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
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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
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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
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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
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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
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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
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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