Wayt v. DHSC, L.L.C. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Wayt

v. DHSC, L.L.C., Slip Opinion No. 2018-Ohio-4822.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2018-OHIO-4822

WAYT, APPELLEE, v. DHSC, L.L.C., D.B.A. AFFINITY MEDICAL CENTER,

APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Wayt v. DHSC, L.L.C., Slip Opinion No. 2018-Ohio-4822.]

Torts—Damages—R.C. 2315.18—Defamation—Cap on noneconomic

compensatory damages— R.C. 2315.18(B)(2) caps noneconomic damages

that can be recovered as a result of defamation.

(No. 2017-1548—Submitted August 1, 2018—Decided December 7, 2018.)

APPEAL from the Court of Appeals for Stark County, No. 2016CA215,

2017-Ohio-7734.

_________________

FISCHER, J.

{¶ 1} Appellee, Ann Wayt, filed a civil complaint against appellant, DHSC,

L.L.C., d.b.a. Affinity Medical Center (“Affinity Medical”), alleging, among other

claims, defamation. The case proceeded to trial. The only claim submitted to the

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jury was for defamation. The jury found that Wayt had been defamed and awarded

her $800,000 in compensatory damages and $750,000 in punitive damages.

{¶ 2} The only issue before this court is whether the cap on damages for

noneconomic loss set forth in R.C. 2315.18(B)(2) applies to compensatory damages

awarded for defamation. We hold that the statute unambiguously caps the

noneconomic damages that can be recovered as a result of defamation, and we

remand the case to the trial court for further proceedings.

I. BACKGROUND

{¶ 3} Wayt was a nurse who was employed at Affinity Medical. Affinity

Medical terminated Wayt’s employment after an investigation that followed an

accusation that Wayt had neglected her duties and falsified a medical record.

{¶ 4} Following Wayt’s dismissal, the head of nursing at Affinity Medical

sent a complaint to the Ohio Board of Nursing that included an accusation that Wayt

had engaged in patient neglect. Some additional documentation was sent to the

board that detailed Wayt’s alleged improper conduct.

{¶ 5} Following her termination, Wayt applied for multiple nursing

positions. She had only two interviews and did not obtain a permanent nursing

position.

{¶ 6} The National Nurses Organizing Committee, a union and professional

organization for registered nurses, filed charges against Affinity Medical before the

National Labor Relations Board (“NLRB”), claiming that the hospital had refused

to bargain with the union and that Wayt had been terminated because of her

involvement with the union. After an administrative law judge issued a report

favorable to the union, the NLRB successfully petitioned the United States District

Court for the Northern District of Ohio for injunctive relief that included an order

that Wayt be reinstated to her prior position at Affinity Medical. Calatrello ex rel.

Natl. Labor Relations Bd. v. DHSC, L.L.C., N.D. Ohio No. 5:13 CV 1538, 2014

WL 296634 (Jan. 24, 2014). The court also ordered Affinity Medical to retract the

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report made to the Nursing Board. Wayt did return to her position, but an Affinity

Medical employee allegedly stated, in front of several nurses, that the court order

did not mean that Wayt deserved to regain her position or that she was a good nurse.

{¶ 7} Wayt filed a complaint in the Stark County Court of Common Pleas

alleging that Affinity Medical and its employees had defamed her. At trial, the jury

found that Wayt had been defamed and awarded her $800,000 in compensatory

damages and $750,000 in punitive damages.

{¶ 8} Affinity Medical filed a posttrial motion requesting that the trial court

apply the cap on noneconomic compensatory damages set forth in R.C.

2315.18(B)(2) and the cap on punitive damages set forth in R.C. 2315.21(D) to

reduce the awards. The trial court ruled that the statutory caps on compensatory

and punitive damages did not apply to injuries to reputation. The trial court also

held that the punitive-damages cap is twice the amount of compensatory damages

awarded, not twice the amount of compensatory damages as capped under R.C.

2315.18(B)(2).

{¶ 9} Affinity Medical filed an appeal and argued that the amount awarded

in damages was in excess of the applicable caps on damages set forth in R.C.

2315.18(B)(2) and 2315.2(D). The appellate court adopted the reasoning of the

trial court and overruled Affinity Medical’s assignment of error relating to caps on

damages. Affinity Medical then appealed to this court, presenting two propositions

of law. We accepted jurisdiction over only one proposition, whether the cap in R.C.

