R.O. v. A.C.

• Decision Date: 12 December 2012
• Docket Number: No. 2010–CA–001677–MR.,2010–CA–001677–MR.
• Citation: 384 S.W.3d 185
• Parties: R.O., Appellant, v. A.C., by and Through her Mother and Next Friend M.C., Appellee.
• Court: Kentucky Court of Appeals

384 S.W.3d 185

R.O., Appellant,

v.A.C., by and Through her Mother and Next Friend M.C., Appellee.

No. 2010–CA–001677–MR.

Court of Appeals of Kentucky.

March 23, 2012.

Discretionary Review Denied by

Supreme Court Dec. 12, 2012.

Dennis L. Null, Jr., Mayfield, KY, for appellant.

Robert L. Prince, Benton, KY, for appellee.

Before ACREE, COMBS and KELLER, Judges.

OPINION

ACREE, Judge:

The sole issue before us is whether the Calloway Circuit Court's award of $6,000,000.00 in punitive damages against Appellant, R.O., is constitutionally excessive.We find it is not. Accordingly, we affirm.

I. Facts and Procedure

On or about December 2007, the Calloway Grand Jury returned an indictment charging R.O.¹ with four counts of first-degree sodomy.² The charges stemmed from allegations made by appellee A.C., who was R.O.'s step-granddaughter at the time. A.C. alleged R.O. forced her to perform oral sex on him, and that R.O. touched her chest and pubic areas when she was eleven years old. On December 19, 2008, R.O. pleaded guilty to four amended counts of sexual misconduct. The Calloway Circuit Court sentenced R.O. to twelve months in jail on each count, to run concurrently, conditionally discharged for two years.

Thereafter, on February 3, 2009, A.C., by and through her mother and next friend (Mother), filed a complaint in Calloway Circuit Court alleging R.O. engaged in a deviate sexual relationship with A.C., resulting in severe emotional and physical harm. The complaint sought compensatory and punitive damages.

On January 25, 2010, R.O.'s attorney withdrew representation. The circuit court granted R.O. twenty days to obtain new counsel; R.O. failed to do so. Concurrently, the circuit court entered an Amended Trial and Scheduling Order requiring each party to submit a trial brief, scheduling a pre-trial conference on May 10, 2010, and setting the matter for a jury trial on May 26 & 27, 2010. R.O. failed to submit a trial brief, to attend the pretrial conference, or to appear for trial. Consequently, on May 26, 2010, the circuit court held R.O. in default and proceeded to trial before the court on the issue of damages. ³ A.C. testified via deposition, in rather graphic detail. For our review, it is sufficient to state that R.O. abused A.C. multiple times per week for a substantial span of time during her eleventh year, and in ways civilized societies refuse to tolerate.

Angela Green, a licensed clinical social worker, testified A.C. suffered from symptoms relating to having been sexually assaulted, such as promiscuity, assaultive behavior, self-harming behavior, and suicide attempts. Green explained, as a result of the sexual assault, A.C. endured long-term emotional wounds. Further, Ali Winters, a clinical therapist, testified via deposition that A.C. has classic posttraumatic stress disorder that is specifically related to being a victim of sexual abuse. As a result, A.C. suffers from nightmares, flashbacks, exaggerated startle response, and self-mutilation, including cutting and burning herself. Winters concluded that, because of R.O.'s inappropriate sexual acts with A.C., there was an overwhelming chance that A.C. was permanently changed, for the worse, for life.

At the conclusion of the evidence, the circuit court awarded A.C. $41,238.72 in medical expenses, $2,000,000.00 for emotionaldistress and physical and mental suffering, and $6,000,000.00 in punitive damages.

On June 4, 2010, R.O. filed a motion for a new trial or to alter, amend, or vacate the judgment under Kentucky Rules of Civil Procedure (CR) 59.01(f) and 59.05, respectively, on the grounds that the punitive damages award was excessive and not sustained by sufficient evidence. The circuit court denied R.O.'s motion. R.O. promptly appealed.

II. Standard of Review

We review the constitutionality of punitive damages de novo. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 931 (Ky.2007); McDonald's Corporation v. Ogborn, 309 S.W.3d 274, 297 (Ky.App.2009).⁴

III. Analysis

R.O. seeks to set aside the punitive damages award on the ground that it is grossly excessive. Specifically, R.O. contends the award violates the second and third guideposts set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 1595, 134 L.Ed.2d 809 (1996).⁵ We disagree.

Punitive damages function “to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition.” Gore, 517 U.S. at 568, 116 S.Ct. at 1595;Kentucky Farm Bureau Mut. Ins. Co. v. Rodgers, 179 S.W.3d 815, 826 (Ky.2005) (Wintersheimer, J., dissenting). “Only when an award can fairly be categorized as ‘grossly excessive’ in relation to those interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” Gore, 517 U.S. at 568, 116 S.Ct. at 1595 (citing TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 456, 113 S.Ct. 2711, 2719, 125 L.Ed.2d 366 (1993)). As this Court has previously framed the question, “What constitutes a ‘grossly excessive’ award?” McDonald's, 309 S.W.3d at 298.

In answering this question, the United States Supreme Court established three guideposts to aid reviewing courts, namely:

(1) the degree of reprehensibility of the defendant's conduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 1520, 155 L.Ed.2d 585 (2003) (citing Gore, 517 U.S. at 575, 116 S.Ct. at 1599);see also Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky.2003). We scrutinize the award of punitive damages in the framework of these guideposts.

A. Degree of Reprehensibility

“Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct.” Gore, 517 U.S. at 575, 116 S.Ct. at 1599. “This principle reflects the accepted view that some wrongs are more blameworthy than others.” Id. In reviewing the fact finder's determination of reprehensibility, the Supreme Court has instructed us to consider whether:

the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.

State Farm, 538 U.S. at 419, 123 S.Ct. at 1521.

Applying the State Farm factors to this case, it is evident they do not weigh in R.O.'s favor. The harm caused was clearly physical rather than economic. R.O.'s conduct caused A.C. extensive emotional, mental, and physical harm, leading to self-mutilation and assaultive behavior, which altered A.C. for life. Additionally, by engaging in repeated sexual acts with A.C. when she was an eleven-year-old child, R.O. evinced a complete disregard for A.C.'s mental and physical well-being. Furthermore, with respect to the fourth factor, “a pattern of misconduct should be considered as adding to the reprehensibility of a tortfeasor's conduct.” McDonald's, 309 S.W.3d at 300. Here, R.O. engaged in sexual acts with A.C. on several occasions over a span of many months. Finally, A.C.'s harm resulted from R.O.'s deliberate and intentional acts of sexual misconduct and, as found by the circuit court, the finder of fact in this matter, R.O. acted with malice “as was implied from the outrageousness of his conduct.” (Trial Order and Judgment at 2).

“The combination of these factors supports a finding of reprehensibility.” Ragland, 352 S.W.3d at 918. In fact, as explained by our sister state, “[t]he sexual molestation of young children ... is widely viewed as one of the most, if not the most, reprehensible crimes in our society.” State v. McKinniss, 153 Ohio App.3d 654, 795 N.E.2d 160, 163 (2003). We find the degree of reprehensibility in this case to be significant.

B. Ratio

Next, we must “consider the disparity between the harm suffered by the plaintiff[ ] and the amount of punitive damages awarded.” Phelps, 103 S.W.3d at 54. This factor ensures the punitive damages “bear a reasonable relationship” to the compensatory damages. Gore, 517 U.S. at 580, 116 S.Ct. at 1601. Under this guidepost, we focus on both the reasonableness of the punitive damages award, and the ratio between the compensatory and punitive damages awarded. See id. at 580, 583, 116 S.Ct. at 1601–02.

We begin with a subjective, reasonableness review of the punitive damages award. Ragland, 352 S.W.3d at 920 (noting “this concept is an admittedly subjective analysis”). In this regard, the Supreme Court has repeatedly explained a “general concer[n] of reasonableness ... properly enter [s] into the constitutional calculus.” Gore, 517 U.S. at 583, 116 S.Ct. at 1602 (quoting TXO, 509 U.S. at 458, 113 S.Ct. at 2720 (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 1043, 113 L.Ed.2d 1 (1991))). As a means of evaluating the reasonableness of a punitive damages award, Kentucky utilizesthe “first blush” rule. Ragland, 352 S.W.3d at 919–20;see also Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483, 493 (Ky.2002)vacated on other grounds by Ford Motor Co. v. Estate of Smith, 538 U.S. 1028, 123 S.Ct. 2072, 155 L.Ed.2d 1056 (2003). Under the first blush rule, a punitive damages award is approaching, and may have crossed, the boundary into excessiveness:

if it “causes the mind at first blush to conclude that it was returned under the influence of passion or prejudice on the part of the jury.” [Citation omitted] Even if liberal, an award that does not shock the conscience or is not clearly excessive may not be set aside.

Ragland, 352 S.W.3d at 920 (quoting CSX Transp.,...