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Sub. S. B. No. 107As Reported by the House Civil and Commercial Law CommitteeAs Reported by the House Civil and Commercial Law Committee
124th General Assembly | Regular Session | 2001-2002 |
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SENATORS Armbruster, Jacobson, Johnson, Blessing, Austria, Amstutz, Hottinger, DiDonato, Harris, Spada, Mumper, Ryan
REPRESENTATIVES Willamowski, Seitz, Latta
A BILL
To amend sections 2307.60, 2307.61, 2307.62, and
4399.18 of the Revised
Code to specify the
circumstances that would bar the
recovery of
damages in tort actions commenced by criminal
offenders.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2307.60, 2307.61, 2307.62, and
4399.18 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.
No record
of a
conviction, unless
obtained by confession in open court,
shall
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, "tort action"
means a civil action for damages for
injury, death, or loss to
person or property 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.
(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, or
to a misdemeanor that is an offense of violence, 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.
Sec. 2307.61. (A) If a property owner brings a civil
action
pursuant to
division (A) of
section 2307.60 of the
Revised
Code
to
recover
damages from any person who willfully damages the
owner's
property
or who commits a theft offense, as defined in
section
2913.01 of
the Revised Code, involving the owner's
property, the
property
owner may recover as follows: (1) In the civil action, the property owner may elect to
recover moneys as described in division (A)(1)(a) or (b) of this
section: (a) Compensatory damages that may include, but are not
limited to, the value of the property and liquidated damages in
whichever of the following amounts applies: (i) Fifty dollars, if the value of the property was fifty
dollars or less at the time it was willfully damaged or was the
subject of a theft offense; (ii) One hundred dollars, if the value of the property was
more than fifty dollars, but not more than one hundred dollars,
at
the time it was willfully damaged or was the subject of a
theft
offense; (iii) One hundred fifty dollars, if the value of the
property was more than one hundred dollars at the time it was
willfully damaged or was the subject of a theft offense. (b) Liquidated damages in whichever of the following
amounts
is greater: (ii) Three times the value of the property at the time it
was willfully damaged or was the subject of a theft offense,
irrespective of whether the property is recovered by way of
replevin or otherwise, is destroyed or otherwise damaged, is
modified or otherwise altered, or is resalable at its full market
price. This division does not apply to a check, negotiable order
of
withdrawal, share draft, or other negotiable instrument that
was returned or
dishonored for insufficient funds by a financial
institution if the check,
negotiable order of withdrawal, share
draft, or other negotiable instrument
was presented by an
individual borrower to a check-cashing business licensed
pursuant
to sections 1315.35 to 1315.44 of the Revised Code for a
check-cashing loan
transaction. (2) In a civil action in which the value of the property
that was willfully damaged or was the subject of a theft offense
is less than five thousand dollars, the property owner may
recover
damages as described in division (A)(1)(a) or (b) of this
section
and additionally may recover the reasonable
administrative costs,
if any, of the property owner that were
incurred in connection
with actions taken pursuant to division
(A)(2) of this section,
the cost of maintaining the civil action,
and reasonable
attorney's fees, if all of the following apply: (a) The property owner, at least thirty days prior to the
filing of the civil action, serves a written demand for payment
of
moneys as described in division (A)(1)(a) of this section and
the
reasonable administrative costs, if any, of the property
owner
that have been incurred in connection with actions taken
pursuant
to division (A)(2) of this section, upon the person who
willfully
damaged the property or committed the theft offense. (b) The demand conforms to the requirements of division
(C)
of this section and is sent by certified mail, return receipt
requested. (c) Either the person who willfully damaged the property
or
committed the theft offense does not make payment to the
property
owner of the amount specified in the demand within
thirty days
after the date of its service upon that person
and does not
enter
into an agreement with the property owner during that
thirty-day
period for that payment or the person who willfully
damaged the
property or committed the theft offense enters into
an agreement
with the property owner during that thirty-day
period for that
payment but does not make that payment in
accordance with the
agreement. (B) If a property owner who brings a civil action pursuant
to
division (A) of
section 2307.60 of the Revised Code to
recover
damages for
willful damage to property or for a theft offense
attempts to
collect the reasonable administrative costs, if any,
of the
property owner that have been incurred in connection with
actions
taken pursuant to division (A)(2) of this section, the
cost of
maintaining the civil action, and reasonable attorney's
fees
under
authority of that division and if the defendant
prevails in
the
civil action, the defendant may recover from the
