X. SIGNIFICANT OHIO COURT DECISIONS

1. UM/UIM CASES

Supreme Court Cases

Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003 - Ohio - 5849

In Galatis, the Supreme Court emphatically rejected its 1999 decision in Scott Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 1999 - Ohio - 292. Scott Pontzer and its progeny had previously allowed employees (or their family members) to assert UM/UIM claims under their employers' policies for injuries sustained in motor vehicle accidents, even if the injured person was not acting within the course and scope of their employment or operating a company vehicle. Galatis squarely addressed Scott Pontzer and deemed it incorrectly decided. Galatis held an employee can only make a UM/UIM claim under their employer's policy (and subject to the terms and conditions of the policy) if the employee was acting within the course and scope of their employment at the time of the accident. The Supreme Court altogether abolished the right of non-employee family members to make a claim under an employer's policy. Obviously, this decision has had a propound effect on the thousands of Scott Pontzer claims working their way through the various stages of Ohio's legal system. This decision is retrospective in its application, thereby rendering all Scott Pontzer claims moot where the plaintiff was not in the course and scope of their employment.

Appellate Courts

Rucker, et al. v. Davis, et al., 2003 - Ohio - 3191—Self-Insured

A man was seriously hurt and his wife died as a result of injuries sustained in an automobile accident. The man, individually, and as the administrator of the estate of his wife, sought UM coverage from Travelers based upon a CGL policy issued to the husband's employer. The court held the policy was converted into a motor vehicle liability policy because it included coverage for “parking an auto” that is not owned by, rented or loaned to the insured. The court found this term to be slightly ambiguous. However, Travelers asserted it was not required to offer UM/UIM coverage because the policy was a form of self-insurance. The court found that the employer was self-insured in the practical sense and therefore there was no duty to offer UM/UIM coverage for this policy. The court also noted other courts had come to a different view and recommended the Ohio Supreme Court certify a conflict.

Rudish v. Cincinnati Insurance Co., 2003 - Ohio - 1253—Umbrella Policy

UM/UIM motorists coverage found by operation of law in a commercial umbrella policy is subject to the definition of underlying insurance in the policy thereby limiting coverage to excess coverage as to all insurance available to the insured under all other insurance policies applicable to the occurrence.

Disbennet v. Utica National Insurance Group, et al., 2003 - Ohio - 2013—Proximity to Vehicle

A man performing surveying work for his company was struck by an automobile with the point of accident approximately eighty feet from the deceased's vehicle. The court held the decedent was within a reasonable geographic distance to the insured vehicle and that he was engaged in an activity that was foreseeably identifiable with the use of that vehicle. The court found the geographical distance was only one factor to be considered and the court held the determination was based upon the activity and relation of the performance to the vehicle. The court also held that although the insurer was entitled to a set off for the policy limits of the tortfeasor, it was not entitled to a set off for settlement proceeds paid by the decedent's personal underinsured motorist carrier even though it provided primary coverage. Finally, the court held that pre-judgment interest running from the date of the accident was not an abuse of discretion by the trial judge.

Caton v. Muskingum Cty. Board of Commissioners, 2003 - Ohio - 2292—Self-Insured

The County Risk Sharing Authority (CORSA), a statutory self-insurance pool under R.C. §2744.081, is not subject to R.C. §3937.18 even when it provides UM/UIM coverage by contract.

2. OTHER COVERAGE ISSUES

Federal Court

Cincinnati Ins. Co. v. Zen Design Group 329 F.3d 548 (6th Cir. 2003)—Duty to Defend

This was a declaratory judgment action involving whether the insurer had a duty to defend or indemnify its insured in a lawsuit alleging, among other claims, trademark and tradedress infringement. The district (lower) court granted the insurer's summary judgment motion as to all claims, except for the claim of infringement of slogan. The district court also ruled since one of the claims was possibly covered, the insurer had a duty to defend. The court applied Michigan law.

The Court of Appeals affirmed the decision of the district court. The court concluded since the insurance company had a duty to defend one client, it had a duty to defend the entire case.

Although Michigan law was applied, the result would have been the same under Ohio law. The general rule in Ohio is if at least one claim among a number of claims is covered in a lawsuit, the insurer has the duty to defend the entire case.

