Wayt v. DHSC, L.L.C. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Wayt
v. DHSC, L.L.C., Slip Opinion No. 2018-Ohio-4822.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-4822
WAYT, APPELLEE, v. DHSC, L.L.C., D.B.A. AFFINITY MEDICAL CENTER,
APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Wayt v. DHSC, L.L.C., Slip Opinion No. 2018-Ohio-4822.]
Torts—Damages—R.C. 2315.18—Defamation—Cap on noneconomic
compensatory damages— R.C. 2315.18(B)(2) caps noneconomic damages
that can be recovered as a result of defamation.
(No. 2017-1548—Submitted August 1, 2018—Decided December 7, 2018.)
APPEAL from the Court of Appeals for Stark County, No. 2016CA215,
2017-Ohio-7734.
_________________
FISCHER, J.
{¶ 1} Appellee, Ann Wayt, filed a civil complaint against appellant, DHSC,
L.L.C., d.b.a. Affinity Medical Center (“Affinity Medical”), alleging, among other
claims, defamation. The case proceeded to trial. The only claim submitted to the
SUPREME COURT OF OHIO
jury was for defamation. The jury found that Wayt had been defamed and awarded
her $800,000 in compensatory damages and $750,000 in punitive damages.
{¶ 2} The only issue before this court is whether the cap on damages for
noneconomic loss set forth in R.C. 2315.18(B)(2) applies to compensatory damages
awarded for defamation. We hold that the statute unambiguously caps the
noneconomic damages that can be recovered as a result of defamation, and we
remand the case to the trial court for further proceedings.
I. BACKGROUND
{¶ 3} Wayt was a nurse who was employed at Affinity Medical. Affinity
Medical terminated Wayt’s employment after an investigation that followed an
accusation that Wayt had neglected her duties and falsified a medical record.
{¶ 4} Following Wayt’s dismissal, the head of nursing at Affinity Medical
sent a complaint to the Ohio Board of Nursing that included an accusation that Wayt
had engaged in patient neglect. Some additional documentation was sent to the
board that detailed Wayt’s alleged improper conduct.
{¶ 5} Following her termination, Wayt applied for multiple nursing
positions. She had only two interviews and did not obtain a permanent nursing
position.
{¶ 6} The National Nurses Organizing Committee, a union and professional
organization for registered nurses, filed charges against Affinity Medical before the
National Labor Relations Board (“NLRB”), claiming that the hospital had refused
to bargain with the union and that Wayt had been terminated because of her
involvement with the union. After an administrative law judge issued a report
favorable to the union, the NLRB successfully petitioned the United States District
Court for the Northern District of Ohio for injunctive relief that included an order
that Wayt be reinstated to her prior position at Affinity Medical. Calatrello ex rel.
Natl. Labor Relations Bd. v. DHSC, L.L.C., N.D. Ohio No. 5:13 CV 1538, 2014
WL 296634 (Jan. 24, 2014). The court also ordered Affinity Medical to retract the
2
January Term, 2018
report made to the Nursing Board. Wayt did return to her position, but an Affinity
Medical employee allegedly stated, in front of several nurses, that the court order
did not mean that Wayt deserved to regain her position or that she was a good nurse.
{¶ 7} Wayt filed a complaint in the Stark County Court of Common Pleas
alleging that Affinity Medical and its employees had defamed her. At trial, the jury
found that Wayt had been defamed and awarded her $800,000 in compensatory
damages and $750,000 in punitive damages.
{¶ 8} Affinity Medical filed a posttrial motion requesting that the trial court
apply the cap on noneconomic compensatory damages set forth in R.C.
2315.18(B)(2) and the cap on punitive damages set forth in R.C. 2315.21(D) to
reduce the awards. The trial court ruled that the statutory caps on compensatory
and punitive damages did not apply to injuries to reputation. The trial court also
held that the punitive-damages cap is twice the amount of compensatory damages
awarded, not twice the amount of compensatory damages as capped under R.C.
2315.18(B)(2).
{¶ 9} Affinity Medical filed an appeal and argued that the amount awarded
in damages was in excess of the applicable caps on damages set forth in R.C.
2315.18(B)(2) and 2315.2(D). The appellate court adopted the reasoning of the
trial court and overruled Affinity Medical’s assignment of error relating to caps on
damages. Affinity Medical then appealed to this court, presenting two propositions
of law. We accepted jurisdiction over only one proposition, whether the cap in R.C.
