Urseth v. City of Dayton

Citation680 F. Supp. 1150
Decision Date19 November 1987
Docket NumberNo. C-3-84-103.,C-3-84-103.
PartiesAnomi R. URSETH, Plaintiff, v. CITY OF DAYTON, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Irving I. Saul, Dayton, Ohio, E. John Wist, A. Melvin Kemmer, Tipp City, Ohio, for plaintiff.

Neil F. Freund, Jane M. Lynch, J. Anthony Sawyer, Director of Law, City of Dayton Law Dept., Dayton, Ohio, for defendants.

DECISION AND ENTRY SUSTAINING DEFENDANT CITY OF DAYTON'S MOTION FOR NEW TRIAL ON THE ISSUE OF DAMAGES OR, IN THE ALTERNATIVE, FOR REMITTITUR; NEW TRIAL ON ISSUE OF DAMAGES GRANTED UNLESS, WITHIN STATED PERIOD OF TIME, PLAINTIFF ACCEPTS REMITTITUR TO SUM OF $1,650,000; DISCUSSION AND ORDER ON QUESTION OF ALLOCATION OF COSTS

RICE, District Judge.

A. INTRODUCTION

On August 4, 1986, a jury returned a verdict in favor of the Plaintiff and against the sole remaining Defendant, the City of Dayton, in the amount of $3,500,000, on that count of her Complaint seeking damages for the wrongful death of her husband, James Urseth. The Defendant filed a timely Motion for New Trial, or, in the Alternative, for a Remittitur (a reduction of the amount of the verdict) (Doc. # 208) on the ground that the verdict as returned by the jury is contrary to the weight of the evidence, is excessive and is based upon passion and prejudice.1

At issue herein is the proper measure of damages recoverable under Ohio's relatively new (1982) wrongful death statute, Ohio Revised Code § 2125.02, which reads in pertinent part as follows;

(B) Compensatory damages may be awarded in an action for wrongful death and may include damages for the following:
(1) Loss of support from the reasonably expected earning capacity of the decedent;
(2) Loss of services of the decedent;
(3) Loss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving spouse, minor children, parents, or next of kin;
(4) Loss of prospective inheritance, to the decedent's heirs at law at the time of his death;
(5) The mental anguish incurred by the surviving spouse, minor children, parents, or next of kin.

At the outset, this Court deems it fitting to express its conviction that there is no sum of money that can ever, in any way, ease the emotional trauma and distress or make a person whole for the reality occasioned by the loss of a loved one, particularly in a case such as this where that loved one met his death in such a violent, brutal, senseless and totally unnecessary manner. Neither the City of Dayton nor any municipality has sufficient funds in its treasury to accomplish this impossible feat.2

The issue before this Court, therefore, in determining the excessiveness (on the one hand) or the reasonableness (on the other) of an award of damages in this or in any other case where wrongful death has been urged by a plaintiff and proven to the satisfaction of a jury, is not what amount of money damages will, in a subjective or emotional sense, compensate the survivors for the loss of a deceased (since that is an impossibility), but rather what sum of money, viewed objectively, is justified as compensation by the proof brought forth by the evidence at trial. In addition, while there may be those familiar with the facts of this case that would deem it more than appropriate to punish the City of Dayton for a "supervisory policy regarding the Organized Crime Unit of the Dayton Police Department that was so reckless or grossly negligent that future misconduct was almost inevitable or substantially certain to occur" (see Interrogatory No. 10 answered by the jury in the affirmative), the fact remains that the jury concluded that the supervisory policy in question was not the moving force behind the death of James Urseth (see Interrogatory No. 11 answered by the jury in the negative). The jury concluded only that the action of the Defendant City's employees wrongfully caused his death. Under the law, no matter how negligent, reckless or pernicious a city's conduct might be, a jury verdict may not include any amount (any dollar figure) for punishment. Punitive damages, regardless of how well deserved they might appear to be in a given case, cannot be awarded against a municipality such as the City of Dayton, either as a result of the city's action, inaction or the misconduct of its employees. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Damages against a municipality are limited to those proven necessary, by a preponderance or greater weight of the evidence, to compensate those survivors recognized by law for the loss of the deceased.

In determining the amount of reasonable compensation (or whether the amount awarded by the jury is excessive), under the above referenced subsection of Revised Code § 2125.02, based upon the evidence brought forth at trial in this case, one is immediately faced with a twofold dilemma:

1. The statute, itself, in its present form, which greatly expanded the measure of damages for wrongful death, is so relatively new that there exists a dearth — a scarcity — of reported case law interpreting the measure of damages for wrongful death in the context of specific fact situations either in Ohio, in other states with similar statutes, or in the federal system where courts sitting in diversity jurisdiction are called upon to construe statutes similar to Ohio's; and
2. What decisions do exist, either in Ohio or elsewhere, are virtually useless, insofar as their applicability to this case is concerned, due to the reality that they are almost totally fact sensitive, i.e., there is no dispute as to the governing law—a plaintiff is entitled to "just compensation based upon proof establishing ... injuries and compensation with reasonable certainty," Drayton v. Jiffee Chemical Corp., 591 F.2d 352, 362 (6th Cir.1978); the standard for determining the excessiveness of a verdict is the amount which, under the facts of the case, was the maximum that the jury reasonably could find to be compensation for the loss, Manning v. Altec, Inc., 488 F.2d 127, 133 (6th Cir.1973) — the only question is how the unique facts of a given case are to be measured against that legal standard. In other words, since the facts, those bearing upon both liability and damages, differ from case to case, a reported decision concluding that a certain amount of money constitutes just compensation as damages within a given fact situation is of limited utility when attempting to determine just compensation (or, as is the case herein, whether a jury award of compensation is excessive) in another, dissimilar fact situation.
B. THE APPLICABLE LAW