2315.18 that applies to tort actions seeking noneconomic loss as a result of an

alleged injury or loss to person or property also applies to defamation. See 152

Ohio St.3d 1420, 2018-Ohio-923, 93 N.E.3d 1002.

II. ANALYSIS

{¶ 10} Affinity Medical argues that under the plain and unambiguous

language of R.C. 2315.18(B), compensatory damages awarded in a defamation

action must be capped. Affinity Medical also argues that the caps on punitive

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damages set forth in R.C. 2315.21(D) apply and that the amount of punitive

damages awarded to Wayt by the jury should be reduced accordingly.

{¶ 11} Like Affinity Medical, Wayt argues that the plain language of R.C.

2315.18 is controlling but asserts that the statutory language applies to injuries only

to a person or property, not to a person’s reputation. Wayt asserts that defamation

is an injury to a person’s reputation and is distinct from injuries to a person. She

relies on Article I, Section 16 of the Ohio Constitution, which provides that courts

shall be open to redress injuries to “land, goods, person, or reputation” to support

her argument.

{¶ 12} Wayt further contends that R.C. 2315.18 does not cap the damages

awarded for defamation because the statute applies only to negligent torts, not to

intentional torts like defamation.

{¶ 13} Wayt also argues that the proposition of law presented in this case

need not be answered because Affinity Medical failed to request a jury

interrogatory that would have allowed it to show that the jury awarded

noneconomic rather than economic damages. Wayt adds that the statute plainly

applies only to noneconomic damages and that the trial court could find that the

damages awarded were economic damages without an interrogatory that showed

what kind of damages were awarded.

{¶ 14} Finally, Wayt argues that she was defamed on more than one

occasion. Thus, argues Wayt, even if R.C. 2315.18(B)(2) does apply, the amount

awarded should not be reduced and she should be awarded the statutory maximum

for each instance of defamation.

A. Standard of Review

{¶ 15} The standard of review for questions of statutory interpretation is de

novo. Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342,

¶ 8. When a statute is plain and unambiguous, we apply the statute as written,

Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846

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N.E.2d 478, ¶ 52, and no further interpretation is necessary, State ex rel. Savarese

v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463

(1996).

B. Plain Meaning of the Statute

{¶ 16} R.C. 2315.18(A)(7) provides: “ ‘Tort action’ means a civil action for

damages for injury or loss to person or property.” R.C. 2315.18(B)(2) provides

that the maximum noneconomic damages that can be awarded to a plaintiff in a tort

action is, barring certain exceptions that do not apply here, $ 250,000.

{¶ 17} Property “means real and personal property.” R.C. 1.59(E). The

term “property” as used in R.C. 2315.18(A)(7) does not include reputation, and

neither party argues to the contrary.

{¶ 18} The key question in this case is, therefore, whether defamation,

which is an injury to reputation, falls within the category of injury to a person. R.C.

1.59(C) defines person as “an individual, corporation, business trust, estate, trust,

partnership, and association.” This definition does not provide an answer to the

question before us. We have held for 90 years, however, that defamation is an

injury to a person. See Smith v. Buck, 119 Ohio St. 101, 162 N.E. 382 (1928),

paragraph two of the syllabus. We cited this decision with approval as recently as

2008. See Nadra v. Mbah, 119 Ohio St.3d 305, 2008-Ohio-3918, 893 N.E.2d 829.

{¶ 19} In Buck, this court addressed whether “slander is a ‘personal injury’

by a ‘wrongful act,’ within the intent and meaning of the proviso to section 11819,

General Code.” Id. at 101. This court held that the term “personal injury,” “as

defined by lexicographers, jurists and text-writers, and by common acceptance,”

includes injuries to a person’s reputation, id. at paragraph one of the syllabus, and

we cited with approval several cases from other jurisdictions in which those courts

decided that slander or libel is an injury to a person. See Tisdale v. Eubanks, 180

N.C. 153, 104 S.E. 339 (1920) (“the security of one’s reputation and good name

[is] among the personal rights of the citizen”); Times Democrat Publishing Co. v.

