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As Introduced
122nd General Assembly
Regular Session
1997-1998 | H. B. No. 547 |
REPRESENTATIVES GRENDELL-THOMAS-NETZLEY-CATES-WESTON-OPFER-
THOMPSON-GARCIA-HOOD-WHALEN-PRINGLE-LUCAS-YOUNG-
KRUPINSKI-BATCHELDER
A BILL
To amend sections 2307.60, 2903.21, and 2903.22 of the Revised Code to expand
the bar against the recovery of damages in tort actions
commenced by criminal
offenders to include felony and misdemeanor violations of Ohio and federal
law, to establish an offender's related
assumption of the inherent risk of the
occurrence of harm as a result of a victim's or other
person's use of
reasonably necessary force for defense purposes, and to
establish a specified
type of self-defense and defense of a third
person as an
affirmative defense
to aggravated menacing and
menacing.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2307.60, 2903.21, and 2903.22 of the Revised Code be
amended to read as follows:
Sec. 2307.60. (A) 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, may recover the costs of maintaining the civil action and attorney's fees
if authorized by any provision of the Rules of Civil Procedure or another
section
of the Revised Code or under the common law of this state, and may recover
punitive or exemplary damages if authorized by section 2315.21 or another
section of the Revised Code. A record of a conviction, unless
obtained by confession in open court, shall not be used as evidence in a civil
action brought pursuant to division (A) of this section.
(B)(1) As used in division (B) of this section:
(a) "Harm" means injury, death, or loss to person or property.
(b) "Tort action" means a civil action for damages for injury, death, or loss
to person or property. "Tort action" includes a product liability
claim but does not include OTHER THAN a civil action
for damages for a breach of contract or another agreement between
persons. "TORT ACTION" INCLUDES, BUT IS NOT LIMITED TO, A PRODUCT
LIABILITY CLAIM, AN ACTION FOR WRONGFUL DEATH UNDER CHAPTER 2125.
of the Revised Code, AND AN ACTION BASED ON DERIVATIVE CLAIMS FOR RELIEF.
(c) "Trier of fact" means the jury or, in a nonjury action, the court
VIOLATION OF LAW" MEANS A VIOLATION OF A SECTION of the Revised Code, A MUNICIPAL
ORDINANCE THAT IS SUBSTANTIALLY SIMILAR TO A SECTION of the Revised Code, OR A LAW OF THE
UNITED STATES THAT CONSTITUTES A FELONY, A MISDEMEANOR, OR
A CONSPIRACY TO COMMIT, ATTEMPT TO COMMIT, OR COMPLICITY IN COMMITTING A
FELONY OR MISDEMEANOR.
(2) Recovery on a claim for relief in a tort action is barred to any
person
or the person's legal representative if the person has been convicted of or
has pleaded guilty to a felony offense arising out of criminal conduct that
was a proximate cause of the injury or loss for which relief is claimed in the
action.
(3) Division (B) of this section does not apply
to civil claims based upon alleged intentionally tortious conduct, alleged
violations of the United States Constitution, or alleged
violations of statutes of the United States pertaining to civil rights.
(a) ALL PERSONS WHO COMMIT A VIOLATION OF LAW IN THIS STATE
ASSUME THE INHERENT RISK OF THE OCCURRENCE OF HARM AS A RESULT OF THE VICTIM
OF THAT VIOLATION OF LAW OR ANOTHER PERSON ON BEHALF OF THAT VICTIM USING
REASONABLY NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD
PERSON PURPOSES, EXCEPT AN INHERENT RISK OF THE OCCURRENCE OF HARM FROM
CONDUCT THAT VIOLATES THE UNITED STATES
CONSTITUTION, THE CONSTITUTION OF THIS STATE, OR THE
STATUTES OF THIS STATE OR THE UNITED STATES PERTAINING TO
CIVIL RIGHTS.
