Simpkins v. Grace Brethren Church of Delaware , 2014 Ohio 3465 ( 2014 )

[Cite as Simpkins v. Grace Brethren Church of Delaware, 2014-Ohio-3465.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JESSICA SIMPKINS, et al : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiffs-Appellees/Cross-Appellants : Hon. Patricia A. Delaney
:
-vs- :
: Case No. 13 CAE 10 0073
GRACE BRETHREN CHURCH OF :
DELAWARE, OHIO :
: OPINION
Defendant-Appellant/Cross-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Delaware County
Court of Common Pleas, Case No. 12 CV C
05 0605
JUDGMENT: Affirmed in Part, Reversed and Remanded
in Part
DATE OF JUDGMENT ENTRY: August 8, 2014
APPEARANCES:
For Plaintiffs-Appellees/Cross-Appellants For Defendant-Appellant/Cross-Appellee
JOHN K. FITCH WILLIAM CURLEY
580 South High St., Ste. 100 JAMES DORGAN III.
Columbus, OH 43215 10 West Broad Street, Ste. 2400
Columbus, OH 43215
DAVID A. FITCH
9211 Hawthorn Point
Westerville, OH 43082
STEPHEN FITCH
65 East State Street, Ste. 1000
Columbus, OH 43215
[Cite as Simpkins v. Grace Brethren Church of Delaware, 2014-Ohio-3465.]
Gwin, P.J.
{¶1} Appellant/Cross-Appellee and Appellees/Cross-Appellants appeal the
judgment by the Delaware County Court of Common Pleas.
Facts & Procedural History
{¶2} In March of 2008, appellee/cross-appellant Jessica Simpkins (“Simpkins”)
was raped by Brian Williams (“Williams”), the senior pastor at Sunbury Grace Brethren
Church (“Sunbury”). Williams pled guilty to two counts of sexual battery in violation of
R.C. 2907.03(A)(12) and was sentenced to two consecutive four-year prison terms.
Williams previously worked as a youth pastor at appellant/cross-appellee Grace
Brethren Church of Delaware, Ohio (“Delaware Grace”). Simpkins and her father Gene
Simpkins originally sued Sunbury, Delaware Grace, Pastor Darrell Anderson
(“Anderson”) and Williams in Ross County Common Pleas Court. While that case was
pending, Simpkins settled all claims against Sunbury for $90,000. In June of 2011,
Simpkins dismissed the case without prejudice after the Ross County Common Pleas
Court granted Delaware Grace’s summary judgment motion on all but one of the claims
-- negligent hiring, retention, and supervision.
{¶3} On May 25, 2012, Simpkins re-filed the case in Delaware County Court of
Common Pleas against Delaware Grace and Anderson. The complaint alleged that, for
a number of years, Williams was employed as a youth pastor by Delaware Grace; that
in the early 1990’s Delaware Grace learned that Williams had engaged in sexually
inappropriate sexual conduct with a minor female associated with Lexington Grace
Brethren Church but took no action; that in 2001, Delaware Grace learned that Williams
had made inappropriate sexual comments to and inappropriately touched a female he
Delaware County, Case No. 13 CAA 10 0073 3
was counseling but took no action; and that in 2004, Williams left his employment with
Delaware Grace and became senior pastor at Sunbury with the assistance, financial
support, guidance, and supervision of Delaware Grace. Simpkins alleged causes of
action for intentional infliction of emotion distress, breach of fiduciary duty, willful wanton
and reckless misconduct, negligence, negligent hiring, retention and supervision, failing
to report child abuse, and respondeat superior. The complaint sought damages for past
and future economic and non-economic injury to Simpkins, punitive damages, and loss
of consortium injuries for her father Gene Simpkins.
{¶4} Delaware Grace and Anderson filed motions for summary judgment. On
March 20, 2013, the Delaware County Common Pleas Court issued a judgment entry
incorporating the Ross County judgment entry on summary judgment and dismissing
the claims for intentional infliction of emotional distress, breach of fiduciary duty, willful
wanton and reckless misconduct, punitive damages, negligence, and respondeat
superior. As such, the trial court granted summary judgment to Anderson on all counts.
The trial court granted summary judgment to Delaware Grace on all counts except one
and permitted a trial on negligent hiring, retention, or supervision, or negligent
recommendation, promotion or support. The trial court set the case for trial on June 11,
2013.
{¶5} During the preliminary discussions with the trial court, the parties indicated
there was some confusion with the trial court’s summary judgment entry regarding
whether the foreseeability of Williams’ conduct was a factual issue to be submitted to
the jury. From the bench on June 11, 2013 and in a written entry on June 12, 2013, the
trial court issued a revised summary judgment entry stating that, “to the extent that any
Delaware County, Case No. 13 CAA 10 0073 4
party construes the Ross County decision as finding no factual issue regarding the
Delaware church’s ability to anticipate or foresee [Williams’] misconduct, this Court
declines to accept or follow that ruling.” The trial court thus expanded the Ross County
ruling to permit a trial on claims that the alleged damages proximately resulted from
negligence by Delaware Grace in hiring, retaining, or supervising Williams, or in
recommending, promoting and supporting his hiring and retention by Sunbury.
{¶6} The trial commenced on June 11, 2013. April Brown, fka Jokela (“Brown”)
testified that she attended Lexington Grace Brethren Church (“Lexington Grace”) in
Richland County and, in the early 1990’s, when she was between 13 and 16 years of
age, her church went on a joint mission trip with Delaware Grace. Williams was the
youth pastor of Delaware Grace at the time. Brown testified that while at a concert
during the mission trip, Williams started rubbing her shoulders, moved his hand down
her back between her shirt and the overalls she was wearing, and continued to move
his hand down right at her panty line so his hand was on her skin on her lower back and
the top area of her buttocks. Brown jerked forward and left the concert.
{¶7} Brown initially told her friend Jason about the incident during the trip and
told her mother, Mary Storz (“Storz”), about the incident when she returned home.
Jason Saxton testified that April was upset and shaken up and told him that day that
Williams attempted to put his hand up her shirt and then down her pants. Storz
reported the incident to Lexington Grace. Brown and Storz testified that there
subsequently was a meeting at Lexington Grace between Brown, Storz, Brown’s youth
pastor, Williams, and other Delaware Grace officials. Brown could not remember the
names of the individuals who attended from Delaware Grace, but thought it was a
Delaware County, Case No. 13 CAA 10 0073 5
senior pastor and elders or deacons. Brown stated that, during the meeting, she gave a
full account of what happened to her, including that she felt scared and uncomfortable,
and Williams apologized and said he was sorry if she felt uncomfortable. Brown
testified that Delaware Grace officials made light of the incident and acted as if she
were making it up. Storz stated that, at the end of the meeting, one of the men from
Delaware Grace said, “let’s just keep this quiet to protect our brother.” Storz was upset
and felt the officials from Delaware Grace were protecting Williams. Neither Brown nor
Storz reported the incident to law enforcement and neither contacted Delaware Grace
after the meeting to find out if Delaware Grace took any action with regard to Williams.
{¶8} Robin Weixel (“Weixel”) fka McNeal testified that she attended Delaware
Grace when Williams was the youth pastor. In 2002, when she was eighteen (18) years
old, Weixel applied to go on a mission trip and had to meet with a pastor as part of the
application process. When she met with Williams, he did several things Weixel felt were
inappropriate: shared the details of his sex life with his wife with Weixel; told Weixel that
“most men view women as a thing to be fucked;” shared with Weixel his view on women
dressing provocatively; used his finger to trace around the outside of the tank top she
was wearing over her shoulder; and told her he could get away with having sex with her
right there and then in his office, but his guilty conscience would stop him. Weixel
reported the incident to Anderson and, during a meeting with Williams and Anderson,
Williams told her he did not remember saying those things, but if he did, he was sorry.
