As Introduced                            1            

122nd General Assembly                                             4            

   Regular Session                                 H. B. No. 547   5            

      1997-1998                                                    6            


   REPRESENTATIVES GRENDELL-THOMAS-NETZLEY-CATES-WESTON-OPFER-     8            

        THOMPSON-GARCIA-HOOD-WHALEN-PRINGLE-LUCAS-YOUNG-           9            

                      KRUPINSKI-BATCHELDER                         10           


                                                                   12           

                           A   B I L L                                          

             To amend sections 2307.60, 2903.21, and 2903.22 of    14           

                the Revised Code to expand the bar against the     15           

                recovery of damages in tort actions  commenced by  16           

                criminal offenders to include felony and           17           

                misdemeanor violations of Ohio and federal law,    18           

                to establish an offender's related  assumption of  19           

                the inherent risk of the occurrence of harm as a   20           

                result of a victim's or other  person's use of     21           

                reasonably necessary force for defense purposes,   22           

                and to  establish a specified type of              24           

                self-defense and defense of a third  person as an  25           

                affirmative defense to aggravated menacing and     27           

                menacing.                                          28           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        30           

      Section 1.  That sections 2307.60, 2903.21, and 2903.22 of   32           

the Revised Code be amended to read as follows:                    33           

      Sec. 2307.60.  (A)  Anyone injured in person or property by  42           

a criminal act has, and may recover full damages in, a civil       44           

action unless specifically excepted by law, may recover the costs  45           

of maintaining the civil action and attorney's fees if authorized  46           

by any provision of the Rules of Civil Procedure or another                     

section of the Revised Code or under the common law of this        48           

state, and may recover punitive or exemplary damages if            49           

authorized by section 2315.21 or another section of the Revised    50           

                                                          2      

                                                                 
Code.  A record of a conviction, unless obtained by confession in  51           

open court, shall not be used as evidence in a civil action        52           

brought pursuant to division (A) of this section.                               

      (B)(1)  As used in division (B) of this section:             54           

      (a)  "Harm" means injury, death, or loss to person or        56           

property.                                                                       

      (b)  "Tort action" means a civil action for damages for      58           

injury, death, or loss to person or property.  "Tort action"       59           

includes a product liability claim but does not include OTHER      60           

THAN a civil action for damages for a breach of contract or        61           

another agreement between persons.  "TORT ACTION" INCLUDES, BUT    62           

IS NOT LIMITED TO, A PRODUCT LIABILITY CLAIM, AN ACTION FOR        63           

WRONGFUL DEATH UNDER CHAPTER 2125. OF THE REVISED CODE, AND AN     64           

ACTION BASED ON DERIVATIVE CLAIMS FOR RELIEF.                                   

      (c)  "Trier of fact" means the jury or, in a nonjury         66           

action, the court VIOLATION OF LAW" MEANS A VIOLATION OF A         67           

SECTION OF THE REVISED CODE, A MUNICIPAL ORDINANCE THAT IS         68           

SUBSTANTIALLY SIMILAR TO A SECTION OF THE REVISED CODE, OR A LAW                

OF THE UNITED STATES THAT CONSTITUTES A FELONY, A MISDEMEANOR, OR  69           

A CONSPIRACY TO COMMIT, ATTEMPT TO COMMIT, OR COMPLICITY IN        70           

COMMITTING A FELONY OR MISDEMEANOR.                                71           

      (2)  Recovery on a claim for relief in a tort action is      73           

barred to any person or the person's legal representative if the   75           

person has been convicted of or has pleaded guilty to a felony     76           

offense arising out of criminal conduct that was a proximate       77           

cause of the injury or loss for which relief is claimed in the                  

action.                                                            78           

      (3)  Division (B) of this section does not apply to civil    81           

claims based upon alleged intentionally tortious conduct, alleged               

violations of the United States Constitution, or alleged           82           

violations of statutes of the United States pertaining to civil    83           

rights.                                                                         

