Pavlides v. Niles Gun Show, Inc. , 112 Ohio App. 3d 609 ( 1996 )

In most cases with this procedural posture, that is, where the court has ruled earlier and the majority of the members of the court are in agreement, I would probably concur in the result based primarily on the law of the case. However, because I believe that this case presents precedent for far-reaching, undesirable results, I must dissent. I believe this court should revisit its earlier decision and reverse itself. Weaver v.Motorists Mut. Ins. Co., supra.

First, I would sustain Assignments of Error I, II, and III. The law of Ohio, as pronounced by the Supreme Court, is clear and controlling. In Simpson v. Big Bear Stores Co., supra, the court reiterated its earlier holding in Littleton v. Good Samaritan Hosp. Health Ctr. (1988), 39 Ohio St.3d 86, 92,529 N.E.2d 449, 454-455, adopting Sections 314 and 315 of 2 Restatement of the Law 2d, Torts (1965). Section 315 provides:

"There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

"(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

"(b) a special relation exists between the actor and the other which gives to the other a right to protection."

Section 314 states:

"The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."

It is clear that no special relationship existed between the plaintiff and the defendant in this case. Therefore, to find some duty on the part of defendant is to extend the concept of imposing financial liability for the criminal conduct of a third person to new heights. The courts simply cannot find ways in every tragic case to satisfy ever-increasing financial demands.

The majority seems to distinguish Simpson and the instant case on some "premises liability" concept. However, the plaintiff in Simpson was off the premises of the defendant. In the instant case, the plaintiff was not only never on the defendant's premises, but he was injured miles away by a thief and would-be murderer.

Additionally, I would reverse, at the very least, on Assignments of Error V, VI, and VII, as they relate to the punitive damages award.

Once again, the Ohio Supreme Court has spoken and the law is clear. In Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 659 N.E.2d 1242, the syllabus reads:

"Absent proof of a defendant's subjective knowledge of danger posed to another, a punitive damages claim against that defendant premised on the `conscious disregard' theory of malice is not warranted."

The court went on to say:

"As Chief Justice Moyer noted in Preston [v. Murty (1987),32 Ohio St.3d 334, 512 N.E.2d 1174], an award of punitive damages based on conscious disregard malice requires `a positive element of conscious wrongdoing* * *. This element has been termed conscious, deliberate, or intentional. It requires the party to possess knowledge of the harm that might be caused by his behavior.'" Malone at 446, 659 N.E.2d at 1247-1248.

There is simply a failure of proof that the defendant's actions in this case were either conscious, deliberate, or intentional wrongdoings.

It follows that if the punitive damage award is not warranted then, at least, the compensatory award should be reduced by the comparative negligence findings.

I would reverse on Assignment of Error IX because I believe that if it is not an example of the extension of expert testimony into "junk science," then the so-called expert testimony is totally uncalled for.

I concur with the overruling of Assignments of Error IV and VIII.