Opinion
No. 89-4148.
Decided December 9, 1991.
Williams, Jilek, Lafferty Gallagher Co., L.P.A., Thomas W. Gallagher and Martin Williams, for plaintiff.
Robison, Curphey O'Connell, E. Thomas McGuire and Julia Smith Wiley, for defendant Flower Memorial Hospital.
Jacobson, Maynard, Tuschman Kalur Co., L.P.A., and Robert C. Maynard, for defendant Toledo Radiological Associates, Inc.
This matter is before the court on the motion in limine and supporting memorandum filed by plaintiff, John C. Ellenwood, Administrator of the Estate of Martha E. Ellenwood, deceased; the memorandum in opposition of defendants, Toledo Radiological Associate, Inc., Allen S. Kaufman, M.D., and Harry L. Snyder, M.D.; and plaintiff's reply memorandum. For the following reasons, I find that the motion in limine should be granted.
I
The overall issue presented in this motion in limine is whether the adult children of Martha E. Ellenwood, the decedent in this wrongful death action, can claim compensatory damages. If they are so entitled, their testimony as to their damages is relevant and should be admitted. If they are not permitted to so recover, their testimony is not relevant and must be excluded.
II
The general rules governing motions in limine are well established. In State v. Spahr (1976), 47 Ohio App.2d 221, 1 O.O.3d 289, 353 N.E.2d 624 the court held at paragraph one of the syllabus that:
"As related to trial, a motion in limine is a precautionary request, directed to the inherent discretion of the trial judge, to limit the examination of witnesses by opposing counsel in a specified area until its admissibility is determined by the court outside the presence of the jury."
In Riverside Methodist Hosp. Assn. v. Guthrie (1982), 3 Ohio App.3d 308, 310, 3 OBR 355, 357, 444 N.E.2d 1358, 1361, the Court of Appeals for Franklin County set forth a two-step procedure required under a motion in limine:
"* * * First, a consideration of the motion in limine as to whether any reference to the area in question should be precluded until admissibility can be ascertained during trial. Second, at the time when the party desires to introduce the evidence which is the subject of the motion in limine, there must be a second hearing or determination by the trial court as to the admissibility of the evidence, which is then determined by the circumstances and evidence adduced in the trial and the issues raised by the evidence. * * *"
Simply precluding the admissibility of the evidence at the first stage of the procedure "decides nothing and resolves nothing." Spahr, supra, 47 Ohio App.2d at 225, 1 O.O.3d at 292, 353 N.E.2d at 627. Rather, it is incumbent by the motion in limine to introduce the evidence by either proffer or otherwise at the trial. State v. Grubb (1986), 28 Ohio St.3d 199, 28 OBR 285, 503 N.E.2d 142. This two-step process ensures that the court has an opportunity to make a final determination on the admissibility of the evidence and to preserve any objection on the record for purposes of appeal. Id. at 203, 28 OBR at 289, 503 N.E.2d at 146.
III
Ohio's wrongful death statute sets forth the following provision for compensatory damages in R.C. 2125.02(B):
"Compensatory damages may be awarded in an action for wrongful death and may include damages for the following:
"* * *
"(3) Loss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving spouse, minor children, parents, or next of kin;
"* * *
"(5) The mental anguish incurred by the surviving spouse, minor children, parents, or next of kin." (Emphasis added.)
Essentially, plaintiff contends that proper interpretation of the statute requires this court to include decedent's adult children under the "next of kin" clause of the statute. Alternatively, plaintiff argues that there is no rational basis for distinguishing adult children from other next of kin and that such an interpretation of the statute would render it violative of the Equal Protection Clause of the Ohio Constitution. For their part, defendants assert that the statute expressly precludes adult children from recovery in Ohio wrongful death actions.
It is well settled that R.C. 2115.02, as amended effective February 5, 1982, is remedial in nature. French v. Dwiggins (1984), 9 Ohio St.3d 32, 9 OBR 123, 458 N.E.2d 827, syllabus. As stated in Burton v. DePew (1988), 47 Ohio App.3d 107, 109, 547 N.E.2d 995, 996, R.C. 1.11 requires that remedial legislation be liberally construed. Yet despite the acceptance of this general rule, three interpretations of the statute have developed. On the restrictive end of the spectrum, there is some federal authority supporting the proposition that the statute categorically prohibits wrongful death actions on behalf of adult children. A more moderate view, stated by Judge John W. McCormac, interprets the statute as allowing adult children to recover only if the decedent is survived by neither a spouse, parent, nor minor child. Finally, the most recent decisions abandon Judge McCormac's "either/or" analysis altogether and adopt a more liberal view. This view supports the proposition that adult children can collect irrespective of the status of the other specifically listed parties in the statute.