(b) ALL PERSONS WHO COMMIT A VIOLATION OF LAW IN THIS STATE SHALL
BE CONSIDERED AS A MATTER OF LAW TO HAVE KNOWLEDGE OF THE RISK OF THE
OCCURRENCE OF HARM AS A RESULT OF THE VICTIM OF THAT VIOLATION OF LAW OR
ANOTHER PERSON ON BEHALF OF THAT VICTIM USING REASONABLY NECESSARY FORCE FOR
SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES, EXCEPT KNOWLEDGE
OF THE INHERENT RISK OF THE OCCURRENCE OF HARM FROM CONDUCT THAT VIOLATES THE
UNITED STATES CONSTITUTION, THE
CONSTITUTION OF THIS STATE, OR THE STATUTES OF THIS STATE OR THE
UNITED STATES PERTAINING TO CIVIL RIGHTS.
(3) A DEFENDANT IN A TORT ACTION COMMENCED ON OR AFTER THE EFFECTIVE DATE
OF THIS AMENDMENT IS NOT LIABLE IN DAMAGES TO THE PLAINTIFF IN THE ACTION IF
ALL OF THE FOLLOWING APPLY:
(a) THE ACTION IS BASED ON HARM THAT THE DEFENDANT OR THE PERSON
FOR WHOM THE DEFENDANT IS PERSONAL REPRESENTATIVE ALLEGEDLY CAUSED TO THE
PLAINTIFF OR THE PERSON FOR WHOM THE PLAINTIFF IS PERSONAL REPRESENTATIVE.
(b) THE PLAINTIFF OR THE PERSON FOR WHOM THE PLAINTIFF IS
PERSONAL REPRESENTATIVE ALLEGEDLY SUSTAINED THE HARM REFERRED TO IN
DIVISION (B)(3)(a) OF THIS SECTION WHILE ENGAGED IN A
VIOLATION OF LAW.
(c) THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS
PERSONAL REPRESENTATIVE ALLEGEDLY CAUSED THE HARM REFERRED TO IN DIVISION
(B)(3)(a) OF THIS SECTION WHILE THE DEFENDANT OR THAT
PERSON WAS A VICTIM OF THE VIOLATION OF LAW REFERRED TO IN DIVISION
(B)(3)(b) OF THIS SECTION AND WHILE USING REASONABLY
NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON
PURPOSES.
(d) THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS
PERSONAL REPRESENTATIVE DID NOT CAUSE THE HARM REFERRED TO IN DIVISION
(B)(3)(a) OF THIS SECTION WHILE ENGAGING IN CONDUCT THAT
VIOLATES THE UNITED STATES CONSTITUTION, THE
CONSTITUTION OF THIS STATE, OR THE STATUTES OF THIS STATE OR THE
UNITED STATES PERTAINING TO CIVIL RIGHTS.
(4) NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS SECTION OR ANOTHER
SECTION of the Revised Code OR ANY CONTRARY COMMON LAW OF THIS STATE, IF A DEFENDANT REFERRED
TO IN DIVISION (B)(3) OF THIS SECTION RAISES AS AN AFFIRMATIVE
DEFENSE AND ESTABLISHES AT ANY STAGE OF A TORT ACTION THAT THE HARM THAT THE
PLAINTIFF OR THE PERSON REPRESENTED BY THE PLAINTIFF ALLEGEDLY SUSTAINED WAS
CAUSED UNDER THE CIRCUMSTANCES REFERRED TO IN DIVISIONS
(B)(3)(a) TO (c) OF THIS SECTION AND THAT
THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS PERSONAL REPRESENTATIVE
DID NOT CAUSE THAT HARM WHILE ENGAGED IN CONDUCT REFERRED TO IN DIVISION
(B)(3)(d) OF THIS SECTION, THE ASSUMPTION OF THE INHERENT
RISK OF THE OCCURRENCE OF HARM DESCRIBED IN DIVISION
(B)(2)(a) OF THIS SECTION SHALL BE A COMPLETE DEFENSE TO
THE PLAINTIFF'S CLAIMS FOR RELIEF IN THE ACTION AND SHALL BAR THE PLAINTIFF'S
RECOVERY OF DAMAGES IN THE ACTION.
