[Cite as Oliver v. Cleveland Indians Ba seball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009- Ohio-5030.]

O LIVER ET AL ., A PPELLEES , v . C LEVELAND I NDIANS B ASEBALL C OMPANY L IMITED P ARTNERSHIP ET AL .; C ITY OF C LEVELAND , A PPELLANT . [Cite as Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030.] Trials — Damages — R.C. 2744.05 — Cap on noneconomic compensatory damages in action against a political s ubdivision does not violate the right to a jury trial or the right to equal protection under the law. (No. 2008-1463

— Submitted June 16, 2009

— Decided October 1, 2009.)
A PPEAL from the Court of Appeals for Cuyahoga County, Nos. 89314, 89428, and 89463, 176 Ohio App.3d 410, 2008-Ohio-2183.

__________________ S YLLABUS OF THE C OURT The limit on noneconomic compensatory damages in R.C. 2744.05(C)(1) does not violate the right to a jury trial or the right to equal protection under the
law.

__________________ M OYER , C.J.
I {¶ 1} This case began with the detonation of an explosive device during a Cleveland Indians baseball game; the expl osion injured four persons. Appellees Donald Krieger and Clifton Oliver were arrested at the stadium and were taken into police custody, along with a third person with whom they had attended the game, on suspicion of their involvement in the explosion. 1 While in custody,

1. The third person is Andrew Mendez, who was subsequently convicted for detonating the device.S UPREME C OURT OF O HIO

2 appellees suffered from poor conditions in the jail and hars h treatment by the jailers. {¶ 2} Although a grand jury indicted appellees on several counts of aggravated arson and felonious assault, th ese charges were later dismissed by the Cuyahoga County Prosecuting Attorney. Appellees’ arrests and detention adversely impacted their jobs a nd mental and physical health. {¶ 3} Appellees successfully sued the city of Cleveland, appellant, for malicious prosecution, false arrest and impri sonment, and inten tional infliction of emotional distress. The jury awarded each plaintiff $400,000 in compensatory damages and $600,000 in punitive damages. The trial court vacated the punitivedamages award as impermissible against the city. The trial court overruled the city’s motion, which cited the damage caps in R.C. 2744.05(C)(1), to reduce the compensatory-damages award to $250,000 fo r each plaintiff. The court of appeals affirmed the award of compensatory damages, holding that R.C. 2744.05(C)(1) is unconstitutional because it viol ates a plaintiff’s right to a jury trial and the Equal Protection Clause of the United States Constitution. Krieger v.
Cleveland Indians Baseball Co ., 176 Ohio App.3d 410, 2008-Ohio-2183, 892 N.E.2d 461, ¶ 69. 2 For the reasons that follow, we reverse the judgment of the court of appeals and hold that R. C. 2744.05(C)(1) does not violate the constitutional right to a jury trial or the constitutional guarantees of equal protection.
II {¶ 4} R.C. 2744.05(C)(1) places a $250,000 limit on noneconomic compensatory damages (those damages that do not represent “actual loss” to an

2. In their memoranda to this court, appellees and their amicus have asserted that R.C. 2744.05(C)(1) is unconstitutional on due process grounds, yet this issue was not addressed by the court of appeals. This issue was not proposed in a proposition of law, nor have we accepted such a proposition of law. Accordingly, we decline to address the due process issue.January Term, 2009

3 injured party) awarded against political subdivisions. The city of Cleveland argues that the limits should apply to reduce appellees’ damage award because appellant is a political subdivision. The court of appeals did not analyze R.C. 2744.05(C)(1) but followed a previous decision of its court, Gladon v. Greater Cleveland Regional Transit Auth. (Mar. 10, 1994), Cuyahoga App. No. 64029, 1994 WL 78468, 3 in holding R.C. 2744.05(C)(1) to be unconstitutional. Krieger , 176 Ohio App.3d 410, 2008-Ohio-2183, 892 N.E.2d 461, at ¶ 68. {¶ 5} The court of appeals did not consid er the opinion of this court in
Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d
420. In Arbino , we reviewed a statute similar to R.C. 2744.05(C)(1), but in a different chapter of the Revi sed Code, R.C. 2315.18. Id. at ¶ 4. Although the
statute at issue differs from the statute in Arbino in that R.C. 2744.05 applies to damage awards against political subdivi sions, not private litigants, the purpose
and effect of the statute in Arbino and the statute in this case are the same—to limit compensatory-damage awards for noneconomic harm. 4

3. Although we had accepted Gladon for review, we did not address the constitutionality of R.C. 2744.05(C), because we found a procedural error at trial and remanded the case, thereby avoiding an advisory opinion on the constitutional question. Gladon v. Greater Clevel and Regional Transit Auth . (1996), 75 Ohio St. 3d 312, 662 N.E.2d 287, fn. 1. In this case, the constitutional questions are ripe for review.

4. {¶ a} R.C. 2315.18(B)(2) reads: {¶ b} “[T]he amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action under this sec tion to recover damages for injury or loss to person or property shall not exceed the greater of two hundred fifty thousand 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 five hundred thousand dollars for each occurrence that is the basis of that tort action.” {¶ c} R.C. 2744.05(C)(1) provides: {¶ d} “There shall not be any limitation on compensatory damages that represent the actual loss of the person who is awarded the damages. However * * * damages that arise from the same cause of action, transaction or occurrence, or series of transactions or occurrences and that do not represent the actual loss of the person who is awarded the damages shall not exceed two hundred fifty thousand dollars in favor of any one person.”S UPREME C OURT OF O HIO

4 {¶ 6} R.C. 2315.18(B) contains an exception to the limits on noneconomic damages for those persons w ho suffer “catastrophic injuries,” see id. at ¶ 47, but R.C. 2744.05(C) does not. We find this difference between the
statutes to be no obstacle to th e application of the reasoning of Arbino to this case. The difference has no bearing on our analysis of the effect of R.C. 2744.05 on theconstitutional right to a jury trial. Nor does this difference affect our rationalbasis review of the statute for equal pr otection purposes, for the reasons explained below. Therefore, we will apply the reasoning of Arbino in this case. A. Right to trial by jury {¶ 7} In Arbino , we considered the effect of the damage caps on the right to a jury trial. We founded our analysis on the principle that the fact-finding of a jury is inviolate for those causes for which the right is preserved. Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 35. The right ensures that a jury’s fact-finding function is not invade d, ignored, or replaced. Id. at ¶ 37. But we noted that “the right to a trial by jury does not extend to the determination of questions of law.” Id. Therefore, we reasoned that while a jury determines the amount of damages as a matter of fact, the actual award may be reduced by the application of a statute as a matter of law, akin to altering awards through remittiturs or statutory treble damage s. Id. at ¶ 38-40. Thus, in Arbino , we held that the statutory limit on noneconomic da mages in R.C. 2315.18(B)(2) is applied
as a matter of law and does not intrude upon the fact-finding function of the jury. Id. at ¶ 40-42. {¶ 8} Accordingly, Arbino stands for the proposition that a court does not usurp the role of the jury in contrave ntion of Section 5, Article I of the Ohio
Constitution or the Seventh Amendment to the United States Constitution when it applies a statutory limit on noneconomic dama ges to the facts found by the jury. Id. This proposition is true for R.C. 2744.05( C)(1) just as it was for the statute in
Arbino . A court does not intrude into the jury’s fact-finding when applying R.C.January Term, 2009

5 2744.05; instead, the court applies the limit as a matter of law to the facts found by the jury. Therefore, the limit on noneconomic damages in R.C. 2744.05(C)(1) does not unconstitutionally restrict the right to a jury trial under Section 5, Article
I of the Ohio Constitution or the Seventh Amendment to the United States
Constitution. B. Equal protection {¶ 9} The Ohio and federal equal protection analysis applied in Arbino is applicable in this case as well. As in Arbino , there is no fundamental right or protected class at issue here, and R.C. 2744.05( C)(1) is facially neutral. 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 64-66. Therefore, we review the
statute to determine whether it has a rati onal basis. Id. R.C. 2744.05(C)(1) will pass constitutional muster under the Ohio an d United States Constitutions if it is rationally related to a legitimate government purpose. Id. at ¶ 66. {¶ 10} We have upheld a different s ubsection of R.C. 2744.05 under the
rational-basis standa rd in the equal protection context. Menefee v. Queen City
Metro (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181. We held that the “state has a valid interest in preserving the financ ial soundness of its political subdivisions.” Id., citing Shapiro v. Thompson (1969), 394 U.S. 618, 633, 89 S.Ct. 1322, 22
L.Ed.2d 600. That same state interest supports R.C. 2744.05(C). A limit on the damages for which a political subdivision ma y be liable is rationally related to the purpose of preserving the financial integrit y of political subdivisions. Therefore, R.C. 2744.05(C)(1) is rationally related to a legitimate government interest. {¶ 11} Nevertheless, appellees argue that R.C. 2744.05(C)(1) should be
considered unconstitutional under rational-basis review because the statute is arbitrary and unreasonable. This is so, according to appellees, because (1) the statute assigns a fixed measure of damage s in all cases, thereby “impos[ing] the cost of the intended benefit to the public * * * upon those most severely injured,” citing Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 59, citingS UPREME C OURT OF O HIO

6 Morris v. Savoy (1991), 61 Ohio St.3d 684, 690-691, 576 N.E.2d 765, and State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 490, 715 N.E.2d 1062; and (2) the statute does not contain an exception for catastrophic injuries as does R.C. 2315.18(B). We find these arguments unpersuasive. {¶ 12} As a preliminary matter, we note that appellees are making a facial challenge to R.C. 2744.05(C)(1), because they cannot claim that the lack of a catastrophic-injury exception in the statute impacts their lawsuit. The catastrophic-injury exception in R.C. 2315.18(B)(3) is for “(a) [p]ermanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system; [or] (b) [p]ermanent physical functional injury that permanently preventsthe injured person from being able to independently care for self and perform lifesustaining activities.” We find nothing in appellees’ complaint or the record that would place their injuries in these categories. Therefore, their challenge in this regard must be viewed as a facial challenge. 5 {¶ 13} In order for a statute to be facially unconstitutional, it must be unconstitutional in all applications. Arbino , 116 Ohio St.3d 468, 2007-Ohio6948, 880 N.E.2d 420, ¶ 26, citing Harrold v. Collier , 107 Ohio St.3d 44, 2005- Ohio-5334, 836 N.E.2d 1165, ¶ 37, and United States v. Salerno (1987), 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697. In Arbino , the statute capped noneconomic damages for those persons w ho were injured but whose injuries
were not so serious as to be exclude d from the caps under R.C. 2315.18(B)(3). Nevertheless, we held that the statute wa s neither unreasonable nor arbitrary. Id. at ¶ 61. Similarly, the damage limits for noneconomic harm in R.C. 2744.05(C)(1) are neither unreasonable nor ar bitrary, at least with regard to

5. Notwithstanding this conclusion, we observe that the conduct of certain employees of the Cleveland Police Department and in particular defendant Peachman was reprehensible.January Term, 2009

7 persons suffering noncatastrophic injuries. Therefore, the statute has at least some valid application and will survive the facial challenge. {¶ 14} Moreover, we would not hold the statute unconstitutional if appellees had presented an as-applied challenge for arbitrariness. The cases relied upon by appellees— Morris , Sheward , and Arbino —are distinguishable from this case. While those cases suggest that it is arbitrary or unreasonable to impose an
across-the-board limitation on noneconomic da mages, those cases dealt only with lawsuits between private litigants. {¶ 15} R.C. 2744.05(C), however, applies onl y to damage awards against political subdivisions. We have already held that the General Assembly could have prohibited all tort actions against political subdivisions. Menefee , 49 Ohio St.3d at 29, 550 N.E.2d 181. Therefore we cannot say that it is arbitrary or unreasonable for the General Assembly to allow some recovery in tort actions. {¶ 16} Accordingly, we hold that R.C. 2744.05(C)(1) does not violate the constitutional guarantee of e qual protection under the law.
III {¶ 17} We reverse the judgment of the court of appeals. The limit on noneconomic compensatory damages in R.C. 2744.05(C)(1) does not violate the right to a jury trial or the righ t to equal protection under the law. {¶ 18} We are unable to apply the limit in R.C. 2744.05(C)(1) to the award based upon the record before us. Therefore, we remand the cause to the trial court for further proceedings consistent with this decision. Judgment reversed
and cause remanded.
L UNDBERG S TRATTON , O’C ONNOR , L ANZINGER , and C UPP , JJ., concur.
P FEIFER , J., dissents.
O’D ONNELL , J., dissents for the reasons stat ed in his dissenting opinion in
Arbino v. Johnson & Johnson.S UPREME C OURT OF O HIO

8 __________________ P FEIFER , J., dissenting. Right to Trial by Jury {¶ 19} In Arbino v. Johnson & Johnson , 116 Ohio St.3d 468, 2007-Ohio6948, 880 N.E.2d 420, which also addresse d whether a cap on compensatory damages violates the right to a jury trial, I dissented and wrote, “ ‘So long as the trial by jury is a part of our system of jurisprudence, its constitutional integrity and importance should be jealously safeguar ded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our
Constitutions.’ Gibbs v. Girard (1913), 88 Ohio St. 34, 47, 102 N.E. 299. Instead of jealously safeguarding the right to trial by jury, the majority opinion in this case eviscerates it by holding constitutional a statute that enables courts to ‘enter judgments in disregard of the jury’s verdict.’ Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 422, 633 N.E.2d 504. Instead of jealously safeguarding the right to trial by jury, the majority opinion [concludes] that juries can meaningfully determine only facts that do not conflict with predetermined assessments of the General Assembly. Instead of jealously safeguarding the right to trial by jury, the majority opinion ‘cleans the scalpel for th e legislature to cut away unrestrainedly
at the whole field of tort redress.’ Meech v. Hillhaven W., Inc . (1989), 238 Mont. 21, 52, 776 P.2d 488 (Sheehy, J., dissenting).” Arbino at ¶ 163. Today the majority opinion allows the cutting to continue. {¶ 20} Once again, a majority of this court concludes that a statute may amend an inviolate constitutional right, even though we have previously stated that “[t]he right of trial by jury, being guaranteed to all our citizens by the Constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree.” Gibbs , 88 Ohio St. 34, 102 N.E. 299, at paragraph two of the syllabus. See Section 5, Article I, Ohio Constitution (“The right of trial by jury shall be inviolate * * *”). Once again, a majority of this court suggests that aJanuary Term, 2009

9 cap on damages is nothing more than remittitur and ignores that “the sole reason remittitur does not violate the right to a trial by jury is that remittitur cannot be granted without the consent of the prevailing party.” Arbino , 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420 (Pfeif er, J., dissenting), citing Wightman v. Consol. Rail Corp . (1999), 86 Ohio St.3d 431, 444, 715 N.E.2d 546. Once again, a majority of this court illogically sugg ests that because “the treble-damages provisions of R.C. 901.51, 1331.08, 1345.09, 2307.61, 2923.34(E), and 4905.61, which increase a jury award, have never been held to infringe the right to a trial by jury, [then decreasing] a jury award, ‘ca nnot logically violate that right.’ ” Id. {¶ 21} And once again, I state that “a statute that authorizes a judge to ignore or change factual findings deprives litigants ‘of the benefits of Trial by Jury’ and must be declared unconstitutional.” Id. at ¶ 169. R.C. 2744.05(C)(1) unconstitutionally invades the province of the jury by replacing a damages award determined by a jury with a predetermined cap imposed by the General Assembly. I would affirm the judgment of the court of appeals on this issue. Equal Protection {¶ 22} The majority opinion states that “[t]he Ohio and federal equal protection analysis applied in Arbino is applicable in this case as well.” This conclusion ignores one basic fact: in the Arbino case, the majority opinion was working with findings of fact supplied by the General Assembly, whereas in this case, the General Assembly did not issue fi ndings of facts. Instead, the majority opinion supplied its own single finding of fact and did so without commenting on the lack of legislative findings of fact or the creation of its own judicial finding of fact. Applying the equal protection analysis in the Arbino case to this case is unreasonable given the lack of legislative findings of fact in this case. {¶ 23} I would affirm the judgment of the court of appeals because the caps imposed by R.C. 2744.05(C)(1) violate the right to trial by jury. I dissent.

__________________S UPREME C OURT OF O HIO

10 James Burke Jr., John J. Chambers, and Sean P. Allan, for appellee Clifton
Oliver. John J. Spellacy and Sean P. A llan, for appellee Donald Krieger. Robert J. Triozzi, Director of Law, Joseph F. Scott, Chief Assistant Director of Law, and Jerome A. Payn e Jr., Assistant Director of Law, for appellant. Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, and David M. Lieberman, Deputy Solicitor, urging reversal for amicus curiae
state of Ohio. Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for
amicus curiae Ohio Association of Justice.

______________________