A Restrictive View
The view that Ohio's wrongful death statute contemplates damages only for the decedent's minor children was advanced in Urseth v. Dayton (S.D. Ohio 1987), 680 F. Supp. 1150. In Urseth, the court, at 1155, citing R.C. 2125.02(B)(3), made the following interpretation:
"[T]his Court would point out that damages for loss of society of the decedent can be awarded to the decedent's children only if those children are minors * * *." (Emphasis sic.)
The court, moreover, applied identical rationale with respect to mental anguish. Id. at 1157.
This view must be rejected for three reasons. First, the opinion is supported by neither case law nor a compelling rationale. Second, the Urseth holding is well in the minority, the weight of the authority resting with the other two interpretations. Finally, the decision is not binding upon this court.
B The McCormac View
The McCormac interpretation of R.C. 2125.02(B) would permit adult children to recover only if the decedent is survived by neither a spouse, parent, nor minor child. Judge John W. McCormac has advocated this approach in his treatise, Wrongful Death in Ohio (1982), Section 3.05, at 19:
"Revised Code R.C. § 2125.02(B)(3) provides for damages for loss of society incurred by the surviving spouse, minor children, parents, or next of kin. The adult children are not specifically named, and if eligible to recover damages for loss of society, it is by being `next of kin.' Ordinarily, adult children will be more likely to incur loss of society damages than a brother or sister who qualifies as next of kin. Thus it is logical that an adult child can prove damages for loss of society any time that `next of kin' can do so. `Next of kin' is preceded by the word `or.' It appears that the intent of the general assembly was to allow next of kin to recover for loss of society damages only if there is no beneficiary who qualifies as a spouse, parent or minor child."
Judge McCormac, moreover, applies this exact analysis regarding mental anguish damages. Id. at 21, Section 3.07. Additionally, he justifies the disparate treatment between adult and minor children as follows:
"[M]inor children are treated separately from adult children so far as damages for loss of society and mental anguish are concerned. It appears that the general assembly did not intend to give the right to adult children to claim damages for these items of loss unless the decedent was not survived by a spouse, minor child or a parent, in which case next of kin could prove damages for loss of society and mental anguish and the adult children would qualify as next of kin." Id. at 13, Section 2.07.
Judge McCormac's analysis has been approved in the Ohio cases of Molton v. Cleveland (C.A.6, 1988), 839 F.2d 240, 250; and Bennett v. Cleveland (June 5, 1986), Cuyahoga App. No. 50479, unreported, 1986 WL 6357, neither of which is binding upon this court.
In support of his proposition, Judge McCormac notes that the statute specifically names "minor children" and that it lists "next of kin" after the conjunction "or." He then notes that an adult child is more likely to incur loss of society or anguish damages than, for instance, a brother or sister of the deceased. From there, he concludes that, if the General Assembly had intended that adult children recover, it would not have specified "minor" children before the "or" conjunction.
Subsequent case law, however, has rejected Judge McCormac's "either/or" approach. Additionally, a practical application of Judge McCormac's axiom presents constitutional difficulties. These issues are addressed in the remainder of this opinion.
C Liberal View
Since Molton, supra, and Bennett, supra, were decided, three Ohio appellate courts, including the Sixth District, have read R.C. 2125.02(B) in conjunction with R.C. 2125.02(A)(1). R.C. 2125.02(A)(1) states, in relevant part:
"An action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the exclusive benefit of the other next of kin of decedent." (Emphasis added.)
In Parker v. Bd. of Edn. Sylvania City School Dist. (Mar. 11, 1988), Lucas App. No. L-87-028, unreported, 1988 WL 30518, motion for rehearing denied (Sept. 28, 1988), 39 Ohio St.3d 717, 534 N.E.2d 92, a minor child's executor brought a wrongful death action for the benefit of the decedent's parents and sisters. The defendant, citing Judge McCormac's treatise, alleged that, since the decedent's parents were testifying as to their loss of society and mental anguish, the lower court erred by also permitting the sisters, as next of kin, to testify. The court flatly rejected this approach, stating that pursuant to R.C. 2125.02(A)(1), the decedent's parents were rebuttably presumed to have suffered damages but that it was necessary for the decedent's sisters, or next of kin, to prove their damages by the preponderance of the evidence. Id. at 21. In In re Estate of Forbes (Aug. 25, 1988), Cuyahoga App. No. 54226, unreported, 1988 WL 88853, the Eighth District Court of Appeals used the identical rationale in permitting a claim to be filed on behalf of the decedent's sister even though the decedent's wife and minor children were entitled to proceeds from the defendant-tortfeasor. Id. at 8.
