Last week we discussed Road Rage.  Here is Part Two of that Article.  Here is how Steve Magas and I handled a real-world case of Road Rage in Ohio.  You have remedies!

R.C. 2307.60 As a Civil Remedy for Assaulted Cyclists

Revised Code 2307.60 provides an assaulted cyclist a remedy.

Ohio Revised Code 2307.60, entitled “Person Injured by Criminal Act Has Civil Remedy; Exceptions” states as follows:

(A)(1) Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney’s fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.

(2) A final judgment of a trial court that has not been reversed on appeal or otherwise set aside, nullified, or vacated, entered after a trial or upon a plea of guilty, but not upon a plea of no contest or the equivalent plea from another jurisdiction, that adjudges an offender guilty of an offense of violence punishable by death or imprisonment in excess of one year, when entered as evidence in any subsequent civil proceeding based on the criminal act, shall preclude the offender from denying in the subsequent civil proceeding any fact essential to sustaining that judgment, unless the offender can demonstrate that extraordinary circumstances prevented the offender from having a full and fair opportunity to litigate the issue in the criminal proceeding or other extraordinary circumstances justify affording the offender an opportunity to relitigate the issue. The offender may introduce evidence of the offender’s pending appeal of the final judgment of the trial court, if applicable, and the court may consider that evidence in determining the liability of the offender.

Assuming a criminal appeal has not been taken, the key language of R.C. 2307.60 for an assaulted cyclist can be found in subsection (A)(2): “A final judgment of a trial court that has not been reversed on appeal … or upon a plea of guilty, . . . that adjudges an offender guilty of an offense of violence punishable by death or imprisonment in excess of one year, when entered as evidence in any subsequent civil proceeding based on the criminal act, shall preclude the offender from denying in the subsequent civil proceeding any fact essential to sustaining that judgment, unless the offender can demonstrate that extraordinary circumstances prevented the offender from having a full and fair opportunity to litigate the issue in the criminal proceeding or other extraordinary circumstances justify affording the offender an opportunity to relitigate the issue.”

First and foremost, the crime must be one of violence (typically assault, battery or menacing) that could be punishable with a prison term of one year or greater.  Stated differently, R.C. 2307.60 will not apply if the crime is pled down to a misdemeanor assault, battery or menacing that carries a prison term of less than one year.

Having said that, the Ohio Supreme Court has recently held “that the plain language of the statute does not require proof of an underlying criminal conviction.”  Buddenberg v. Weisdack, 2020-Ohio-3832, ¶11.  While an injured cyclist may not have the benefit of the statutory estoppel provided by subsection (A)(2) of R.C. 2307.60, an action under R.C. 2307.60 can still be brought as a matter of law.  The Ohio Supreme Court recognized” “[i]t is certainly possible for an individual to commit an unlawful act and be prosecuted, yet evade conviction for a variety of reasons. Thus, we do not read the phrase “a criminal act” to mean “a criminal act that resulted in a conviction.”  Id. at ¶13.

Second, the criminal conviction or guilty plea must be entered into evidence.  This can be accomplished by admitting a certified copy of the conviction or plea agreement.

Third and most important, the criminal, now civil defendant is “precluded” or estopped from denying the elements of the civil causes of action for assault, battery and/or menacing provided “extraordinary circumstances” do not apply.

As discussed below, R.C. 2307.60 has been amended several times since it was enacted in 2008.  However, between 2008 and the date of this article, the question of what constitutes “extraordinary circumstances” has not been litigated in an Ohio courtroom and reduced to a published decision.

I would submit that the Ohio Legislature added this language where exculpatory evidence surfaced after the criminal trial akin to DNA evidence relied on in Innocence Project type of cases.  Further, one must note that the language of the statute focuses on due process rights.  The “circumstances” must have prevented a “full and fair opportunity” in the criminal trial to litigate the issue.  I would further submit the fear of incarceration or loss of liberty, while real concerns, are ordinary fears every criminal defendant faces when deciding to take a case to trial.  As a result, these fears should  not rise to the level of “extraordinary” just because a lengthy jail term may follow if the defendant is convicted.

Self-Defense? Really?

A typical response to an assault is that the defendant was acting in self-defense.  This allows a defendant to admit the allegation that he struck the victim, but justifies that contact on the grounds that he was protecting himself.  In my Ohio case, John Doe Cyclist, Steve Magas, Esq. and I were faced with an argument that John Doe Cyclist was careening toward the assailant (now felon) at issue and he had no choice but to push John Doe away and the fractured elbow that ensued was an accident.