2315.18 that applies to tort actions seeking noneconomic loss as a result of an
alleged injury or loss to person or property also applies to defamation. See 152
Ohio St. 3d 1420, 2018-Ohio-923, 93 N.E.3d 1002.
II. ANALYSIS
{¶ 10} Affinity Medical argues that under the plain and unambiguous
language of R.C. 2315.18(B), compensatory damages awarded in a defamation
action must be capped. Affinity Medical also argues that the caps on punitive
3
SUPREME COURT OF OHIO
damages set forth in R.C. 2315.21(D) apply and that the amount of punitive
damages awarded to Wayt by the jury should be reduced accordingly.
{¶ 11} Like Affinity Medical, Wayt argues that the plain language of R.C.
2315.18 is controlling but asserts that the statutory language applies to injuries only
to a person or property, not to a person’s reputation. Wayt asserts that defamation
is an injury to a person’s reputation and is distinct from injuries to a person. She
relies on Article I, Section 16 of the Ohio Constitution, which provides that courts
shall be open to redress injuries to “land, goods, person, or reputation” to support
her argument.
{¶ 12} Wayt further contends that R.C. 2315.18 does not cap the damages
awarded for defamation because the statute applies only to negligent torts, not to
intentional torts like defamation.
{¶ 13} Wayt also argues that the proposition of law presented in this case
need not be answered because Affinity Medical failed to request a jury
interrogatory that would have allowed it to show that the jury awarded
noneconomic rather than economic damages. Wayt adds that the statute plainly
applies only to noneconomic damages and that the trial court could find that the
damages awarded were economic damages without an interrogatory that showed
what kind of damages were awarded.
{¶ 14} Finally, Wayt argues that she was defamed on more than one
occasion. Thus, argues Wayt, even if R.C. 2315.18(B)(2) does apply, the amount
awarded should not be reduced and she should be awarded the statutory maximum
for each instance of defamation.
A. Standard of Review
{¶ 15} The standard of review for questions of statutory interpretation is de
novo. Ceccarelli v. Levin, 127 Ohio St. 3d 231, 2010-Ohio-5681, 938 N.E.2d 342,
¶ 8. When a statute is plain and unambiguous, we apply the statute as written,
Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St. 3d 106, 2006-Ohio-954, 846
4
January Term, 2018
N.E.2d 478, ¶ 52, and no further interpretation is necessary, State ex rel. Savarese
v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St. 3d 543, 545, 660 N.E.2d 463
(1996).
B. Plain Meaning of the Statute
{¶ 16} R.C. 2315.18(A)(7) provides: “ ‘Tort action’ means a civil action for
damages for injury or loss to person or property.” R.C. 2315.18(B)(2) provides
that the maximum noneconomic damages that can be awarded to a plaintiff in a tort
action is, barring certain exceptions that do not apply here, $ 250,000.
{¶ 17} Property “means real and personal property.” R.C. 1.59(E). The
term “property” as used in R.C. 2315.18(A)(7) does not include reputation, and
neither party argues to the contrary.
{¶ 18} The key question in this case is, therefore, whether defamation,
which is an injury to reputation, falls within the category of injury to a person. R.C.
1.59(C) defines person as “an individual, corporation, business trust, estate, trust,
partnership, and association.” This definition does not provide an answer to the
question before us. We have held for 90 years, however, that defamation is an
injury to a person. See Smith v. Buck, 119 Ohio St. 101, 162 N.E. 382 (1928),
paragraph two of the syllabus. We cited this decision with approval as recently as
2008. See Nadra v. Mbah, 119 Ohio St. 3d 305, 2008-Ohio-3918, 893 N.E.2d 829.
{¶ 19} In Buck, this court addressed whether “slander is a ‘personal injury’
by a ‘wrongful act,’ within the intent and meaning of the proviso to section 11819,
General Code.” Id. at 101. This court held that the term “personal injury,” “as
defined by lexicographers, jurists and text-writers, and by common acceptance,”
includes injuries to a person’s reputation, id. at paragraph one of the syllabus, and
we cited with approval several cases from other jurisdictions in which those courts
decided that slander or libel is an injury to a person. See Tisdale v. Eubanks, 180
N.C. 153, 104 S.E. 339 (1920) (“the security of one’s reputation and good name
[is] among the personal rights of the citizen”); Times Democrat Publishing Co. v.