{¶9} Anderson testified that in 2002 he was the acting senior pastor at
Delaware Grace and was on the elder board. Anderson confirmed that though Williams
was leaving to be the senior pastor at Sunbury, he remained on the payroll at Delaware
Delaware County, Case No. 13 CAA 10 0073 6
Grace until December 31 of 2005. Further, that Delaware Grace gave Sunbury a lot of
financial support, including $40,000 in 2005, $20,000 in 2006, and $10,000 in 2007.
Anderson said Weixel contacted her after the incident in 2002 and said Williams
offended her and she needed Anderson to go with her to talk with Williams. Anderson
did not view this as a complaint by Weixel. Anderson testified the conduct was
inappropriate as there was sexual language involved. Anderson did not report the
conduct to the other members of the elder board, but met with Williams afterwards and
told him the conduct was inappropriate. Anderson testified that Weixel never asked him
to go further with the information. Further, that he had no other indication that what
happened in 2008 would happen and had no knowledge of the Brown incident.
{¶10} Gary Underwood (“Underwood”), senior pastor at Delaware Grace since
October of 2004, testified that Anderson never told him about the 2002 incident and no
records reflect the 2002 incident or the earlier 1990’s incident. Underwood confirmed
that Delaware Grace provided financial support and guidance to Sunbury after
Delaware Grace decided to “plant” a Grace Brethren church in the town of Sunbury.
Underwood stated that Williams’ behavior was inappropriate and should have been
reported. Underwood would not have supported Williams as pastor of Sunbury if he
had known about the Brown and/or Weixel incident.
{¶11} Williams testified he rubbed Brown’s shoulders on the mission trip. He
remembers after the incident meeting with David Martin, Jeff Gill, Brown, and the pastor
from Lexington Grace. Williams confirmed he was inappropriate with Weixel when he
made a statement about having sex with her and when he traced the outline of her tank
top. Anderson reprimanded him verbally for his conduct. Williams assumed the board
Delaware County, Case No. 13 CAA 10 0073 7
of elders was told, but he did not know. Williams testified Delaware Grace assured him
of their support to become pastor of Sunbury and, if they were not going to support him,
he was going to look for another job. Williams reported weekly to the Delaware Grace
elder board regarding his activities as senior pastor at Sunbury and, for a period of time,
Anderson acted as his supervisor while Williams was at Sunbury. Williams stated that,
after 2006 or 2007, Delaware Grace did not have authority over the Sunbury budget
other than the contributions they provided.
{¶12} Gene Simpkins testified that, prior to the incident, Simpkins was happy,
bubbly and cheery and, after the incident, she was angry, demanding, and withdrawn.
Due to the incident, Gene Simpkins stated he lost his trust in the church and missed
how his daughter used to act.
{¶13} Simpkins testified that on March 6, 2008, when she was fifteen (15) years
old, she went to a counseling session with Williams. Simpkins had been attending
Sunbury since her freshman year in high school. At the counseling session on March 6,
2008, Williams closed the door, dropped his pants, and told Simpkins to suck his penis,
which Simpkins eventually did. Simpkins tried to get away, but Williams blocked the
door, pushed her to the ground, removed her pants, and inserted his penis into her
vagina. Simpkins testified that, after the incident, it was hard for her to go back to
school because everyone was talking about her. She briefly saw a counselor for
nightmares about being kidnapped or raped. After Simpkins graduated high school, she
played basketball in college until she had to quit due to an injury. She is currently
working full-time as a cashier. Simpkins got good grades in college. When asked how
the incident affected her, Simpkins testified that she thinks about the incident two to
Delaware County, Case No. 13 CAA 10 0073 8
three times per week and has anxiety when she thinks about the incident, has trust
issues with men, and is afraid of the dark. Simpkins has not had mental health
counseling or treatment since 2008 and does not have current plans to seek mental
health counseling or treatment.
{¶14} Jeffrey Smalldon (“Smalldon”), a clinical psychologist, testified that he
interviewed Simpkins three times and diagnosed her with chronic post traumatic stress
disorder and dysthymic disorder (low grade depression). Smalldon stated that Simpkins
does not want to talk about the incident, is distrustful of men, is afraid of the dark, and
has anxiety. Smalldon concluded that Simpkins is in need of long-term treatment.
{¶15} Robin Frey, the bookkeeper at Delaware Grace since 2002 testified that,
through the incident date of March of 2008, monthly payments were made from
Delaware Grace to Sunbury, though those payments reduced in amount each year.
{¶16} David Martin (“Martin”), who sat on the elder board at Delaware Grace in
the late 1980’s and early 1990’s, said he never saw or heard Williams do or say
anything inappropriate. Martin recalls having a meeting with Williams, a girl, the girl’s
mother, and a pastor from another church. Martin testified that, at the meeting, Williams
apologized and Martin thought the issue had been resolved.
{¶17} Rita Boham (“Boham”) is a member of Delaware Grace who frequently
went on youth trips with Williams as a female staff member. Boham never saw or heard
him do or say anything appropriate. Boham testified that Jeff Gill contacted her after a
trip in the 1990’s and Jeff Gill and Martin asked her if anything inappropriate happened
on the trip. Boham told them Williams and another female staff raced around and
Delaware County, Case No. 13 CAA 10 0073 9
elbow-teased and maybe he should not have acted like that. Boham testified that Jeff
Gill asked her not to discuss the incident with other people.
{¶18} Jeff Gill (“Gill”) was the senior pastor at Delaware Grace from 1982 to
2002. Gill testified that when he met with the pastor at Lexington Grace regarding the
Brown incident, he told the other pastor he would investigate Brown’s claims. Williams
told Gill that Brown was angry with him and that he only rubbed her shoulders. Gill and
Martin interviewed the other adults on the trip and they said many people were rubbing
each other’s shoulders. When Gill and Martin met with Brown, Storz, and the other
pastor, Williams read a statement. Gill testified that he did not say “let’s keep this quiet
to protect our brother.” Gill felt the issue was resolved that day after Williams read his
statement.
{¶19} The jury found Delaware Grace negligent and specifically found Delaware
Grace was aware of the past behavior of Williams and failed to do a proper investigation
and documentation of the previous two incidents and, as a result, Williams was
empowered to a greater responsibility as senior pastor at Sunbury. The jury returned a
verdict in favor of Simpkins for $1,378.85 for past economic damages, $1,500,000 for
past non-economic damages, $150,000 for future economic damages, and $2,000,000
for future non-economic damages for a total of $3,651,378.85. The jury also returned a
verdict for Simpkins’ father in the amount of $75,000 for loss of consortium.
{¶20} After the jury returned their verdict, the parties filed briefs on damages.
On August 5, 2013, the trial court issued a judgment entry applying a setoff of $1,378.85
in connection with the settlement with Sunbury, applied Ohio’s damages cap statute of
R.C. 2315.18 to reduce the award for Simpkins’ past and future non-economic damages
Delaware County, Case No. 13 CAA 10 0073 10
to $350,000, and entered judgment for Simpkins in the amount of $500,000 and for her
father Gene in the amount $75,000 on his loss of consortium claim. Delaware Grace
subsequently filed a motion for judgment notwithstanding the verdict and motion for new
trial or remittitur. The trial court denied the motion for judgment notwithstanding the
verdict and denied the motion for new trial. However, the trial court granted Delaware
Grace’s motion for remittitur and reduced Simpkins’ future economic damages to
$60,000. The trial court gave Simpkins time to accept or reject the remittitur after the
parties’ appeals are exhausted. Delaware Grace appeals and assigns the following as
error:
{¶21} “I. WILLIAMS’ PRIOR MISCONDUCT WAS, AS A MATTER OF LAW,
INSUFFICIENT TO MAKE HIS SUBSEQUENT RAPE OF SIMPKINS FORESEEABLE.