      (a)  ALL PERSONS WHO COMMIT A VIOLATION OF LAW IN THIS       85           

STATE ASSUME THE INHERENT RISK OF THE OCCURRENCE OF HARM AS A      86           

                                                          3      

                                                                 
RESULT OF THE VICTIM OF THAT VIOLATION OF LAW OR ANOTHER PERSON    87           

ON BEHALF OF THAT VICTIM USING REASONABLY NECESSARY FORCE FOR      88           

SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES,       89           

EXCEPT AN INHERENT RISK OF THE OCCURRENCE OF HARM FROM CONDUCT     90           

THAT VIOLATES THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF  91           

THIS STATE, OR THE STATUTES OF THIS STATE OR THE UNITED STATES     92           

PERTAINING TO CIVIL RIGHTS.                                        93           

      (b)  ALL PERSONS WHO COMMIT A VIOLATION OF LAW IN THIS       95           

STATE SHALL BE CONSIDERED AS A MATTER OF LAW TO HAVE KNOWLEDGE OF  96           

THE RISK OF THE OCCURRENCE OF HARM AS A RESULT OF THE VICTIM OF    97           

THAT VIOLATION OF LAW OR ANOTHER PERSON ON BEHALF OF THAT VICTIM   98           

USING REASONABLY NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR      99           

DEFENSE OF A THIRD PERSON PURPOSES, EXCEPT KNOWLEDGE OF THE        100          

INHERENT RISK OF THE OCCURRENCE OF HARM FROM CONDUCT THAT                       

VIOLATES THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF THIS  102          

STATE, OR THE STATUTES OF THIS STATE OR THE UNITED STATES          103          

PERTAINING TO CIVIL RIGHTS.                                                     

      (3)  A DEFENDANT IN A TORT ACTION COMMENCED ON OR AFTER THE  105          

EFFECTIVE DATE OF THIS AMENDMENT IS NOT LIABLE IN DAMAGES TO THE   106          

PLAINTIFF IN THE ACTION IF ALL OF THE FOLLOWING APPLY:             107          

      (a)  THE ACTION IS BASED ON HARM THAT THE DEFENDANT OR THE   109          

PERSON FOR WHOM THE DEFENDANT IS PERSONAL REPRESENTATIVE           110          

ALLEGEDLY CAUSED TO THE PLAINTIFF OR THE PERSON FOR WHOM THE       111          

PLAINTIFF IS PERSONAL REPRESENTATIVE.                                           

      (b)  THE PLAINTIFF OR THE PERSON FOR WHOM THE PLAINTIFF IS   113          

PERSONAL REPRESENTATIVE ALLEGEDLY SUSTAINED THE HARM REFERRED TO   114          

IN DIVISION (B)(3)(a) OF THIS SECTION WHILE ENGAGED IN A           115          

VIOLATION OF LAW.                                                  116          

      (c)  THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS   118          

PERSONAL REPRESENTATIVE ALLEGEDLY CAUSED THE HARM REFERRED TO IN   119          

DIVISION (B)(3)(a) OF THIS SECTION WHILE THE DEFENDANT OR THAT     120          

PERSON WAS A VICTIM OF THE VIOLATION OF LAW REFERRED TO IN         121          

DIVISION (B)(3)(b) OF THIS SECTION AND WHILE USING REASONABLY      122          

NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD    123          

                                                          4      

                                                                 
PERSON PURPOSES.                                                   124          

      (d)  THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS   126          

PERSONAL REPRESENTATIVE DID NOT CAUSE THE HARM REFERRED TO IN      127          

DIVISION (B)(3)(a) OF THIS SECTION WHILE ENGAGING IN CONDUCT THAT  128          

VIOLATES THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF THIS  130          

STATE, OR THE STATUTES OF THIS STATE OR THE UNITED STATES          131          

PERTAINING TO CIVIL RIGHTS.                                                     

      (4)  NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS SECTION  133          

OR ANOTHER SECTION OF THE REVISED CODE OR ANY CONTRARY COMMON LAW  134          

OF THIS STATE, IF A DEFENDANT REFERRED TO IN DIVISION (B)(3) OF    135          

THIS SECTION RAISES AS AN AFFIRMATIVE DEFENSE AND ESTABLISHES AT   136          

ANY STAGE OF A TORT ACTION THAT THE HARM THAT THE PLAINTIFF OR     137          

THE PERSON REPRESENTED BY THE PLAINTIFF ALLEGEDLY SUSTAINED WAS                 

CAUSED UNDER THE CIRCUMSTANCES REFERRED TO IN DIVISIONS (B)(3)(a)  139          

TO (c) OF THIS SECTION AND THAT THE DEFENDANT OR THE PERSON FOR    140          

WHOM THE DEFENDANT IS PERSONAL REPRESENTATIVE DID NOT CAUSE THAT   141          

HARM WHILE ENGAGED IN CONDUCT REFERRED TO IN DIVISION (B)(3)(d)    142          

OF THIS SECTION, THE ASSUMPTION OF THE INHERENT RISK OF THE        143          

OCCURRENCE OF HARM DESCRIBED IN DIVISION (B)(2)(a) OF THIS         144          

SECTION SHALL BE A COMPLETE DEFENSE TO THE PLAINTIFF'S CLAIMS FOR  145          

RELIEF IN THE ACTION AND SHALL BAR THE PLAINTIFF'S RECOVERY OF     146          

DAMAGES IN THE ACTION.                                                          

      (5)  THE PROVISIONS OF DIVISION (B) OF THIS SECTION ARE      148          

AVAILABLE TO A DEFENDANT DESCRIBED IN DIVISION (B)(3) OF THIS      149          

SECTION WHETHER OR NOT THE PLAINTIFF OR THE PERSON REPRESENTED BY  150          

THE PLAINTIFF HAS BEEN CHARGED BY AN INDICTMENT, INFORMATION, OR   151          

COMPLAINT WITH A VIOLATION OF LAW, HAS BEEN FOUND GUILTY OF OR     152          

PLEADED GUILTY TO A VIOLATION OF LAW, OR HAS BEEN ADJUDICATED TO   153          

BE A DELINQUENT CHILD FOR HAVING COMMITTED A VIOLATION OF LAW.                  

      (6)(a)  DIVISION (B) OF THIS SECTION DOES NOT CREATE A NEW   156          

CAUSE OF ACTION OR SUBSTANTIVE LEGAL RIGHT AGAINST A PERSON THAT                

OR THE ESTATE OF A PERSON THAT USES REASONABLY NECESSARY FORCE     157          

FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES.   158          

      (b)  DIVISION (B) OF THIS SECTION DOES NOT AFFECT ANY        160          

                                                          5      

                                                                 
IMMUNITIES FROM OR DEFENSES TO TORT LIABILITY ESTABLISHED BY       161          

SECTION 2305.40 OR OTHER SECTIONS OF THE REVISED CODE OR           162          

AVAILABLE AT COMMON LAW TO WHICH A PERSON THAT OR THE ESTATE OF A  163          

PERSON THAT USES REASONABLY NECESSARY FORCE FOR SELF-DEFENSE                    

PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES MAY BE ENTITLED.    164          

      Sec. 2903.21.  (A)  No person shall knowingly cause another  173          

to believe that the offender will cause serious physical harm to   174          

the person or property of such THE other person, such TO THE       175          

other person's unborn, or TO a member of the other person's        177          

immediate family.                                                               

      (B)(1)  IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE OF AN       179          

ALLEGED VIOLATION OF THIS SECTION THAT, AT THE TIME OF THE         180          

ALLEGED VIOLATION, ALL OF THE FOLLOWING APPLIED:                   181          

      (a)  THE ALLEGED OFFENDER WAS THE OWNER, LESSEE, OR RENTER   183          

OF REAL PROPERTY OR A MEMBER OF THE OWNER'S, LESSEE'S, OR          184          

RENTER'S FAMILY WHO RESIDES ON THE REAL PROPERTY.                  185          

      (b)  THE ALLEGED OFFENDER WAS LOCATED INSIDE A BUILDING OR   187          

OTHER STRUCTURE ON THE REAL PROPERTY DESCRIBED IN DIVISION         189          

(B)(1)(a) OF THIS SECTION THAT IS MAINTAINED AS A PERMANENT OR     190          

TEMPORARY DWELLING, OR THE ALLEGED OFFENDER WAS LOCATED ON THE     191          

PREMISES OF THE REAL PROPERTY DESCRIBED IN DIVISION (B)(1)(a) OF   192          

THIS SECTION BUT OUTSIDE OF A BUILDING OR OTHER STRUCTURE OF THAT  193          

NATURE.                                                                         

      (c)  THE ALLEGED OFFENDER WAS ENGAGED IN A LAWFUL ACTIVITY   195          

INSIDE THE BUILDING OR OTHER STRUCTURE, OR ON THE PREMISES,        196          

DESCRIBED IN DIVISION (B)(1)(b) OF THIS SECTION.                   197          

      (d)  AS A PRUDENT PERSON WHO WAS ACTING UNDER THE            199          

CIRCUMSTANCES PRESENT IN A MANNER CONSISTENT WITH THE COMMON LAW   200          

OF THIS STATE OR A SECTION OF THE REVISED CODE, THE ALLEGED        201          

OFFENDER WAS LEGALLY JUSTIFIED IN USING A THREAT OF SERIOUS                     

PHYSICAL HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON FOR    202          

PURPOSES OF SELF-DEFENSE OR DEFENSE OF A THIRD PERSON, INCLUDING,  203          

BUT NOT LIMITED TO, A THREAT OF SERIOUS PHYSICAL HARM TO THE       204          

PERSON OR PROPERTY OF THE OTHER PERSON BY THE USE OF A DEADLY      205          

                                                          6      

                                                                 
WEAPON, AS DEFINED IN SECTION 2923.11 OF THE REVISED CODE, THAT                 

THE ALLEGED OFFENDER LAWFULLY POSSESSED AND EITHER CARRIED OR HAD  206          

READY AT HAND FOR DEFENSIVE OR OTHER LAWFUL PURPOSES.              207          

      (2)  DIVISION (B)(1) OF THIS SECTION DOES NOT PRECLUDE A     209          

PERSON CHARGED WITH A VIOLATION OF THIS SECTION FROM ESTABLISHING  210          

IN ACCORDANCE WITH SECTION 2901.05 OF THE REVISED CODE ANY OTHER   211          

AFFIRMATIVE DEFENSE THAT MAY BE AVAILABLE TO THAT PERSON UNDER     212          

THE COMMON LAW OF THIS STATE OR A SECTION OF THE REVISED CODE.                  

      (C)  Whoever violates this section is guilty of aggravated   214          

menacing, a misdemeanor of the first degree.                       215          

      Sec. 2903.22.  (A)  No person shall knowingly cause another  224          

to believe that the offender will cause physical harm to the       225          

person or property of such THE other person, such TO THE other     227          

person's unborn, or TO a member of the other person's immediate    229          

family.                                                                         

      (B)(1)  IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE OF AN       231          

ALLEGED VIOLATION OF THIS SECTION THAT, AT THE TIME OF THE         232          

ALLEGED VIOLATION, ALL OF THE FOLLOWING APPLIED:                   233          

      (a)  THE ALLEGED OFFENDER WAS THE OWNER, LESSEE, OR RENTER   235          

OF REAL PROPERTY OR A MEMBER OF THE OWNER'S, LESSEE'S, OR          236          

RENTER'S FAMILY WHO RESIDES ON THE REAL PROPERTY.                  237          

      (b)  THE ALLEGED OFFENDER WAS LOCATED INSIDE A BUILDING OR   239          

OTHER STRUCTURE ON THE REAL PROPERTY DESCRIBED IN DIVISION         241          

(B)(1)(a) OF THIS SECTION THAT IS MAINTAINED AS A PERMANENT OR     242          

TEMPORARY DWELLING, OR THE ALLEGED OFFENDER WAS LOCATED ON THE     243          

PREMISES OF THE REAL PROPERTY DESCRIBED IN DIVISION (B)(1)(a) OF   244          

THIS SECTION BUT OUTSIDE OF A BUILDING OR OTHER STRUCTURE OF THAT  245          

NATURE.                                                                         

      (c)  THE ALLEGED OFFENDER WAS ENGAGED IN A LAWFUL ACTIVITY   247          

INSIDE THE BUILDING OR OTHER STRUCTURE, OR ON THE PREMISES,        248          

DESCRIBED IN DIVISION (B)(1)(b) OF THIS SECTION.                   249          

      (d)  AS A PRUDENT PERSON WHO WAS ACTING UNDER THE            251          

CIRCUMSTANCES PRESENT IN A MANNER CONSISTENT WITH THE COMMON LAW   252          

OF THIS STATE OR A SECTION OF THE REVISED CODE, THE ALLEGED        253          

                                                          7      

                                                                 
OFFENDER WAS LEGALLY JUSTIFIED IN USING A THREAT OF PHYSICAL HARM  254          

TO THE PERSON OR PROPERTY OF THE OTHER PERSON FOR PURPOSES OF                   

SELF-DEFENSE OR DEFENSE OF A THIRD PERSON, INCLUDING, BUT NOT      255          

LIMITED TO, A THREAT OF PHYSICAL HARM TO THE PERSON OR PROPERTY    256          

OF THE OTHER PERSON BY THE USE OF A DEADLY WEAPON, AS DEFINED IN   257          

SECTION 2923.11 OF THE REVISED CODE, THAT THE ALLEGED OFFENDER     258          

LAWFULLY POSSESSED AND EITHER CARRIED OR HAD READY AT HAND FOR                  

DEFENSIVE OR OTHER LAWFUL PURPOSES.                                259          

      (2)  DIVISION (B)(1) OF THIS SECTION DOES NOT PRECLUDE A     261          

PERSON CHARGED WITH A VIOLATION OF THIS SECTION FROM ESTABLISHING  262          

IN ACCORDANCE WITH SECTION 2901.05 OF THE REVISED CODE ANY OTHER   263          

AFFIRMATIVE DEFENSE THAT MAY BE AVAILABLE TO THAT PERSON UNDER     264          

THE COMMON LAW OF THIS STATE OR A SECTION OF THE REVISED CODE.                  

      (C)  Whoever violates this section is guilty of menacing, a  266          

misdemeanor of the fourth degree.                                  267          

      Section 2.  That existing sections 2307.60, 2903.21, and     269          

2903.22 of the Revised Code are hereby repealed.                   270