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Mozee, 136 F. 761, 763 (5th Cir.1905) (“At common law, libel and slander were

classified as injuries to the person, or personal injuries”); McDonald v. Brown, 23

R.I. 546, 51 A. 213, 214 (1902) (statute providing that bankruptcy discharges debts

but not judgments for willful or malicious injuries to a person or property did not

discharge debts resulting from judgments in libel). These three cases remain good

law.

{¶ 20} The court in Buck held that barring a phrase or definition within the

statute that would lead to a contrary conclusion, injuries resulting from slander are

plainly personal injuries. Id. at 104. Further, the court did not distinguish between

personal injuries and injuries to a person. Id. at paragraph two of the syllabus.

{¶ 21} Wayt argues that the legislature’s inclusion of the phrase “bodily

injury” in R.C. 2315.18 demonstrates that the legislature intended to cap only

damages resulting from physical injuries. The term “bodily injury” appears in R.C.

2315.18(A)(5) in the definition of “occurrence,” and the term “occurrence” appears

in R.C. 2315.18(B)(2). Neither of these statutory sections defines the actions to

which the caps on damages apply. Thus, the legislature used no phrase or definition

within R.C. 2315.18 that would lead to the conclusion that it intended the phrase

“injury or loss to person” to mean “bodily injury” or anything other than its plain

meaning. And, as noted above, this court has already decided that, under the plain

meaning, defamation is an injury to a person.

{¶ 22} We hold that under the plain language of R.C. 2315.18(A)(7),

defamation is a “civil action for damages for injury or loss to person.” This holding,

as explained above, is in accord with prior decisions of this court and several other

courts that were interpreting similar language. We see no reason to overturn the

well-established precedent that defamation is a “personal injury” according to the

plain meaning of the term.

{¶ 23} We do not look to the canons of statutory construction when the plain

language of a statute provides the meaning. See Hartmann v. Duffey, 95 Ohio St.3d

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456, 2002-Ohio-2486, 768 N.E.2d 1170, ¶ 8, citing Lake Hosp. Sys. v. Ohio Ins.

Guar. Assn., 69 Ohio St.3d 521, 524, 634 N.E.2d 611 (1994). Assuming arguendo

only that the court must look to the canons of statutory construction to determine

what the legislature intended by using the phrase “injury or loss to person or

property,” the result in this case would be the same. It is well established that the

legislature is presumed to have full knowledge of prior judicial decisions. State ex

rel. Huron Cty. Bd. of Edn. v. Howard, 167 Ohio St. 93, 96, 146 N.E.2d 604 (1957).

Thus, despite the position taken by those in the dissent, the legislature is presumed

to have full knowledge of this court’s decision in Buck. Moreover, the legislature

could easily have drafted the statute to prevent the holding from that case from

affecting the outcome of this case; the legislature merely needed to add

“defamation” to the list of actions enumerated in R.C. 2315.18(A)(7) to which the

caps do not apply.

C. Constitutional Argument

{¶ 24} Wayt argues that the phrase “injury or loss to person or property” in

R.C. 2315.18(A)(7) must be interpreted in light of the language that appears in the

Ohio Constitution. Wayt highlights Article I, Section 16 of the Ohio Constitution

and notes that the constitutional language distinguishes injuries to reputation from

injuries to a person, lands, or goods. Article I, Section 16 of the Ohio Constitution

provides, “All courts shall be open, and every person, for an injury done him in his

land, goods, person, or reputation, shall have remedy by due course of law, and

shall have justice administered without denial or delay.” (Emphasis added.)

{¶ 25} Despite the state’s Constitution differentiating between injuries to a

person and injuries to reputation, any distinction found in the Constitution is not

dispositive in this case. In this case, we must decide whether the legislature drew

a distinction in R.C. 2315.18 similar to the one that appears in the Constitution.

{¶ 26} As noted above, the first step in answering that question is to

interpret the plain language of the statute. We do not begin the analysis by

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examining external sources in order to define the terms used in the statute. While

the language in the Constitution appears to draw a distinction between injuries to a

person and injuries to reputation, the distinction is not consistent with the common

meaning of the terms used in R.C. 2315.18. See Buck, 119 Ohio St. 101, 162 N.E.