{¶22} "II. A TRIAL COURT MUST GIVE A PARTY’S REQUESTED JURY
INSTRUCTION IF IT IS A CORRECT STATEMENT OF THE LAW AS APPLIED TO
THE FACTS OF THE CASE. IN THIS CASE, THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY REFUSING TO GIVE APPELLANT’S PROPOSED JURY
INSTRUCTIONS ON: (A) PLAINTIFFS’ CLAIM FOR NEGLIGENT PROMOTION,
RECOMMENDATION AND SUPPORT, AND (B) THE ISSUE OF FORESEEABILITY.
{¶23} "III. IN A TORT CASE WHERE PLAINTIFF’S DAMAGES WERE CAUSED
BY AN INTENTIONAL RAPE BY A CHURCH PASTOR AND THE ALLEGED
NEGLIGENCE OF THE PASTOR’S PRIOR EMPLOYER, R.C. 2307.22 AND 2307.23
REQUIRE THE JURY TO APPORTION LIABILITY BETWEEN THE PASTOR-RAPIST
AND THE PASTOR’S PRIOR EMPLOYER.
Delaware County, Case No. 13 CAA 10 0073 11
{¶24} "IV. WHEN A PLAINTIFF TESTIFIES THAT SHE HAS NO INTENTION
OF SEEKING FUTURE PSYCHOLOGICAL TREATMENT, ANY JURY AWARD FOR
FUTURE ECONOMIC LOSS FOR SUCH TREATMENT IS NOT SUPPORTED BY THE
EVIDENCE."
{¶25} Appellee/Cross-appellant Simpkins assigns the following as error:
{¶26} “I. THE TRIAL COURT ERRED IN REDUCING THE JURY VERDICT
FOR JESSICA SIMPKINS’ NON-ECONOMIC DAMAGES AS R.C. 2315.18 IS
UNCONSTITUTIONAL UNDER THE OHIO AND UNITED STATES CONSTITUTIONS
AS APPLIED TO JESSICA SIMPKINS.
{¶27} "II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
TO DGBC ON THE ISSUE OF PUNITIVE DAMAGES.
{¶28} "III. THE TRIAL COURT ERRED IN HOLDING THAT JESSICA SIMPKINS
SUFFERED A SINGLE “INJURY OR LOSS” FOR PURPOSES OF APPLYING R.C.
2315.18.
{¶29} "IV. THE TRIAL COURT ERRED IN RULING THAT JESSICA SIMPKINS
SUFFERED A SINGLE INJURY OR LOSS AS THAT RULING VIOLATES THE OHIO
CONSTITUTION.
{¶30} "V. THE TRIAL COURT ERRED IN REFUSING TO AWARD JESSICA
SIMPKINS’ FULL DAMAGES PURSUANT TO R.C. 2307.60.”
I.
{¶31} Delaware Grace argues that the trial court erred in denying their motions
for directed verdict and motion for judgment notwithstanding the verdict because the
Delaware County, Case No. 13 CAA 10 0073 12
prior misconduct by Williams was, as a matter of law, insufficient to make his conduct in
2008 foreseeable.
Motion for Directed Verdict and Motion for Judgment Notwithstanding the Verdict
{¶32} A trial court’s decision on a motion for directed verdict presents a question
of law, which an appellate court reviews de novo. Groob v. Keybank, 108 Ohio St. 3d
348, 2006-Ohio-1189, 843 N.E.2d 1170. Civil Rule 50 provides for a motion for directed
verdict, which may be made at the opening statement of the opponent, at the close of
opponent’s evidence, or at the close of all the evidence. Upon receiving the motion, the
trial court must construe the evidence most strongly in favor of the party against whom
the motion is directed. Civil Rule 50(A)(4). If the trial court finds on any determinative
issue reasonable minds could come but to one conclusion on the evidence submitted,
then the court shall sustain the motion and direct the verdict as to that issue. A directed
verdict is appropriate where a plaintiff fails to present evidence from which reasonable
minds could find in plaintiff’s favor. See Hargrove v. Tanner, 66 Ohio App. 3d 693, 586
N.E.2d 141 (9th Dist. 1990).
{¶33} The standard for granting a motion for judgment notwithstanding the
verdict under Civil Rule 50(B) is the same used for granting a Civil Rule 50(A) directed
verdict. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St. 3d 677, 679,
693 N.E.2d 271 (1998); Wagner v. Roche Laboratories, 77 Ohio St. 3d 116, 121, 671
N.E.2d 252, 256 (1996). In other words, as long as substantial competent evidence
supports the non-moving party, and reasonable minds could reach different conclusions
about that evidence, the motion must be denied. See Strother v. Hutchinson, 67 Ohio
St.2d 282, 284-85, 423 N.E.2d 467 (1981); Posin v. A.B.C. Motor Court Hotel, Inc., 45
Delaware County, Case No. 13 CAA 10 0073 13
Ohio St. 2d 271, 275, 344 N.E.2d 334 (1976). In reviewing a motion for JNOV, courts do
not consider the weight of the evidence or the witness credibility; rather, courts consider
the much narrower legal question of whether sufficient evidence exists to support the
verdict. Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St. 3d 677, 679,
693 N.E.2d 271 (1998); Wagner v. Roche Laboratories, 77 Ohio St. 3d 116, 121, 671
N.E.2d 252, 256 (1996).
Negligence & Foreseeability
{¶34} Negligent retention, supervision, hiring, and/or promotion are negligence-
based torts which require proof of the basic elements of negligence: duty, breach,
proximate cause, and damages. Abrams v. Worthington, 169 Ohio App. 3d 94, 2006-
Ohio-5516 (10th Dist.). The existence of a duty in a negligence case is a question of
law for a court to determine and there is no formula for ascertaining whether such a duty
arises. Mussivand v. David, 45 Ohio St. 3d 314, 318, 544 N.E.2d 265 (1989). When
considering a claim based upon negligent hiring or retention, the issue of whether a duty
is owed is based upon the foreseeability of the injury. Evans v. Ohio State University,
112 Ohio App. 3d 724, 680 N.E.2d 161 (10th Dist. 1996). The existence of an employer-
employee relationship imposes a duty upon the employer to prevent foreseeable injury
to others by exercising reasonable care to refrain from employing an incompetent
employee. Chapa v. Genpak, LLC, 10th Dist. Franklin No. 12AP-466, 2014-Ohio-897.
Injury is foreseeable if a defendant knew or should have known that his act was likely to
result in harm to someone. Mudrich v. Standard Oil Co., 153 Ohio St.31, 39, 90 N.E.2d
859 (1950).
Delaware County, Case No. 13 CAA 10 0073 14
{¶35} The foreseeability of a criminal act depends upon the knowledge of the
defendant, which must be determined by the totality of the circumstances. March v.
Steed Enterprises, Inc. 5th Dist. Muskingum No. CT2012-0058, 2013-Ohio-4448. It is
when the totality of the circumstances is “somewhat overwhelming” that a defendant will
be held liable. Id.
