Fred Shackelford, Senior Attorney, National Legal Research Group
Can a court or a jury award punitive damages against a tortfeasor's estate? The Ohio Supreme Court addressed this issue of first impression in Whetstone v. Binner, 2016-Ohio-1006, 2016 WL 1061742. The case arose when a mother left her daughters with a babysitter, who was a relative. When the mother returned to pick up the children, she discovered the relative with one hand on one child and the other hand holding a pillow over the child's head. The mother struggled with the relative before escaping with her daughters. The mother and both daughters were later diagnosed with posttraumatic stress disorder, and they sued the relative for assault, false imprisonment, emotional distress, and loss of consortium. They sought both compensatory and punitive damages.
After a default judgment was entered, the relative moved for relief from the judgment and requested postponement of an evidentiary hearing to determine damages. The trial court rescheduled the hearing but refused to grant relief from the judgment, and the relative died before the hearing took place. After the administrator of the relative's estate was substituted as the defendant, the trial court awarded compensatory damages but declined to award punitive damages. The court believed that punitive damages cannot be awarded against a tortfeasor's estate.
On appeal, the Ohio Supreme Court observed that a majority of courts in other states prohibit punitive damages awards against a deceased tortfeasor. The rationale is that the primary purposes of punitive damages (punishment and deterrence) are thwarted "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." Id. ¶ 17, 2016 WL 1061742, at *2. Conversely, a minority of other courts allow punitive damages to be awarded against a tortfeasor's estate. The rationale is threefold: (1) even when the tortfeasor dies, punitive damages still serve the general purpose of deterrence; (2) 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," id. ¶ 18, 2016 WL 1061742, at *3, because an award prior to death would have reduced the assets available to the estate; and (3) 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.
The Whetstone court adopted the minority rule but emphasized that the case was somewhat unique in that liability had been determined before the tortfeasor died. The court implied that its ruling may not extend to other fact patterns and concluded as follows:
{¶ 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 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, 713 A.2d 1127 ("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, 713 A.2d 1127.
Id. ¶¶ 24-25, 2016 WL 1061742, at *4.
Three justices dissented, arguing that the dead cannot be punished or deterred and that the punishment of a punitive damages award is inflicted on the tortfeasor's heirs.
