Preston v. Murty, 86-1608

• Decision Date: 09 September 1987
• Docket Number: No. 86-1608,86-1608
• Citation: 32 Ohio St.3d 334,512 N.E.2d 1174
• Parties: PRESTON et al., Appellees, v. MURTY et al.; Gold Circle Discount Store, Appellant.
• Court: Ohio Supreme Court

Page 334

32 Ohio St.3d 334

512 N.E.2d 1174

PRESTON et al., Appellees, v. MURTY et al. Gold Circle Discount Store, Appellant.

No. 86-1608.

Supreme Court of Ohio.

Sept. 9, 1987.

Syllabus by the Court

Actual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.

On July 12, 1982, a part-time sales clerk for a Gold Circle discount store ("Gold Circle") located in Akron, Ohio sold an air gun and BBs to two twelve-year-old boys. This sale was in violation of an Akron ordinance which prohibited the sale of air guns and ammunition for these guns to any person under the age of eighteen. The boys, Timothy Murty and Barry Smith, were playing with the gun and Murty accidentally shot a seven-year-old boy, Marshall Preston. A BB lodged in Preston's body, where it still remains.

Preston and his mother brought suit for his personal injuries against Murty and Smith, their mothers, and Gold Circle. The claim against the Smiths was settled and the remaining claims proceeded to trial. During the trial, the court directed a verdict in favor of Murty's mother. The jury awarded Preston and his mother compensatory damages of $56,667.16 from Murty and Gold Circle, and awarded Preston $100,000 in punitive damages from Gold Circle.

Upon Gold Circle's appeal of the punitive-damages award, the court of appeals affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Nukes & Perantinides Co., L.P.A., Paul G. Perantinides, James J. Gutbrod, Daily & Codrea and John E. Codrea, Akron, for appellees.

Arter & Hadden, John D. Maddox, Curtiss L. Isler and Irene C. Keyse-Walker, Cleveland, for appellant.

MOYER, Chief Justice.

The issue presented by this appeal is whether punitive damages were properly awarded against Gold Circle. Gold Circle contends that there was insufficient evidence to support the submission of punitive damages to the jury and that the court erroneously instructed the jury as to what conduct would support an award of punitive damages.

Ohio courts, since as early as 1859, have allowed punitive damages to be awarded in tort actions which involve fraud, malice, or insult. Roberts v. Mason (1859), 10 Ohio St. 277, paragraph one of the syllabus. The standards for imposing and assessing punitive damages, however, have remained frustratingly vague. Mallor & Roberts, Punitive Damages: Toward a Principled Approach (1980), 31 Hastings L.J. 639, 642.

In this case, there is no allegation of fraud or insult and thus the punitive-damages award must necessarily rest on the presence of malice. Courts, including this court, have used diverse language to define and describe behavior that constitutes actual malice. See Detling v. Chockley (1982), 70 Ohio St.2d 134, 24 O.O.3d 239, 436 N.E.2d 208. Although the numerous definitions have caused confusion as to what is required to prove actual malice, it is apparent from the case law that actual malice can be placed in two general categories: first, behavior characterized by hatred, ill will, or a spirit of revenge and, second, extremely reckless behavior revealing a conscious disregard for a great and obvious harm. These two concepts overlap in certain circumstances.

In this case, it is clear that plaintiffs based their claim for punitive damages on the second concept of extremely reckless behavior. Furthermore, a review of the case law reveals that this is the type of malice which has remained frustratingly vague. Mallor & Roberts, supra. Such malice has been described as "negligence * * * so gross as to show a reckless indifference to the rights and safety of other persons," ¹ a wrongful, unlawful, and intentional act of which the natural and probable result of the act is to accomplish the injury complained of, ² outrageous conduct, ³ behavior having a character of outrage frequently associated with crime, ⁴ such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton, ⁵ intentional or deliberate behavior, ⁶ and flagrant indifference to unreasonable risks of harm. ⁷ These definitions give less than adequate guidance to a trial court.

An analysis of the definitions, coupled with a consideration of the policy reasons for awarding punitive damages, provides some common elements from which a general definition can be stated. The policy for awarding punitive damages in Ohio " * * * has been recognized * * * as that of punishing the offending party and setting him up as an example to others that they might be deterred from similar conduct." Detling v. Chockley, supra, at 136, 24 O.O.3d at 240, 436 N.E.2d at 209, and citations therein. Since punitive damages are assessed for punishment and not compensation, a positive element of conscious wrongdoing is always required. This element has been termed conscious,...