{¶36} Upon our de novo review, we find no error by the trial court to deny the
motions for directed verdict and motion for judgment notwithstanding the verdict as the
prior conduct of Williams was not, as a matter of law, insufficient to make his 2008
conduct foreseeable. In this case, the two prior incidents which Delaware Grace
became aware of both consisted of sexual misconduct and involved minor females
being supervised or counseled by Williams as a church employee either at the church or
at a church camp. In light of this similar prior conduct, we find the totality of the
circumstances indicates that a reasonable jury could have found that Delaware Grace
should have reasonably foreseen the 2008 incident. Reasonable minds could also
differ as to whether Delaware Grace took reasonable steps to protect Simpkins and
whether these incidents should have influenced the church’s retention and promotion of
Williams to Sunbury. There is a need for the trier of fact to weigh and determine
witness credibility regarding these issues. Because reasonable minds could have
reached different conclusions on whether the 2008 incident was foreseeable, the trial
court properly denied the motions for directed verdict and motion for judgment
notwithstanding the verdict. Delaware Grace’s first assignment of error is overruled.
Delaware County, Case No. 13 CAA 10 0073 15
II.
{¶37} Delaware Grace argues the trial court erred in refusing to give a specific
jury instruction they requested on negligent promotion/recommendation/support and
erred in refusing to give their requested jury instruction on foreseeability.
{¶38} The trial court has the duty to instruct the jury on the applicable law on all
issues raised by the pleadings and evidence, and it must give jury instructions that
correctly and completely state the law. Pallini v. Dankowski, 17 Ohio St. 2d 51, 245
N.E.2d 353 (1969); Marshall v. Gibson, 19 Ohio St. 3d 10, 482 N.E.2d 583 (1985),
Groob v. Keybank, 108 Ohio St. 3d 348, 2006-Ohio-1189, 843 N.E.2d 1170. A jury
charge should be “a plain, distinct and unambiguous statement of the law as applicable
to the case made before the jury by the proof adduced.” Marshall, 19 Ohio St. 3d at 12,
482 N.E.2d 583. Furthermore, “[a] charge ought not only be correct, but it should also
be adapted to the case and so explicit as not to be misunderstood or misconstrued by
the jury.” Id. Ordinarily, a trial court should give requested jury instructions if they are
correct statements of the law applicable to the facts in the case and reasonable minds
might reach the conclusions sought by the instruction. Murphy v. Carrollton Mfg. Co.,
61 Ohio St. 3d 585, 591, 575 N.E.2d 828 (1991).
{¶39} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Martens, 90 Ohio App. 3d 338, 629 N.E.2d 462 (3rd Dist. 1993). In order to find an
abuse of discretion, we must determine that the trial court’s decision was unreasonable,
arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140 (1983). Whether the jury instructions
Delaware County, Case No. 13 CAA 10 0073 16
correctly state the law is a question of law, which we review de novo. Murphy v.
Carrollton Mfg. Co., 61 Ohio St. 3d 585, 575 N.E.2d 828 (1991). Jury instructions must
be reviewed as a whole. State v. Coleman, 37 Ohio St. 3d 286, 525 N.E.2d 792 (1988).
Negligent Recommendation, Retention, Promotion Instruction
{¶40} Delaware Grace argues the trial court erred in failing to give the specific
negligent recommendation, retention, and promotion instruction it requested. To prove
the claims of negligent hiring, retention, supervision, retention, or promotion, a plaintiff
must establish: (1) the existence of an employment relationship, (2) the employee’s
incompetence, (3) the employer’s actual or constructive knowledge of the
incompetence, (4) the employer’s act causing the plaintiff’s injuries, and (5) the
employer’s negligence in hiring, retaining, or supervising the employee as the proximate
cause of the plaintiff’s injuries. Clifford v. Licking Baptist Church, 5th Dist. Licking No.
09 CA 0082, 2010-Ohio-1464. Negligent supervision and retention are negligence-
based torts which require proof of the basic elements of negligence; and the elements
as listed above “correspond with the basic elements of negligence – duty, breach,
proximate cause, and damages.” Abrams v. Worthington, 169 Ohio App. 3d 94, 2006-
Ohio-5516 (10th Dist.); Ball v. Stark, 10th Dist. Franklin No. 11AP-177, 2013-Ohio-106.
{¶41} In this case, the trial court provided the jury with the instruction for
negligence, including an instruction on duty, ordinary care, the test for foreseeability,
proximate cause, and damages. These basic elements of negligence correspond
directly to the elements listed in the instruction requested by Delaware Grace.
Accordingly, we find the trial court did not err in refusing to give the instruction as a trial
Delaware County, Case No. 13 CAA 10 0073 17
court may refuse to give an instruction that is redundant. Bostic v. Connor, 37 Ohio
St.3d 144, 524 N.E.2d 881 (1988).
Foreseeability
{¶42} Delaware Grace further contends the trial court erred in failing to give their
requested instruction on foreseeability. The trial court gave the standard Ohio Jury
Instruction for foreseeability. The trial court then added a sentence that “foreseeability
for future intentional criminal conduct requires stronger knowledge than foreseeability of
other possible future conduct.” Delaware Grace sought an instruction consisting of the
standard Ohio Jury Instruction for foreseeability plus an additional sentence that “the
foreseeability of a criminal act depends on the knowledge of the defendant, which must
be determined by the totality of the circumstances, and it is only when the totality of the
circumstances are somewhat overwhelming that the defendant will be held liable.”
Delaware Grace asserts this sentence is a correct statement of law and is required by
our decision in March v. Steed Enterprises, Inc. 5th Dist. Muskingum No. CT2012-0058,
2013-Ohio-4448.
{¶43} While we agree Delaware Grace’s instruction is a correct recitation of the
law pursuant to our decision in the March case, the March decision was not issued until
October 2, 2013, several months after the June 2013 trial was held in this case.
Accordingly, the trial court did not abuse its discretion in failing to give the foreseeability
instruction requested by Delaware Grace.
{¶44} Delaware Grace’s second assignment of error is overruled.
Delaware County, Case No. 13 CAA 10 0073 18
III.
{¶45} Delaware Grace argues the trial court erred in failing to require the jury to
apportion liability between Williams and Delaware Grace. We agree.
{¶46} R.C. 2307.23(A) requires the trier of fact to make factual findings
specifying the percentage of fault attributable to the plaintiff, to each party from whom
the plaintiff seeks recovery, and attributable to each person from whom plaintiff does not
seek recovery in the action. Once the jury makes these findings, R.C. 2307.22 provides
that, when more than one tortfeasor has proximately caused a person’s damage, any
tortfeasor who caused fifty percent or less of the conduct is responsible for only his or
her proportional share of the economic loss. R.C. 2307.22. However, if the trier of fact
determines that more than fifty percent of the tortious conduct is attributable to one
defendant, the defendant is jointly and severally liable for all compensatory damages
that represent economic loss. R.C. 2307.22. With regard to noneconomic damages, if
a trier of fact determines that two or more persons proximately caused the same injury,
each defendant is liable only for their proportionate share of the compensatory damages
that represent noneconomic loss and this proportionate share is calculated by
multiplying the total amount of noneconomic damages awarded to plaintiff by the
percentage of tortious conduct that was determined pursuant to R.C. 2307.23 to be
attributable to that defendant. R.C. 2307.22(C).
Vicarious Liability
{¶47} The trial court’s first reason for denying Delaware Grace’s request for an
instruction and jury interrogatories on apportionment was its determination that R.C.
2307.24(B) rendered R.C. 2307.22 inapplicable due to Simpkins’ claims being based on
Delaware County, Case No. 13 CAA 10 0073 19
vicarious liability and thus the trial court treated Williams and Delaware Grace as one
person for purposes of the apportionment statutes. R.C. 2307.24 provides as follows:
Sections 2307.22 and 2307.23 of the Revised Code do not
affect any other section of the Revised Code or the common
law of this state to the extent that the other section or
common law makes a principal, master, or other person
vicariously liable for the tortious conduct of an agent,
servant, or other person. For purposes of Section 2307.22
of the Revised Code, a principal and agent, a master and
servant, or other persons having a vicarious liability
relationship shall constitute a single party when determining
percentages of tortious conduct in a tort action in which
vicarious liability is asserted.
{¶48} The Supreme Court of Ohio has stated that, “an employer or principal is
vicariously liable for the torts if its employees or agents under the doctrine of respondeat
superior.” Comer v. Risko, 106 Ohio St. 3d 185, 2005-Ohio-4559, 833 N.E.2d 712.
Further, that it is “axiomatic that for the doctrine of respondeat superior to apply, an
employee must be liable for a tort committed in the scope of his employment.” Byrd v.
Faber, 57 Ohio St. 3d 56, 565 N.E.2d 584 (1991), quoting Strock v. Pressnell, 38 Ohio
St.3d 207, 527 N.E.2d 1235 (1988).
{¶49} In Ohio, negligent hiring, supervising, and retention are separate and
distinct from torts from other theories of recovery such as negligent entrustment and
respondeat superior and an employer can be held independently liable for negligently
Delaware County, Case No. 13 CAA 10 0073 20
hiring, supervising, or retaining an employee. Stephens v. A-Able Rents Co., 101 Ohio
App.3d 20, 654 N.E.2d 1315 (8th Dist. 1995); Byrd v. Faber, 57 Ohio St. 3d 56, 565
N.E.2d 584 (1991); Lutz v. Chitwood, 337 B.R. 160 (Bankr. S.D. Ohio 2005) (applying
Ohio law). As noted by one author, “the vicarious liability of an employer for torts
committed by employees should not be confused with the liability an employer has for
his own torts. An employer whose employee commits a tort may be liable in his own
right for negligence in hiring or supervising the employee * * * [b]ut that is not vicarious
liability.” Kenneth S. Abraham, The Forms and Functions of Tort Law, 2nd Ed. 166,
(2002).
{¶50} Accordingly, a church may be held liable for both the negligence of its
employees who are acting in the scope of their employment as well as their own
negligence. Byrd v. Faber, 57 Ohio St. 3d 56, 565 N.E.2d 584 (1991). Further, courts
examining causes of action for negligent hiring, retention, supervision, or promotion,
analyze them separately from respondeat superior or vicarious liability causes of action,
which require a scope of employment analysis. See Byrd v. Faber, 57 Ohio St. 3d 56,
565 N.E.2d 584 (1991); Clifford v. Licking Baptist Church, 5th Dist. Licking No. 09 CA
0082, 2010-Ohio-1464; DiPietro v. Lighthouse Ministries, 159 Ohio App. 3d 766, 2005-
Ohio-639, 825 N.E.2d 630 (10th Dist.). While an employer may be held vicariously
liable for acts of their employees in the scope of the employment, Ohio courts have
generally held an intentional tort such as sexual assault or rape, “which in no way
facilitates or promotes the employer’s business, is so far outside the scope of
employment that employers should not be held liable for such acts under the doctrine of
Delaware County, Case No. 13 CAA 10 0073 21
respondeat superior or vicarious liability.” Stephens v. A-Able Rents Co., 101 Ohio
App.3d 20, 654 N.E.2d 1315 (8th Dist. 1995).
{¶51} In this case, as made clear by the trial court’s original judgment entry and
amended judgment entry on summary judgment, the only cause of action submitted to
the jury was negligence by Delaware Grace in hiring, retaining, or supervising Williams,
or in recommending, promoting, and supporting his hiring and retention by Sunbury.
The trial court granted summary judgment to Delaware Grace on Simpkins’ cause of
action for respondeat superior for the actions of Williams while in the scope of his
employment. As noted above, unlike in a respondeat superior or vicarious liability
cause of action, there is no requirement to prove in Simpkins’ negligent hiring, retention,
promotion, support, recommendation, or supervising cause of action that Williams’
conduct occurred within the scope of employment. The only cause of action submitted
to the jury was based on Delaware Grace’s own independent negligence. Accordingly,
we find the trial court erred in declining to provide the apportionment instruction and
interrogatories based upon the vicarious liability exception contained in R.C. 2307.24
because the claim submitted to the jury was based not on vicarious liability but on
claims Delaware Grace itself was negligent.
Waiver of Affirmative Defense & Constitutionality of Statute
{¶52} The trial court also declined to give the jury the apportionment instruction
because it found that Delaware Grace did not timely raise R.C. 2307.22 as a defense
and that R.C. 2307.23(C), which allows a defendant to raise R.C. 2307.22 as an
affirmative defense at any time prior to trial, is unconstitutional. We disagree with the
trial court.
Delaware County, Case No. 13 CAA 10 0073 22
{¶53} R.C. 2307.23(C) provides, in pertinent part that:
It is an affirmative defense for each party to the tort action
from whom the plaintiff seeks recovery in this action that a
specific percentage of the tortious conduct that proximately
caused the injury or loss to person or property * * * is
attributable to one or more persons from whom the plaintiff
does not seek recovery in this action. Any party to the tort
action from whom the plaintiff seeks recovery in this action
may raise an affirmative defense under this division at any
time before the trial of the action.
{¶54} Pursuant to the liberal pleading requirements of Civil Rule 8, the pleadings
of the parties to an action need only be in general terms. A defendant’s answer is
subject to the same notice-pleadings standards as a plaintiff’s complaint, and an
affirmative defense is generally adequate as long as the plaintiff receives fair notice of
the defense. Civil Rule 8.
{¶55} In this case, the second defense in Delaware Grace’s answer is that, “in
the event that liability on the part of either of these Defendants is established [Delaware
Grace or Anderson], each Defendant is liable for only that portion of Plaintiff’s damages
caused by his or her own proportionate share of fault.” Further, approximately two-and-
a-half weeks before trial, Delaware Grace filed a “Notice of Intent to Seek
Apportionment.” Based upon the notice pleading rules set forth in Civil Rule 8(C),
Delaware Grace provided Simpkins with fair notice of the apportionment defense in its
answer. Further, even if we found the answer to be insufficient to raise the defense,
Delaware County, Case No. 13 CAA 10 0073 23
Delaware Grace raised the issue by filing its notice of intent several weeks prior to trial
in accordance with R.C. 2307.23 which states the affirmative defense can be raised at
any time before trial.
{¶56} The trial court also declined to give the apportionment instruction because
it declared R.C. 2307.23 unconstitutional. The Ohio Supreme Court has noted that,
“[d]eclaring a statute unconstitutional, sua sponte, without notice to the parties would be
‘unprecedented’ when neither party has raised a constitutional issue.” Smith v.
Landfair, 135 Ohio St. 3d 89, 2012-Ohio-5692, 984 N.E.2d 1016.
{¶57} In this case, prior to the empaneling of the jury, Delaware Grace
requested the trial court include in its jury instructions an instruction on apportionment of
liability. The trial court indicated it would reserve its final ruling on the issue, but stated
it felt the apportionment statute was not applicable in this case because it is a vicarious
liability issue so Delaware Grace and Williams are treated as one person.
Subsequently, near the end of the trial when there was a hearing regarding jury
instructions and objections thereto, the trial court, for the first time and without it being
raised by Simpkins, found R.C. 2307.23 directly conflicts with the rule that a trial judge
has the discretion to determine whether a party can amend a pleading and thus is an
unconstitutional violation of the Modern Courts Amendment, Ohio Constitution, Article
IV, Section 5, as well as the Due Process Clause of the Ohio and U.S. Constitutions.
