TORT REFORM – Senate Bill 120

A recent Eighth District Court of Appeals decision indicating that S.B. 120, which significantly changed the law with respect to the assessment and allocation of tort liability, applies to those cause of action accruing on or after the effective date of the legislation or April 9, 2003. Blanford v. A-Best Products Co. (Mar. 23, 2006).
Since those causes have emerged and are emerging at this time, a summary of some highlights of the law is useful.

S.B. 120 preserves Ohio’s former modified comparative negligence scheme but with unique changes.

Joint and Several Liability:

R.C. 2307.22 of S.B. 120 expands upon the protection afforded defendants from joint and several liability. The previous comparative negligence statute, which was last amended in 2001, created a distinction between plaintiff’s economic loss from non-economic loss (as does the new statute). Under the 2001 statute, a defendant was jointly and severally liable for plaintiff’s economic loss. S.B. 120 raises the bar: a defendant is jointly and liable for economic damages in the event that defendant is more than 50% liable in a case where two or more defendants are found liable. A defendant who is determined to be 50% or less liable is responsible only for his/her proportionate share of economic loss. Nevertheless, even if the defendant is 50% or less liable, if intentional tort against that defendant was alleged and established, he/she is jointly and severally liable for economic loss.

In the absence of allegation and determination of liability for intentional tort, a defendant found to be 50% or less responsible for the injury are liable only for his/her proportionate share of economic loss.

S.B. 120 provides each defendant is liable only for his/her proportionate share of non-economic damages.

S.B. 120 does not affect joint in several liability that is not based in tort. It does not affect other code sections or the common law rendering a person vicariously liable for an agent or servant. (Pursuant to S.B. 120, a principal/agent; master/servant constitute a single party when determining percentages of tortious conduct).

Arguing to the “empty chair”:

It is now an affirmative defense for each party against whom the plaintiff seeks recovery that a percentage of the conduct that caused his damages or loss are attributable to one or more persons that plaintiff is not suing. The defense can be raised any time before trial. R.C. 2307.23. The affirmative defense might be stated as follows: “Plaintiff’s loss or damages were directly and proximately caused by the tortious conduct of one or more persons from whom plaintiff does not seek recovery in this action pursuant to R.C. 2307.23.” The statute allows the trier of fact (judge or jury) to assess the percentage of tortious conduct causing the injury to: plaintiff; each party defendant; each person or entity from whom plaintiff does not seek recovery.

Categories of persons/entities who may be “empty chairs” at trial:

A definitional section of S.B. 120 provides the answer to this question: 2307.011(H) indicates that “Persons form whom the plaintiff does not seek recovery in this action includes, but is not limited to, the following: (1) persons who have entered into a settlement agreement with the plaintiff; (2) persons whom the plaintiff has dismissed from the tort action without prejudice; (3) persons whom the plaintiff has dismissed from the action with prejudice; (4) persons who are not a party to the tort action whether or not that person was or could have been a party to the tort action if the name of the person has been disclosed prior to trial.

Plaintiff’s comparative fault:

R.C. 2315.33 of S.B. 120 states that plaintiff’s fault does not bar him/her from recovering damages if plaintiff’s contributory fault is not greater than the combined tortious conduct of all other persons from whom the plaintiff seeks recovery in his action AND of all other persons from whom plaintiff does not seek recovery in his action. If this is not the case, the court will enter judgment in favor of the defendants. R.C. 2315.35.

There are specific statutory sections in S.B. 120 regarding products liability cases. Contributory negligence may be asserted as an affirmative defense to a products liability claim. R.C. 2315.43. Assuming plaintiff is alleged and shown to be contributorily negligent and, further, is shown to be entitled to recovery damages in a products liability case from more than one party, the trier of fact will return a general verdict and responses to interrogatories (as per R.C. 2315.44 applicable to products actions) and the court will enter a judgment that imposes liability under R.C. 2307.22 discussed above. R.C. 2315.46.

A Lake County car dealer must pay $105,000 for keeping a Highland Heights family's broken-down Chevy Blazer -- and the $6,300 they paid for it -- for the last year and a half, arbitrators have ruled. The judgment includes actual and punitive damages of $81,873 -- or 11 times the $7,443 that Michael and Annette Samber paid in September to buy and insure the used 1997 Blazer from Mullinax Ford East in Wickliffe. The arbitrators added $23,000 for legal fees. The three-member panel cited Mullinax for numerous lapses, including failing to honor warranties, misrepresenting the vehicle's condition, not giving a certificate of title to the buyers or giving them their money back, making false-advertising promises and engaging in "unfair and deceptive acts."

The six-figure award stunned consumer advocates. "It's an unbelievable victory for the consumer, especially in arbitration," said Akron attorney Laura McDowall, who specializes in auto-consumer law. "Auto dealers try to force people into arbitration because they expect to win because there's no jury. "But it looks like the dealer got what it deserved on this one, for a change."

Officials for Mullinax and corporate owner AutoNation Inc. of Florida declined to comment. Mullinax attorney Robert Poklar of Brecksville said the decision would be appealed to Lake County Common Pleas Judge Paul Mitrovich, who appointed the arbitration panel under an agreement between Mullinax and the Sambers. "We believe the award was absolutely ridiculous and without legal basis," Poklar said.

Mayfield Heights attorney Robert J. Foulds, who represented the family and employs Annette Samber as office manager, said the auto dealer was stung by its own insistence on arbitration to settle the dispute. "I'm sure there are plenty of dealerships who don't do business this way, but this is a warning to those who are bad eggs," Foulds said.

The Sambers and their 16-year-old son, Andy, together bought the Blazer, which had been advertised by Mullinax as part of their "Worry Free" used-car stock and had a window sticker boasting of a "Money Back Guarantee," court records show. But the Blazer's brakes and power steering failed within three days and 32 miles after purchase, records show. The vehicle was towed to the dealership service department, which the family said promised to repair it. But Mullinax didn't fix the SUV and failed to return the family's phone calls - or money - for the next 18 months, Annette Samber said. "All we wanted was a car that worked or our money back," Annette Samber said. "We didn't get either."