5
SUPREME COURT OF OHIO
Mozee, 136 F. 761, 763 (5th Cir.1905) (“At common law, libel and slander were
classified as injuries to the person, or personal injuries”); McDonald v. Brown, 23
R.I. 546, 51 A. 213, 214 (1902) (statute providing that bankruptcy discharges debts
but not judgments for willful or malicious injuries to a person or property did not
discharge debts resulting from judgments in libel). These three cases remain good
law.
{¶ 20} The court in Buck held that barring a phrase or definition within the
statute that would lead to a contrary conclusion, injuries resulting from slander are
plainly personal injuries. Id. at 104. Further, the court did not distinguish between
personal injuries and injuries to a person. Id. at paragraph two of the syllabus.
{¶ 21} Wayt argues that the legislature’s inclusion of the phrase “bodily
injury” in R.C. 2315.18 demonstrates that the legislature intended to cap only
damages resulting from physical injuries. The term “bodily injury” appears in R.C.
2315.18(A)(5) in the definition of “occurrence,” and the term “occurrence” appears
in R.C. 2315.18(B)(2). Neither of these statutory sections defines the actions to
which the caps on damages apply. Thus, the legislature used no phrase or definition
within R.C. 2315.18 that would lead to the conclusion that it intended the phrase
“injury or loss to person” to mean “bodily injury” or anything other than its plain
meaning. And, as noted above, this court has already decided that, under the plain
meaning, defamation is an injury to a person.
{¶ 22} We hold that under the plain language of R.C. 2315.18(A)(7),
defamation is a “civil action for damages for injury or loss to person.” This holding,
as explained above, is in accord with prior decisions of this court and several other
courts that were interpreting similar language. We see no reason to overturn the
well-established precedent that defamation is a “personal injury” according to the
plain meaning of the term.
{¶ 23} We do not look to the canons of statutory construction when the plain
language of a statute provides the meaning. See Hartmann v. Duffey, 95 Ohio St. 3d
6
 January Term, 2018
456, 2002-Ohio-2486, 768 N.E.2d 1170, ¶ 8, citing Lake Hosp. Sys. v. Ohio Ins.
Guar. Assn., 69 Ohio St. 3d 521, 524, 634 N.E.2d 611 (1994). Assuming arguendo
only that the court must look to the canons of statutory construction to determine
what the legislature intended by using the phrase “injury or loss to person or
property,” the result in this case would be the same. It is well established that the
legislature is presumed to have full knowledge of prior judicial decisions. State ex
rel. Huron Cty. Bd. of Edn. v. Howard, 167 Ohio St. 93, 96, 146 N.E.2d 604 (1957).
Thus, despite the position taken by those in the dissent, the legislature is presumed
to have full knowledge of this court’s decision in Buck. Moreover, the legislature
could easily have drafted the statute to prevent the holding from that case from
affecting the outcome of this case; the legislature merely needed to add
“defamation” to the list of actions enumerated in R.C. 2315.18(A)(7) to which the
caps do not apply.
C. Constitutional Argument
{¶ 24} Wayt argues that the phrase “injury or loss to person or property” in
R.C. 2315.18(A)(7) must be interpreted in light of the language that appears in the
Ohio Constitution. Wayt highlights Article I, Section 16 of the Ohio Constitution
and notes that the constitutional language distinguishes injuries to reputation from
injuries to a person, lands, or goods. Article I, Section 16 of the Ohio Constitution
provides, “All courts shall be open, and every person, for an injury done him in his
land, goods, person, or reputation, shall have remedy by due course of law, and
shall have justice administered without denial or delay.” (Emphasis added.)
{¶ 25} Despite the state’s Constitution differentiating between injuries to a
person and injuries to reputation, any distinction found in the Constitution is not
dispositive in this case. In this case, we must decide whether the legislature drew
a distinction in R.C. 2315.18 similar to the one that appears in the Constitution.
{¶ 26} As noted above, the first step in answering that question is to
interpret the plain language of the statute. We do not begin the analysis by
7
SUPREME COURT OF OHIO
examining external sources in order to define the terms used in the statute. While
the language in the Constitution appears to draw a distinction between injuries to a
person and injuries to reputation, the distinction is not consistent with the common
meaning of the terms used in R.C. 2315.18. See Buck, 119 Ohio St. 101, 162 N.E.
382, at paragraph two of the syllabus. Moreover, R.C. 2315.18 uses phrases that
are more general than those that appear in the Constitution. R.C. 2315.18 (2)(a)
uses the phrase “loss to person or property” whereas Article I, Section 16 of the
Ohio Constitution provides that courts are open to redress injuries done to a
person’s “land, goods, person, or reputation.” The statutory term “property” is
encompassing of the constitutional terms “lands [or] goods.” Similarly, the
statutory term “loss to person” encompasses the injuries described in the
Constitution as injuries to a person as well as injuries to a person’s reputation.
{¶ 27} For these reasons, we decline Wayt’s invitation to hold that R.C.
2315.18 does not apply to an injury to reputation or to hold that defamation is not
a “tort action” as it is defined in R.C. 2315.18(A)(7).
D. S.B. 80 and Legislative Intent
{¶ 28} Wayt argues that the statement of findings and intent made in
Am.Sub.S.B. No. 80, Section 3, 150 Ohio Laws, Part V, 7915, 8024 (“S.B. 80”),
indicates that the legislature intended in R.C. 2315.18 to limit damages in
negligence-based cases only. From this, Wayt concludes that there is no cap on
damages for defamation claims because defamation is an intentional tort, not a
negligence-based tort.
{¶ 29} Again, we do not look at legislative intent to determine the meaning
of a statute when the statute is unambiguous. Dunbar v. State, 136 Ohio St. 3d 181,
2013-Ohio-2163, 992 N.E.2d 1111, ¶ 16. However, even if we did review S.B. 80
to determine the legislative intent, the text and history of S.B. 80, when viewed in
conjunction, do not support Wayt’s argument.
8
January Term, 2018
{¶ 30} Section 3(A)(3) of S.B. 80 provides that the state has a rational and
legitimate interest in ensuring that it has a system that balances the rights of those
injured by negligent behavior and the need to eradicate frivolous lawsuits that cost
jobs. This statement, when read in context with the codified sections of the bill, is
one of several intentions behind the bill.
{¶ 31} For example, as enacted in S.B. 80, R.C. 4507.07(B) provides that
any person who signs an application for a driver’s license for a minor is jointly and
severally liable for “negligence or wanton or willful misconduct” committed by that
minor while the minor is driving. (Emphasis added.)
{¶ 32} And, as enacted in S.B. 80, R.C. 1775.14(B) provides that
a partner in a registered limited liability partnership is not liable
* * * for debts, obligations, or other liabilities of any kind of, or
chargeable to, the partnership or another partner or partners arising
from negligence or from wrongful acts, errors, omissions, or
misconduct, whether or not intentional or characterized as tort,
contract, or otherwise.
(Emphasis added.)
{¶ 33} If, as Wayt suggests, the legislature’s sole intent when passing S.B.
80 was to “remedy negligent behavior,” the above-cited sections, which deal with
behavior other than negligent behavior, would not be part of S.B. 80. In light of
this conclusion, the argument that the legislature’s sole intent behind S.B. 80 was
to address negligence claims does not pass muster.
{¶ 34} Moreover, interpreting R.C. 2315.18 in the way that Wayt suggests
would require the court to add the word “negligence” to the definition of “tort
actions” provided in R.C. 2315.18(A)(7). “ ‘[I]t is the duty of this court to give
effect to the words used [in a statute], not to delete words used or to insert words
9
SUPREME COURT OF OHIO
not used.’ ” (Emphasis omitted; brackets added in Bernardini.) Bernardini v.
Conneaut Area City School Dist. Bd. of Edn., 58 Ohio St. 2d 1, 4, 387 N.E.2d 1222
(1979), quoting Columbus-Suburban Coach Lines v. Pub. Util. Comm., 20 Ohio
St.2d 125, 127, 254 N.E.2d 8 (1969). For these reasons, we decline to interpret
R.C. 2315.18 to cap damages awarded only in negligence cases.
E. Remaining Issues
{¶ 35} In her brief, Wayt argues that even if the caps on damages set forth
in R.C. 2315.18 do apply to defamation claims, the award of compensatory
damages in this case should not be reduced because there was more than one
incident of defamation. Also, because the caps apply only to noneconomic
damages, Wayt claims that this court could determine that the jury awarded Wayt
economic damages, which have no statutory cap. In its brief, Affinity Medical
requests that the court order that the punitive-damages cap set forth in R.C.
2315.21(D) be applied to the award in this case.