Since then, moreover, Ohio's Fifth Appellate District has followed suit. In Ramage v. Central Ohio Emergency Serv., Inc. (Dec. 20, 1990), Guernsey App. Nos. 90-CA-20, 89-CA-49, 89-CA-43, unreported, 1990 WL 237257, appeal pending in Nos. 91-351, 91-370 and 91-371, the court expressly rejected the defendant-tortfeasor's reliance on Section 2.07 of Judge McCormac's treatise and allowed the decedent's grandparents to testify as to their damages. Id. at 15-16.
Expansive interpretations of wrongful death statutes have also enjoyed academic support. See, e.g., Comment, Issues Complicating Rights of Spouses, Parents and Children to Sue for Wrongful Death (1986), 19 Akron L.Rev. 419.
IV
In this case, application of the third view is appropriate, first because it is required by the applicable rules of construction and second because of the requirement of equal protection under the law.
R.C. 1.11 and 1.02(F) both provide rules of construction applicable to the wrongful death provisions at issue here. R.C. 1.11 requires a liberal interpretation of these provisions. See Burton v. DePew, supra. R.C. 1.02(F) calls for a practical reading of Ohio statutes. It states that "`[a]nd' may be read `or,' and `or' may be read `and' if the sense requires it."
The second reason for adoption of the liberal view in this case is the requirement of equal protection of the laws, found in the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and in Article I, Section 2 of the Ohio Constitution. Assume that a woman dies as a result of a tortfeasor's negligence. She is survived by her husband, her parents, a seventeen-year-old son, and a nineteen-year-old daughter. If the defendants' interpretation of the wrongful death provisions were binding, all but the nineteen-year-old would be entitled to recovery. There is no rational basis for such a classification.
In Levy v. Louisiana (1968), 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, the United States Supreme Court examined a Louisiana wrongful death statute which authorized actions on behalf of legitimate children but precluded actions on behalf of illegitimate children. Speaking for the majority, Justice William O. Douglas stated that there was not even a rational basis for this legitimacy classification and that it was thus unconstitutional. Id. at 72, 88 S.Ct. at 1511, 20 L.Ed.2d at 439. In his dissenting opinion, Justice John M. Harlan concluded that since wrongful death statutes stemmed from the existence of a family relationship, the legitimacy classification was rational. Id. at 80, 82, 88 S.Ct. at 1514, 1515, 20 L.Ed.2d at 446, 447.
In the instant case, the adult-child classification is even more arbitrary than the legitimacy classification presented in Levy. As the hypothetical stated above illustrates, a wrongful death can easily disrupt a solid family relationship; yet defendants' interpretation of Ohio's wrongful death statute would capriciously distinguish the nineteen year old from the rest of her family. Such a result serves absolutely no interest and, accordingly, would not even pass Justice Harlan's muster.
Having decided that a decedent's next of kin are entitled to recover in a wrongful death action, it must now be determined whether or not adult children are next of kin. In Karr v. Sixt (1946), 146 Ohio St. 527, 33 O.O. 14, 67 N.E.2d 331, the Supreme Court of Ohio noted that, historically, the phrase "next of kin" has included those persons who stood in the order of intestate succession. Id. at 533, 33 O.O. at 16, 67 N.E.2d at 335. Accordingly, the decedent's adult children are entitled to recover since "children," in the absence of a surviving spouse, stand first in line under Ohio's intestate succession provisions. R.C. 2105.06.
V
A liberal interpretation of Ohio's wrongful death statute that would permit adult children to recover in every case is required by rules of construction, case law from Ohio appellate courts, and the requirements of equal protection of the law. Plaintiff's motion in limine must be granted under this interpretation. In the alternative, the interpretation urged by Judge McCormac also requires that the motion in limine be granted since the decedent in this case was survived by neither a spouse, parent, nor minor child.
Order
The court finds that plaintiff's motion in limine is well taken, and it is ORDERED that plaintiff may present evidence and argument as to damages suffered by the decedent's adult children at the trial of this case.
So ordered.