Victim of a Crime? Ohio Lets You Sue Even Without a Conviction (Jacobson v. Kaforey)

Published February 7, 2017 · Ohio Supreme Court

The man who beat you in a parking lot was never charged. The driver who hit you while drunk pleaded down to a traffic offense. The relative who drained your mother's accounts was "handled within the family." People in these situations call my office every month, and many of them assume that if the criminal system did nothing, the civil system cannot help either. A decision from the Supreme Court of Ohio on December 28, 2016 says otherwise, and clearly.

The statute that has been hiding in plain sight

Ohio has had a sentence on its books, in one form or another, since 1877. Today it lives in R.C. 2307.60(A)(1): "Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law." The same subsection allows recovery of attorney's fees where another rule or statute authorizes them, and punitive damages where R.C. 2315.21 or another section permits.

For decades, Ohio's appellate courts could not agree on what that sentence meant. Some courts read it as creating a real, stand-alone claim: if a crime injured you, you can sue for it. Others, starting with a Sixth District decision in 1978, said it merely restated an old common-law idea that a civil case does not disappear because a criminal case exists, and that a victim still had to fit the facts into a traditional tort like assault or fraud. The difference matters enormously to victims whose injuries come from crimes that have no neat tort counterpart.

The case

Jessica Jacobson filed her own lawsuit, without a lawyer, against an attorney and nurse who had been appointed by the Summit County Probate Court as a conservator to help Ms. Jacobson's mother make medical decisions, and against two children's hospitals. She alleged that in 2001, when she was seven years old and hospitalized, the defendants unlawfully restrained her by keeping her mother from visiting and arranged, without authority, to transfer her to another facility. She framed those claims under R.C. 2307.60, pointing to the criminal statutes for unlawful restraint, kidnapping, and child enticement.

The trial court dismissed the claims. The Ninth District Court of Appeals reversed, holding that R.C. 2307.60 does create its own cause of action, and recognized that its decision conflicted with rulings from other districts. That sent the question to the Supreme Court of Ohio as a "certified conflict," a procedure the Court uses to settle disagreements between appellate districts.

What the Court decided

The certified question was: "Does the current version of R.C. 2307.60 independently authorize a civil action for damages caused by criminal acts, unless otherwise prohibited by law?" Writing for the majority in Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, Justice O'Neill answered in five words: "We hold that it does."

The majority found the statute's words plain. It says a person injured by a criminal act "has" a civil action and "may recover full damages." There is no need to look for a separate tort to hang the claim on. Justice Kennedy, joined by a visiting appellate judge, agreed with the result but thought the statute was ambiguous and reached the same place through the legislative history. Justice O'Donnell dissented. The current version of the statute took effect in 2008, and it governs claims arising today.

No conviction required

Notice what the statute does not say. It does not say "anyone injured by a criminal act for which the offender was convicted." It speaks of a criminal act, period. Whether a prosecutor decided to bring charges, whether the case was pleaded down, whether a jury acquitted, none of that controls your civil claim. In a civil case you prove the facts by a preponderance of the evidence, meaning more likely than not, rather than beyond a reasonable doubt.

A conviction, when there is one, is a gift rather than a requirement. R.C. 2307.60(A)(2) provides that a final judgment of guilt, after trial or a guilty plea, for a serious offense of violence generally prevents the offender from denying in the civil case any fact that was essential to the conviction. In plain terms, a convicted attacker cannot come into civil court and claim it never happened.

What the Court did not decide

Honesty requires a caution. The Supreme Court answered only the narrow question put to it. It did not spell out the elements a plaintiff must prove, which criminal statutes qualify, or how defenses will work. Those questions will be litigated in the trial courts and courts of appeals over the next several years, and the defense bar will push for the narrowest possible reading. That is one reason a claim under this statute should be pleaded alongside the traditional tort claims, not instead of them.

Where this matters in practice

The decision reaches far beyond the unusual facts of Ms. Jacobson's case. Think about:

• Assaults and sexual assaults in bars, apartment complexes, and parking lots. The attacker is liable under R.C. 2307.60, and the property owner may be liable for negligent security; see Assaulted in an Apartment Complex, Bar, or Parking Lot? and our premises liability page.
• Drunk-driving crashes. Operating a vehicle while impaired is a criminal act. The statute reinforces the claim against the driver and expressly preserves punitive damages.
• Financial exploitation of elderly or disabled relatives, where theft or forgery caused a real loss but prosecutors declined the case.
• Deaths caused by criminal conduct, where the estate's claim can be pursued whether or not charges are ever filed.

Collecting what you win

A judgment is only worth what can be collected, and intentional-act exclusions in liability policies are the insurance industry's favorite defense in these cases. Two things soften that problem. First, Ohio courts read exclusions narrowly, and an insurer often still owes a defense; see Injured by Someone's Intentional Act? Why the Insurance Company May Still Have to Pay. Second, the wrongdoer is not always the only defendant. The bar that overserved, the landlord that ignored the broken gate, the employer that hired a known predator, all of those claims sound in negligence and are covered by ordinary liability insurance.

Punitive damages are also on the table. Last year the Supreme Court confirmed that a punitive award can be pursued even against a wrongdoer's estate; see Can a Wrongdoer's Estate Owe Punitive Damages?

What this means for you

If a crime injured you, the lack of a conviction is not the end of the story. It is the beginning of a civil investigation that we control: subpoenas, depositions, surveillance video, police reports, and witnesses who were never called in a criminal case that never happened. Deadlines vary by claim and some are short, so the time to call is now, not after the prosecutor's office makes up its mind.