If he was successful in asserting self-defense at the civil trial, that success would mean a complete defense to the assault and battery claims.  We argued that the defendant was estopped by common law under the doctrine of res judicata and statutorily estopped under R.C. 2307.60 from raising such a defense because (1) he admitted to the crime of assault in open Court under oath and (2) he had the opportunity to raise that defense in his criminal trial but chose not present that defense to the jury.

Res Judicata – Guilty Pleas Mean Something

As for the doctrine of res judicata, the Ohio Supreme Court has held:

Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.

State v Perry (1967), 10 Ohio St.2d 175.

The Twelfth District Court of Appeals in McLoughlin v. Sword, Case No. CA93-05-014, 1993 WL 512370 (12th Dist.) involved a Road Rage incident.  Citing the doctrine of res judicata and relying on State v. Perry, supra, the trial court found that a Guilty Plea completely waived a subsequent claim of self-defense in tort proceedings.  The Twelfth District affirmed the trial court’s holding, finding:

However, with reference to the offense or offenses to which a guilty plea is entered by a defendant in a criminal prosecution, the plea is a complete admission of the defendant’s guilt. See Crim. R. 11(B)(1); State v. Pernell (1976), 47 Ohio App.2d 261, 264. Under the doctrine of res judicata, a final judgment of conviction bars a defendant from raising and litigating, in any subsequent civil or criminal proceeding, any defense that was raised or could have been raised by the defendant at trial which resulted in that judgment of conviction.  State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. Consequently, any defense to the crime is completely waived by the entry of a plea of guilty. See Hoppe v. State (1928), 29 Ohio App. 467, 473; 26 Ohio Jurisprudence 3d (1981) 651, Criminal Law, 823.

Therefore, the trial court was correct in finding that by pleading guilty in his criminal prosecution for assault, appellant made a complete admission of his guilt and, as such, waived his ability to bring up any claim of self-defense in this subsequent civil action for assault. Appellant’s first assignment of error is accordingly overruled.

Id. at *2 (emphasis added).

R.C. 2307.60 Should Prohibit Self-Defense Arguments

At least one Court prior to 2006 permitted a convicted felon to put on self-defense arguments in a civil case based on R.C. 2307.60.  Interpreting a then-current version of R.C. 2307.60, the Fourth District Court of Appeals found: ““[s]imilarly, testimony adduced at the criminal trial may be considered in the civil case when properly submitted. In the interest of fairness, however, we feel the defendant to the tort must be afforded an opportunity to present evidence rebutting or explaining the criminal conviction.”  Phillips v. Rayburn (4th Dist. 1996), 113 Ohio App.3d 374, 382.

We argued that Phillips v. Rayburn is no longer good law.  Any reliance a Court would place on it would invite error.  The foregoing dicta was specifically superseded in 2006 with the addition of subsection (A)(2) and its estoppel language which specifically prohibits relitigating of any element of an intentional tort where a defendant enters a guilty plea to the same course of conduct, save extraordinary circumstances.  Senate Bill 107 revised R.C. 2307.60 to include the current version of Subsection A(2) for the first time in 2002.  The current version of R.C. 2307.60, includes the same Subsection (A)(2), and was reenacted in 2004.  Both of these pieces of legislation postdate the Fourth District’s Decision in Phillips v. Rayburn.

The Fourth District in Burns v. Adams (4th Dist.), 2014-Ohio-1917 all but overruled Phillips v. Rayburn in light of revisions to R.C. 2307.60 discussed above: “[t]he language of R.C. 2307.60 has since been revised, as we have indicated above, to allow that ‘a final judgment of a trial court … entered after a trial or upon a plea of guilty, but not upon a plea of no contest …’ shall preclude the offender from denying in a subsequent civil proceeding any fact essential to sustaining that judgment.’ This is a significant difference.”  Id. at ¶ 30 (emphasis added).

The Fourth District correctly noted the significant changes in R.C. 2307.60 in its critique of its earlier rulings in Phillips v. Rayburn.  R.C. 2307.60 has been revised no less than five times since the cause of action in Phillips occurred on August 11, 1994 – over 26 years ago as of the date of this Article.  It is noteworthy that the cause of action in Burns occurred on September 12, 2012 and interpreted the current version of R.C. 2307.60.

Final Thoughts

John Doe’s case settled favorably within weeks of oral argument on these legal points.

My real-world example was fortunately a rare case where significant physical injury resulted from a Road Rage confrontation.  However, it was one case too many.  Ohio’s Legislature recognized this in its enactment of R.C. 2307.60 as a form of victim’s rights legislation.

For those of us who ride alone and are faced with an enraged motorist it will be our word against their word absent some record.  This is where a GoPro or phone video/audio recording is paramount.  Even if physical injury is not a result of Road Rage incidents, the video and/or audio evidence may allow a prosecutor to bring menacing charges and may allow for a civil suit if the local prosecutor elects not to proceed with charges pursuant to the Ohio Supreme Court’s recent decision in .”  Buddenberg v. Weisdack, 2020-Ohio-3832.

Don’t navigate these waters on your own!  If you have been the victim of Road Rage in Ohio or Kentucky, please do not hesitate to reach out to Carville Legal Counsel LLC.  We offer FREE Consultations and would be happy to review your case with you.  Call Chris at 513 600 8432 or email Chris at [email protected] or Steve at [email protected] if you have any questions about your case.

Road Rage is a very real thing.  And cyclists are some of the most exposed users of roadways, highways, and streets.  This article and next week’s article will address Road Rage under Ohio law and discusses recourse available to assaulted cyclists based on a real-world case that Steve Magas and I brought to a favorable conclusion last year.

Road Rage Defined

The United States Department of Transportation draws a technical distinction between “aggressive driving” and “road rage.”  The words, “aggressive driving,” emerged during the 1990s as a label for a category of dangerous on-the-road behaviors. The category comprises following too closely, driving at excessive speeds, weaving through traffic, and running stoplights and signs, among other acts. Aggressive driving occasionally escalates to gesturing in anger or yelling at another motorist, confrontation, physical assault, and even murder; “Road Rage” is the label that emerged to describe the angry and violent behaviors at the extreme of the aggressive driving continuum. NHTSA defines aggressive driving in DOT HS 809 707 as, “the operation of a motor vehicle in a manner that endangers or is likely to endanger persons or property.” An important distinction is that aggressive driving is a traffic violation, while road rage, aside from yelling and gesticulating, is a criminal offense.

Fortunately, assault cases against cyclists appear to be statistically rare.  So rare that I could not find a database that tracked this type of crime against cyclists in particular.  However, these incidents do happen and are likely vastly underreported.

Road Rage Statistics  

Per a 2019 survey conducted by thezebra.com, survey respondents admitted the following:

• 82% of drivers in the U.S. admit to having road rage or driving aggressively at least once in the past year.
• 59% of drivers reported showing anger by honking.
• 45% of drivers report changing lanes without signaling.
• 42% of drivers claimed they have yelled or cursed loudly at another driver.
• 38% said they have used rude or obscene gestures against other drivers.

That same 2019 survey found:

• 7% got out of their vehicle to verbally confront another driver.
• 6% threw objects.
• 6% got in a physical altercation with another driver.
• 5% sideswiped another vehicle.
• 5% bumped or rammed another vehicle on purpose.
• 5% forced another driver off the road.

Road Rage Against Cyclists – Criminal Recourse

For cyclists, the predominant form of Road Rage would likely fall into the category of a “Punishment Pass” wherein the motorist gives much less than the three-foot buffer required by Revised Code 4511.27 in Ohio and KRS 189.290 in Kentucky.  In addition, cyclists can be subjected to pop (or soda pending on what part of the country the cyclist finds him or herself) cans or beer cans being thrown at them.  I personally have been subject to Punishment Passes.  In addition, I have had partially full Two-Liter Pop Bottles thrown at me by irate passengers.

All of these activities violate Ohio law.

R.C. 2903.11(A) defines Felonious Assault as:

(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordnance.

R.C. 2903.21 defines Aggravated Menacing as:

(A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family. In addition to any other basis for the other person’s belief that the offender will cause serious physical harm to the person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family, the other person’s belief may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs.

A True Story of Road Rage

The nightmare scenario is where one of these incidents escalates into an assault.  And that is exactly the scenario one of my clients found himself in while enjoying a 40-mile ride in rural Ohio.

As the matter is now settled and subject to a narrow confidentiality agreement, I will simply reveal that John Doe Cyclist was body checked into the criminal assailant’s truck following a hand gesture that was shared with said criminal after Joe Doe Cyclist was subjected to a Punishment Pass.

Unfortunately, this was one of those 7% scenarios where the motorist got out of his truck to verbally confront my client and his wife. That confrontation escalated into physical contact that resulted in a fractured elbow requiring multiple surgeries at the cost of tens of thousands of dollars.

That matter was criminally tried to a jury.  On the second day of trial, the criminal assailant opted to take a plea deal that avoided significant jail time. In open Court he admitted under oath to a felonious assault charge against our client and a menacing charge (as to his wife) as part of his plea deal.

In the civil suit, the criminal assailant denied the assault and menacing admissions entered under oath as part of his plea deal.  The criminal assailant claimed that my client was the aggressor, and he was the victim!  He claimed that he was simply acting in self-defense and my client was fabricating the allegations.

Our assaulted client, John Doe, had a civil remedy and next week’s article will discuss a unique application of Ohio law to Road Rage cases.