"The proper role of the trial and appellate courts in a federal system in reviewing the size of a jury verdict is, ... a matter of federal law...." Donovan v. Penn Shipping Co., 429 U.S. 648, 649, 97 S.Ct. 835, 837, 51 L.Ed.2d 112 (1977); (citing Hanna v. Plumer, 380 U.S. 460, 466-469, 85 S.Ct. 1136, 1141-43, 14 L.Ed.2d 8 (1965); Byrd v. Blue Ridge Rural Electric Coop., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958)). "As remittitur concerns the relationship between the federal judge and jury, it is a question of federal law." Karlson v. 305 East 43rd Street Corp., 370 F.2d 467, 472 (2d Cir.1967). Indeed, there is a "strong federal policy against allowing state rules to disrupt the judge-jury relationship in the federal courts." Byrd v. Blue Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 538, 78 S.Ct. 893, 901, 2 L.Ed.2d 53 (1958) (state decisions holding that statutory defense which under state law must be decided by judge alone must give way to federal law which requires the factual issues raised by such a defense to be presented to and decided by a jury, since there is an affirmative federal policy favoring jury determination of disputed factual questions). The standard applicable to remittitur is governed by federal, not state law. West v. Jutras, 456 F.2d 1222, 1225 n. 6 (2d Cir.1972). As stated, supra, at 1152, a plaintiff is entitled to "just compensation based upon proof establishing ... injuries and compensation with reasonable certainty", Drayton, 591 F.2d at 362; the standard for determining the excessiveness of a verdict is the amount which, under the facts of the case, was the maximum that the jury reasonably could find to be compensation for the loss, Manning, 488 F.2d at 133.

Under federal law (as, for that matter, under state law), remittitur is not proper if the verdict was excessive and the result of passion and prejudice, since prejudice may well have affected the decision of the jury on liability, as well as upon damages. In those instances, a complete new trial is required. 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2815, at 103 (1973). Presumably, if the verdict is merely excessive, i.e., not justified by or against the weight of the evidence, influenced or caused, perhaps, by sympathy but not by passion and prejudice, a remittitur as an alternative to an offer of a new trial on the issue of damages would seem to be a reasonable alternative. C. McCormick, Handbook on the Law of Damages, § 19, at 80-81 (1935).3

C. THE JURY VERDICT IN THIS CASE WAS NOT THE RESULT OF PASSION AND PREJUDICE

In this Court's opinion, while the jury verdict on the issue of damages may be excessive and, therefore, not justified by and, accordingly, against the weight of the evidence, same is not the result of passion and prejudice, given the fact that the jury very carefully considered and answered each applicable interrogatory submitted to it and, in concluding that the Plaintiff had not prevailed on the civil rights claim set forth in the Plaintiff's Complaint, determined that the City of Dayton's supervisory policy regarding the Organized Crime Unit of the Dayton Police Department, while so reckless or grossly negligent that future misconduct was almost...

To continue reading

Request your trial
12 cases
  • Pescatore v. Pan American World Airways, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 9, 1996
    ...new trial. According to Pan Am, the highest award upheld by a court in Ohio for loss of society was $300,000. In Urseth v. City of Dayton, 680 F.Supp. 1150, 1157 (S.D.Ohio 1987), a jury awarded $2.75 million in damages for loss of society and mental anguish, and the district court reduced P......
  • Ramage v. Central Ohio Emergency Serv., Inc.
    • United States
    • United States State Supreme Court of Ohio
    • June 24, 1992
    ...Cuyahoga App. No. 50479, unreported, 1986 WL 6357. See, also, Molton v. Cleveland (C.A.6, 1988), 839 F.2d 240; and Urseth v. Dayton (S.D.Ohio 1987), 680 F.Supp. 1150. Appellants also cite the leading treatise in this area of the law, McCormac, Wrongful Death in Ohio (1989 Supp.), Section 2.......
  • Copley v. Global, Inc., 98-3048-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • May 5, 2000
    ...Prac. Cas. (BNA) 1296, 37 Empl, Prac. Dec. (CCH) 35,404, 1984 WL 1443, at *7 (E.D.Mo. June 13, 1984); see also Urseth v. City of Dayton, 680 F.Supp. 1150, 1156 (S.D.Ohio 1987) (noting the "dilemma" faced by courts in assessing awards for mental anguish, which are "by their nature ineluctabl......
  • Hartzler v. Licking County Humane Soc., C2-88-884.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 29, 1990
    ...find to be compensatory for the plaintiff's loss. Manning v. Altec, Inc., 488 F.2d 127, 132 (6th Cir.1973); Urseth v. City of Dayton, 680 F.Supp. 1150, 1152 (S.D.Ohio 1987). As explained in detail above, the jury found in favor of the plaintiff on his § 1983 claim for unlawful search and se......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT