Sherrod et al v. Williams et al

Filing 393

ORDER OVERRULING PLAINTIFFS' MOTION FOR RECONSIDERATION AND/OR CLARIFICATION REGARDING RONALD RITCHIE'S POTENTIAL FAULT (DOC. # 344 ), WITHOUT PREJUDICE TO RENEWAL AT THE CLOSE OF CASE-IN-CHIEF OF DEFENDANTS WALMART, INC., AND WAL-MART STORES EAST, L. P. Signed by Judge Walter H. Rice on 9/20/2024. (bjr)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISIONAT DAYTON

TRESSA SHERROD, etal.,
Plaintiffs,

Case No. 3:14-cv-454

V.

Judge Walter H. Rice

WAL-MART STORES,
INC., era/.,
Defendants.

ORDER OVERRULINGPLAINTIFFS'MOTION FOR RECONSIDERATION
AND/OR CLARIFICATIONREGARDING RONALD RITCHIE'S
POTENTIAL FAULT (DOC. #344), WITHOUT PREJUDICE TO
RENEWALAT THE CLOSE OF CASE-IN-CHIEFOF DEFENDANTSWALMART, INC., AND WAL-MART STORES EAST, L. P.

Before the Court is Plaintiffs' Motion for Reconsideration and/or Clarification

Regarding Ronald Ritchie's Potential Fault. (Doc. #344). "On August 5, 2014,
Ronald Ritchie, a shopper at the Beavercreek, Ohio, Wal-Mart Store #2124, called
911 to report that a man inside the store was loading an assault rifle and pointing
it at people. " (Order, Doc. #305, PAGEID 20483). White Ritchie has never been a
party to the case. Defendants Wal-Mart Stores, Inc., and Wal-Mart Stores East,

L. P. (collectively, "Wal-Mart")1 "argued that the jury should be permitted to
apportion some degree of fault to him because, according to Wal-Mart, Ritchie lied
to the dispatcher, leading the police to believe that this was an active shooter
situation. " {Id. at PAGEID 20484). On April 24, 2020, the Court deferred ruling

on "whether the jury should be permitted to apportion some degree of fault to
Ronald Ritchie until it has heard of all of the evidence[. ]" {Id. at PAGEID 20486).
If, at the close of evidence, Wal-Mart had not "convince[d] the Court that Ritchie
committed an identifiable, actionable tort which was the proximate cause of
Crawford's death, the jury cannot apportion any fault to Ritchie. " (Id. ). White its

decision was pending, the Court forbade Wal-Mart from arguing "to the jury that
some degree of fault should be apportioned to Ronald Ritchie. Neither party shall
ask any questions on this topic during voir dire, nor discuss it in opening
statements. " (Id. at PAGEID 20487)
Plaintiffs ask that the Court reconsider its deferral and instead bar the

apportionment of liability to Ritchie, often called an "empty chair" defense,
entirely. Plaintiffs "do not believe a tort exists under Ohio law for inaccurate eye-

witness testimony being conveyed to a 911 dispatcher. " In the absence of any
identifiably tortious conduct. Plaintiffs argue, Ritchie's culpability "should not be
submitted to the jury for its consideration!. ]" (Doc. #344, PAGEID 20710-11,

citing OHIO REV. CODE § 2307. 23). Plaintiffs assert that there will not be "any new

1 The Motion was not brought on behalf of Defendant Wal-Mart Store #2124. However, any order

by this Court vacating or modifying its earlier decision would apply equally to Store #2124.

evidence [that] will be adduced at trial to help the Court with this issue, and, thus,
there will be no new 'facts' to consider which may bear upon whether Mr. Ritchie

engaged in tortious conduct. " (Id. at PAGEID 20711). Specifically: Ritchie's
deposition has been filed with the Court; as a resident of Florida, he is unlikely to

testify at trial; and the parties are in possession of recordings of the 911 calls from
Ritchie to dispatch and the depositions of the 911 dispatch personnel. Plaintiffs
ask that, prior to trial, the Court issue a determinative ruling barring Wal-Mart from
raising an empty chair defense at all. {Id. at PAGEID 20711-12). "If the Court is
inclined [to] refrain from ruling pretrial[, ] . . . Plaintiffs wish to be allowed to
discuss him at least hypothetically in jury selection and opening statements so the

jury will understand why Plaintiffs are putting on some of the evidence at trial.'
[Id. at PAGEID 20712, 20713).
Wal-Mlart argues that, for four reasons, it should be allowed to discuss

Ritchie's potential liability and introduce evidence in support during trial. First, a
reasonable jury could conclude that: (1) Ritchie was lying when he told the 911
dispatcher that the decedent, John H. Crawford, III, was pointing the MK-177 at
children in Store #2124 and was attempting to load the air rifle; (2) the 911

dispatcher recounted (and embellished) Ritchie's account to former Defendant
Officer Sean C. Williams; and (3) Williams, in turn, surmised that there was an
active shooter situation in the store. (Memo. in Opp., Doc. #362, PAGEID 20868
(citations omitted)). Indeed, Wal-Mart notes, Plaintiffs raise that very possibility

through their Complaint, in which they expressly allege that Crawford "did nothing

threatening, much less loaded the pellet rifle with bullets. " (Id. at PAGEID 2086869, citing Compl., Doc. #1, PAGEID 9, If 31). Such a conclusion would also be
reasonable, Wal-Mart asserts, in light of Ritchie's hostile comments about
Crawford after the shooting and misleading statements to police about his firearm
ownership and military service. [Id. at PAGEID 20869, citing R. Ritchie Depo.,
Doc. #135, PAGEID 3358-59, 3367, 3429; R. Ritchie Investigative Report, Doc.
#186-9, PAGEID 12368-69).
Second, Wal-Mart argues that the Supreme Court of Ohio's decision in

Buddenberg v. Weisdack obviated the need for the Court to evaluate whether
Ritchie could be liable under Ohio common law torts by "overrul[ing] a host of

long-standing Ohio Appellate cases and now permit[ting] tort liability for any
individual who has been injured by a criminal act. " (Doc. #362, PAGEID 20870,

citing Buddenberg, 161 Ohio St. 3d 160, 2020-0hio-3832, 161 N. E. 3d 603; OHIO
REV. CODE § 2703. 60(A)). Wal-Mart asserts that "[ujnder Ohio law, statutory

claims for civil damages are tort claims. " [Id., citing Matus v. Lorain Cnty. Gen.
Health D/'st., 707 F. App'x 304, 315 (6th Cir. 2017); Oliver v. Cleveland Indians

Baseball Co. P'ship, 123 Ohio St. Sd 278, 2009-0hio-5030, 915 N. E. 2d 1205, 1
10). Wal-Mart claims that a rational jury could conclude that Ritchie's false report
violated OHIO REV. CODE § 2917. 32(A)(1) (making a report of an alleged or

impending crime while knowing the report or warning is false, which would likely
cause public inconvenience or harm), (A)(2) (knowingly causing a false alarm of an

emergency that involves a risk of physical harm to persons or property), or (A)(3)

(false report of an assault to a law enforcement officer). (Id. at PAGEID 2087071). Wal-Mart argues that, since Ritchie could be civilly liable for his criminal act,
Wal-Mart should be able to raise its empty chair defense and the jury should be

able to apportion liability to Ritchie. (Id. at PAGIED 20871).
Third, Wal-Mart argues that, contrary to Plaintiffs' contention, there will be
new evidence introduced at trial, including but not limited to "live witness

testimony of the 9-1-1 operator Yolanda Weber, the various ways in which
information obtained from Ritchie during his 9-1-1 call was then relayed to and
received by the two responding officers, expert testimony, and other fact
witnesses who were present at time of incident, " and that the jury should be

permitted to hear that evidence before the Court makes a decision on
apportionment.

(Doc. #362, PAGEID 20871). Finally, Wal-Mart asserts that

regardless of the Court's decision on apportionment, a key component of its
defense is that Ritchie's 91 1 call severed the causal link between any breach of

duty of by Wal-Mart and the fatal shooting of Crawford. It argues that the jury
must be able to hear evidence in support of that defense, even if the jury

concludes in the process that Ritchie was liable to some extent for Crawford's
death. (Id. at PAGEID 20872 (citations omitted)).

Plaintiffs reply that they "are not claiming the jury cannot hear from Ronald
Ritchie, or if the evidence and law support it, the jury cannot be instructed on
intervening or superseding cause relative to Ritchie's description of what he saw.'

(Reply, Doc. #369, PAGEID 20902). Rather, for several reasons, they are only

arguing that Ritchie should not be "on the verdict form for the purposes of
apportioning liability pursuant to [OHIO REV. CODE §] 2307. 23, or in the alternative,
clarification about what the parties are permitted to say about Mr. Ritchie's

potential fault early in the case. " {Id.}. First, they assert that Ritchie's state of
mind when he made the 911 call is irrelevant, because even making a false report
with a malicious intent to misrepresent the circumstances would not constitute an
actionable tort. (Id. at PAGEID 20903).

Second, Plaintiffs point out the Court's previous skepticism that Wal-Mart

can succeed on any of their theories as to why Ritchie is liable in tort, such that he
could be subject to empty chair apportionment. (Id., quoting Doc. #279, PAGEID
20068; Doc. ^305, PAGEID 20485). Specifically, Plaintiffs argue that OHIO REV.
CODE § 2307. 60(A)(1), a statutory cause of action which "states that anyone

injured by a criminal act may recover full damages in a civil action" (id. at PAGEID
20904 (emphasis in original)), is not a "tort action, " such that apportionment of
liability is possible. {Id}. Similarly, Plaintiffs claim that sub-section (B) is merely a
means of protecting a crime victim from being sued in tort by the criminal; its
inclusion "does not mean that civil action belonging to the victim in Section (A) is a
tort claim. " (Id. at PAGEID 20904-05, citing OHIO REV. CODE § 2307. 60(B)(2)).

Further, Plaintiffs assert, all Buddenberg did was clarify that the perpetrator need
not be convicted for a victim to avail himself or herself of the protections of OHIO
REV. CODE § 2307. 60(B); it did not reclassify a statutory civil action as a tort

action. [Id. at PAGEID 20905, citing Buddenberg, 2020-0hio-3832, IfT 10-13).
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Plaintiffs argue that the remaining cases cited by Wal-Mart are no more

availing. They assert that Oliver did not hold that statutory causes of action are
necessarily tort claims, only that such causes of action are subject to statutory

caps on noneconomic compensatory damages just as tort claims are subject to
caps on punitive damages. (Doc. #369, PAGEID 20906, citing Oliver, 2009-Ohio5030, If 16). The Matus Court, meanwhile, did not address section 2307. 60 at
all, and does not stand for the proposition that the section, which provides for "a

civil action for statutory criminal acts, would be considered a tort case, much less
that it would be subject to apportionment for 'tortious conduct. '" (Id. at PAGEID
20906-07, citing Matus. 707 F. App'x at 310, 314-15). In sum.
[Section] 2307. 60 provides a civil action for victims of crimes that do
not exist at common law, including the crimes Walmart believes Mr.

Ritchie may have committed. These crimes have no common law tort
corollary and, as such, are liabilities created by statute. Since they
are not torts, but statutory civil claims, they should not be subject to

Ohio apportionment liability scheme that requires "tortious" conduct.
(Id. at PAGEID 20908).

Finally, Plaintiffs reiterate that they are not asking for any evidence to be
excluded, or that Wal-Mart not be permitted to raise Ritchie's potential fault as a

proximate cause of the fatal shooting; rather, "the only issue Plaintiffs are raising is
whether fault can be apportioned to Ritchie. " (Doc. #369, PAGEID 20908).
While motions for reconsideration are not expressly provided in the Federal
Rules of Civil Procedure, part of this Court's inherent authority to manage its cases

is the ability to reconsider interlocutory decisions; "every order short of a final
decree is subject to reopening at the discretion of the district judge[J" Moses H
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Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 12 (1983). "Generally, a
motion for reconsideration is only warranted when there is: (1) an intervening

change of controlling law; (2) new evidence available; or (3) a need to correct a
clear error or prevent manifest injustice. " Northeast Ohio Coalition for Homeless v.
Brunner, 652 F. Supp. 2d 871, 877 (S. D. Ohio. 2009) (Marbley, J. ).
None of those conditions is met here. Buddenberg simply may not be read
as broadly as Wal-Mart urges. The Supreme Court of Ohio, having accepted
certification from the United States District Court for the Northern District of Ohio,

held "that the plain language of [OHIO REV. CODE § 2307. 60] does not require proof
of an underlying conviction. " Buddenberg, 2020-0hio-3832, ^11. However, the
Buddenberg Court does not address whether the statutory cause of action under
Ohio Rev. Code § 2307. 60(A) is definitionally a tort claim. Further, the statute's
definition of "tort action" as "a civil action for damages . . "is limited to "division
(B) of this section[. ]" Ohio Rev. Code § 2307. 60(B)(1)(A). Division (B) largely
addresses instances barring a criminal or other wrongdoer from recovering in tort,
which is inapplicable here.

The other cases upon which Wat-Mart relies are unavailing. While in Matus,
the United States Court of Appeals for the Sixth Circuit sustained the district

court's application of Ohio's statutory cap on non-economic damages, 707 F.
App'x at 315-16, it did so in the context of the plaintiff's state-law claim of
retaliatory discharge, id. at 310-1 1, which traditionally sounds in tort. Oliver, as

Plaintiffs point out, only pertains to state-law caps on liability against political
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subdivisions. 2009-0hio-5030, Ifl 4, 16. The cap was applied in 0//Ve/-with

respect to the plaintiffs' claims of "malicious prosecution, false arrest and

imprisonment, and intentional infliction of emotional distress[, ]" id. at If 3-all
common-law tort claims. In sum, Wal-Mart has not demonstrated that a claim
under OHIO REV. CODE § 2307. 60 is necessarily a tort action subject to
apportionment.