{¶58} We find the trial court erred when it sua sponte found R.C. 2307.23(C)
unconstitutional without providing notice to the parties. Prior to declaring the statute
unconstitutional, the trial court did not give the parties notice that it intended to consider
the constitutionality of the statute. Where neither party raised a constitutional argument
Delaware County, Case No. 13 CAA 10 0073 24
before the court, it should not sua sponte declare a statute unconstitutional without
providing parties notice of the court’s intention and the opportunity to respond. In re
K.A.G., 12th Dist. Warren No. CA2012-10-101, 2013-Ohio-780.
{¶59} Based on the foregoing, we sustain Delaware Grace’s third assignment of
error and find the trial court erred in refusing to allow the jury to consider apportionment.
IV.
{¶60} Delaware Grace next argues the trial court erred in failing to grant its
motion for new trial because future economic loss was not supported by the evidence
as Simpkins testified she did not have current plans to seek mental health treatment.
{¶61} Civil Rule 59(A) permits a new trial to be granted to a party on all or part of
the issues based upon any one of the nine enumerated grounds. Civil Rule 59(A)(6)
allows for a new trial when the “judgment is not sustained by the weight of the
evidence.” When considering a motion for a new trial pursuant to Civil Rule 59(A)(6), a
court must weigh the evidence and pass on the credibility of the witnesses. A new trial
will not be granted where the verdict is supported by competent, substantial, and
apparently credible evidence. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St. 3d 139, 2007-
Ohio-5587, 876 N.E.2d 1201. Because a trial court is in the best position to decide
issues of fact, it is vested with broad discretion in ruling upon motions for new trial
based upon Civil Rule 59(A)(6). Id. Our standard of review on a motion for new trial is
abuse of discretion. Civil Rule 59. In order to find an abuse of that discretion, we must
determine the trial court’s decision was unreasonable, arbitrary, or unconscionable and
not merely an error or law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450
N.E.2d 1140 (1983).
Delaware County, Case No. 13 CAA 10 0073 25
{¶62} “A plaintiff’s claim for future medical expenses must be supported by
evidence that reasonably establishes the amount likely to be incurred for the future
medical treatment.” Bowers v. Next Generation Films, Inc., 5th Dist. Richland No. 08
CA 43, 2009-Ohio-1153. If an alleged injury is subjective in character, the claimant
must present expert evidence as to future pain and suffering or permanence. Id.
However, without evidence in the record reflecting that the jury was wrongfully
influenced or that the award was manifestly excessive or inadequate, a reviewing court
may not interfere with a jury’s verdict on damages. Nevins v. Ohio Dept. of Transp, 132
Ohio App. 3d 6, 724 N.E.2d 433 (10th Dist. 1998), citing Moskovitz v. Mt. Sinai Med.
Ctr., 69 Ohio St. 3d 638, 635 N.E.2d 331 (1994).
{¶63} In this case, Smalldon testified that Simpkins would need weekly
counseling for one year, monthly counseling for five years, and ten times per year in the
foreseeable future after that. Smalldon stated counseling costs $200 per session.
Further, Smalldon testified Simpkins should see a psychiatrist five times per year for ten
years at $300 per session. Delaware Grace filed a motion for new trial or a remittitur to
the amount testified by Smalldon ($60,000) rather than the $150,000 in future economic
loss awarded by the jury. The trial court denied the motion for new trial, but granted the
remittitur in the amount of $60,000.
{¶64} We find the trial court did not abuse its discretion in denying the motion for
new trial and instead granting the remittitur. The testimony by Smalldon was evidence
that reasonably establishes the amount likely to be incurred for future medical
treatment. Simpkins did not testify she would never seek out mental health counseling
Delaware County, Case No. 13 CAA 10 0073 26
in the future and thus her testimony does not completely preclude an award for future
economic loss. Delaware Grace’s fourth assignment of error is overruled.
Cross-Assignment of Error I
{¶65} Simpkins argues the trial court erred in reducing the jury verdict for
noneconomic damages as R.C. 2315.18 is unconstitutional as applied. In Arbino v.
Johnson, the Ohio Supreme Court held that R.C. 2315.18 does not violate the right to a
trial by jury, the right to a remedy, the right to an open court, the right to due process of
law, the right to equal protection of the laws, or the separation of powers, and is
therefore constitutional on its face. 116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d
420. In a facial constitutional challenge, the challenger must establish that no set of
circumstances exists under which the act would be valid and requires proof beyond a
reasonable doubt. Wymsylo v. Bartec, Inc., 132 Ohio St. 3d 167, 2012-Ohio-2187, 970
N.E.2d 898.
{¶66} A party raising an as applied constitutional challenge alleges that “the
application of the statute in the particular context in which he has acted, or in which he
proposes to act, would be unconstitutional.” Yajnik v. Akron Dept. of Health, Housing
Div., 101 Ohio St. 3d 106, 2004-Ohio-357, 802 N.E.2d 632. “The practical effect of
holding a statute unconstitutional ‘as applied’ is to prevent its future application in a
similar context, but not to render it utterly inoperative.” Id. To prevail on a constitutional
challenge to the statute as applied, the challenger has the burden of presenting clear
and convincing evidence of a presently existing set of facts that make the statute
unconstitutional when applied to those facts. Groch v. General Motors Corp., 117 Ohio
St.3d 192, 2008-Ohio-546, 883 N.E.2d 377. The Ohio Supreme Court defined the
Delaware County, Case No. 13 CAA 10 0073 27
standard of clear and convincing evidence as the “measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).
{¶67} In this case, Simpkins makes substantially the same arguments as set
forth by the plaintiff in Arbino, but instead of arguing R.C. 2315.18 is facially
unconstitutional, argues that the statute is unconstitutional as applied to her.
{¶68} When the constitutionality of legislation is in question, we must interpret
the applicable constitutional provisions and “acknowledge that a court has nothing to do
with the policy or wisdom of a statute” as this is the exclusive province of the legislative
branch of government. State ex rel. Ohio Congress Parents & Teachers v. State Board
of Education, 111 Ohio St. 3d 568, 2006-Ohio-5512, 857 N.E.2d 1148.
Right to Trial by Jury
{¶69} Simpkins argues R.C. 2315.18, as applied to her, is unconstitutional
because it deprives a minor victim of sexual abuse from having his or her damages fully
assessed by the jury. We disagree.
{¶70} In Arbino, the Ohio Supreme Court found as long as the fact-finding
process is not intruded upon and the resulting findings of fact are not ignored or
replaced by another body’s findings, awards may be altered as a matter of law and the
right to a jury trial does not extend to the determination of questions of law. 116 Ohio
St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420. Accordingly, a court does not violate a
plaintiff’s right to trial by jury when it applies a statutory limit on noneconomic damages
Delaware County, Case No. 13 CAA 10 0073 28
to the facts found by the jury. Id; Oliver v. Cleveland Indians Baseball Co. Ltd.
Partnership, 123 Ohio St. 3d 278, 2009-Ohio-5030, 915 N.E.2d 1205.
{¶71} In this case, the jury made its findings of fact and the trial court, as a
matter of law, applied the limits imposed by R.C. 2315.18 to the findings of fact after
they were determined by the jury and did not alter the findings of fact themselves.
Simpkins has not demonstrated that the application of R.C. 2315.18 in this case affects
her differently than any other tort claimant whose damages are limited by the statute
with regards to the right to a jury trial. There is thus no clear and convincing evidence
that the statute unconstitutionally violates her right to a jury trial.
Open Courts and Right to a Remedy
{¶72} Simpkins contends that, as applied, R.C. 2315.18 violates her right to a
remedy or the “open courts” provision of the Ohio Constitution. We disagree.