(5) THE PROVISIONS OF DIVISION (B) OF THIS SECTION ARE AVAILABLE
TO A DEFENDANT DESCRIBED IN DIVISION (B)(3) OF THIS SECTION WHETHER
OR NOT THE PLAINTIFF OR THE PERSON REPRESENTED BY THE PLAINTIFF HAS BEEN
CHARGED BY AN INDICTMENT, INFORMATION, OR COMPLAINT WITH A VIOLATION OF LAW,
HAS BEEN FOUND GUILTY OF OR PLEADED GUILTY TO A VIOLATION OF LAW, OR HAS BEEN
ADJUDICATED TO BE A DELINQUENT CHILD FOR HAVING COMMITTED A VIOLATION OF LAW.
(6)(a) DIVISION (B) OF THIS SECTION DOES NOT CREATE A
NEW CAUSE OF ACTION OR SUBSTANTIVE LEGAL RIGHT AGAINST A PERSON THAT OR THE
ESTATE OF A PERSON THAT USES REASONABLY NECESSARY FORCE FOR SELF-DEFENSE
PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES.
(b) DIVISION (B) OF THIS SECTION DOES NOT AFFECT ANY
IMMUNITIES FROM OR DEFENSES TO TORT LIABILITY ESTABLISHED BY SECTION 2305.40
OR OTHER SECTIONS of the Revised Code OR AVAILABLE AT COMMON LAW TO WHICH A PERSON THAT OR
THE ESTATE OF A PERSON THAT USES REASONABLY NECESSARY FORCE FOR SELF-DEFENSE
PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES MAY BE ENTITLED.
Sec. 2903.21. (A) No person shall knowingly cause another to believe that
the offender will cause serious physical harm to the person or property of
such THE other person, such TO THE other person's
unborn, or
TO a member of the other person's immediate family.
(B)(1) IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE OF AN ALLEGED
VIOLATION OF THIS SECTION THAT, AT THE TIME OF THE ALLEGED VIOLATION, ALL OF
THE FOLLOWING APPLIED:
(a) THE ALLEGED OFFENDER WAS THE OWNER, LESSEE, OR RENTER OF REAL
PROPERTY OR A MEMBER OF THE OWNER'S, LESSEE'S, OR RENTER'S FAMILY WHO RESIDES
ON THE REAL PROPERTY.
(b) THE ALLEGED OFFENDER WAS LOCATED INSIDE A BUILDING OR OTHER
STRUCTURE ON THE REAL PROPERTY DESCRIBED IN DIVISION
(B)(1)(a) OF THIS SECTION THAT IS MAINTAINED AS A
PERMANENT OR TEMPORARY
DWELLING, OR THE ALLEGED OFFENDER WAS LOCATED ON THE PREMISES OF THE REAL
PROPERTY DESCRIBED IN DIVISION (B)(1)(a) OF THIS
SECTION BUT OUTSIDE OF A BUILDING OR OTHER STRUCTURE OF THAT NATURE.
(c) THE ALLEGED OFFENDER WAS ENGAGED IN A LAWFUL ACTIVITY INSIDE
THE BUILDING OR OTHER STRUCTURE, OR ON THE PREMISES, DESCRIBED IN DIVISION
(B)(1)(b) OF THIS SECTION.
(d) AS A PRUDENT PERSON WHO WAS ACTING UNDER THE CIRCUMSTANCES
PRESENT IN A MANNER CONSISTENT WITH THE COMMON LAW OF THIS STATE OR A SECTION
of the Revised Code, THE ALLEGED OFFENDER WAS LEGALLY JUSTIFIED IN USING A THREAT OF SERIOUS
PHYSICAL HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON FOR PURPOSES OF
SELF-DEFENSE OR DEFENSE OF A THIRD PERSON, INCLUDING, BUT NOT LIMITED TO, A
THREAT OF SERIOUS PHYSICAL HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON
BY THE USE OF A DEADLY WEAPON, AS DEFINED IN SECTION 2923.11 of the Revised Code, THAT THE
ALLEGED OFFENDER LAWFULLY POSSESSED AND EITHER CARRIED OR HAD READY AT HAND
FOR DEFENSIVE OR OTHER LAWFUL PURPOSES.