property
owner
reasonable attorney's fees, the cost of defending
the civil
action, and any compensatory damages that may be proven. (C) For purposes of division (A)(2) of this section, a
written demand for payment shall include a conspicuous notice to
the person upon whom the demand is to be served that indicates
all
of the following: (1) The willful property damage or theft offense that the
person allegedly committed; (2) That, if the person makes payment of the amount
specified in
the demand within thirty days after its service upon
the
person or
enters into an agreement with the property owner
during that
thirty-day period for that payment and makes that
payment in
accordance with the agreement, the person cannot be
sued by
the property owner in a civil action in relation to the
willful property damage or theft offense; (3) That, if the person fails to make payment of the amount
specified in the demand within thirty days after the date of its
service upon the person and fails to enter into an agreement for
that
payment with the property owner during that thirty-day period
or
enters into an agreement for that payment with the property
owner
during that thirty-day period but does not make that payment
in
accordance with the agreement, the person may be sued in a
civil action
in relation to the willful property damage or theft
offense; (4) The potential judgment that the person may be required
to pay if the person is sued in a civil action in relation to the
willful property damage or theft offense and judgment is rendered
against
the person in that civil action; (5) That, if the person is sued in a civil action by the
property owner in relation to the willful property damage or theft
offense, if the civil action requests that the person be
required
to pay
the reasonable administrative costs, if any, of the
property
owner that have been incurred in connection with actions
taken
pursuant to division (A)(2) of this section, the cost of
maintaining the action, and reasonable attorney's fees, and if
the
person prevails in the civil action, the person
may recover from
the property
owner reasonable attorney's fees, the cost of
defending the
action, and any compensatory damages that can be
proved. (D) If a property owner whose property was willfully
damaged
or was the subject of a theft offense serves a written
demand for
payment upon a person who willfully damaged the
property or
committed the theft offense and if the person makes
payment of the
amount specified in the demand within thirty days
after the date
of its service upon the person or the person enters into
an
agreement with the property owner during that thirty-day
period
for that payment and makes payment in accordance with the
agreement, the property owner shall not file a civil action
against the person in relation to the willful property damage or
theft offense. (E) If a property owner whose property was willfully
damaged
or was the subject of a theft offense serves a written
demand for
payment upon a person who willfully damaged the
property or
committed the theft offense and if the person, within
thirty days
after the date of service of the demand upon the
person, enters
into an agreement with the property owner for the payment
of the
amount specified in the demand but does not make that
payment in
accordance with the agreement, the time between the
entering of
the agreement and the failure to make that payment
shall not be
computed as any part of the period within which a
civil action
based on the willful property damage or theft
offense must be
brought under the Revised Code. (F) A civil action to recover damages for willful property
damage or for a theft offense may be joined with a civil action
that is brought pursuant to Chapter 2737. of the Revised Code to
recover the property. If the two actions are joined, any
compensatory damages recoverable by the property owner shall be
limited to the value of the property. (G)(1) In a civil action to recover damages for willful
property damage or for a theft offense, the trier of fact may
determine that an owner's property was willfully damaged or that
a
theft offense involving the owner's property has been
committed,
whether or not any person has pleaded guilty to or has
been
convicted of any criminal offense or has been adjudicated a
delinquent child in relation to any act involving the owner's
property. (2) This section does not affect the prosecution of any
criminal action or
proceeding or any action to obtain a delinquent
child
adjudication in connection with willful property damage or a
theft offense. (H) As used in this section: (1) "Administrative costs" includes the costs of written
demands for payment and associated postage under division (A)(2)
of this section. (2) "Value of the property" means one of the following: (a) The retail value of any property that is offered for
sale by a mercantile establishment, irrespective of whether the
property is destroyed or otherwise damaged, is modified or
otherwise altered, or otherwise is not resalable at its full
market price; (b) The face value of any check or other negotiable
instrument that is not honored due to insufficient funds in the
drawer's account, the absence of any drawer's account, or another
reason, and all charges imposed by a bank, savings and loan
association, credit union, or other financial institution upon
the
holder of the check or other negotiable instrument; (c) The replacement value of any property not described in
division (H)(1) or (2) of this section.
