Although I concur in the disposition of White's first and second assignments of error, I would sustain his third assignment of error and modify the judgment by vacating the award of punitive damages.
Unlike the majority, I am not troubled by the amount of punitive damages awarded. I am also not troubled by the fact that the trial court did not consider evidence of White's financial condition. As I understand the record, the trial court did not consider such evidence for a very good reason — none was offered. Our system of justice is adversarial, not inquisitive. Trial courts should not be required to take evidence when none is offered by the parties.
In my view, White's misconduct amounts to actionable negligence, but was not malicious. As I understand the record, it cannot fairly be said that he acted with a conscious disregard for the rights and safety of the plaintiff. It appears that he and the plaintiff found each other sexually attractive and decided to have sexual intercourse. As a professional, White certainly should have paused to reflect *Page 595 upon the plaintiff's fragile emotional condition and the likelihood that casual sex with a comparative stranger would do her emotional harm. That he failed to do so was, in my view, negligence, but of the ordinary variety. As I understand the record, White was not acting out of a conscious disregard for the plaintiff's rights and safety.
It is true that there was a great probability of White's conduct causing substantial harm to the plaintiff, but that is an additional element of malice intended to preclude an award of punitive damages where the actor acts with conscious disregard for the rights of the plaintiff, but over a relatively trivial matter. For example, a defendant, intending to violate a plaintiff's rights, cuts in front of him in a line to see a movie. While there is a conscious disregard for the rights of the plaintiff, there is no great probability of causing him substantial harm, and an award of punitive damages would be inappropriate.
In the case before us, I concede that there is evidence in the record from which the trial court could conclude, as it evidently did, that there was a great probability of causing the plaintiff substantial harm, but I am unwilling to concede that White acted with conscious disregard of the plaintiff's rights and safety. It appears that both parties were acting out of sexual lust. White, as a mental health professional, should have given some thought to the probable impact of their actions upon the plaintiff's mental health. His failure to do so constituted neglect of a professional duty owed to the plaintiff and was therefore actionable negligence on his part.
If a great probability of causing substantial harm, without more, is deemed to transmute ordinary negligence into malice justifying an award of punitive damages, then surely every medical malpractice verdict involving a significant injury, or even a great probability of a significant injury, should be accompanied by an award of punitive damages. I do not understand this to be the law of Ohio. *Page 596