Damages: What Ohio Law Allows a Family to Recover

"Damages" is the law's word for the money a court can award for a loss. It is an uncomfortable word in a wrongful death case, because the real loss is a person, and nothing a court does can return that person. Families sometimes feel guilty even asking about money. Please don't. Ohio law recognizes that a death changes a family's life in concrete ways, financially and emotionally, and it gives the family the right to be compensated by the person or company responsible. Holding them accountable is also how the law encourages safer conduct for everyone else.

This chapter describes what the law allows, in terms of everyday family life. Our page on wrongful death compensation covers the same subjects with more legal detail.

The losses Ohio law recognizes

The wrongful death statute, R.C. 2125.02(D), lists the kinds of compensatory damages a jury may award. Here is what each one means for a family.

The paycheck and benefits your family relied on. The statute calls this "loss of support from the reasonably expected earning capacity" of the person who died. It looks forward: what your loved one would likely have earned and contributed to the family over a working life, including benefits such as health insurance and retirement savings.

The work no one paid for. "Loss of services" covers everything your loved one did for the household: getting kids to school, cooking, repairs, mowing, paying bills, caring for a grandparent. When those tasks now cost money or fall to someone else, that is a real loss.

The relationship. "Loss of society" is defined broadly, to include companionship, consortium (the marital relationship), care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education. For a child, this is the parent who would have taught, guided, and protected them. For a parent, it is the son or daughter who would have been part of every holiday and who might have cared for them in old age.

What would have been left to the family. "Loss of prospective inheritance" covers what heirs would likely have received if your loved one had lived a normal life span and saved over time.

Grief. The statute allows damages for "the mental anguish" of the surviving spouse, dependent children, parents, or next of kin. The law treats grief as a real injury.

The funeral. Reasonable funeral and burial expenses may be awarded and are listed separately in the verdict (R.C. 2125.02(C)(1)).

Your loved one's own losses

If your loved one lived for a time after being injured, the estate may also have a survival claim under R.C. 2305.21 for his or her own conscious pain and suffering, medical bills, lost wages before death, and property damage. The Supreme Court of Ohio reversed a survival award in Rubeck v. Huffman, 54 Ohio St.2d 20 (1978), where there was no evidence the person survived the crash long enough to suffer, so the details of those final minutes, hours, or days matter. Our chapter on wrongful death and survival claims explains how the two claims work together.

No cap on wrongful death damages

Many families have heard that Ohio "caps" damages. That is true for some injury claims, but not for the wrongful death claim. Ohio's general cap on noneconomic damages (such as pain, suffering, and loss of companionship) says plainly that it does not apply to "Wrongful death actions brought pursuant to Chapter 2125. of the Revised Code" (R.C. 2315.18(H)(3)). The separate cap for medical malpractice cases contains the same exclusion (R.C. 2323.43(G)(3)).

Caps can still limit the pain-and-suffering portion of a survival claim, so it matters how a case is presented and how any settlement is allocated between the two claims.

Punitive damages

Punitive damages are meant to punish and deter, not to compensate. Ohio does not allow them in the wrongful death claim itself; the Supreme Court said in Rubeck that they are, "by definition, not available in a wrongful-death action." But the same decision held that the right to punitive damages for injury before death survives and may be pursued by the estate through the survival claim.

Under R.C. 2315.21, punitive damages require clear and convincing proof of "malice or aggravated or egregious fraud," and they are generally limited to two times the compensatory damages awarded against that defendant (with a lower limit for individuals and small employers, and no limit when the defendant was convicted of a related felony committed purposely or knowingly). Cases involving drunk or reckless drivers, or companies that knowingly ignored deadly dangers, are where this question usually arises.

How families help prove the loss

Families are often surprised at how much of a wrongful death case rests on them. Insurers and juries never met your loved one. You can help them understand who he or she was.

• Keep the paperwork: tax returns, pay stubs, benefits statements, and records of any business or side work.
• Write down the routines: what your loved one did on an ordinary week, and what now costs money or falls to someone else.
• Gather the story: photographs, videos, letters, cards, and the names of people outside the family (coworkers, neighbors, coaches, pastors) who can describe the relationship.
• Be honest about the hard parts. Every family has them. Juries trust families who are genuine.

The statute lets the jury consider all factors existing at the time of death that bear on the family's losses (R.C. 2125.02(C)(2)(b)(i)), and it allows evidence that a surviving spouse has remarried (R.C. 2125.02(C)(2)(b)(iii)).

What does not reduce the recovery, and what can

Under R.C. 2315.20, life insurance and disability payments generally cannot be introduced to reduce damages in an ordinary negligence case, and neither can benefits from sources that have a right to be repaid. Medical cases and cases against government bodies have different rules. What can reduce a recovery is comparative fault: if your loved one was partly responsible, R.C. 2315.33 reduces the damages by that percentage, and bars recovery if that share was greater than everyone else's combined.

Health insurers, Medicare, and Medicaid may have rights to be repaid from parts of a recovery. Our chapter on liens, taxes, and benefits explains how those are handled.

How the money is divided

Wrongful death damages are divided among the beneficiaries under R.C. 2125.03. If all of them are in the same degree of kinship (for example, all children), they may agree among themselves; otherwise, or if they cannot agree, the probate court divides the money in a manner that is "equitable," considering each person's loss and their age and condition. Shares for children are protected by the court and may be held in trust. See minors and distribution, and for how a case reaches settlement or verdict, how cases are resolved.

Common questions