What the DuBose Family's Settlement With the University of Cincinnati Shows Ohio Families

Published February 9, 2016 · Settlements

When a family loses someone in a police encounter, the grief is joined by questions that can take years to answer. Last July, Samuel DuBose, a 43-year-old Cincinnati father, was shot and killed during a traffic stop near the University of Cincinnati campus. On January 18, 2016, his family and the university announced a settlement.

We do not know the DuBose family, and nothing here is meant to speak for them. But the terms they reached, as reported by WVXU and WYSO, say a great deal about what a wrongful death settlement can include, and about how a civil case for a family fits alongside a criminal case that is still pending.

What was reported

According to WVXU, the university agreed to pay $4,850,000 and to provide an undergraduate education free of tuition and fees for Mr. DuBose's twelve children, a benefit the station reported was estimated at about $500,000. The total value was reported at about $5.3 million.

The settlement also went beyond money. WVXU reported that the university will work with the family on a memorial on campus, that university President Santa J. Ono will issue an apology, and that the family will be invited to take part in a community advisory committee reviewing the results of an outside audit of the university's police department. The station reported that the agreement came out of closed-door mediation over two days.

The officer who stopped Mr. DuBose was fired and has been charged with murder. WYSO reported that he has pleaded not guilty. As of the settlement announcement, his criminal trial had not taken place.

A settlement can carry more than a dollar figure

Families often tell us that money is the last thing on their minds. That is understandable. Nothing a court or an insurance company does will bring a person home. Still, Ohio's wrongful death law is built around compensation, because money is the tool the law has.

Under R.C. 2125.02(B), the damages a family may recover include:

• loss of the support your loved one would reasonably have provided from his or her earning capacity;
• loss of the services he or she provided;
• loss of society, which the statute describes to include companionship, care, guidance, counsel and education;
• loss of the inheritance your family could have expected; and
• the mental anguish of the surviving spouse, children, parents and next of kin.

The DuBose settlement shows that a resolution can also be shaped around what a family actually needs. Education for children was built in directly, rather than left to be paid out of a lump sum. A memorial and a public apology spoke to the family's wish that the person they lost be remembered and that what happened be acknowledged. A seat at the table on police reform gave the family a voice in what comes next.

Not every defendant will agree to terms like these, and not every case is suited to them. But a family should know that the conversation does not have to be limited to a single number. You can read more about what Ohio law allows a family to recover.

The civil case and the criminal case are separate

One of the hardest things for families to understand is that a criminal prosecution and a civil wrongful death claim are two different cases. The criminal case is brought by the state. Its purpose is to decide whether a person committed a crime and, if so, what punishment follows. The family is not a party to it, though victims and families have important rights to be informed and heard.

The civil wrongful death case belongs to the family, through the personal representative of the estate. Under R.C. 2125.02(A)(1), the action is brought in the name of the personal representative for the exclusive benefit of the surviving spouse, the children, the parents and the other next of kin. Its purpose is compensation, not punishment, and the standard of proof is lower than in a criminal trial.

Here, the family resolved its civil claims while the criminal case was still pending. That is not unusual. The two cases can move on very different timelines, and the outcome of one does not decide the other.

That also means a family should not wait for a criminal verdict before learning about its civil rights. Under R.C. 2125.02(D)(1), a wrongful death action generally must be filed within two years after the death. A criminal case can easily take longer than that, and the civil deadline does not simply pause because a prosecution is underway.

Claims involving police and public bodies have their own rules

When the person responsible works for a city, a county, a public university or another arm of government, the case is often more complicated than a claim against a private driver or business. Ohio law gives public bodies and their employees certain immunities, and there are special procedures and, in some cases, different courts. Federal civil rights law may also apply when someone is killed by a police officer.

These rules do not mean a family has no path. They do mean the facts must be gathered carefully and early, because body camera video, dispatch recordings, training records and witness statements are the kind of evidence these cases turn on. Our page on deaths involving police and government explains more.

I served 19 years as a Dayton police officer and sergeant before I practiced law. I have great respect for the officers who do that job well. That experience also taught me how police investigations work from the inside, and why a family deserves its own independent look at what happened.

Court approval protects the family

One more point from Ohio law is worth knowing. Under R.C. 2125.02(C), a personal representative appointed in Ohio may settle a wrongful death claim only with the consent of the court that made the appointment, which is usually the probate court in the county where your loved one lived. That review exists to protect the people the claim belongs to, including children. It is one reason settlements in these cases are handled with care and in writing. You can learn more about how Ohio wrongful death law works.

What this means for your family

If someone you love was killed by the conduct of another person, a business or a public employee, you do not have to choose between grieving and protecting your family's rights. A lawyer who knows your case can gather the evidence, deal with the insurers and public bodies, and keep you informed while the criminal process runs its course. And when the time comes to talk about resolution, it is worth remembering that a settlement can reflect your family's needs and your loved one's memory, not just a dollar figure.