IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joan Lee Ross, et al., :

Plaintiffs, :

v. : Case No. 2:12-cv-743

Home Depot USA Inc., et al., : 

 Magistrate Judge Kemp

 Defendants. :

 

OPINION AND ORDER

This matter is before the Court on a motion for partial

summary judgment filed by Home Depot, U.S.A., Inc. (“Home

Depot”). (Doc. 80). The motion has been briefed fully and is

now ripe for decision. For the reasons set forth below, the

motion for partial summary will be granted in part and denied in

part.

I. Background

Plaintiff Joan Lee Ross tripped and fell over an extension

cord at a Home Depot store in June, 2012. Plaintiffs filed this

action to recover compensatory damages on a theory of negligence

and premises liability. Plaintiffs also set forth a claim for

loss of consortium and seek punitive damages.

On June 30, 2014, Home Depot filed a motion for partial

summary judgment. (Doc. 80). In the motion, Home Depot requests

that the Court grant it summary judgment as to the plaintiffs’

claims for punitive damages. Home Depot also moves the Court to

enforce the statutory, non-economic damage caps with respect to

the injuries sustained by Ms. Ross.

In their response, plaintiffs argue that the Court should

deny the motion for summary judgment as to punitive damages

because genuine issues of material fact exist as to whether Home

Depot acted with “conscious disregard” for the rights and safety

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of Ms. Ross and others. Alternatively, plaintiffs argue that the

Court should delay ruling on this issue until trial. Plaintiffs

state that “the recent amendment to O.R.C. §2315.21, whereby

punitive damages claims are bifurcated at trial, makes it

unnecessary for the Court to decide the punitive damages claim by

way of a dispositive motion at this time.” According to

plaintiffs, Home Depot’s motion is premature, as the Court “will

be in a much better position to make its decision after hearing

all of the evidence at trial.” Plaintiffs also argue that

genuine issues of material fact exist as to whether the noneconomic damage caps should apply because Ms. Ross suffered a

permanent and substantial physical deformity and that this issue

is more properly resolved at the time of trial. 

In its reply (Doc. 92), Home Depot argues that plaintiffs

have no evidence to support their claim for punitive damages. In

addition, Home Depot argues that “Mrs. Ross’s successful recovery

and modest scarring do not fall into the very narrow exceptions

to capped non-economic damages under Ohio law.” On this basis,

Home Depot urges this Court to grant its motion for partial

summary judgment.

II. Motion for Summary Judgment Standard

Summary judgment is not a substitute for a trial when facts

material to the Court’s ultimate resolution of the case are in

dispute. It may be rendered only when appropriate evidentiary

materials, as described in Fed.R.Civ.P. 56©, demonstrate the

absence of a material factual dispute and the moving party is

entitled to judgment as a matter of law. Poller v. Columbia

Broadcasting System, Inc., 368 U.S. 464 (1962). The moving party

bears the burden of demonstrating that no material facts are in

dispute, and the evidence submitted must be viewed in the light

most favorable to the nonmoving party. Adickes v. S.H. Kress &

Co., 398 U.S. 144 (1970). Additionally, the Court must draw all

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reasonable inferences from that evidence in favor of the

nonmoving party. United States v. Diebold, Inc., 369 U.S. 654

(1962). The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in support

of any material element of a claim or defense on which that party

would bear the burden of proof at trial, even if the moving party

has not submitted evidence to negate the existence of that

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Of

course, since “a party seeking summary judgment . . . bears the

initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact,” Celotex, 477 U.S. at 323, the

responding party is only required to respond to those issues

clearly identified by the moving party as being subject to the

motion. It is with these standards in mind that the instant

motion must be decided.

III. Discussion

The Court will first examine Home Depot’s motion for summary

judgment on plaintiffs’ claims for punitive damages. After doing

so, the Court will address whether Home Depot is entitled to the

statutory, non-economic damage caps with respect to the injuries

sustained by Ms. Ross.

A. Punitive Damages

There is no dispute that under Ohio law a finding of actual

malice is required for an award of punitive damages. See Rice v.