Supreme Court

Penn Traffic Co. v. AIU Ins. Co., 99 Ohio St.3d 227, 2003 - Ohio - 3373—Duty to Defend

This case involved the exclusion for bodily injury to an employee of the insurer arising out of the course of employment, where the employee alleges a “substantialcertainty” intentional tort. The plaintiff alleged the employer's failure to place a guardrail on the loading dock resulted in her falling off the loading dock while working. The plaintiff alleged the employer's failure to place the guardrail on the loading dock made her injuries “substantially certain” to occur.

The Court interpreted a CGL policy and it had a liability coverage enhancement endorsement. The endorsement provided the company would cover bodily injury sustained by any employee of the insured arising out of or in the course of employment (provided the employee is reported under the worker's compensation fund). The endorsement excluded coverage with respect to any act “substantially certain” to cause bodily injury. The court upheld the exclusion, reasoning the words “arise out of or in the course of employment” merely means that the injury is causally related to one's employment. The court held a CGL policy containing this type of exclusion does not provide coverage for an employer's liability for “substantial-certainty” intentional torts. The policy did not have stop gap coverage.

Appellate Courts

Arrowood v. Grange Ins. Co., 2003 - Ohio - 4075—Intentional Acts

The issue in this case involved the application of two exclusions under a homeowner's policy for expected/intended injury and willful violation of a penal statute.

The tortfeasor drove to the plaintiff's house, where they had an argument. The tortfeasor left, then returned with a shotgun. He fired at least three shots in the front of the plaintiff's house. As this was occurring, the plaintiff exited the back door of the house. As she was leaving the house, one of the bullets (fired in front of the house) ricocheted, and struck the plaintiff. The tortfeasor pleaded guilty to felonious assault with a firearm specification.

The tortfeasor's parents had a homeowner's policy with Grange. The policy included the following two exclusions:

1. Bodily injury… expected or intended by an insured person.
2. Personal injury arising out of a willful violation of a penal statute . . . committed by an insured person.

The court determined there was no coverage under the homeowner's policy for the plaintiff's claim. Although the court found both exclusions applied, the written opinion of the court is somewhat unclear. The court referred to the felonious assault charge, but within the context of the expected/intentional injury exclusion. In addressing the expected/intentional injury exclusion, the court found the tortfeasor's actions were substantially certain to cause harm in that the injury to the plaintiff was expected. The court held for the exclusion to apply the insurer must demonstrate only that the injury was intended or expected, not that the particular victim of the injury was intended or expected.

This decision represents a departure from the Supreme Court decision in Physicians Ins. Co. of Ohio v. Swanson (1991), 58 Ohio St.3d 189. The Arrowood decision has the effect of lowering the standard of proof necessary for upholding the exclusion for intended/expected injury.

State Farm v. Totarella, 2003 - Ohio - 5229—Intentional Acts

The issue in this case involved coverage under a homeowner's policy for an assault. The insured claimed he did not intend to or expect the plaintiff would be injured, and that he was acting merely to restrain the plaintiff until the police arrived.

The incident began when the plaintiff and a friend walked past the tortfeasor's home and knocked on his door “just for fun.” The plaintiff knocked on the door, jumped off the porch, and began running. The tortfeasor cursed at the plaintiff and his friend, chased them, and caught the plaintiff after the plaintiff fell. He then punched the plaintiff repeatedly. In his affidavit, the tortfeasor stated he did not intend to injure the plaintiff, nor did he expect the plaintiff would be injured. He further stated he believed the plaintiff was an intruder, that he feared for his and his family's safety, and intended to restrain the plaintiff until the police officer arrived.

The court held the insurance policy did not provide coverage for the claim. The policy defined “occurrence” to mean an accident resulting in bodily injury or property damage. The policy excluded bodily injury that is expected or intended by the insured, or that is the result of willful and malicious acts.

The court addressed the argument that the plaintiff's complaint alleged both negligent and intentional misconduct by the tortfeasor. The court reasoned that merely characterizing conduct as “negligent” does not create a question of fact with respect to the insured's intent, since the mere insinuation of negligence in a civil complaint cannot transform what are essentially intentional torts into something “accidental” that might be covered by insurance. Finally, the court determined the facts of the case did not warrant a privilege to use force in the form of either selfdefense, ejectment of a trespasser, or making a citizens arrest.

When a plaintiff is injured in an assault, the plaintiff's attorney will often allege both intentional conduct and negligent conduct. The negligence claim is added in an attempt to obtain insurance coverage under the tortfeasor's homeowner policy. This case is significant because it stands for the proposition that the mere stating of a claim for negligence does not transform the intentional tort of assault into a claim that might be covered by insurance.