{¶73} In Arbino, the plaintiff argued R.C. 2315.18 violates the right to a remedy
and the open courts provision because it denies any recovery for noneconomic
damages for the increment of harm above $250,000. The Ohio Supreme Court
determined that the limits do not wholly deny a person remedy for their injuries and that
injured persons not suffering the catastrophic injuries in R.C. 2315.18(B)(3) may still
recover full economic damages, up to $350,000 in noneconomic damages, and punitive
damages; and that these available remedies are “meaningful” remedies under the
Constitution. 116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d 420.
{¶74} In this case, Simpkins is not denied a meaningful remedy as she is entitled
to recover economic damages and $350,000 in noneconomic damages. While the
statute prevents her from obtaining the same dollar figure she may had received prior to
Delaware County, Case No. 13 CAA 10 0073 29
the effective date of the statute, it does not foreclose upon her ability to pursue a claim
at all or nor completely obliterates the entire jury award. Further, Simpkins has failed to
demonstrate the application of R.C. 2315.18 affects her right to “open courts” differently
than it affects other tort claimants whose damages are limited by the statute.
Accordingly, there is not clear and convincing evidence the statute unconstitutionally
violates her right to a remedy.
Due Process
{¶75} Simpkins contends R.C. 2315.18 violates her right to due process
because though her injuries were catastrophic, they were not physical injuries and thus
she is denied due process of law because she is not entitled to utilize the exceptions
listed in R.C. 2315.18(B)(3) for emotional or mental injuries.
{¶76} As considered in Arbino, R.C. 2315.18 neither restricts nor denies a
fundamental right and thus due process issues must be analyzed under a rational basis
test and the constitutionality of the statute must be upheld if it “bears a real and
substantial relation to the public health, safety, morals or general welfare of the public
and if it is not unreasonable and arbitrary.” 116 Ohio St. 3d 468, 2007-Ohio-6948, 880
N.E.2d 420. In Arbino, the court determined R.C. 2315.18 bears real and substantial
relation to the general welfare of the public and the statute is not arbitrary or
unreasonable as the statute alleviates the concern about imposing the cost solely on
those most severely injured because it allows for limitless noneconomic damages for
those suffering catastrophic injuries. Id. The Ohio Supreme Court reasoned that the
General Assembly, in deciding that exceptions would only apply in certain
Delaware County, Case No. 13 CAA 10 0073 30
circumstances, made a policy choice that noneconomic damages exceeding set
amounts are not in the best interest of the citizens of Ohio. Id.
{¶77} Under Ohio law, a tort plaintiff may recover unlimited compensatory
damages for noneconomic losses if the plaintiff has sustained either “permanent and
substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or
“permanent physical functional injury that permanently prevents the injured person from
being able to independently care for self and perform life-sustaining activities.” R.C.
2315.18(B)(3).
{¶78} We find there is not clear and convincing evidence that the damages cap
is unreasonable or arbitrary as to Simpkins. While there may be nonphysical injuries
the effects of which approximate those listed in R.C. 2315.18(B)(3), that is not what the
evidence shows in this case. Though Smalldon testified Simpkins has post traumatic
stress disorder and low grade depression, there is no suggestion that the effect of these
injuries approximates the effect of a permanent and substantial physical deformity, loss
of use of a limb, loss of a bodily organ system, or that her emotional injury permanently
prevents her from being able to independently care for herself and perform life-
sustaining activities. Simpkins testified she is afraid of the dark, sometimes has anxiety,
and has some trust issues with men. However, after the incident, Simpkins played
basketball in high school and college, got good grades in college, is currently employed
full-time, has not sought or participated in mental health treatment or counseling since
2008, and does not have current plans to seek treatment. Thus, the evidence shows
that she is able to independently care for herself and perform life-sustaining activities.
Accordingly, Simpkins failed to present clear and convincing evidence of a presently
Delaware County, Case No. 13 CAA 10 0073 31
existing set of facts such that R.C. 2315.18 violates her due process rights when
applied to those facts.
Equal Protection
{¶79} Simpkins contends R.C. 2315.18 violates her right to equal protection
because it is unreasonable and arbitrary to create two classes of victims based upon
those suffering from physical injury versus minor victims of sexual assault suffering from
permanent, non-physical, catastrophic injuries without significant economic loss.
{¶80} In Arbino, the Court determined R.C. 2315.18 is facially neutral and thus
the statute denies equal protection only if the General Assembly lacked any reasonable
justification for its enactment and if it is not rationally related to a legitimate government
purpose. 116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d 420. The rational basis test
requires that a statute be upheld if it is rationally related to a legitimate government
purpose even if its classifications are not precise. Id. The Court stated that though the
statute treats those with lesser injuries differently from those most severely injured, R.C.
2315.18 is rationally related to the legitimate state interest of making sure Ohio has a
fair, predictable system of civil justice that preserves the rights of those who have been
harmed by negligent behavior while curbing the number of frivolous lawsuits. Id. As
noted by the Ohio Supreme Court, while noneconomic damage limits may or may not
be the best way to address the perceived problems with the inherent subjectability and
difficulty in evaluating noneconomic awards, the court is not the forum in which to
second-guess such legislative choices. Id. The Court determined the distinctions the
legislature drew in refusing to limit certain injuries contained in R.C. 2315.18(B)(3) while
limiting other injuries were rational and based on the conclusion that the injuries
Delaware County, Case No. 13 CAA 10 0073 32
covered by the exceptions offered more concrete evidence of noneconomic damages
and thus calculation of those damages poses a lesser risk of being tainted by improper
external considerations. Id.
{¶81} Simpkins has failed to present clear and convincing evidence that the
damages caps is unreasonable or arbitrary as applied to her with regards to equal
protection. As discussed above, while there may be nonphysical injuries the effects of
which approximate the effect of a permanent and substantial physical deformity, loss of
use of a limb, loss of a bodily organ system, or permanently prevents a plaintiff from
begin able to independently care for herself and perform life-sustaining activities, that is
not what the evidence shows in this case.
{¶82} Accordingly, since Simpkins has shown that she suffered a permanent,
non-physical injury, the issue is whether R.C. 2315.18 violates equal protection by
capping her damages but not capping the noneconomic damages of a plaintiff who has
suffered from one of the physical conditions in R.C. 2315.18(B)(3). This question was
answered by the Ohio Supreme Court in Arbino when it determined that the distinction
between those with one of the physical conditions in R.C. 2315.18(B)(3) (those with the
most severe injuries) and those without one of those conditions (those with lesser
injuries) was rationally related to a legitimate government purpose and was grounded
on a reasonable justification. 116 Ohio St. 3d 468, 2007-Ohio-6948, 880 N.E.2d 420.
Specifically, that this distinction was rationally related to the General Assembly’s stated
goals that tangible injuries represent more concrete evidence of noneconomic damages
and thus calculation of those damages poses a lesser risk of being tainted by improper
Delaware County, Case No. 13 CAA 10 0073 33
external considerations. Id. As stated in Arbino, the Ohio Supreme Court is not the
proper forum in which to second-guess such legislative choices. Id.
{¶83} Based upon the foregoing, we find the trial court did not err in reducing the
jury verdict for noneconomic damages as R.C. 2315.18 is not unconstitutional as
applied to Simpkins. Simpkins’ first assignment of error is overruled.
Cross-Assignment of Error II
{¶84} Simpkins argues that the question of whether Delaware Grace’s conduct
warranted an award of punitive damages is an issue for the trier of fact when
considering the evidence and thus the trial court erred in granting summary judgment on
punitive damages. We agree.
