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Collins v. Sotka4/29/1998
h an implication, of course, defies common knowledge.
III.
Equally troubling is the majority's failure to distinguish between the requisite standard of proof in civil wrongful death actions and the standard applicable to criminal actions. The wrongful death statute provides a civil remedy to eligible persons when a death is "caused by wrongful act * * *." R.C. 2125.01(A)(1). It is elementary that the usual standard of proof in most civil actions is that of preponderance of the evidence. See Felton v. Felton (1997), 79 Ohio St.3d 34, 679 N.E.2d 672; Walden v. State (1989), 47 Ohio St.3d 47, 547 N.E.2d 962; White v. Ohio Power Co. (1960), 171 Ohio St. 148, 12 O.O.2d 169, 168 N.E.2d 314. The elements of a wrongful death claim which must be shown pursuant to this standard are (1) the existence of a duty owing to plaintiff's decedent, (2) a breach of that duty, and (3) proximate causation between the breach of the duty and the death. Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92, 529 N.E.2d 449, 454.
The majority states that the event of a death is "irrelevant unless there is proof that a defendant was at fault and caused the death." The applicable standard of proof for finding a person at fault in a wrongful death action, however, is that of preponderance of the evidence. The determination to be made is whether the defendant is civilly liable (by a preponderance of the evidence) for causing the death of another, not whether the defendant is guilty of committing a crime for which the penalty is a deprivation of his or her life or liberty. See Shrader v. Equitable Life Assur. Soc. of the United States (1985), 20 Ohio St.3d 41, 47, 20 OBR 343, 348, 485 N.E.2d 1031, 1036. By concluding that the statute does not run, however, until the defendant is convicted and sentenced, the majority confuses the different standards of proof required for wrongful death actions and murder. This is troublesome for several reasons.
First, the majority's rule prevents the statute from running in a civil action until a person has been convicted and sentenced, under the standard of proof of beyond a reasonable doubt, in a criminal action. This rule thereby implies that a plaintiff cannot know that a wrongful act was committed for which civil liability may be established under a preponderance of evidence standard, until that act is proven beyond a reasonable doubt to have happened at a criminal proceeding. While it is true that the higher criminal standard encompasses the lower civil standard, it does not automatically follow that there are no facts available to a plaintiff to form the basis of a civil claim until a person is convicted and sentenced at a criminal proceeding. Plainly, facts discerned during the course of the criminal trial may form the basis of a wrongful death claim, regardless of whether the outcome of the criminal proceeding results in a conviction and sentencing.
I respectfully submit that the effect of the majority's rule defies generally accepted principles. A potential plaintiff may certainly be aware of facts that would allow him or her to pursue a wrongful death action, even though those facts may not be sufficient to convict a person beyond a reasonable doubt. Those facts are often known long before a person is even tried on a criminal charge. It is dubitable that a potential plaintiff would remain completely unaware of facts that could form the basis for a wrongful death claim until a person is convicted and sentenced for murder.
The majority states that " crime may remain unresolved until well after the victim was killed and beyond two years after the victim's death." Under those facts, according to the majori
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