Can a Wrongdoer's Estate Owe Punitive Damages? Ohio Supreme Court Says Yes (Whetstone v. Binner)

Published April 5, 2016 · Ohio Supreme Court

A mother dropped her two daughters, ages five and two, at their great-aunt's house for babysitting. When she came back, she walked into a bedroom and found the great-aunt with one hand on the five-year-old's neck and the other holding a pillow over the child's face. She fought the woman off, got both girls out, called the police and took her daughter to the emergency room, where doctors documented scratches, a mark on her cheek and a hemorrhage in her eye. All three were later diagnosed with post-traumatic stress disorder.

The mother sued. The great-aunt never answered the complaint, and the trial court entered a default judgment on liability for assault, false imprisonment, emotional distress and loss of consortium. Then, before the damages hearing could be held, the defendant died of cancer. When the hearing finally happened, the trial court awarded compensatory damages but refused to even consider punitive damages, reasoning that you cannot punish a dead person.

On March 15, 2016, the Supreme Court of Ohio disagreed. In Whetstone v. Binner, 146 Ohio St.3d 395, 2016-Ohio-1006, a 4-3 majority held that where liability has been determined while the wrongdoer was alive, punitive damages remain available and may be imposed against the estate.

What punitive damages are for

Compensatory damages make up for what you lost: medical bills, lost wages, pain and suffering. Punitive damages are different. Under R.C. 2315.21(C), they are available in a tort case only when the defendant acted with malice (or aggravated or egregious fraud), and under division (D)(4) the plaintiff must prove that by clear and convincing evidence. Their purpose, as the Court restated in Whetstone, is to punish the wrongdoer and to deter others. I explained when Ohio law allows them in this earlier post on punitive damages.

The question in Whetstone was whether those purposes can be served once the person to be punished is gone. Most states say no. The Court acknowledged that the majority rule elsewhere is that punitive damages die with the tortfeasor, on the theory that the only people punished are innocent heirs.

Why the Court said yes

Chief Justice O'Connor's majority opinion drew a careful line. In every out-of-state case cited for the majority rule, the wrongdoer had died before any judgment on liability. In Whetstone, liability was decided five months before the defendant's death, when the default judgment was entered, and the trial court had denied her motion to set it aside while she was still alive. Only the damages hearing remained, and it had been postponed at her own request.

Three points carried the decision:

• Liability triggers the availability of punitive damages. Punitive damages are not a separate claim; they attach to a finding of liability for malicious conduct. That finding was made while the defendant was alive, so she, and then her estate, faced the possibility of punitive damages from that moment.
• Delay should not be rewarded. The Court wrote that holding otherwise "would send a message that by delaying a damages hearing, a defendant or his or her estate might avoid the award of punitive damages." Defendants in serious cases are often elderly or ill. A rule that let the clock run out would invite exactly that strategy.
• General deterrence survives. Even if the wrongdoer cannot be deterred, the example set for others is no weaker because the defendant has died. Ohio has no statute that bars punitive damages against an estate, and the Court declined to create one.

The Court was equally clear about the limits. It did not decide whether punitive damages should actually be awarded in this case, or how much. It held only that the hearing must go forward, and it noted that the trier of fact may consider that the defendant is not present to testify and that any award will fall on the estate.

Three justices dissented, arguing that punishment of the dead punishes only heirs and serves no deterrent purpose. Their view did not prevail, but it signals that the holding is tied to its facts: a liability determination before death.

Who this decision helps

Whetstone was a child-abuse case, but the principle applies across the cases where punitive damages matter most to injured people and their families.

Drunk-driving crashes. A driver who causes a serious crash while intoxicated is a classic punitive-damages defendant, and as I wrote in this post on insurer-paid attorney fees, a punitive award can carry an attorney-fee award with it. Drunk drivers sometimes die, of injuries from the same crash or otherwise, before trial. After Whetstone, the timing of the liability determination becomes a strategic question we address early.

Elder abuse and nursing-home neglect. Defendants in these cases are sometimes individuals of advanced age. Families should understand that an aggressive early push to establish liability can preserve the punitive claim. I discussed the broader options for families in this post on nursing-home falls and neglect.

Assault and intentional torts. Where the attacker is an individual with assets, punitive damages may be the only meaningful consequence the civil system can impose, and the estate rule ensures that consequence does not evaporate.

One caution: punitive damages in Ohio remain subject to statutory caps for most defendants, and most liability insurance policies do not cover them. I explained how the cap worked in the Sivit apartment-fire case last year. Whether a punitive award can actually be collected from an estate depends on what the estate holds.

What this means for you

If the person who harmed you or your family acted with malice, the possibility of punitive damages is part of what your case is worth, and Whetstone means a defendant's death does not automatically take it off the table. The decision also carries a practical lesson: getting the case filed and liability established promptly is not just about deadlines. It can determine which remedies survive.

Our personal injury and wrongful death practices evaluate every case for punitive-damages exposure and build the record to support it from the beginning.