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

Ohio-5030.] 

OLIVER ET AL., APPELLEES, v. CLEVELAND INDIANS BASEBALL COMPANY 

LIMITED PARTNERSHIP ET AL.; CITY OF CLEVELAND, APPELLANT. 

[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 subdivision 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.) 

APPEAL from the Court of Appeals for Cuyahoga County, Nos. 89314, 89428, and 

89463, 176 Ohio App.3d 410, 2008-Ohio-2183. 

__________________ 

SYLLABUS OF THE COURT

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. 

__________________ 

 MOYER, C.J. 

I 

{¶ 1} This case began with the detonation of an explosive device during 

a Cleveland Indians baseball game; the explosion 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. 
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appellees suffered from poor conditions in the jail and harsh treatment by the 

jailers. 

{¶ 2} Although a grand jury indicted appellees on several counts of 

aggravated arson and felonious assault, these charges were later dismissed by the 

Cuyahoga County Prosecuting Attorney. Appellees’ arrests and detention 

adversely impacted their jobs and mental and physical health. 

{¶ 3} Appellees successfully sued the city of Cleveland, appellant, for 

malicious prosecution, false arrest and imprisonment, and intentional 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 for each plaintiff. The court of 

appeals affirmed the award of compensatory damages, holding that R.C. 

2744.05(C)(1) is unconstitutional because it violates 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 consider 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 Revised 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 subdivisions, 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 Cleveland 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 section 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.” 
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{¶ 6} R.C. 2315.18(B) contains an exception to the limits on 

noneconomic damages for those persons who 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 the 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 the 

constitutional right to a jury trial. Nor does this difference affect our rationalbasis review of the statute for equal protection 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 invaded, 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 damages. Id. at ¶ 38-40. Thus, in Arbino, we held 

that the statutory limit on noneconomic damages 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 contravention 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 damages 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 rational basis. Id. R.C. 2744.05(C)(1) will 

pass constitutional muster under the Ohio and United States Constitutions if it is 

rationally related to a legitimate government purpose. Id. at ¶ 66. 

{¶ 10} We have upheld a different subsection of R.C. 2744.05 under the 

rational-basis standard 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 financial 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 may be liable is rationally related to the 

purpose of preserving the financial integrity 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 damages 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, citing 
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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 prevents 

the 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 who were injured but whose injuries 

were not so serious as to be excluded from the caps under R.C. 2315.18(B)(3). 

Nevertheless, we held that the statute was 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 arbitrary, 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 damages, those cases dealt only with 

lawsuits between private litigants. 

{¶ 15} R.C. 2744.05(C), however, applies only 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 equal 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 right 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. 

 LUNDBERG STRATTON, O’CONNOR, LANZINGER, and CUPP, JJ., concur. 

 PFEIFER, J., dissents. 

 O’DONNELL, J., dissents for the reasons stated in his dissenting opinion in 

Arbino v. Johnson & Johnson.
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__________________ 

 PFEIFER, 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 addressed 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 safeguarded. 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 the 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 a 
January 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 (Pfeifer, 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 suggests 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, ‘cannot 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 findings 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. 

__________________ 
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James Burke Jr., John J. Chambers, and Sean P. Allan, for appellee Clifton 

Oliver. 

John J. Spellacy and Sean P. Allan, for appellee Donald Krieger. 

Robert J. Triozzi, Director of Law, Joseph F. Scott, Chief Assistant 

Director of Law, and Jerome A. Payne 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. 

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