382, at paragraph two of the syllabus. Moreover, R.C. 2315.18 uses phrases that

are more general than those that appear in the Constitution. R.C. 2315.18 (2)(a)

uses the phrase “loss to person or property” whereas Article I, Section 16 of the

Ohio Constitution provides that courts are open to redress injuries done to a

person’s “land, goods, person, or reputation.” The statutory term “property” is

encompassing of the constitutional terms “lands [or] goods.” Similarly, the

statutory term “loss to person” encompasses the injuries described in the

Constitution as injuries to a person as well as injuries to a person’s reputation.

{¶ 27} For these reasons, we decline Wayt’s invitation to hold that R.C.

2315.18 does not apply to an injury to reputation or to hold that defamation is not

a “tort action” as it is defined in R.C. 2315.18(A)(7).

D. S.B. 80 and Legislative Intent

{¶ 28} Wayt argues that the statement of findings and intent made in

Am.Sub.S.B. No. 80, Section 3, 150 Ohio Laws, Part V, 7915, 8024 (“S.B. 80”),

indicates that the legislature intended in R.C. 2315.18 to limit damages in

negligence-based cases only. From this, Wayt concludes that there is no cap on

damages for defamation claims because defamation is an intentional tort, not a

negligence-based tort.

{¶ 29} Again, we do not look at legislative intent to determine the meaning

of a statute when the statute is unambiguous. Dunbar v. State, 136 Ohio St.3d 181,

2013-Ohio-2163, 992 N.E.2d 1111, ¶ 16. However, even if we did review S.B. 80

to determine the legislative intent, the text and history of S.B. 80, when viewed in

conjunction, do not support Wayt’s argument.

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{¶ 30} Section 3(A)(3) of S.B. 80 provides that the state has a rational and

legitimate interest in ensuring that it has a system that balances the rights of those

injured by negligent behavior and the need to eradicate frivolous lawsuits that cost

jobs. This statement, when read in context with the codified sections of the bill, is

one of several intentions behind the bill.

{¶ 31} For example, as enacted in S.B. 80, R.C. 4507.07(B) provides that

any person who signs an application for a driver’s license for a minor is jointly and

severally liable for “negligence or wanton or willful misconduct” committed by that

minor while the minor is driving. (Emphasis added.)

{¶ 32} And, as enacted in S.B. 80, R.C. 1775.14(B) provides that

a partner in a registered limited liability partnership is not liable

* * * for debts, obligations, or other liabilities of any kind of, or

chargeable to, the partnership or another partner or partners arising

from negligence or from wrongful acts, errors, omissions, or

misconduct, whether or not intentional or characterized as tort,

contract, or otherwise.

(Emphasis added.)

{¶ 33} If, as Wayt suggests, the legislature’s sole intent when passing S.B.

80 was to “remedy negligent behavior,” the above-cited sections, which deal with

behavior other than negligent behavior, would not be part of S.B. 80. In light of

this conclusion, the argument that the legislature’s sole intent behind S.B. 80 was

to address negligence claims does not pass muster.

{¶ 34} Moreover, interpreting R.C. 2315.18 in the way that Wayt suggests

would require the court to add the word “negligence” to the definition of “tort

actions” provided in R.C. 2315.18(A)(7). “ ‘[I]t is the duty of this court to give

effect to the words used [in a statute], not to delete words used or to insert words

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not used.’ ” (Emphasis omitted; brackets added in Bernardini.) Bernardini v.

Conneaut Area City School Dist. Bd. of Edn., 58 Ohio St.2d 1, 4, 387 N.E.2d 1222

(1979), quoting Columbus-Suburban Coach Lines v. Pub. Util. Comm., 20 Ohio

St.2d 125, 127, 254 N.E.2d 8 (1969). For these reasons, we decline to interpret

R.C. 2315.18 to cap damages awarded only in negligence cases.

E. Remaining Issues

{¶ 35} In her brief, Wayt argues that even if the caps on damages set forth

in R.C. 2315.18 do apply to defamation claims, the award of compensatory

damages in this case should not be reduced because there was more than one

incident of defamation. Also, because the caps apply only to noneconomic

damages, Wayt claims that this court could determine that the jury awarded Wayt

economic damages, which have no statutory cap. In its brief, Affinity Medical

requests that the court order that the punitive-damages cap set forth in R.C.

2315.21(D) be applied to the award in this case.

{¶ 36} No proposition of law arguing these issues was accepted by this

court, and we decline to address these arguments because they are beyond the scope

of this appeal.

III. CONCLUSION

{¶ 37} For the foregoing reasons, we reverse the judgment of the court of

appeals as to compensatory damages, and we remand the case to the trial court for

further proceedings consistent with this opinion.

Judgment reversed

and cause remanded.

KENNEDY, FRENCH, and DEWINE, JJ., concur.

DEGENARO, J., concurs in judgment only.

O’CONNOR, C.J., dissents, with an opinion joined by O’DONNELL, J.

_________________

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O’CONNOR, C.J., dissenting.

{¶ 38} I dissent. At issue in this case is whether the damage caps in R.C.

2315.18 apply when a court awards damages to a person for defamation. R.C.

2315.18 provides that its caps apply to damages resulting from “an injury or loss to

person or property.” The majority concludes that the statute is unambiguous and

that the plain language of the statute provides its meaning, ultimately determining

that “the statutory term ‘loss to person’ encompasses the injuries described in the

Constitution as injuries to a person as well as injuries to a person’s reputation.”

Majority opinion at ¶ 26. But in construing R.C. 2315.18, the majority relies on a

90-year-old case in which this court interpreted the term “personal injury” as well

as numerous cases outside this jurisdiction that consider injury to reputation in the

context of common law rather than in the context of Ohio’s constitutional and

statutory schemes. The majority’s reliance on those cases shows that it has not

relied on the plain meaning of the statute. By considering case law, the majority is

engaging in exactly the kind of statutory interpretation that it claims is unnecessary.

{¶ 39} If we look only at the words in the statute, it is clear that injury or

loss to person does not include loss of reputation. If an injury to a person occurs,

then there is an identifiable harm to the person’s body and typically a course of

action for healing it, often with medical aid.1 There is also identifiable and

relatively quantifiable harm to establish damages and a financial remedy.

{¶ 40} On the other hand, a person’s reputation is separate from her or his

body, and the person has little control over it—reputation exists entirely in the

hearts and minds of others. The lack of control over one’s own reputation is one

reason that the tort of defamation is so menacing. A person can be of upstanding

1. Noneconomic compensatory damages caps do not apply to “[p]ermanent and substantial physical

deformity, loss of use of a limb, or loss of a bodily organ system,” R.C. 2315.18(B)(3)(a), or to

“[p]ermanent physical functional injury that permanently prevents the injured person from being

able to independently care for self and perform life-sustaining activities,” R.C. 2315.18(B)(3)(b).

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character, yet when someone defames her or him, there is no well-defined solution

for piecing reputation back together or even for determining the damage. A

reputation damaged by defamation is not fixed by mending it; one can only attempt

to repair reputation by convincing each and every person who observed the

defamatory statement that it is not true. It is often nearly impossible to determine

whether reputation is restored or to quantify the damage. In part, that is why a

victim of defamation per se, that is, defamation that is clear on its face, does not

have to prove damages. Becker v. Toulmin, 165 Ohio St. 549, 553, 138 N.E.2d 391

(1956).

{¶ 41} Defamation is an injury or loss to reputation, not to person, and

therefore the caps on damages in R.C. 2315.18 do not apply when a person is

defamed. Although statutory interpretation is unnecessary given the plain meaning

of R.C. 2315.18, the exercise bears out this conclusion.

{¶ 42} The Ohio Constitution reinforces the distinctions between person

and reputation. The framers, recognizing the differences between these injuries,

ensured access to the courts for both wrongs. Article I, Section 16 provides that

“[a]ll courts shall be open, and every person, for an injury done him in his land,

goods, person, or reputation, shall have remedy by due course of law.” The

majority does not explain why we should assume that when the General Assembly

drafted R.C. 2315.18, it was aware of two of this court’s decisions that were spread

over a span of 90 years but was not aware of Ohio’s Constitution, our government’s

preeminent controlling document. But it stands that “no portion of a written

constitution should be regarded as superfluous.” Steele, Hopkins & Meredith Co.

v. Miller, 92 Ohio St. 115, 120, 110 N.E. 648 (1915). In drafting R.C. 2315.18, the

General Assembly clearly chose to subsume land and goods under the single label

of property. No similar effort was made to combine person and reputation. Instead,

the General Assembly left out any reference to reputation. The Constitution

authorizes the courts to remedy four kinds of injuries, and the General Assembly

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included only three of them in R.C. 2315.18. The only conclusion I can reach is

that the General Assembly did not wish to cap damages for people who are

defamed.

{¶ 43} Instead of relying on a clear constitutional provision establishing that

injury to reputation and injury to person are two separate harms, the majority

mistakenly depends on this court’s 1928 interpretation of the term “personal

injury,” Smith v. Buck, 119 Ohio St. 101, 162 N.E. 382 (1928). That reliance is

misplaced. The term at issue in this case is “injury to person.” The court had two

holdings in Buck:

The words “personal injury” as defined by lexicographers,

jurists and text-writers, and by common acceptance, denote an

injury either to the physical body of a person or to the reputation of

a person, or to both.

The words “personal injury” by “wrongful act,” of section

11819, General Code, comprehend, among other injuries to the

person, injury by libel or slander.

Buck at paragraphs one and two of the syllabus.

{¶ 44} In reaching these conclusions, the court in Buck primarily considered

the definition of the word “personal,” which it found to mean “pertaining to the

person” or “ ‘relating to an individual.’ ” Id. at 101, quoting Webster’s New

International Dictionary. It is true that a reputation generally pertains to or is

related to a person, but R.C. 2315.18 does not refer to loss or injury relating to a

person but refers to “loss or injury to person.” The first syllabus paragraph in Buck

addresses only “personal injury” and does not squarely support the majority’s

position in this case.

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{¶ 45} The second paragraph of Buck is at least ambiguous and should not

be the basis for interpreting a statute today, 90 years after this court decided that

case. The second syllabus paragraph can be construed to stand for the proposition

that personal injury includes injury to the person as well as injury by libel or slander.

This interpretation is entirely consistent with my reading of R.C. 2315.18. Because

the law at issue in Buck does not contain the language “injury to person,” the

holding does not define that term and cannot determine the outcome of this case.

Further, if the General Assembly was focused on this case when it drafted R.C.

2315.18, then it could have used the term “personal injury” when it described torts

to which the caps applied, in an effort to combine injury to person and injury to

reputation. It did not.

{¶ 46} The majority also includes a string cite of cases that the Buck court

relied on. Although still technically good law, these cases are either unpersuasive

or help to establish that R.C. 2315.18 does not apply to loss of reputation. In Tisdale

v. Eubanks, 180 N.C. 153, 104 S.E. 339, 340 (1920), the North Carolina Supreme

Court conflated character and reputation in order to find that libel is injury to the

person. In Times-Democrat Publishing Co. v. Mozee, 136 F. 761, 762 (5th

Cir.1905), one of Ohio’s most famous daughters, Annie Oakley, sought damages

for “shame, disgrace, and mental suffering.” In the manner of the decision in

Tisdale, the court in Mozee described the claims as “injuries to character and mental

suffering” and invoked the common law. Id. But the situation of appellee, Ann

Wayt, is distinguishable from the circumstances in both Tisdale and Mozee because

of Wayt’s free-standing defamation claim. Wayt has no need to prove injury in the

form of shame, disgrace, or mental suffering, all of which could be construed as

injury to the person. Wayt’s damages resulted from loss of reputation, not injury

to person, and those damages were assumed after she proved her claim of

defamation per se.

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{¶ 47} Further, the courts in both Tisdale and Mozee relied on common law.

Traditionally, the common law protected three types of personal rights: personal

security, personal liberty, and private property. The right of personal security was

divided into life, limb, body, health, and reputation.

Reputation is a sort of right to enjoy the good opinion of

others, and is capable of growth and real existence, as an arm or a

leg. If it is not to be classed as a personal right, where does it

belong? No provision has been made for any middle class of injuries

between those to person and those to property, and the great body of

wrongs arrange themselves under the one head or the other.

Mozee, quoting Johnson v. Bradstreet Co., 87 Ga. 79, 13 S.E. 250, 251 (1891).

Tisdale and Mozee are wholly inapposite because Ohio’s Constitution specifically

answers the question “where does [reputation] belong?” by recognizing a middle

class of injuries and creating an entirely separate action for loss or injury to

reputation that supplants the common law’s less differentiated protections.

Because the Ohio Constitution recognizes injury to reputation as separate from

injury to person, the court is amiss in relying on cases depending on common-law

causes of action. See, e.g., Drake v. Rogers, 13 Ohio St. 21, 29 (1861) (“wherever

the legislature has by statutory law assumed to establish either rules of property or

conduct, it has always been the policy of the law in this state, or at least such is the

generally received understanding, that the common law can neither add to nor take

from the statutory rules so established”).

{¶ 48} In the last case that the majority cites, McDonald v. Brown, 23 R.I.

546, 51 A. 213, 214 (1902), the Rhode Island Supreme Court construed the term

“injury to the person” “in its broad and general sense.” But in State v. Simmons,

114 R.I. 16, 19, 327 A.2d 843 (1974), the Rhode Island court declined to extend its

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own finding in McDonald, taking a narrower view and holding that “ ‘injury to the

person’ contemplates the peril of actual bodily harm and does not include danger

to reputation alone.” Id. If Rhode Island’s own Supreme Court refused to rely on

McDonald because it “ ‘would verge upon speculation with reference to the

legislative intent,’ ” id., quoting Commerce Oil Refining Corp. v. Miner, 98 R.I. 14,

18, 199 A.2d 606 (1964), it stands to reason that we should also view the case with

skepticism.

{¶ 49} This court’s decision in Nadra v. Mbah, 119 Ohio St.3d 305, 2008-

Ohio-3918, 893 N.E.2d 829, which the majority also cites favorably, is likewise

unpersuasive. The court in Nadra cited Buck for the proposition that “personal

injury includes injury to one’s body and injury to one’s reputation.” Id. at ¶ 26.

But Nadra does not stand for the proposition that an injury to person includes

defamation.

{¶ 50} The court in Nadra relied on the same case that appellant, DHSC,

L.L.C., d.b.a. Affinity Medical Center, points to now: Lawyers Coop. Publishing

Co. v. Muething, 65 Ohio St.3d 273, 603 N.E.2d 969 (1992). But Muething did not

involve an allegation of defamation, libel, or slander. Muething’s claimed loss of

reputation arose from his reliance on legal forms that Lawyers Cooperative wrote

and published. Indeed, the court held that “Muething’s claims for humiliation and

damage to his reputation are virtually indistinguishable from his claim for negligent

infliction of emotional distress and, therefore, could not be maintained in the

absence of an assertion that he feared or saw some quantifiable physical loss.” Id.

at 280. Muething is inapplicable to defamation claims.

{¶ 51} The majority’s position is also unsupported by the dictionary

definitions of the statute’s key terms. Black’s Law Dictionary 506 (10th Ed.2014)

defines defamation as “[m]alicious or groundless harm to the reputation or good

name of another by the making of a false statement to a third person.” Reputation

means “[t]he esteem in which someone is held or the goodwill extended to or

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confidence reposed in that person by others, whether with respect to personal

character, private or domestic life, professional and business qualifications, social

dealings, conduct, status, or financial standing.” Id. at 1497. Black’s defines person

as a “human being.” Id. at 1324.

{¶ 52} Applying these definitions to R.C. 2315.18 demonstrates that the law

does not limit damages to a person who proves defamation. Reputation is the

esteem in which someone is held by others, often in respect to personal character.

It is not the person’s actual character. It is separate and apart from the human being.

Reputation exists in the minds of others.

{¶ 53} In a defamation action, the alleged injury or loss is to a person’s

reputation, not to one’s being or possessions. Consequently, I would hold that the

plain language of the statute does not cap damages for people who are defamed. I

would affirm the judgments of the trial and appellate court.

{¶ 54} I dissent.

O’DONNELL, J., concurs in the foregoing opinion.

_________________

B. Zimmerman Law and Brian L. Zimmerman; and Crabbe, Brown &

James, L.L.P., and Andrew G. Douglas, for appellee.

Hanna, Campbell & Powell, L.L.P., Douglas G. Leak, W. Bradford

Longbrake, Frank G. Mazgaj, and Emily R. Yoder; and Howard & Howard

Attorneys and Michael O. Fawaz, for appellant.

Elfvin, Klingshirn, Royer & Torch, L.L.C., and Christina Royer; and

McCarthy, Lebit, Crystal & Liffman Co., L.P.A., and Colin R. Ray, urging

affirmance for amicus curiae Ohio Employment Lawyers Association.

Cooper & Elliot, L.L.C., C. Benjamin Cooper, and Charles H. Cooper,

urging affirmance for amicus curiae Ohio Association for Justice.

_________________

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