There is a Supreme Court election in Ohio this Fall, and recent news coverage of the candidates have referred to the candidate's position regarding "legislating from the bench." For example, Supreme Court Justice candidate Judge Pat DeWine is quoted as saying that what Ohio needs is justices who will "not legislate from the bench." It is not always clear, however, just what is meant by this phrase, and it is most often invoked when decrying a court's recognition of a claimed constitutional right. But, to the extent that such a philosophy is also applicable to the law of tort liability, it is problematic. It is submitted that judges should be able to fulfill their traditional role vis-à-vis tort law, and should be able to apply longstanding principles of tort liability to new fact patterns, without being accused of improperly "legislating from the bench." Moreover, when judges are prevented from fulfilling their traditional role, because the General Assembly has enacted TORT REFORM legislation addressing an area of tort liability, there are, inevitably, disturbing results.
For example, the Hamilton County Court of Appeals recently addressed the issue whether a healthcare provider has a common-law duty to report suspected child abuse. In Court Appointed Guardians v. Children's Hospital Medical Center, 2016-Ohio-5112, a four-year-old little girl was taken by her father to the emergency room at Children's Hospital Medical Center for treatment of vaginal lacerations. The father told the medical staff that his daughter had fallen on a Lego toy which became lodged in her vagina. The emergency room physician, Dr. Chua, called in a pediatric gynecologist, Dr. Breech, who surgically repaired the vaginal lacerations, and the little girl was released back into the care of her father.
Three months later, the child's mother called her father (the child's grandfather) to come get her daughter because she suspected that her daughter was being abused. The little girl was removed from the home by her grandfather, and she was taken the next day to Hamilton County Department of Job & Family Services, where she reported that she had been abused by her father. The child was then interviewed by a social worker at Children's Hospital Medical Center, and, as a result of the ensuing investigation, her father was charged with, and convicted of, multiple counts of rape, and was sentenced to life in prison without the possibility of parole.
A lawsuit was filed on behalf of the abused little girl against Children's Hospital and Dr. Chua and Dr. Breech, which asserted both a common-law negligence claim, and a statutory claim under R.C. § 2151.421, based upon their failure to consult with an abuse expert, or take any other action, in response to the nature of the little girl's injuries-vaginal lacerations.
The Trial Court Judge, in granting summary judgment to the defendants, indicated that the defendants had testified that, in their own (self-serving) opinions, they had no reason to suspect child abuse and, therefore, were not negligent in failing to take any further action. Although the plaintiff produced expert testimony to the opposite effect, the Trial Court expressly refused to give their opinions any weight whatsoever on the ground that their opinions were based only upon their review of the medical records, while the defendants' own (self-serving) opinions were based upon their actual participation in the care of the little girl's injuries (the Trial Court did not cite to any authority in support of its decision to simply ignore the opinions of the plaintiffs' expert witnesses):
Since the Plaintiffs' doctors' opinions are not relevant, and carry little persuasive value due to their review nature as opposed to the hands-on decisions of doctors Chua and Breech, this Court basically disregards their opinions.
See Entry granting summary judgment (July 6, 2015), Hamilton County Court of Common Pleas Case No. A-1202505, p. 4.
It is interesting to note that the Trial Court Judge in this case indicated that he had sat on the appellate panel that heard the father's appeal of his convictions, and appears to have taken solace in the fact that the perpetrator of the abuse had been arrested and convicted:
This is a very difficult case. This Judge wrote the opinion while on the bench of the First District Court of Appeals upholding the conviction of the depraved father of the child, Jane Doe, for the heinous crimes. This court is well aware of the suffering of the child at the hands of her father and with the complicity of her mother. The responsible parties for the injuries to Jane Doe have been dealt with in criminal proceedings.
Id., p. 5.
The Trial Court then complimented the conduct of the defendants in providing proper treatment for he vaginal lacerations, and expressed its displeasure that any claims were being asserted against the defendants, and seemed to think the action was being brought for the benefit of the little girl's (apparently undeserving and ungrateful) family, rather than the abused little girl:
The defendants in this case, i.e., Children's Hospital Medical Ctr., Dr. Michael Chua and Dr. Leslie Breech were called upon to deliver appropriate, adequate and perhaps even life-saving medical care. They performed the medical care with favorable results, no negligence at all and made whole and well an injured child.
What did they receive for rendering such wonderful medical care? A lawsuit from the same family that was John Doe's family when the child was viciously sexually abused.
Id., pp. 5-6.
