The purpose of punitive damages is to punish and deter conduct. In Ohio, the policy for awarding punitive damages in has always been to (1) reprimand the offending party and (2) setting him/her up as an example to others. Preston v. Murty, 32 Ohio St. 3d 334 (1987). However, on July 7, 2014, in Whetstone v. Binner, Ohio’s Fifth District Court of Appeals held that punitive damages survive the death of the offending party. Even though the offending party is no longer alive, and, therefore, cannot be punished, an award of punitive damages can come out of the offending party’s estate.
In Whetstone, the plaintiff sued her aunt, Roxanna McClellan, for multiple intentional torts including assault, battery, false imprisonment, and intentional infliction of emotional distress. Ms. McClellan failed to answer. The trial court entered default judgment against Ms. McClellan and set a damages hearing. Before the damages hearing, Ms. McClellan was diagnosed with cancer, underwent chemotherapy, and passed away.
Plaintiff then substituted Erin Binner, Ms. McClellan’s daughter and administrator of Ms. McClellan’s estate, as the defendant. The Court granted the substitution and held a damages hearing. The trial court granted $51,500 in compensatory damages but refused to award punitive damages. The trial court found that it “cannot impose punitive damages against the estate of a tortfeasor who is deceased.” The court declined to award attorneys’ fees for the same reason.
Plaintiff appealed. The question on appeal was whether a court could impose punitive damages against the estate of a tortfeasor who is deceased. The Fifth District Court of Appeals found that this was an issue of first impression in Ohio. Id. at ¶22.
The Court acknowledged that the vast majority of states disallow punitive damages after the tortfeasor has died. The Restatement of Torts also advises that the death of the tortfeasor “terminates liability for punitive damages.” Id. at ¶23 (citing Restatement (Second) Torts, § 926). Under this view, the primary purpose of imposing punitive damages, to punish, is not furthered if the tortfeasor is deceased. The element of deterrence is only effective if others perceive that the tortfeasor is being punished. Moreover, the majority view finds that imposing punitive damages against an estate punishes innocent beneficiaries, not the tortfeasor.
Only a small minority of courts in other states disagree. Arizona, Illinois, Montana, Pennsylvania, Texas, and West Virginia all allow the imposition of punitives against a tortfeasor’s estate. These states emphasize that the “general deterrence” aspect of punitive damages is still alive; that punitive damages can deter others regardless of whether the tortfeasor is alive.
The Fifth District Court of Appeals was persuaded by the minority view. According to the Court, “[T]here is no per se prohibition against the imposition of punitive damages against a deceased tortfeasor.” Id. at ¶26. O.R.C. § 2305.21 does not “expressly allow or disallow punitive damages against an estate.” Id. The Court also found it instructive that the Ohio Supreme Court allows a deceased plaintiff to pursue punitive damages through the plaintiff’s estate.
Ultimately, the Court found that the death of the tortfeasor does not “completely thwart the purposes underlying the award of punitive damages.” Id. at ¶27. The element of deterrence is still present. Id. The Court reached the conclusion regarding the award of attorneys’ fees. Id. The case was remanded to the trial court for further consideration of the issues of punitive damages and attorneys’ fees.