only lawsuits for specific crimes, and he supported his position by noting the General Assembly has passed several statutes that expressly permit victims of certain crimes to file civil lawsuits.
Jacobson Sent to Live with Relative
Kaforey, an attorney and registered nurse, was appointed by the Summit County Probate Court as a conservator to assist Jacobson’s mother in making medical decisions for Jacobson in her youth. Jacobson alleged in her lawsuit that in 2001, when she was 7, Kaforey kept her mother from visiting her when she was hospitalized. She alleged that Akron Children’s and Cleveland Clinic Children’s aided Kaforey in kidnapping her by arranging without authority to have her live with a relative in Florida, and that Kaforey, in concert with the hospitals, enticed her onto a plane and was flown to Florida without the legal permission from her mother.
As an adult, Jacobson, acting without an attorney, filed the lawsuits against Kaforey and the hospitals based on the three criminal code sections of the crimes she alleged. The trial court granted Kaforey’s and the hospitals’ request to dismiss the case, and the trial court observed that “Ohio courts have established that civil actions for damages may not be predicated upon alleged violation of a criminal statute.”
Jacobson appealed to the Ninth District Court of Appeals, which allowed Gary Kirsch, Jacobson’s stepfather and legal guardian, to substitute himself for her in the appeal, and he hired an attorney to represent him. A divided Ninth District in 2015 reversed the trial court and found the current version of R.C. 2307.60 authorizes Jacobson to file her civil lawsuit.
At the request of Kaforey and the hospitals, the Ninth District certified that its opinion was in conflict with several other courts of appeals. The Ninth District asked the Supreme Court to resolve the conflict, and the Court agreed to hear the case.
Justice O’Neill explained the provision at the heart of the dispute is R.C. 2307.60(A)(1), which provides: “Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.”
He noted the Court reviews a statute to determine if it is ambiguous, which means it is “capable of bearing more than one meaning,” and if the language is unambiguous, the Court is prevented from digging deeper into the legislature’s intent or public policy issues.
Justice O’Neill wrote the General Assembly explicitly chose the words “any person injured ... by a criminal act has ... a civil action unless a civil action is specifically excepted by law.” And he noted the preamble to the original legislation enacting R.C. 2307.60, which became effective in 1985, “demonstrates that the General Assembly specifically sought to create a civil cause of action for damages resulting from any criminal act.”
“These legislative statements are crystal clear. We need not dig further into the meaning of the statute than the language that was signed into law. Although R.C. 2307.60 has been amended a number of times since 1985, current R.C. 2307.60(A)(1) continues to specifically authorize a civil action for damages based on the violation of any criminal statute, unless an exception applies,” he concluded.
He added that the Court makes no ruling on how the statute operates and what a plaintiff must do to prove a claim. The Court remanded the case to the trial court for further proceedings.
Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer and Judith Ann Lanzinger joined Justice O’Neill’s opinion.
Concurrence Finds Law Ambiguous
Justice Kennedy concurred in judgment only, noting that she finds the language is ambiguous “because the phrase ‘has ... a civil action’ in R.C. 2307.60(A)(1) is reasonably susceptible of more than one meaning.” Because the statute is ambiguous, she examined the legislative history that accompanied the bill when the statute was amended in 1985 and all subsequent amendments to the statute through 2014.
In 1985, the Legislative Service Commission explained what the proposed changes to the statute would mean in a bill analysis, Justice Kennedy noted. While the Court is not bound by this analysis, she explained that the Court may refer to it if it is helpful in determining the meaning of an ambiguous statute.
“Based on the circumstances surrounding the original amendments that became effective in 1985, the former statutory provisions, and the compelling legislative history, it becomes clear that when the General Assembly recodified former R.C. 1.16 as R.C. 2307.60, it intended to create an independent civil cause of action for any crime victim injured in person or property,” Justice Kennedy concluded.
Justice Kennedy noted that the lower courts have been citing each other’s opinions relying on pre-1985 decisions that did not recognize the legislature changed the law in 1985 when it enacted R.C. 2307.60, and none of the opinions cited after 1985 “engaged in a meaningful analysis” of the law. She explained the legislature has amended the code section six times since 1985, even during “significant tort-reform measures” but has not disturbed the right to sue based on a criminal act.
Allowing victims of only certain criminal acts to sue while barring others would create a disparity in treatment, Justice Kennedy wrote. Following the interpretation suggested by the appellants would mean that a victim of a theft offense enjoys a statutory right of full recovery and under certain conditions a presumption of liability against the criminal perpetrator, but a rape victim must bring a common-law-tort cause of action and thereafter re-prove during the civil trial the existence of the assault and battery and that the rapist was responsible for the assault and battery, she noted.
Sixth District Court of Appeals Judge James J. Jenson, sitting for Justice Judith L. French, joined Justice Kennedy’s opinion.
Dissent Argues Against Lawsuits Based on any Crimes
Justice O’Donnell argued as the appellate court held, that the statute only codified common law and only claims that authorize the pursuit of civil damages based on a criminal act can be pursued.
He explained that while Jacobson cannot sue based on the three criminal violations she selected, common law causes exist for false imprisonment, assault and battery, and “it is not necessary for the General Assembly to create civil actions for violating unlawful restraint, assault, and battery statutes.”
Justice O’Donnell noted that the legislature is presumed to be aware of prior judicial interpretations of a statute when enacting amendments, and that during the times R.C. 2307.60 has been amended since 1985 lawmakers never expressed an intent to enact a separate cause of action for a violation of a criminal act.
He referenced several specific statutes created that allow civil lawsuits based on specific criminal statutes, including ones for the victims of hazing, child stealing, trafficking in persons, forced abortion, identity theft, and theft of cable television services.
Justice O’Donnell concluded as follows: “Accordingly, if the position asserted by the majority were correct, i.e., that R.C. 2307.60 creates an independent civil cause of action for damages resulting from a criminal act, then there would be no need for the General Assembly to have specifically statutorily authorized any of the listed causes of action to recover damages resulting from those criminal acts.”
Justice O’Donnell would reinstate the trial court’s judgment.
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