CertainTeed Corp., 84 Ohio St.3d 417, 704 N.E.2d 1217, 1220

(1999). In Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174,

1176 (1987), the Ohio Supreme Court held that:

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

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of revenge, or (2) a conscious disregard for the rights

and safety of other persons that has a great probability

of causing substantial harm.

Id. The Ohio Supreme Court instructed that, “in the latter case,

before submitting the issue of punitive damages to the jury, a

trial court must review the evidence to determine if reasonable

minds can differ as to whether the party was aware his or her act

had a great probability of causing substantial harm.” Id. at

336. In addition, the court must determine that sufficient

evidence is presented to demonstrate that “the party consciously

disregarded the injured party’s rights or safety.” Id. Facts

which may be used to demonstrate actual malice include:

(1) The duration of the offensive conduct.

(2) An apparent lack of concern for the rights of

others.

(3) The availability of alternative methods which would

avoid damage to others.

(4) The feasibility of such alternatives.

(5) Knowledge of adverse consequences from that

conduct.

(6) The probability that harm will occur to others from

that conduct.

Brookridge Party Center, Inc. v. Fisher Foods, Inc., 12 Ohio

App.3d 130, 468 N.E.2d 63, 67 (Ohio App. 8th Dist. 1983). 

Entitlement to punitive damages must be shown by clear and

convincing evidence. See Morgan v. New York Life Ins. Co., 559

F.3d 425, 440 (6th Cir. 2009), citing Cabe v. Lunich, 70 Ohio

St.3d 598, 640 N.E.2d 159, 162 (1994).

According to plaintiffs, genuine issues of material fact

exist as to whether Home Depot acted with “conscious disregard”

for the rights and safety of others, including Ms. Ross. First,

plaintiffs argue that the duration of the offensive conduct

demonstrates conscious disregard for Mr. Ross’s safety. 

Plaintiffs state:

Although the specific date of the placement of the fan

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display (and the identity of the individual employee

responsible) cannot be known for certain due to

Defendant’s destruction of video surveillance evidence

(see Doc. #77), the deposition testimony of Shannon

Maxwell, Defendant’s Merchandising Execution Manager,

suggests that the display was erected between April 9,

2012 and April 20, 2012. (Maxwell Depo, p. 50). As

such, Defendant quite clearly utilized the extension cord

for an extended period of time greatly exceeding that

outlined in its own policy set forth on page 57 of the

Asset Protection Guide: “For store-built displays,

extension cords must not be used as permanent wiring

(longer than 24 hours).”

(Doc. 89 at 5)(footnote omitted). 

Plaintiffs further argue that Home Depot’s use of the

extension cord to power the fan display violated other policies

set forth in Home Depot’s Asset Protection Guide because the

displays were not permitted to be powered by an extension cord

and were, instead, required to be hardwired; Home Depot failed to

use a breaker and/or power strip/surge protector; Home Depot

declined to measure the cord to determine if it was the

appropriate length; and Home Depot failed to ensure that the

display did not protrude into the aisles to prevent a trip and

fall hazard. Based upon these facts, plaintiffs argue that “it

was certainly foreseeable and indeed probable that the placement

of the cord and its concealment could lead to falls and

potentially bodily harm.” 

Plaintiffs also argue that Home Depot’s “reliance on selfserving testimony suggesting a lack of prior falls or incidents

cannot be used to establish that none of its employees had

knowledge prior to the incident that the cord could pose a trip

hazard.” Plaintiffs make this argument based on the fact that

Home Depot had the ability and duty to preserve the video

surveillance footage that plaintiffs requested and “which would

have been used to challenge such an assertion.” 

This Court examined the issue of the missing video footage

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in its June 20, 2014 Opinion and Order on plaintiffs’ motion for

sanctions. In that decision, the Court granted plaintiffs’

motion and ruled that the jury will be given the following

permissive adverse-inference instruction:

You have heard testimony about video footage that was not

produced. The Rosses have argued that this evidence may

have shown something important about this dispute.