{¶85} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St. 2d 427, 424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St. 3d 321, 474
N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301,
733 N.E.2d 1186 (6th Dist. 1999).
{¶86} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St. 3d 35, 506 N.E.2d 212 (1987). This means we review
Delaware County, Case No. 13 CAA 10 0073 34
the matter de novo. Doe v. Shaffer, 90 Ohio St. 3d 388, 2000-Ohio-186, 738 N.E.2d
1243.
{¶87} The award of punitive damages in tort actions is currently governed by
Ohio statute. R.C. 2315.21 provides that damages are not recoverable from a
defendant in a tort action unless the actions or omissions of that defendant demonstrate
malice or aggravated or egregious fraud, or that the defendant as principal or master
knowingly authorized, participated in, or ratified actions or omissions of an agent or
servant that so demonstrate. R.C. 2315.21(C)(1). The Ohio Supreme Court defines
malice for the purposes of punitive damages as, “(1) that state of mind under which a
person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a
conscious disregard for the rights and safety of another person that has a great
probability of causing substantial harm.” Preston v. Murty, 32 Ohio St. 3d 334, 512
N.E.2d 1174 (1987). “Since punitive damages are assessed for punishment and not
compensation, a positive element of conscious wrongdoing is always required.” Id.
Only the second type of malice articulated in Preston is applicable in this case.
{¶88} Punitive damages are recoverable in a negligent hiring, supervision, or
retention case. A. Doe v. First Presbyterian Church (USA), 126 Ohio App. 3d 358, 710
N.E.2d 367 (5th Dist. 1998); Stephens v. A-Able Rents Co., 101 Ohio App. 3d 20, 654
N.E.2d 1315 (8th Dist. 1995). Even where a plaintiff proves a claim of negligent hiring,
supervision, or retention, the plaintiff must establish malice (as defined above) before he
is entitled to recover punitive damages. Id.
{¶89} In this case, the trial court granted summary judgment on punitive
damages based upon the Ross County ruling that punitive damages could not be
Delaware County, Case No. 13 CAA 10 0073 35
established because the actions of Delaware Grace were not foreseeable. However, in
its subsequent, clarified, ruling, the trial court stated that, “to the extent that any party
construes the Ross County decision as finding no factual issues regarding the Delaware
church’s ability to anticipate or foresee [Williams’] misconduct, this Court declines to
accept or follow that ruling.” Accordingly, the trial court specifically allowed the jury to
determine foreseeability and punitive damages should not have been precluded on that
basis.
{¶90} Delaware Grace argues there is no evidence from which a jury could
award punitive damages because there is no evidence of conscious disregard for
Simpkins’ rights and safety. We disagree and find that reasonable minds could differ on
whether Delaware Grace’s conduct demonstrated a conscious disregard for Simpkins’
rights and safety having a greater probability of substantial harm such that the issue of
punitive damages may be submitted to the jury. See A. Doe v. First Presbyterian
Church (USA), 126 Ohio App. 3d 358, 710 N.E.2d 367 (5th Dist. 1998). In Brown and
Stotz’s depositions, they testified that the Delaware Grace officials at the meeting,
including the senior pastor and someone from the board of elders, made light of the
incident. Stotz’s affidavit provides that she heard a Delaware Grace official state they
should “keep things silent to protect our brother.” Gill was the senior pastor and
member of the board of elders and did not make a report of the Brown incident and
placed nothing in Williams’ file regarding the incident. Anderson, a senior pastor and a
member of the elder board, knew about the Weixel incident and also knew that Williams
continued to work with young women at the church. Underwood stated he would not
have supported Williams as pastor at Sunbury if he would have known about the
Delaware County, Case No. 13 CAA 10 0073 36
incidents. Boham was told by Gill not to discuss an incident between Williams and staff
members that she felt might have been inappropriate.
{¶91} Accordingly, we find a genuine issue of material fact exists as to whether
Delaware Grace showed a conscious disregard for the rights and safety of Simpkins
that has a great probability of causing substantial harm. Simpkins’ second assignment
of error is sustained.
Cross-Assignments of Error III and IV
{¶92} Simpkins argues the trial court erred in finding that she suffered a single
“injury or loss” for purposes of R.C. 2315.18 because she suffered two distinct
occurrences. We disagree.
{¶93} R.C. 2315.18(A)(5) defines “occurrence” as “all claims resulting from or
arising out of any one person’s bodily injury.” R.C. 2315.18(B)(2) limits noneconomic
damages “for each occurrence that is the basis of that tort action.” Unlike the case
cited by Simpkins in support of her argument in which numerous sexual assaults
throughout childhood were found to be separate incidents for the purposes of statute of
limitations, Madvad v. Russell, 9th Dist. Lorain No. 96CA006652, 1997 WL 760898, the
oral and vaginal penetration in this case occurred within a short period of time, in a
confined geographic space, and without any intervening factors. The testimony of
Smalldon supports the position that there is one indivisible injury as he testified that
Simpkins’ post-traumatic stress disorder is the direct result of the incident with Williams
and he does not distinguish between the two actions.
{¶94} Simpkins further argues even if Ohio’s damage cap statute is
constitutional, the trial court erred when it applied the cap to two separate “occurrences”
Delaware County, Case No. 13 CAA 10 0073 37
because it violates her rights under the “open courts” and “right to a remedy” provision
of the Ohio Constitution. Simpkins asserts that the Arbino court upheld the
constitutionality of the statute because R.C. 2315.18 operates as a limitation on
damages, not a complete denial of a remedy to an injured person.
{¶95} Simpkins’ argument assumes that she sustained two separate incidents
and is not compensated for one of them. However, as discussed above, this
assumption is inconsistent with the evidence, as the oral and vaginal penetration
occurred in one setting only a minute or so apart and Smalldon’s testimony did not
differentiate their effect on Simpkins. This is a single course of wrongful conduct at the
same time and place and there is no evidence Simpkins suffered separate, different, or
additional damage from any separate part of the sexual assault.
{¶96} Accordingly, the trial court did not err in determining a single cap applied
for purposes of R.C. 2315.18. Simpkin’s fourth cross-assignment of error is overruled.
Cross-Appellant’s Assignment of Error V
{¶97} Simpkins argues the trial court erred in applying the damage cap in R.C.
2315.18 because R.C. 2315.18 conflicts with R.C. 2307.60, which provides that,
“anyone injured in person or property by a criminal act has, and may recover full
damages in, a civil action unless specifically exempted by law * * *.” We disagree.
{¶98} R.C. 2307.60 does not establish a separate cause of action and is simply
a codification of the Ohio common law rule that a civil action is not merged into a
criminal prosecution for the same acts that form the basis for the civil action. McNichols
v. Reinnicker, 5th Dist. No. 2002 AP 04 0026, 2002-Ohio-7215. “It is a well-settled rule
of statutory interpretation that statutory provisions be construed together and the
Delaware County, Case No. 13 CAA 10 0073 38
Revised Code be read as an interrelated body of law.” Summerville v. City of Forest
Park, 128 Ohio St. 3d 221, 2010-Ohio-6280, 943 N.E.2d 522. Pursuant to R.C. 1.51, “[i]f
a general provision conflicts with a special or local provision, they shall be construed, if
possible, so that effect is given to both.” Here, we find that the statutes can be
construed so that effect is given to both as R.C. 2307.60 does not create any
substantive rights. Thus, no conflict exists between R.C. 2307.60 and R.C. 2315.18
and cross-appellant’s fifth assignment of error is overruled.
{¶99} Based on the foregoing, we affirm in part and reverse and remand in part
the judgment entries of the Delaware County Common Pleas Court. Delaware Grace’s
first, second, and fourth assignments of error are overruled. Delaware Grace’s third
assignment of error is sustained. Simpkins’ first, third, fourth, and fifth assignments of
error are overruled. Simpkins’ second assignment of error is sustained.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur