Brown v. Best Products, Inc.

Holmes, J.,

dissenting. The rationale behind Insurance Co. v. Hull (1894), 51 Ohio St. 270 , was that this court felt a release signed in consideration for not pursuing criminal charges was inherently executed under duress. While remaining aware of the potential for duress in such situations, I am not convinced that every release executed in return for suppression of a criminal prosecution is executed under duress. The question of duress should not be set forth in an established per se rule but is better left to a case-by-case determination by the trier of fact as in all other cases which involve a release of liability. See Beck v. Cianchetti (1982), 1 Ohio St. 3d 231 ; and Pakulski v. Garber (1983), 6 Ohio St. 3d 252 . I would therefore overrule Insurance Co. v. Hull, supra.

The California Supreme Court has recently upheld a release agreement whereby a criminal charge against the plaintiff was dismissed in exchange for his releasing a county authority from civil liability. Hoines v. Barney’s Club, Inc. (1980), 28 Cal. 3d 603 , 170 Cal. Rptr. 42 , 620 P. 2d 628 . The reasoning of the California Supreme Court is persuasive and reads in part at 612-613:

“In examining public policy considerations bearing on the release-dismissal transaction in the instant case, we are influenced and guided by policy considerations bearing on plea bargaining transactions. While there are clear differences between the two transactions, in a broad sense they serve the same purpose and are affected by the same public policy. In each transaction an accused is confronted with a criminal charge, circumstances exist which — in the state’s view — do not require seeking imposition of the full penalty of the law, the accused does not wish to assert his innocence of wrongdoing so as to hazard a more severe penalty should he not prevail at trial, and the state’s interests would not be served by a time consuming trial.

“The net effect of both a release-dismissal and a plea bargaining transaction is to relieve the state of prosecuting while imposing upon the accused some lesser disability than he might otherwise anticipate. In a plea bargaining transaction the accused is subjected to a known but lesser criminal sanction which he has elected to accept under the circumstances. In the release-dismissal transaction the accused escapes criminal sanctions altogether but is subjected to a civil disability which he has elected to accept under the circumstances. In neither case is there any compulsion preventing the accused from standing his ground and asserting his right to be free from all disabilities, both criminal and civil.

“There is one obvious but not fundamental difference between the two transactions. Because a release-dismissal transaction normally concerns itself with lesser acts of criminal conduct, the state may reasonably elect to forego the imposition of any criminal proceedings or sanctions. However, in doing so it must protect those who — because the charges are to be dismissed — might be improperly exposed to claims of .civil liabilities due to their involvement in apprehending the accused. In requiring a *38 release from the accused — but only by his free and voluntary election — the state accomplishes both the imposition of the bargained-for disability and protection of those it reasonably deems to be innocently involved.”

The trial court in the present case must allow evidence on the release, its execution, its scope, etc. If in fact the release is found to be valid, then its terms should be imposed on the plaintiff per her agreement with the defendants.

Accordingly, I dissent.

Douglas and Wright, JJ., concur in the foregoing dissenting opinion.