{¶ 36} No proposition of law arguing these issues was accepted by this
court, and we decline to address these arguments because they are beyond the scope
of this appeal.
III. CONCLUSION
{¶ 37} For the foregoing reasons, we reverse the judgment of the court of
appeals as to compensatory damages, and we remand the case to the trial court for
further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
KENNEDY, FRENCH, and DEWINE, JJ., concur.
DEGENARO, J., concurs in judgment only.
O’CONNOR, C.J., dissents, with an opinion joined by O’DONNELL, J.
_________________
10
January Term, 2018
O’CONNOR, C.J., dissenting.
{¶ 38} I dissent. At issue in this case is whether the damage caps in R.C.
2315.18 apply when a court awards damages to a person for defamation. R.C.
2315.18 provides that its caps apply to damages resulting from “an injury or loss to
person or property.” The majority concludes that the statute is unambiguous and
that the plain language of the statute provides its meaning, ultimately determining
that “the statutory term ‘loss to person’ encompasses the injuries described in the
Constitution as injuries to a person as well as injuries to a person’s reputation.”
Majority opinion at ¶ 26. But in construing R.C. 2315.18, the majority relies on a
90-year-old case in which this court interpreted the term “personal injury” as well
as numerous cases outside this jurisdiction that consider injury to reputation in the
context of common law rather than in the context of Ohio’s constitutional and
statutory schemes. The majority’s reliance on those cases shows that it has not
relied on the plain meaning of the statute. By considering case law, the majority is
engaging in exactly the kind of statutory interpretation that it claims is unnecessary.
{¶ 39} If we look only at the words in the statute, it is clear that injury or
loss to person does not include loss of reputation. If an injury to a person occurs,
then there is an identifiable harm to the person’s body and typically a course of
action for healing it, often with medical aid.1 There is also identifiable and
relatively quantifiable harm to establish damages and a financial remedy.
{¶ 40} On the other hand, a person’s reputation is separate from her or his
body, and the person has little control over it—reputation exists entirely in the
hearts and minds of others. The lack of control over one’s own reputation is one
reason that the tort of defamation is so menacing. A person can be of upstanding
1. Noneconomic compensatory damages caps do not apply to “[p]ermanent and substantial physical
deformity, loss of use of a limb, or loss of a bodily organ system,” R.C. 2315.18(B)(3)(a), or to
“[p]ermanent 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)(b).
11
SUPREME COURT OF OHIO
character, yet when someone defames her or him, there is no well-defined solution
for piecing reputation back together or even for determining the damage. A
reputation damaged by defamation is not fixed by mending it; one can only attempt
to repair reputation by convincing each and every person who observed the
defamatory statement that it is not true. It is often nearly impossible to determine
whether reputation is restored or to quantify the damage. In part, that is why a
victim of defamation per se, that is, defamation that is clear on its face, does not
have to prove damages. Becker v. Toulmin, 165 Ohio St. 549, 553, 138 N.E.2d 391
(1956).
{¶ 41} Defamation is an injury or loss to reputation, not to person, and
therefore the caps on damages in R.C. 2315.18 do not apply when a person is
defamed. Although statutory interpretation is unnecessary given the plain meaning
of R.C. 2315.18, the exercise bears out this conclusion.
{¶ 42} The Ohio Constitution reinforces the distinctions between person
and reputation. The framers, recognizing the differences between these injuries,
ensured access to the courts for both wrongs. Article I, Section 16 provides that
“[a]ll courts shall be open, and every person, for an injury done him in his land,
goods, person, or reputation, shall have remedy by due course of law.” The
majority does not explain why we should assume that when the General Assembly
drafted R.C. 2315.18, it was aware of two of this court’s decisions that were spread
over a span of 90 years but was not aware of Ohio’s Constitution, our government’s
preeminent controlling document. But it stands that “no portion of a written
constitution should be regarded as superfluous.” Steele, Hopkins & Meredith Co.
v. Miller, 92 Ohio St. 115, 120, 110 N.E. 648 (1915). In drafting R.C. 2315.18, the
General Assembly clearly chose to subsume land and goods under the single label
of property. No similar effort was made to combine person and reputation. Instead,
the General Assembly left out any reference to reputation. The Constitution
authorizes the courts to remedy four kinds of injuries, and the General Assembly
12
January Term, 2018
included only three of them in R.C. 2315.18. The only conclusion I can reach is
that the General Assembly did not wish to cap damages for people who are
defamed.