It is respectfully submitted that, contrary to the Trial Court's opinion, the care rendered by the defendants to the abused little girl was not "wonderful," and the defendants did not make the abused child "whole and well." Instead, as a result of the defendant's failure to take any action in light of the nature of the child's injuries (vaginal lacerations), she was subjected to another three months of what the Trial Court Judge referred to as "heinous" abuse by a "depraved" father. While it is true, of course, that the defendants were not the perpetrators of the abuse, it is also true that, at least in the opinions of the plaintiffs' experts, which the Trial Court decided to ignore, their negligence allowed it to continue.
It should also be noted that the Trial Court indicated as follows with regard to child abuse:
Child abuse is an evil, evil thing. Society must do all it can to prevent and punish those who committed.
Id., p. 6.
The Trial Court's decision, however, directly contradicts the assertion that "society must do all it can to prevent" child abuse. The defendants in this case could, and should, have done more, to "prevent" further abuse of the little girl-as the plaintiffs' experts opined, the defendants could, and should, have taken action that would have prevented the abuse to which the little girl was subjected after she was negligently released by the defendants back into her father's care. The Trial Court, however, contrary to its assertion that society "must do all it can" to prevent child abuse, held that the defendants had no duty to take any action whatsoever to "prevent" the child abuse to which the little girl was subjected-they merely had to properly treat the injuries that resulted from the abuse.
The First District Court of Appeals affirmed the dismissal of the negligence claims, and, in an opinion written by Judge Mock, in which Judge Cunningham and Judge (and Supreme Court candidate) DeWine concurred, held that there was simply no duty whatsoever under the common-law requiring medical personnel to report suspected child abuse, or to take any action whatsoever, and agreed with the Trial Court that the defendants' only common-law duty was to render proper treatment for the injuries caused by the abuse:
There is no common-law duty to report or prevent child abuse....
***[The defendants'] duty ended once the medical care for which treatment was sought was completed.
Opinion of Court of Appeals, 11-12. Because the Court of Appeals held that there was no common-law duty, it was not called upon to determine if the Trial Court had erred in ignoring the testimony of the plaintiffs' experts to the effect that the defendants had violated that duty.
In this case, then, because the General Assembly had enacted legislation imposing a limited duty upon certain persons to report child abuse, the courts concluded that this was as far as the law could go. If, on the other hand, the case could have proceeded pursuant to the common-law principles of negligence law, the courts could have applied that common-law to the facts of this case and held that reasonable minds could find that the defendants acted negligently, i.e., failed to exercise reasonable care to prevent foreseeable harm, by failing to take any action in light of the nature of the little girl's injuries (vaginal lacerations).
This is what occurred in the next case to be discussed, which involved a claim against a liquor permit holder. The common-law negligence claim was submitted to a jury, which found that the defendant had failed to exercise reasonable care to avoid foreseeable harm, and returned a verdict on favor of the plaintiff. But, the Court of Appeals then set aside that jury verdict, and reversed the Trial Court's judgment, on the ground that, because the General Assembly had enacted legislation setting forth some factual circumstances under which a permit holder may be held liable, those were the only circumstances under which a liquor permit holder may be held liable, i.e., that the common law of negligence did not apply to such claims.
In Johnson v. Montgomery, 2016-Ohio-1472, the Montgomery County Court of Appeals addressed another of society's ills- drunk driving. The plaintiff Nichole Johnson was a passenger in a vehicle that was struck by a vehicle operated by Mary Montgomery, who was intoxicated. As a result of the collision, Nichole (1) sustained a brain injury, multiple skull fractures, broken teeth, broken ribs, broken bones in her upper and lower arm, elbow, pelvis, femur and ankle, a lacerated liver, and a punctured lung, (2) incurred over $800,000 in medical bills, (3) was left with significant scarring, a changed appearance, a changed personality, and (4) suffers daily from debilitating pain.
The evidence showed that the tortfeasor, Mary Montgomery, worked as a stripper at the Thirty-Eight Thirty, a strip club, whose contract required her to pay $30 per night to lease a space for her dancing, and specified that, although she would be paid no wages, she was entitled to keep any tips. Although the dancers were not required to drink, the owner of the strip club admitted that the dancers would use alcohol to "alter their mind state" to allow them to be able to strip in front of strangers. The evidence also showed (1) that the strip club waitresses would encourage the customers to buy the dancers a drink, (2) that the strip club charged more for drinks that were purchased by its customers for the dancers to consume than it charged for the drinks the customer would buy to consume themselves, and (3) that, not surprisingly, the dancers would regularly become intoxicated by consuming drinks purchased for them by customers. Thus, the strip club made significantly more profit from the drinks its customers purchased for its dancers to drink, and the owner admitted that there was no limit on the amount of alcohol the dancers were permitted to consume (after all, that would have cut down on the profits the owner made from the inflated prices customers were charged when purchasing alcohol for one of the dancers-which was a significant portion of the strip club's profits).
Although the strip club knew that the dancers would become intoxicated during their shift, and actually made more profits the more alcohol its dancers consumed, there was no practice in place to either provide transportation, or to make sure the dancers were not drunk when they left the strip club to drive home. Not surprisingly then, i.e., foreseeably, on the night of the collision, the stripper testified that she had consumed alcohol purchased by customers and was intoxicated when she left the club, and that no one took any steps to stop her from driving home while she was intoxicated.
The case proceeded to trial, and, although the Trial Court directed a verdict in favor of the defendants on the claim under the Dram Shop Act, R.C. § 4399.18, because the unique facts of this case were not addressed by the statute, it overruled their motion for directed verdict on the common-law negligence claim. The jury found that the defendants were negligent and returned a verdict in favor of the plaintiff.
The strip club appealed and argued that, under Ohio law, it could not be held liable unless it violated the provisions of the Dram Shop Act, R.C. § 4399.18, regardless of how blameworthy its conduct may have been. The Trial Court, in allowing the common-law negligence claim to proceed, had rejected the defendants' argument as unjust and against public policy:
The trial court commented that to allow a liquor permit holder to benefit from the sale of alcohol and then hide behind the Dram Shop Act to avoid liability would "fly in the face of decency and fairness" ... [such that] "justice and public policy" required the recognition of a claim based in negligence under the facts of this case.
Opinion of the Court of Appeals, 11 (quoting the Trial Court).
Unfortunately, the Court of Appeals disagreed with the Trial Court and held that the statutory action under the Dram Shop Act was the sole and exclusive cause of action available against a liquor permit holder, and, therefore, set aside the jury's verdict and reversed the Trial Court's judgment:
The Dram Shop Act is the exclusive remedy and does exclude all other common-law negligence claims against a liquor permit holder....
The Court of Appeals then noted that the Dram Shop Act simply does not address various scenarios, such that, disturbingly, as in the instant case, a liquor permit holder may avoid being held liable for having negligently caused an injury:
The Dram Shop Act does not provide a cause of action against a liquor permit holder for its failure to control the drinking by its employees or independent contractors during their work shift, or address the negligence that may occur by the furnishing of alcohol to workers in a manner likely to lead to intoxication coupled with the failure to discover the intoxication of any worker when their shift ended and the failure to take any action to prevent drunk driving by such workers.... [W]e cannot look to the common-law negligence to determine if a cause of action may proceed against a permit holder that contracts with a worker to engage in conduct that includes drinking alcohol, when that worker's intoxication is the proximate cause of a third person's injury.
The Second District, however, was understandably disturbed by the result in this case, and took the opportunity to note that it illustrated the problems that inevitably arise when the General Assembly tries to delineate the extent of tort liability through legislation, instead of allowing judges to fulfill their traditional role of doing so through the common-law, and lamented the fact that the tort legislation prevented the application of the common-law of negligence to any factual scenario that is not specifically addressed by the legislation:
This case illustrates the effect the codification of the common-law can have on the future development of the common law. By codifying the existing common-law limitation on dram shop owner's liability, the General Assembly has precluded recognition of additional common-law duties of a dram shop owner that might give rise to liability. Recognition of additional circumstances for which a dram shop owner may be liable as a result of furnishing alcohol must come from the legislature.
Id., 21 n.2.
In sum, these disturbing decisions are a direct result of the Ohio General Assembly's enactment of TORT REFORM legislation limiting the reach of tort liability to only certain specified fact patterns, rather than allowing judges to apply the long standing common-law principles of negligence to the facts before it, and then, depending upon its determination whether factual allegations set forth a claim that is recognized by Ohio common-law, allowing a jury to determine if the defendant negligently caused injury by failing to exercise reasonable care to avoid foreseeable harm. Simply stated, it is disturbing that persons who have demonstrably failed to take reasonable measures to prevent foreseeable harm may not be held accountable for the harm they cause or fail to prevent. The net result is bad public policy, in that bad actors-like a strip club that not only allows its employees to get drunk, but makes most of its profits from the drunkenness of its employees-may not be held legally accountable to the innocent victims who are harmed by its employees' foreseeable drunk driving after a night of stripping, dancing, and drinking.