This Court has found, and you must accept as true, that

the Rosses requested Home Depot to preserve video footage

showing the fan display area from the time the fan

display was erected until after Ms. Ross fell and was

taken away by the EMS squad. That footage existed when

she asked for it, but the only footage which Home Depot

kept was the footage beginning 20 minutes before the fall

and ending about 50 minutes later. 

The Court has also found, and, again, you must accept

this finding to be true, that Home Depot negligently

failed to preserve this evidence - that is, it did not

take reasonable steps to make sure that the footage in

question was not recorded over even though it had been

asked to do that.

From this Court’s findings, you are allowed to infer, or

conclude, that the lost footage would have shown

something favorable to the Rosses and unfavorable to Home

Depot.

I am not telling you that you have to reach that

conclusion, only that you can if you think it reasonable.

Whether or not you do so is solely a matter within your

collective discretion based on your consideration of this

instruction and all of the other evidence in the case.

As noted in the Opinion and Order, this instruction may be

modified by the Court at the time of trial in order to make it

consistent with evidence and argument presented. In opposing the

motion for partial summary judgment, plaintiffs argue that,

“[b]ased upon the adverse inference instruction ..., the trier of

fact in this matter will be free to determine, based upon

Defendant’s spoliation of evidence, that this footage would have

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supported Plaintiffs’ claims in this regard.” Plaintiffs add

that a member of the Jackson County Fire Department EMT squad

tripped over the same extension cord when responding to the call

for Ms. Ross’s injuries. 

Finally, plaintiffs argue that alternatives to the use of

the extension cord were readily available and feasible. In

particular, plaintiffs argue that Home Depot improperly secured

the extension cord to the concrete floor using gray duct tape,

instead of the brighter colors of duct tape that it had in its

inventory, such as orange, red, and yellow. Plaintiffs contend

that “aesthetic considerations took precedence over its own

safety policies, leading to a hazard that caused at least two

individuals (and perhaps numerous others) to trip in the area

next to the fan display.” Plaintiffs note that the project

summary did not call for the display to be energized and that,

even if were supposed to be energized, the proper way to do so

would have been to use overhead outlets suspended from the

ceiling. For these reasons, plaintiffs contend that summary

judgment on punitive damages is inappropriate.

As noted above, it is plaintiffs’ burden to prove by clear

and convincing evidence that Home Depot acted with actual malice

required for an award of punitive damages. While plaintiffs

correctly argue that Home Depot cannot rely on the missing video

footage to demonstrate its lack of knowledge, plaintiffs are also

limited with respect to their use of the missing video footage

and what it may imply. More specifically, plaintiffs cannot rely

on the missing video footage alone to prove knowledge of the

tripping hazard posed by the extension cord. The adverse

inference allows the jury to draw the conclusion that the missing

video footage may have shown something favorable to the Rosses

and unfavorable to Home Depot, but that inference is to be drawn

only based the jury’s consideration of all of the other evidence

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in the case. Plaintiffs have not pointed out any other evidence

obtained in discovery which suggests that Home Depot knew of the

tripping hazard posed by the extension cord and that its

personnel consciously disregarded it. 

In arguing against summary judgment on punitive damages,

plaintiffs rely primarily on the fact that Home Depot may have

violated its own policies with respect to its use of the

extension cord to power the fan display. A company’s failure to

adhere to its own policies, however, is insufficient to

demonstrate the actual malice required for punitive damages. In

Bethel v. Home Depot U.S.A., Inc., 2008 WL 5119602, *5 (S.D. Cal.

Dec. 4, 2008), for example, the plaintiff brought suit against

Home Depot and a manufacturer, alleging that a ladder he leased

from Home Depot malfunctioned, causing him to fall and suffer

injury. The plaintiff alleged that the malfunction arose from a

defective design which caused a “false latching” condition. 

According to the plaintiff, Home Depot knew of the false latching

hazard, and it acted with “conscious disregard of the safety of

consumers by marketing the product and failing to warn

customers.” In examining Home Depot’s motion for partial summary

judgment as to punitive damages, the Court found that an

employee’s failure to comply with Home Depot’s policy of

discussing how the ladder worked and reviewing its safety

features with customers did not amount conscious disregard of

plaintiff’s safety. The Court made this finding based upon the

fact that there was no evidence demonstrating that Home Depot

knew of the ladder’s defect and willfully and deliberately lent

the ladder to plaintiff despite that knowledge.