{¶ 43} Instead of relying on a clear constitutional provision establishing that
injury to reputation and injury to person are two separate harms, the majority
mistakenly depends on this court’s 1928 interpretation of the term “personal
injury,” Smith v. Buck, 119 Ohio St. 101, 162 N.E. 382 (1928). That reliance is
misplaced. The term at issue in this case is “injury to person.” The court had two
holdings in Buck:
The words “personal injury” as defined by lexicographers,
jurists and text-writers, and by common acceptance, denote an
injury either to the physical body of a person or to the reputation of
a person, or to both.
The words “personal injury” by “wrongful act,” of section
11819, General Code, comprehend, among other injuries to the
person, injury by libel or slander.
Buck at paragraphs one and two of the syllabus.
{¶ 44} In reaching these conclusions, the court in Buck primarily considered
the definition of the word “personal,” which it found to mean “pertaining to the
person” or “ ‘relating to an individual.’ ” Id. at 101, quoting Webster’s New
International Dictionary. It is true that a reputation generally pertains to or is
related to a person, but R.C. 2315.18 does not refer to loss or injury relating to a
person but refers to “loss or injury to person.” The first syllabus paragraph in Buck
addresses only “personal injury” and does not squarely support the majority’s
position in this case.
13
SUPREME COURT OF OHIO
{¶ 45} The second paragraph of Buck is at least ambiguous and should not
be the basis for interpreting a statute today, 90 years after this court decided that
case. The second syllabus paragraph can be construed to stand for the proposition
that personal injury includes injury to the person as well as injury by libel or slander.
This interpretation is entirely consistent with my reading of R.C. 2315.18. Because
the law at issue in Buck does not contain the language “injury to person,” the
holding does not define that term and cannot determine the outcome of this case.
Further, if the General Assembly was focused on this case when it drafted R.C.
2315.18, then it could have used the term “personal injury” when it described torts
to which the caps applied, in an effort to combine injury to person and injury to
reputation. It did not.
{¶ 46} The majority also includes a string cite of cases that the Buck court
relied on. Although still technically good law, these cases are either unpersuasive
or help to establish that R.C. 2315.18 does not apply to loss of reputation. In Tisdale
v. Eubanks, 180 N.C. 153, 104 S.E. 339, 340 (1920), the North Carolina Supreme
Court conflated character and reputation in order to find that libel is injury to the
person. In Times-Democrat Publishing Co. v. Mozee, 136 F. 761, 762 (5th
Cir.1905), one of Ohio’s most famous daughters, Annie Oakley, sought damages
for “shame, disgrace, and mental suffering.” In the manner of the decision in
Tisdale, the court in Mozee described the claims as “injuries to character and mental
suffering” and invoked the common law. Id. But the situation of appellee, Ann
Wayt, is distinguishable from the circumstances in both Tisdale and Mozee because
of Wayt’s free-standing defamation claim. Wayt has no need to prove injury in the
form of shame, disgrace, or mental suffering, all of which could be construed as
injury to the person. Wayt’s damages resulted from loss of reputation, not injury
to person, and those damages were assumed after she proved her claim of
defamation per se.
14
January Term, 2018
{¶ 47} Further, the courts in both Tisdale and Mozee relied on common law.
Traditionally, the common law protected three types of personal rights: personal
security, personal liberty, and private property. The right of personal security was
divided into life, limb, body, health, and reputation.
Reputation is a sort of right to enjoy the good opinion of
others, and is capable of growth and real existence, as an arm or a
leg. If it is not to be classed as a personal right, where does it
belong? No provision has been made for any middle class of injuries
between those to person and those to property, and the great body of
wrongs arrange themselves under the one head or the other.
Mozee, quoting Johnson v. Bradstreet Co., 87 Ga. 79, 13 S.E. 250, 251 (1891).
Tisdale and Mozee are wholly inapposite because Ohio’s Constitution specifically
answers the question “where does [reputation] belong?” by recognizing a middle
class of injuries and creating an entirely separate action for loss or injury to
reputation that supplants the common law’s less differentiated protections.
Because the Ohio Constitution recognizes injury to reputation as separate from
injury to person, the court is amiss in relying on cases depending on common-law
causes of action. See, e.g., Drake v. Rogers, 13 Ohio St. 21, 29 (1861) (“wherever
the legislature has by statutory law assumed to establish either rules of property or
conduct, it has always been the policy of the law in this state, or at least such is the
generally received understanding, that the common law can neither add to nor take
from the statutory rules so established”).
{¶ 48} In the last case that the majority cites, McDonald v. Brown, 23 R.I.
546, 51 A. 213, 214 (1902), the Rhode Island Supreme Court construed the term
“injury to the person” “in its broad and general sense.” But in State v. Simmons,
114 R.I. 16, 19, 327 A.2d 843 (1974), the Rhode Island court declined to extend its
15
SUPREME COURT OF OHIO
own finding in McDonald, taking a narrower view and holding that “ ‘injury to the
person’ contemplates the peril of actual bodily harm and does not include danger
to reputation alone.” Id. If Rhode Island’s own Supreme Court refused to rely on
McDonald because it “ ‘would verge upon speculation with reference to the
legislative intent,’ ” id., quoting Commerce Oil Refining Corp. v. Miner, 98 R.I. 14,
18, 199 A.2d 606 (1964), it stands to reason that we should also view the case with
skepticism.
{¶ 49} This court’s decision in Nadra v. Mbah, 119 Ohio St. 3d 305, 2008-
Ohio-3918, 893 N.E.2d 829, which the majority also cites favorably, is likewise
unpersuasive. The court in Nadra cited Buck for the proposition that “personal
injury includes injury to one’s body and injury to one’s reputation.” Id. at ¶ 26.
But Nadra does not stand for the proposition that an injury to person includes
defamation.
{¶ 50} The court in Nadra relied on the same case that appellant, DHSC,
L.L.C., d.b.a. Affinity Medical Center, points to now: Lawyers Coop. Publishing
Co. v. Muething, 65 Ohio St. 3d 273, 603 N.E.2d 969 (1992). But Muething did not
involve an allegation of defamation, libel, or slander. Muething’s claimed loss of
reputation arose from his reliance on legal forms that Lawyers Cooperative wrote
and published. Indeed, the court held that “Muething’s claims for humiliation and
damage to his reputation are virtually indistinguishable from his claim for negligent
infliction of emotional distress and, therefore, could not be maintained in the
absence of an assertion that he feared or saw some quantifiable physical loss.” Id.
at 280. Muething is inapplicable to defamation claims.
{¶ 51} The majority’s position is also unsupported by the dictionary
definitions of the statute’s key terms. Black’s Law Dictionary 506 (10th Ed.2014)
defines defamation as “[m]alicious or groundless harm to the reputation or good
name of another by the making of a false statement to a third person.” Reputation
means “[t]he esteem in which someone is held or the goodwill extended to or
16
January Term, 2018
confidence reposed in that person by others, whether with respect to personal
character, private or domestic life, professional and business qualifications, social
dealings, conduct, status, or financial standing.” Id. at 1497. Black’s defines person
as a “human being.” Id. at 1324.
{¶ 52} Applying these definitions to R.C. 2315.18 demonstrates that the law
does not limit damages to a person who proves defamation. Reputation is the
esteem in which someone is held by others, often in respect to personal character.
It is not the person’s actual character. It is separate and apart from the human being.
Reputation exists in the minds of others.
{¶ 53} In a defamation action, the alleged injury or loss is to a person’s
reputation, not to one’s being or possessions. Consequently, I would hold that the
plain language of the statute does not cap damages for people who are defamed. I
would affirm the judgments of the trial and appellate court.
{¶ 54} I dissent.
O’DONNELL, J., concurs in the foregoing opinion.
_________________
B. Zimmerman Law and Brian L. Zimmerman; and Crabbe, Brown &
James, L.L.P., and Andrew G. Douglas, for appellee.
Hanna, Campbell & Powell, L.L.P., Douglas G. Leak, W. Bradford
Longbrake, Frank G. Mazgaj, and Emily R. Yoder; and Howard & Howard
Attorneys and Michael O. Fawaz, for appellant.
Elfvin, Klingshirn, Royer & Torch, L.L.C., and Christina Royer; and
McCarthy, Lebit, Crystal & Liffman Co., L.P.A., and Colin R. Ray, urging
affirmance for amicus curiae Ohio Employment Lawyers Association.
Cooper & Elliot, L.L.C., C. Benjamin Cooper, and Charles H. Cooper,
urging affirmance for amicus curiae Ohio Association for Justice.
_________________
17