(2) DIVISION (B)(1) OF THIS SECTION DOES NOT PRECLUDE A PERSON
CHARGED WITH A VIOLATION OF THIS SECTION FROM ESTABLISHING IN ACCORDANCE WITH
SECTION 2901.05 of the Revised Code ANY OTHER AFFIRMATIVE DEFENSE THAT MAY BE AVAILABLE TO
THAT PERSON UNDER THE COMMON LAW OF THIS STATE OR A SECTION of the Revised Code.
(C) Whoever violates this section is guilty of aggravated menacing,
a misdemeanor of the first degree.
Sec. 2903.22. (A) No person shall knowingly cause another to believe that
the offender will cause physical harm to the person or property of such
THE other
person, such TO THE other person's unborn, or TO a member
of
the other person's immediate family.
(B)(1) IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE OF AN ALLEGED
VIOLATION OF THIS SECTION THAT, AT THE TIME OF THE ALLEGED VIOLATION, ALL OF
THE FOLLOWING APPLIED:
(a) THE ALLEGED OFFENDER WAS THE OWNER, LESSEE, OR RENTER OF REAL
PROPERTY OR A MEMBER OF THE OWNER'S, LESSEE'S, OR RENTER'S FAMILY WHO RESIDES
ON THE REAL PROPERTY.
(b) THE ALLEGED OFFENDER WAS LOCATED INSIDE A BUILDING OR OTHER
STRUCTURE ON THE REAL PROPERTY DESCRIBED IN DIVISION
(B)(1)(a) OF THIS SECTION THAT IS MAINTAINED AS A
PERMANENT OR TEMPORARY
DWELLING, OR THE ALLEGED OFFENDER WAS LOCATED ON THE PREMISES OF THE REAL
PROPERTY DESCRIBED IN DIVISION (B)(1)(a) OF THIS
SECTION BUT OUTSIDE OF A BUILDING OR OTHER STRUCTURE OF THAT NATURE.
(c) THE ALLEGED OFFENDER WAS ENGAGED IN A LAWFUL ACTIVITY INSIDE
THE BUILDING OR OTHER STRUCTURE, OR ON THE PREMISES, DESCRIBED IN DIVISION
(B)(1)(b) OF THIS SECTION.
(d) AS A PRUDENT PERSON WHO WAS ACTING UNDER THE CIRCUMSTANCES
PRESENT IN A MANNER CONSISTENT WITH THE COMMON LAW OF THIS STATE OR A SECTION
of the Revised Code, THE ALLEGED OFFENDER WAS LEGALLY JUSTIFIED IN USING A THREAT OF PHYSICAL
HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON FOR PURPOSES OF
SELF-DEFENSE OR DEFENSE OF A THIRD PERSON, INCLUDING, BUT NOT LIMITED TO, A
THREAT OF PHYSICAL HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON BY THE
USE OF A DEADLY WEAPON, AS DEFINED IN SECTION 2923.11 of the Revised Code, THAT THE ALLEGED
OFFENDER LAWFULLY POSSESSED AND EITHER CARRIED OR HAD READY AT HAND FOR
DEFENSIVE OR OTHER LAWFUL PURPOSES.
(2) DIVISION (B)(1) OF THIS SECTION DOES NOT PRECLUDE A PERSON
CHARGED WITH A VIOLATION OF THIS SECTION FROM ESTABLISHING IN ACCORDANCE WITH
SECTION 2901.05 of the Revised Code ANY OTHER AFFIRMATIVE DEFENSE THAT MAY BE AVAILABLE TO
THAT PERSON UNDER THE COMMON LAW OF THIS STATE OR A SECTION of the Revised Code.
(C) Whoever violates this section is guilty of menacing, a
misdemeanor of the fourth degree.
Section 2. That existing sections 2307.60, 2903.21, and 2903.22 of the Revised
Code are hereby repealed.
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