Nonetheless, the Court is not prepared to conclude as a matter of law, as

Plaintiffs urge, that a civil action under OHIO REV. CODE § 2307. 60 for alleged
liability under OHIO REV. CODE 2917. 32(A)(1-3) cannot be a tort claim subject to
apportionment.

Plaintiffs assert that "the crimes Walmart believes Mr. Ritchie may

have committed . . . have no common law tort corollary and, as such, are liabilities

created by statute. [Thus], they are not torts, but statutory civil claims, [and]
should not be subject to Ohio apportionment liability!. ]" (Doc. #369, PAGEID
20908). However, they cite no caselaw for that assertion, and there is no

language in OHIO REV. CODE § 2307. 60(A) suggesting that claims arising under that
section prohibit an empty chair defense or could not be subject to apportionment.
Finally, pursuant to the undersigned's Order (Doc. #382), on September 17,
2024, the Court heard oral argument from Plaintiffs and Wal-Mart on the question
of whether potential apportionment of liability against Ritchie would violate the
Due Process Clause of the Fifth Amendment. (Sept. 17, 2024, Minute Entry).

Based on the arguments by counsel and the cases cited by Wal-Mart (Notice of
Supp. Auth., Doc. #391), the Court agrees with the parties that any jury

apportionment of liability would not-and could not-serve as the basis for legal
liability against Ritchie. The Sixth Circuit rejected the Supreme Court of Montana's
conclusion that apportionment of liability would violate due process, "[b]ecause

these non-parties could not possibly be bound by the judgment!. ]" Stanley v.
Aeroquip Corp., Nos. 97-6742, 97-6745, 98-5005, 181 F. 3d 103 (TABLE), 1999
WL 266250, *2 n. 2 (6th Cir. Apr. 22, 1999) (interpreting Kentucky allocation of
fault statute). Under Ohio law, claim and issue preclusion cannot apply to an
individual unless he was a party or privy to a party in the lawsuit where the claim
or issue was decided. See, e. g.. In re Henkel, 490 B. R. 759, 771 (S. D. Ohio

Bankr. 2013), quoting S/// </. Sweeney (In re Sweeney), 276 B. R. 186, 189 (6th Cir
BAP 2002); Hapgood v. City of Warren, 127 F. 3d 490, 493 (6th Cir. 1997)).
Thus, even if the Court were to allow the jury to apportion fault to Ritchie

and the jury in fact did so, that determination would not be a judgment or a finding
of liability against Ritchie. Nor could the parties use that apportionment as

evidence of anything against Ritchie in future proceedings. Finally, even if there
were a concern about due process in the abstract, there is no such concern here,
as the statute of limitations for bringing a claim against Ritchie expired in 2016.
See OHIO REV. CODE §§ 2305. 10, 2305. 21 (statute of limitations for bodily injury

or injury to property is two years). In light of the above, the Court is convinced
that a jury apportioning fault to Ritchie without his being a party to the case does
not violate due process.

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In sum, it is still premature to determine whether Wal-Mart can demonstrate
that Ritchie committed tortious conduct under OHIO REV. CODE §§ 2917. 32(A)(1-3),

and thus is subject to apportionment under OHIO REV. CODE § 2307. 60(A). The
Court remains skeptical that Wal-Mart can do so, but refuses to bar it from making

that attempt. Thus, to the extent that Plaintiff is moving for reconsideration of the
Court's earlier order, the Motion is overruled without prejudice, subject to renewal
at the close of Defendant's case-in-chief.

As discussed above, in the alternative. Plaintiffs seek clarification as to what

statements they may make about Ritchie's potential fault in voir dire and opening
statements. The evidence discussed supra is highly relevant and probative as to
one of Wal-Mart's chief defenses-that Ritchie's call to 911 and the events that

followed were intervening or superseding events that meant that any breach of

duty by Wal-Mart could not have been the proximate cause of Crawford's death.
In their Reply, Plaintiffs assert that they never sought, through this Motion, to bar
Wal-Mart from using this evidence in its causation defense. (Doc. #369, PAGEID
20908). 2 Accordingly, both sides will be able to discuss extensively Ritchie's
actions and how they did (according to Wal-Mart) or did not (according to
Plaintiffs) proximately contribute to the shooting of Crawford without needing to
discuss any apportionment of liability. To the extent Plaintiffs seek further
clarification than the above, the Motion is overruled.

2 Thus, there is no portion of the Motion to sustain or overrule with respect to Wal-Mart's argument
that they be allowed to use the evidence in defense.
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For the foregoing reasons. Plaintiffs' Motion (Doc. #344) is OVERRULED
without prejudice to renewal at the close of Wal-Mart's case-in-chief.
IT IS SO ORDERED.

September 20, 2024

'.J^-^sT +^< V
WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT

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