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Doe v. White9/23/1994
, at 336, 512 N.E.2d at 1176; Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 543 N.E.2d 464. The phrase "great probability of causing substantial harm" was included in thsstandard for malice to satisfy the requirement that misconduct greater than ordinary negligence is required to support an award of punitive damages. Preston, supra; Calmes v. Goodyear Tire & Rubber (1991), 61 Ohio St.3d 470, 575 N.E.2d 416. Mere foreseeability of substantial harm is not sufficient to meet this criterion; there must exist a "great probability" of such harm. Calmes, supra.
In this case, the trial court made a specific finding that White's conduct displayed a conscious disregard for the rights and safety of Doe, which had a great probability of causing her substantial harm. The trial court had sufficient evidence upon which to base its finding. White was employed as a crisis hotline counselor. Doe telephoned White to seek counseling. White spoke with Doe at length and was well aware that she was "upset" and "distressed." Despite this knowledge, White obtained Doe's address from her, went to her home shortly after the telephone conversation, and engaged in sexual intercourse with her. The record is sufficient to support the trial court's finding that White displayed a conscious disregard for Doe's rights and safety causing a great probability of substantial harm.
White argues that engaging in consensual sexual intercourse could not cause a "great probability of substantial harm" to Doe. However, we feel the evidence is sufficient to support such a finding. White's only contact with Doe was as her counselor. During a counseling session, White suggested that he come to Doe's home. White was fully aware that Doe was in a fragile mental condition. The evidence is sufficient to allow the trier of fact to conclude that a sexual encounter between a counselor and client at the counselor's suggestion, while the client is in a fragile mental state, which occurred within a short time period of the client's telephoning a crisis hotline for help, causes a great probability of substantial harm to the client. As there is sufficient evidence in the record to support the trial court's finding, we cannot say that this finding was erroneous.
White further argues that the amount of punitive damages awarded was excessive. The determination of the amount of punitive damages is within the discretion of the trier of fact, and the award will not be disturbed unless it is shown to be the result of passion and prejudice. Saberton v. Greenwald (1946), 146 Ohio St. 414, 32 O.O. 454, 66 N.E.2d 224. A reviewing court should not substitute its judgment for that of the trier of fact. In this case, we find no evidence that the award of $75,000 in punitive damages was a result of passion and prejudice, particularly in light of the fact that the trier of fact was a judge and not a jury.
It is our opinion that the amount of punitive damages awarded in this case appears to be high considering both the nature of White's actions and his apparent financial condition. No direct evidence was presented to the trial court regarding White's financial ability to pay punitive damages. However, it can be inferred from White's educational background and the fact that he was working two jobs at the time of the incident that he was not financially wealthy. Although evidence of a defendant's net worth is relevant to determining a proper amount of punitive damages, the trier of fact is not required to consider such evidence before awarding punitive damages to a prevailing party. Clark v. Hawkes Hosp. (1984), 9 Ohio St.3d 182, 9 OBR 467, 459 N.E.2d 559. Unfortunately, failure to consider such evidence does not constitute reversibl
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