130th Ohio General Assembly
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As Introduced

122nd General Assembly
Regular Session
1997-1998
H. B. No. 547

REPRESENTATIVES GRENDELL-THOMAS-NETZLEY-CATES-WESTON-OPFER- THOMPSON-GARCIA-HOOD-WHALEN-PRINGLE-LUCAS-YOUNG- KRUPINSKI-BATCHELDER


A BILL
To amend sections 2307.60, 2903.21, and 2903.22 of the Revised Code to expand the bar against the recovery of damages in tort actions commenced by criminal offenders to include felony and misdemeanor violations of Ohio and federal law, to establish an offender's related assumption of the inherent risk of the occurrence of harm as a result of a victim's or other person's use of reasonably necessary force for defense purposes, and to establish a specified type of self-defense and defense of a third person as an affirmative defense to aggravated menacing and menacing.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:


Section 1. That sections 2307.60, 2903.21, and 2903.22 of the Revised Code be amended to read as follows:

Sec. 2307.60. (A) Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code. A record of a conviction, unless obtained by confession in open court, shall not be used as evidence in a civil action brought pursuant to division (A) of this section.

(B)(1) As used in division (B) of this section:

(a) "Harm" means injury, death, or loss to person or property.

(b) "Tort action" means a civil action for damages for injury, death, or loss to person or property. "Tort action" includes a product liability claim but does not include OTHER THAN a civil action for damages for a breach of contract or another agreement between persons. "TORT ACTION" INCLUDES, BUT IS NOT LIMITED TO, A PRODUCT LIABILITY CLAIM, AN ACTION FOR WRONGFUL DEATH UNDER CHAPTER 2125. of the Revised Code, AND AN ACTION BASED ON DERIVATIVE CLAIMS FOR RELIEF.

(c) "Trier of fact" means the jury or, in a nonjury action, the court VIOLATION OF LAW" MEANS A VIOLATION OF A SECTION of the Revised Code, A MUNICIPAL ORDINANCE THAT IS SUBSTANTIALLY SIMILAR TO A SECTION of the Revised Code, OR A LAW OF THE UNITED STATES THAT CONSTITUTES A FELONY, A MISDEMEANOR, OR A CONSPIRACY TO COMMIT, ATTEMPT TO COMMIT, OR COMPLICITY IN COMMITTING A FELONY OR MISDEMEANOR.

(2) Recovery on a claim for relief in a tort action is barred to any person or the person's legal representative if the person has been convicted of or has pleaded guilty to a felony offense arising out of criminal conduct that was a proximate cause of the injury or loss for which relief is claimed in the action.

(3) Division (B) of this section does not apply to civil claims based upon alleged intentionally tortious conduct, alleged violations of the United States Constitution, or alleged violations of statutes of the United States pertaining to civil rights.

(a) ALL PERSONS WHO COMMIT A VIOLATION OF LAW IN THIS STATE ASSUME THE INHERENT RISK OF THE OCCURRENCE OF HARM AS A RESULT OF THE VICTIM OF THAT VIOLATION OF LAW OR ANOTHER PERSON ON BEHALF OF THAT VICTIM USING REASONABLY NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES, EXCEPT AN INHERENT RISK OF THE OCCURRENCE OF HARM FROM CONDUCT THAT VIOLATES THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF THIS STATE, OR THE STATUTES OF THIS STATE OR THE UNITED STATES PERTAINING TO CIVIL RIGHTS.

(b) ALL PERSONS WHO COMMIT A VIOLATION OF LAW IN THIS STATE SHALL BE CONSIDERED AS A MATTER OF LAW TO HAVE KNOWLEDGE OF THE RISK OF THE OCCURRENCE OF HARM AS A RESULT OF THE VICTIM OF THAT VIOLATION OF LAW OR ANOTHER PERSON ON BEHALF OF THAT VICTIM USING REASONABLY NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES, EXCEPT KNOWLEDGE OF THE INHERENT RISK OF THE OCCURRENCE OF HARM FROM CONDUCT THAT VIOLATES THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF THIS STATE, OR THE STATUTES OF THIS STATE OR THE UNITED STATES PERTAINING TO CIVIL RIGHTS.

(3) A DEFENDANT IN A TORT ACTION COMMENCED ON OR AFTER THE EFFECTIVE DATE OF THIS AMENDMENT IS NOT LIABLE IN DAMAGES TO THE PLAINTIFF IN THE ACTION IF ALL OF THE FOLLOWING APPLY:

(a) THE ACTION IS BASED ON HARM THAT THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS PERSONAL REPRESENTATIVE ALLEGEDLY CAUSED TO THE PLAINTIFF OR THE PERSON FOR WHOM THE PLAINTIFF IS PERSONAL REPRESENTATIVE.

(b) THE PLAINTIFF OR THE PERSON FOR WHOM THE PLAINTIFF IS PERSONAL REPRESENTATIVE ALLEGEDLY SUSTAINED THE HARM REFERRED TO IN DIVISION (B)(3)(a) OF THIS SECTION WHILE ENGAGED IN A VIOLATION OF LAW.

(c) THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS PERSONAL REPRESENTATIVE ALLEGEDLY CAUSED THE HARM REFERRED TO IN DIVISION (B)(3)(a) OF THIS SECTION WHILE THE DEFENDANT OR THAT PERSON WAS A VICTIM OF THE VIOLATION OF LAW REFERRED TO IN DIVISION (B)(3)(b) OF THIS SECTION AND WHILE USING REASONABLY NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES.

(d) THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS PERSONAL REPRESENTATIVE DID NOT CAUSE THE HARM REFERRED TO IN DIVISION (B)(3)(a) OF THIS SECTION WHILE ENGAGING IN CONDUCT THAT VIOLATES THE UNITED STATES CONSTITUTION, THE CONSTITUTION OF THIS STATE, OR THE STATUTES OF THIS STATE OR THE UNITED STATES PERTAINING TO CIVIL RIGHTS.

(4) NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS SECTION OR ANOTHER SECTION of the Revised Code OR ANY CONTRARY COMMON LAW OF THIS STATE, IF A DEFENDANT REFERRED TO IN DIVISION (B)(3) OF THIS SECTION RAISES AS AN AFFIRMATIVE DEFENSE AND ESTABLISHES AT ANY STAGE OF A TORT ACTION THAT THE HARM THAT THE PLAINTIFF OR THE PERSON REPRESENTED BY THE PLAINTIFF ALLEGEDLY SUSTAINED WAS CAUSED UNDER THE CIRCUMSTANCES REFERRED TO IN DIVISIONS (B)(3)(a) TO (c) OF THIS SECTION AND THAT THE DEFENDANT OR THE PERSON FOR WHOM THE DEFENDANT IS PERSONAL REPRESENTATIVE DID NOT CAUSE THAT HARM WHILE ENGAGED IN CONDUCT REFERRED TO IN DIVISION (B)(3)(d) OF THIS SECTION, THE ASSUMPTION OF THE INHERENT RISK OF THE OCCURRENCE OF HARM DESCRIBED IN DIVISION (B)(2)(a) OF THIS SECTION SHALL BE A COMPLETE DEFENSE TO THE PLAINTIFF'S CLAIMS FOR RELIEF IN THE ACTION AND SHALL BAR THE PLAINTIFF'S RECOVERY OF DAMAGES IN THE ACTION.

(5) THE PROVISIONS OF DIVISION (B) OF THIS SECTION ARE AVAILABLE TO A DEFENDANT DESCRIBED IN DIVISION (B)(3) OF THIS SECTION WHETHER OR NOT THE PLAINTIFF OR THE PERSON REPRESENTED BY THE PLAINTIFF HAS BEEN CHARGED BY AN INDICTMENT, INFORMATION, OR COMPLAINT WITH A VIOLATION OF LAW, HAS BEEN FOUND GUILTY OF OR PLEADED GUILTY TO A VIOLATION OF LAW, OR HAS BEEN ADJUDICATED TO BE A DELINQUENT CHILD FOR HAVING COMMITTED A VIOLATION OF LAW.

(6)(a) DIVISION (B) OF THIS SECTION DOES NOT CREATE A NEW CAUSE OF ACTION OR SUBSTANTIVE LEGAL RIGHT AGAINST A PERSON THAT OR THE ESTATE OF A PERSON THAT USES REASONABLY NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES.

(b) DIVISION (B) OF THIS SECTION DOES NOT AFFECT ANY IMMUNITIES FROM OR DEFENSES TO TORT LIABILITY ESTABLISHED BY SECTION 2305.40 OR OTHER SECTIONS of the Revised Code OR AVAILABLE AT COMMON LAW TO WHICH A PERSON THAT OR THE ESTATE OF A PERSON THAT USES REASONABLY NECESSARY FORCE FOR SELF-DEFENSE PURPOSES OR DEFENSE OF A THIRD PERSON PURPOSES MAY BE ENTITLED.

Sec. 2903.21. (A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of such THE other person, such TO THE other person's unborn, or TO a member of the other person's immediate family.

(B)(1) IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE OF AN ALLEGED VIOLATION OF THIS SECTION THAT, AT THE TIME OF THE ALLEGED VIOLATION, ALL OF THE FOLLOWING APPLIED:

(a) THE ALLEGED OFFENDER WAS THE OWNER, LESSEE, OR RENTER OF REAL PROPERTY OR A MEMBER OF THE OWNER'S, LESSEE'S, OR RENTER'S FAMILY WHO RESIDES ON THE REAL PROPERTY.

(b) THE ALLEGED OFFENDER WAS LOCATED INSIDE A BUILDING OR OTHER STRUCTURE ON THE REAL PROPERTY DESCRIBED IN DIVISION (B)(1)(a) OF THIS SECTION THAT IS MAINTAINED AS A PERMANENT OR TEMPORARY DWELLING, OR THE ALLEGED OFFENDER WAS LOCATED ON THE PREMISES OF THE REAL PROPERTY DESCRIBED IN DIVISION (B)(1)(a) OF THIS SECTION BUT OUTSIDE OF A BUILDING OR OTHER STRUCTURE OF THAT NATURE.

(c) THE ALLEGED OFFENDER WAS ENGAGED IN A LAWFUL ACTIVITY INSIDE THE BUILDING OR OTHER STRUCTURE, OR ON THE PREMISES, DESCRIBED IN DIVISION (B)(1)(b) OF THIS SECTION.

(d) AS A PRUDENT PERSON WHO WAS ACTING UNDER THE CIRCUMSTANCES PRESENT IN A MANNER CONSISTENT WITH THE COMMON LAW OF THIS STATE OR A SECTION of the Revised Code, THE ALLEGED OFFENDER WAS LEGALLY JUSTIFIED IN USING A THREAT OF SERIOUS PHYSICAL HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON FOR PURPOSES OF SELF-DEFENSE OR DEFENSE OF A THIRD PERSON, INCLUDING, BUT NOT LIMITED TO, A THREAT OF SERIOUS PHYSICAL HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON BY THE USE OF A DEADLY WEAPON, AS DEFINED IN SECTION 2923.11 of the Revised Code, THAT THE ALLEGED OFFENDER LAWFULLY POSSESSED AND EITHER CARRIED OR HAD READY AT HAND FOR DEFENSIVE OR OTHER LAWFUL PURPOSES.

(2) DIVISION (B)(1) OF THIS SECTION DOES NOT PRECLUDE A PERSON CHARGED WITH A VIOLATION OF THIS SECTION FROM ESTABLISHING IN ACCORDANCE WITH SECTION 2901.05 of the Revised Code ANY OTHER AFFIRMATIVE DEFENSE THAT MAY BE AVAILABLE TO THAT PERSON UNDER THE COMMON LAW OF THIS STATE OR A SECTION of the Revised Code.

(C) Whoever violates this section is guilty of aggravated menacing, a misdemeanor of the first degree.

Sec. 2903.22. (A) No person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of such THE other person, such TO THE other person's unborn, or TO a member of the other person's immediate family.

(B)(1) IT IS AN AFFIRMATIVE DEFENSE TO A CHARGE OF AN ALLEGED VIOLATION OF THIS SECTION THAT, AT THE TIME OF THE ALLEGED VIOLATION, ALL OF THE FOLLOWING APPLIED:

(a) THE ALLEGED OFFENDER WAS THE OWNER, LESSEE, OR RENTER OF REAL PROPERTY OR A MEMBER OF THE OWNER'S, LESSEE'S, OR RENTER'S FAMILY WHO RESIDES ON THE REAL PROPERTY.

(b) THE ALLEGED OFFENDER WAS LOCATED INSIDE A BUILDING OR OTHER STRUCTURE ON THE REAL PROPERTY DESCRIBED IN DIVISION (B)(1)(a) OF THIS SECTION THAT IS MAINTAINED AS A PERMANENT OR TEMPORARY DWELLING, OR THE ALLEGED OFFENDER WAS LOCATED ON THE PREMISES OF THE REAL PROPERTY DESCRIBED IN DIVISION (B)(1)(a) OF THIS SECTION BUT OUTSIDE OF A BUILDING OR OTHER STRUCTURE OF THAT NATURE.

(c) THE ALLEGED OFFENDER WAS ENGAGED IN A LAWFUL ACTIVITY INSIDE THE BUILDING OR OTHER STRUCTURE, OR ON THE PREMISES, DESCRIBED IN DIVISION (B)(1)(b) OF THIS SECTION.

(d) AS A PRUDENT PERSON WHO WAS ACTING UNDER THE CIRCUMSTANCES PRESENT IN A MANNER CONSISTENT WITH THE COMMON LAW OF THIS STATE OR A SECTION of the Revised Code, THE ALLEGED OFFENDER WAS LEGALLY JUSTIFIED IN USING A THREAT OF PHYSICAL HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON FOR PURPOSES OF SELF-DEFENSE OR DEFENSE OF A THIRD PERSON, INCLUDING, BUT NOT LIMITED TO, A THREAT OF PHYSICAL HARM TO THE PERSON OR PROPERTY OF THE OTHER PERSON BY THE USE OF A DEADLY WEAPON, AS DEFINED IN SECTION 2923.11 of the Revised Code, THAT THE ALLEGED OFFENDER LAWFULLY POSSESSED AND EITHER CARRIED OR HAD READY AT HAND FOR DEFENSIVE OR OTHER LAWFUL PURPOSES.

(2) DIVISION (B)(1) OF THIS SECTION DOES NOT PRECLUDE A PERSON CHARGED WITH A VIOLATION OF THIS SECTION FROM ESTABLISHING IN ACCORDANCE WITH SECTION 2901.05 of the Revised Code ANY OTHER AFFIRMATIVE DEFENSE THAT MAY BE AVAILABLE TO THAT PERSON UNDER THE COMMON LAW OF THIS STATE OR A SECTION of the Revised Code.

(C) Whoever violates this section is guilty of menacing, a misdemeanor of the fourth degree.


Section 2. That existing sections 2307.60, 2903.21, and 2903.22 of the Revised Code are hereby repealed.
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