Similarly, in this case, Home Depot’s failure to follow its

own policies with respect to the use of an extension cord to

power a display does not amount conscious disregard for the

safety of Ms. Ross and other customers. As Home Depot points

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out, the Asset Protection Guide and record evidence, particularly

the deposition testimony of Shannon Maxwell and Timothy Wightman,

make it fairly clear that Home Depot’s policies relating to the

appropriate use of an extension cord pertained to the extension

cord as a potential fire hazard, not a potential tripping hazard.

(Doc. 80 at 6-7). That Home Depot could have selected another

color of duct tape, choose not to power the display at all, or

powered it using overhead outlets suspended from the ceiling,

does not demonstrate that Home Depot had subjective knowledge of

the tripping hazard posed by its use of the extension cord and,

despite that knowledge, consciously disregarded the rights and

safety of Ms. Ross and others. See Preston, 32 Ohio St.3d at

335-36, 512 N.E.2d 1774. These are all fairly good arguments

that Home Depot was negligent, but negligence is not enough to

support a punitive damages award. 

As the Supreme Court has observed, punitive damages are

“quasi-criminal punishment,” which are “specifically designed ...

to make clear that the defendant’s misconduct was especially

reprehensible.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S.

1, 54 (1991). It is certainly true that Home Depot could have

chosen other methods to power this display and other ways to make

a tripping hazard more apparent. And the destruction of the

video footage does allow an inference, even at this stage of the

case, that other customers might have had some problems with the

display, although there is no evidence of any actual injury. The

Court is willing to assume, at this point, that both the nature

of the display and the possible existence of other customers’

negative encounters with the extension cord should have alerted

Home Depot that a more serious accident could happen. It is a

very close question as to whether that would be enough to create

a conscious disregard for customer safety. But given the

heightened burden of proof, it is not quite enough to get the

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issue to the jury. This ruling is interlocutory, however, and

the Court does not rule out the possibility of a different result

after all of the evidence comes out at trial. 

B. Statutory, Non-Economic Damage Caps

Ohio Revised Code §2315.18(B)(2) provides, in relevant part,

that:

in a tort action to recover damages for injury or loss to

person or property ... the amount of compensatory damages

that represents damages for noneconomic loss that is

recoverable in a tort action under this section to

recover damages for injury or loss to person or property

shall not exceed the greater of two hundred fifty dollars

or an amount that is equal to three times the economic

loss, as determined by the trier of fact, of the

plaintiff in that tort action to a maximum of three

hundred fifty thousand dollars for each plaintiff in that

tort action or a maximum of three hundred fifty thousand

dollars for each plaintiff in that tort action or a

maximum of five hundred thousand dollars for each

occurrence that is the basis of that tort action.

Id. The exception to this limitation is set forth in Ohio

Revised Code §2315.18(B)(3), which states:

There shall not be any limitation on the amount of

compensatory damages that represents damages for

noneconomic loss that is recoverable in a tort action to

recover damages for injury or loss to person or property

if the noneconomic losses of the plaintiff are for either

of the following:

(a) Permanent and substantial physical deformity, loss of

use of a limb, or loss of a bodily organ system;

(b) permanent physical function injury that permanently

prevents the injured person from being able to

independently care for self and perform life-sustaining

activities.

Id. 

In is motion for partial summary judgment, Home Depot admits

that Ms. Ross was injured, underwent surgery, has surgical scars,

and has limitations on her activities of daily living. (Doc.

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80 at 15). Home Depot maintains, however, that Ms. Ross:

has not suffered a permanent and substantial physical

deformity, loss of use of a limb, or loss of a bodily

organ system. Nor has she suffered a permanent physical

injury that prevents her from being able to independently

care for herself and perform life-sustaining injuries.

 

On this basis, Home Depot urges this Court to enforce the

statutory cap on non-economic damages, limiting the award of noneconomic damages to three hundred fifty thousand dollars for each

plaintiff, subject to a maximum five hundred thousand dollars for

this incident.

Plaintiffs concede that Ms. Ross’s injuries do not include

the loss of the use of a limb or the loss of a bodily organ

system. (Doc. 89 at n.4). Plaintiffs likewise concede that Ms.

Ross’s injury will not permanently prevent her from being able to

care for herself independently or to perform life-sustaining

activities. Id. Instead, plaintiffs argue that the jury should

decide whether she has suffered a “permanent and substantial

physical deformity” as provided in the statute. Plaintiffs state

that Ms. Ross “suffers from multiple ‘misshapened,’ ‘unnatural’

and ‘distorted’ conditions in both her left knee and shoulder”

and that her treatment “has required a significant amount of

hardware to be implanted into her body,” facts which Home Depot

does not appear to dispute. For these reasons, plaintiffs argue

that “it cannot be stated as a matter of law that Mrs. Ross has

not suffered a substantial and permanent physical deformity.” 

Plaintiffs assert that this is a factual determination best left

for the jury to decide and, consequently, summary judgment on

this issue should be denied. 

The cap on non-economic damages has been held to be

constitutional “[s]o long as the fact-finding process is not

intruded upon and the resulting findings of fact are not ignored

or replaced by another body’s findings.” Arbino v. Johnson &

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Johnson et al., 116 Ohio St.3d 468, 880 N.E.2d 420 (2007). 

There is no specific definition in Ohio Revised Code

§2315.18(B)(3)(a) for “permanent and substantial physical

deformity.” See Weldon v. Presley, 2011 WL 3749469, *6 (N.D.

Ohio Aug. 9, 2011). If a party moves for summary judgment on the

nature of a plaintiff’s injury, “the court’s fact-finding role is

limited to the threshold determination of whether there is

sufficient evidence to submit the issue of the nature of the

injury to the jury.” Ohle v. DJO, Inc., 2012 WL 4505846, *3-4

(N.D. Ohio Sept. 28, 2012)(rejecting defendants’ argument that,

“as a matter of law, internal modifications of a person’s body

structure and surgical scars cannot qualify as permanent and

substantial physical deformities”). If the plaintiff sets forth

sufficient evidence to cross that evidentiary threshold, whether

the injury indeed constitutes a “permanent and substantial

physical deformity” is an issue for the jury to decide. Id.; see

Bransteter v. Moore, 2009 WL 152317, *2 (N.D. Ohio Jan. 21,

2009)(issue of whether perforated bowel and surgical scar

qualified as “permanent and substantial physical deformity”

submitted to the jury); Giebel v. Lavalley, 2013 WL 6903784, *8-

11 (N.D. Ohio Dec. 31, 2013)(finding sufficient evidence in the

record to create an issue of fact as to whether plaintiff has

suffered a permanent functional injury under O.R.C.

§2315.18(B)(3)(b)). 

The Court has reviewed the record in this case and finds

that plaintiffs have provided this Court with sufficient evidence

to submit the issue of the nature of the injury to the jury. 

Stated differently, there is sufficient evidence to create a

genuine issue of material fact as to whether the injury to either

Ms. Ross’s left knee or shoulder has caused her to suffer a

“permanent and substantial physical deformity” as provided in

Ohio Revised Code §2315.18(B)(3)(a). Consequently, the motion

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for partial summary judgment as to this issue will be denied

without prejudice to the Court’s further evaluation upon

appropriate motion once plaintiffs have had the opportunity to

present evidence on the nature of injury at trial. 

IV. Conclusion

For the reasons set forth above, Home Depot’s motion for

partial summary judgment (Doc. 80) is granted in part and denied

in part. More specifically, the motion for partial summary

judgment is granted as to the issue of whether the current record

would justify submitting the question of punitive damages to the

jury but denied to the extent that Home Depot seeks pre-trial

enforcement of the statutory cap on non-economic damages. 

/s/ Terence P. Kemp 

United States Magistrate Judge

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