On its face, the statute provides that only claims involving injury to the "person or property" survive death. Under Ohio law, emotional distress is considered damage to the "person." See, e.g., Bowman v. Parma Bd. of Ed., 542 N.E.2d 663 (Ohio Ct. App. 1988)(claim for psychic injury or infliction of serious emotional distress survived death of person upon whom injury or distress was inflicted); see also, Tinney v. Richland County, 2014 WL 6896256 (N.D. Oh. Dec. 8, 2014). Here, plaintiff alleges that Elliott suffered severe emotional distress in the form of "pre-death terror, physical pain, and mental anguish up to the time of his death."
However, violation of personal rights is not a physical injury. Tinney v. Richland County, No. 1:14CV703, 2014 WL 6896256 at *2 (N.D. Ohio Dec. 8, 2014) ; Witcher v. Fairlawn , 113 Ohio App.3d 214, 680 N.E.2d 713 (1996) ; Murray v. State , 2002–Ohio–664, 2002 WL 337732, *3 (Ohio App. 8 Dist. 2002). Allegations of physical or emotional harm, even due to egregiously long wrongful incarceration, do not convert civil rights violations into the type of tort causes of actions that are not abated by defendant's death.
Ohio Revised Code §2305.21 provides that "in addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto." In Tinney v Richland County, the court held that the plaintiff's §1983 claims involved violations of the plaintiff's personal rights, not physical injuries; as such, the individual capacity §1983 claims did not survive the defendant's death under Ohio law. No. 1:14 CV 703, 2014 WL 6896256, at *2 (N.D. Ohio Dec. 8, 2014). Similarly, the court in Murray v. State held that a claim for wrongful imprisonment did not qualify as injuries to the person, rather the injury is the violation of one's personal rights. 2002-Ohio-664, 2002 WL 337732, *3 (Ohio App. 8 Dist. 2002).
Ohio Revised Code §2305.21 provides that "in addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto." In Tinney v Richland County, the court held that the plaintiff's §1983 claims involved violations of the plaintiff's personal rights, not physical injuries; as such, the individual capacity §1983 claims did not survive the defendant's death under Ohio law. No. 1:14 CV 703, 2014 WL 6896256, at *2 (N.D. Ohio Dec. 8, 2014). Similarly, the court in Murray v. State held that a claim for wrongful imprisonment did not qualify as injuries to the person, rather the injury is the violation of one's personal rights. 2002-Ohio-664, 2002 WL 337732, *3 (Ohio App. 8 Dist. 2002).
Under § 2305.21, physical injuries, such as the injury alleged in this case, survive notwithstanding the death of the injured person. See Tinney v. Richland Cnty., No. 1:14 CV 703, 2014 WL 6896256, at *1 (N.D. Ohio Dec. 8, 2014) (citing Ohio Rev. Code § 2305.21 and Witcher v. Fairlawn, 680 N. E. 2d 713, 715 (Ohio Ct. App. 1996) (further citation omitted)). Under Ohio law, Bernard Watts's cause of action in this case survives his death and Novartis does not contend otherwise.