Sec. 2307.62. (A) As used in this section: (1) "Trier of fact" means the jury or, in a nonjury trial,
the court. (2) "Profits" derived from a violation of division
(A) or
(B) of section 2913.041 of the
Revised Code are equal to
whichever
of the following applies: (a) The gross revenue derived from the
violation by the
persons who violated division (A) or
(B) of section 2913.041 of
the Revised
Code, as established by a
preponderance of the
evidence by the owner or operator of the cable
television system
or other similar closed circuit coaxial cable communications
system who is aggrieved by the violation; (b) The gross revenue derived from the
violation by the
persons who violated division (A) or
(B) of section 2913.041 of
the Revised
Code, as established by a
preponderance of the
evidence by the owner or operator of the cable television
system
or other similar closed circuit coaxial cable communications
system who
is aggrieved by the violation, minus deductible
expenses and
other elements of profit that are not attributable to
the
violation of division (A) or (B) of section
2913.041 of the
Revised Code, as established
by a
preponderance of the evidence by
the persons who violated either or both of
those divisions. (B)(1) An owner or operator of a cable
television system or
other similar closed circuit coaxial cable
communications system
who is aggrieved by conduct that is
prohibited by division (A) or
(B) of section
2913.041 of the Revised Code may elect to
commence
a civil action for damages in accordance with
division (A) of
section
2307.60 or
section 2307.61 of the Revised Code or to
commence a civil action under this section in the appropriate
municipal court, county court, or court of common pleas to
recover
damages and other specified moneys described in
division
(B)(1)(a), (b), or
(c) of this section and, if applicable, damages
described in division (B)(2) of this section from the
persons who
violated division (A) or (B) of
section 2913.041 of the Revised
Code. If the
owner or operator elects to commence a civil action
for damages
and other specified moneys under this section, the
owner or
operator shall specify in its complaint which of the
following
categories of damages and other specified moneys the
owner or
operator seeks to recover from the persons who violated
division
(A) or (B) of section 2913.041 of the
Revised Code: (a) Full compensatory damages, punitive or
exemplary damages
if authorized by section 2315.21 of the
Revised Code, and the
reasonable attorney's fees,
court costs, and other reasonable
expenses incurred in maintaining the civil
action under this
section. (b) Damages equal to the actual loss suffered
by the owner
or operator as a proximate result of the conduct
that violated
division (A) or (B) of section
2913.041 of the Revised Code and,
in addition,
damages equal to the profits derived by the persons
who violated
either or both of those divisions as a proximate
result of the
prohibited conduct. (c) Liquidated damages in an amount of not less
than two
hundred fifty dollars and not more than ten thousand
dollars, as
determined by the trier of fact, for each separate
violation of
division (A) or (B) of section
2913.041 of the Revised Code as
described in
division (D) of that section. (2) The trier of fact shall determine the amount of any
compensatory
damages to be awarded pursuant to division (B)(1)(a)
of this section, and the court shall determine the amount of any
punitive or exemplary damages authorized by section 2315.21 of
the
Revised Code and the amount of reasonable
attorney's fees, court
costs, and other reasonable expenses to be
awarded pursuant to
division (B)(1)(a) of
this section. The trier of fact shall
determine the amount of damages to be
awarded to the owner or
operator under division
(B)(1)(b) of this section. (3) In a civil action under this section, if an owner
or
operator of a cable television system or other similar closed
circuit coaxial cable communications system establishes by a
preponderance of the evidence that the persons who violated
division (A) or (B) of section 2913.041 of the
Revised Code
engaged in the prohibited conduct
for the purpose of direct or
indirect commercial advantage or
private financial gain, the trier
of fact may award to the owner
or operator damages in an amount
not to exceed fifty thousand
dollars in addition to any amount
recovered pursuant to
division (B)(1)(a), (b), or (c) of this
section, whichever of those divisions
applies to the owner or
operator. (C) A person may join a civil action under this
section with
a civil action under Chapter 2737. of the
Revised Code to recover
any property of the
owner
or operator of a cable television system
or other similar closed
circuit coaxial cable communications
system that was the subject
of the violation of division (A) or
(B) of
section 2913.041 of the Revised Code. A person
may
commence
a civil
action under this section regardless of whether
any
person who allegedly violated either or both of those
divisions
has pleaded guilty to or has been convicted of a
violation of
either or both of those divisions or has been
adjudicated a
delinquent child for the commission of any act that
constitutes a
violation of either or both of those divisions.
Sec. 4399.18. Notwithstanding
division (A) of section
2307.60
of the Revised
Code and except
as
otherwise provided in
this section and in
section 4399.01 of
the
Revised Code, no
person, and no executor or
administrator of the
person, who
suffers personal
injury, death,
or
property damage as
a result
of
the actions of an
intoxicated
person has a cause of
action against
any liquor permit holder or
an employee
of a liquor permit holder
who
sold beer or
intoxicating liquor to the intoxicated person
unless
the injury,
death, or property damage
occurred on the
permit
holder's premises
or in a parking
lot
under
the control
of
the
permit holder and
was
proximately caused by the negligence of
the
permit holder
or
an employee of the permit holder.
A
person
has a
cause of action
against a permit holder or
an
employee
of a
permit holder for
personal injury,
death,
or property
damage
caused by the negligent
actions of an
intoxicated
person occurring
off the
premises or
away
from a
parking lot
under the permit
holder's control only
when
both of
the
following
can be shown by a
preponderance of the
evidence: (A) The permit holder or
an employee
of the permit
holder
knowingly sold an
intoxicating beverage to at
least one of
the
following: (1) A noticeably intoxicated person in violation of
division
(B) of section 4301.22 of the Revised Code; (2) A person in violation of division (C) of section
4301.22
of the Revised Code; (3) A person in violation of section 4301.69 of the
Revised
Code. (B) The person's intoxication proximately caused the
personal injury, death, or property
damage. Notwithstanding sections 4399.02 and 4399.05 of the Revised
Code, no person, and no executor or administrator of the
person,
who suffers personal injury, death, or
property damage as a
result
of the actions
of an intoxicated person has a cause of
action
against
the owner of a building or premises who rents or
leases
the
building or premises to a liquor permit holder against
whom a
cause of action may be brought under this section, except
when the
owner and the permit holder are the same person.
Section 2. That existing sections 2307.60, 2307.61, 2307.62,
and 4399.18 of the Revised Code are hereby repealed.
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