Constitutional challenges to Ohio's new Tort Reform Law decided in Ohio Supreme Court

Two significant cases have been decided by the Ohio Supreme Court, both of which presented constitutional challenges to Ohio's 2005 Ohio tort reform law, S.B. 80. See Ohio Supreme Court Rules in Two Challenges to Tort Reform 2007-2008

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Ohio Senate Bill 80's Statute of Repose for Real Property Held Constitutional

On March 21, 2008, Ohio's Second District Court of Appeals upheld the constitutionality of Ohio Revised Code Section 2305.131, which sets a ten-year statute of repose for improvements to real property. In McClure v. Alexander, 2008-Ohio-1313, the Court of Appeals affirmed the trial court's decision dismissing a claim brought against a contractor for allegedly defective construction that had been completed eighteen years earlier.

The case arose as a result of work completed by the defendant/appellee, Mike Alexander Construction, to plaintiff/appellant Robert McClure’s home in June of 1989. In August of 2004, McClure discovered that water damage had caused his walls to rot. In August of 2007, McClure filed suit against Alexander. Alexander moved to dismiss on the basis that McClure’s claims were barred by S.B. 80's ten-year statute of repose applicable to improvements to real property -- R.C. 2305.131. McClure argued that R.C. 2305.131 violated his constitutional right to a remedy, basing his argument on Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460, in which the Ohio Supreme Court found a prior version of R.C. 2305.131 to be unconstitutional. McClure argued that the current version of R.C. 2305.131 was sufficiently similar to the version of R.C. 2305.131 considered in Brennaman, that it should be found unconstitutional for the same reasons. The trial court disagreed and McClure appealed.

While the appeal was pending, the Ohio Supreme Court issued a decision in an unrelated case, Groch v. Gen. Motors Corp., 2008-Ohio-546. In Groch, the Supreme Court examined the constitutionality of S.B. 80's statute of repose for product liability actions reviewed its earlier decisions addressing statutes of repose, including Brennaman. The Groch Court narrowed its ruling in Brennaman, but did not overrule Brennaman. McClure argued that the reasoning in Brennaman was still sound, was not overruled, and should be applied to the current version of R.C. 2305.131.

The Second District Court of Appeals, after carefully considering the Court's analysis in Groch, found that the current version of R.C. 2305.131 was sufficiently different from the predecessor statute considered in Brennaman.

As April 14, 2008, McClure had not sought a discretionary appeal with the Ohio Supreme Court, but still has time to do so.

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Public Nuisance Litigation Appears in Ohio

In December of 2006, the Ohio General Assembly passed Senate Bill 117 to clarify, among other things, that Ohio’s Product Liability Act has abrogated all common law product liability claims, including those characterized as public nuisance claims. In large part, these provisions of S.B. 117 simply clarified and reiterated provisions passed in 2005 in Senate Bill 80 (see below).

Nonetheless, S.B. 117 has been the center of several highly charged pieces of litigation. Public nuisance litigation, and S.B. 117 itself, are likely to remain pivotal in the coming years.

For an update on S.B. 117, see Senate Bill 117 Litigation.

For more information and resources in this growing area of law, please visit the Public Nuisance Litigation Resource Center.

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Ohio Slips in Evaluation of Tort Liability System

Ohio fell from 19th to 24th in Lawsuit Climate 2007: Ranking the States, an annual study by the U.S. Chamber of Commerce Institute for Legal Reform. The study states that "Ohio’s legal system is headed in the wrong direction. The plaintiffs’ bar has teamed up with a handful of elected officials to attempt to rewrite the ground rules for product liability lawsuits, essentially denying businesses the opportunity to mount a fair defense."

The annual study, conducted by the nonpartisan polling firm Harris Interactive, evaulates 12 different factors that affect a state’s tort liability system. These factors range from a company’s perception of the overall treatment of tort and contract litigation to judges’ competence and impartiality. The full study is available on the Institute's website.

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New Tort Reform Changes Ohio’s Legal Climate

On April 7, 2005, Ohio’s legal climate changed significantly when Senate Bill 80, a new tort reform law, became effective. Senate Bill 80 passed the Ohio General Assembly in December and was signed by Governor Bob Taft in January. This comprehensive piece of legislation makes significant reforms to our legal system and ensures that both plaintiffs and defendants are treated fairly in the courts.

Key provisions of Senate Bill 80 include:

  • Limitations on the amount of punitive damages recoverable from both large and small employers
  • Limitations on the amount of non-economic damages recoverable for non-catastrophic losses
  • Statutes of repose for both product and construction-related claims
  • Modifications to Ohio’s collateral source rule
  • Successor liability protection for certain asbestos-related claims
  • Immunity for certain property owners
  • Immunity from obesity claims

Senate Bill 80 also provides a number of additional reforms ranging from eliminating the consumer expectation test as a stand-alone test for certain product liability claims to permitting non-use of seat belt evidence in tort actions to mitigate non-economic damages.

Bricker & Eckler serves as Legal Counsel to the Ohio Alliance for Civil Justice (OACJ), a coalition comprised of representatives of more than 200 Ohio trade and professional associations, small and large businesses, medical groups, insurers, farmers, non-profit organizations and local government associations for a combined representation of more than 400,000 individuals and businesses. The OACJ was founded in the mid-1980s to stop lawsuit abuse and promote a common sense civil justice system in Ohio.

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Available Resources on Ohio Tort Reform

Litigation News

Information on Ohio Supreme Court decisions in Arbino v. Johnson & Johnson and Groch v. General Motors Corp.

Indepth analysis of the 1999 court decision overturning tort reform legislation in Ohio in State ex rel. Ohio Academy of Trial Lawyers v. Sheward.

Ohio's 2005 Tort Reform Law -- S.B. 80

Comprehensive summary of Senate Bill 80, including practical considerations, effective April 7, 2005

Insurance In Focus Winter 2004

Bricker & Eckler Newsletter discussing current developments in Ohio insurance law

Asbestos, Silica and Mixed Dust

Full text and summaries of the 2004 asbestos, silica, and mixed dusty litigation reform laws and status report on pending litigation challenging these laws.

Other Ohio Legislation on Tort Reform

Tort reform measures enacted in the 124th, 125th and 126th Ohio General Assemblies and pending in the 127th.