Allstate v. Oldham, 2003 - Ohio - 924—Bodily Injury

This case involved the question of coverage under a homeowner policy for a claim of slander, humiliation, and embarrassment. The insurer argued it had no duty to defend the underlying lawsuit because the alleged damages did not constitute “bodily injury.” The lower court granted summary judgment in favor of the insurance company.

The Court of Appeals upheld the ruling of the lower court. The complaint filed in the underlying lawsuit alleged the plaintiff suffered humiliation, embarrassment, and “other damages” as a result of the insured's statements. The court stated the rule in Ohio is that the term “bodily injury” does not include non-physical harm such as emotional distress. On this basis, the court concluded the plaintiff's alleged humiliation and embarrassment did not constitute a bodily injury under Ohio law.

The court further concluded the claim for slander, by its very nature, suggests the absence of a bodily injury. Although the complaint also alleged “other damages,” the court concluded these “other damages” should not be construed as including bodily injury.

Allstate v. Long, 2003 - Ohio - 61—Intentional Acts

This case involved the question of coverage under a homeowner policy. In the underlying action, the plaintiffs sued Allstate's insured, alleging intentional as well as negligent acts. Allstate filed a separate declaratory judgment action. The cases were then consolidated.

The plaintiffs voluntarily dismissed the tort action against Allstate's insured.

They then filed a motion to dismiss Allstate's complaint in the declaratory judgment action, arguing the declaratory judgment action had become moot. The trial court granted the motion.

The Court of Appeals reversed this portion of the decision of the trial court. The Court of Appeals reasoned a justiciable controversy still exists, because the plaintiffs retained their right to refile their case at a later date. The Court of Appeals cited a previous Supreme Court decision, which held that a justiciable controversy still exists even when no tort action is currently pending against the insured, but is merely threatened.

Aubin v. Metzger, 2003 - Ohio - 5130—Alcohol Exclusions

This case involved the liquor liability exclusion under a tavern's policy. The plaintiff was injured when he was attacked by another patron while playing pool at the tavern. The tavern's policy contained a three-part liquor liability exclusion. The third part of the exclusion precluded coverage for bodily injury for which any insured may be liable by reason of any statute relating to the sale of alcoholic beverages.

The court discussed this exclusion in the context of R.C. §4399.18. In Ohio, claims brought against liquor permit holders based upon the actions of intoxicated persons must now be brought under this statute.

The plaintiff argued he still had a claim under a business invitee liability theory, outside of the Ohio Dram Shop Statute. The court disagreed, finding the business invitee liability claim could only be brought under R.C. §4399.18. Therefore, since the claim could only be brought under the statute, this triggered the application of the liquor liability exclusion, which applies when the insured may be held liable by reason of any statute relating to the use of alcoholic beverages.

3. OTHER CIVIL DECISIONS

Supreme Court

Armstrong v. Best Buy (2003), 99 Ohio St.3d 79, 2003 - Ohio - 4693—Open and Obvious Defense

Plaintiff tripped and fell over the bracket of a shopping cart guardrail when entering through the exit doors of defendant's store. The Supreme Court of Ohio upheld summary judgment for defendant and reaffirmed the open and obvious doctrine as a viable defense in Ohio. Because the open and obvious nature of a hazard itself serves as a warning, a landowner owes no duty of care to individuals lawfully on the premises who encounter the hazard. The defense is a complete bar to recovery.

Roman v. Estate of Gobbo (2003), 99 Ohio St.3d 260, 2003 - Ohio - 3655—Sudden Medical Emergency Defense

Defendant Gobbo lost control of his motor vehicle injuring and killing drivers and occupants of other vehicles. Gobbo's estate alleged Gobbo lost control of his car due to an unexpected and sudden incapacitating heart attack and therefore he was not negligent in the resulting accident. The Supreme Court upheld the viability of the sudden medical emergency defense reaffirming that it is the burden of the defendant driver asserting the defense to prove he was stricken by a period of unanticipated and unforeseeable unconsciousness which rendered it impossible for him to control his vehicle. If proven, he is then therefore not chargeable with negligence as to such lack of control.

Appellate Courts

Boggs v. City of Bowling Green, 2003 - Ohio - 4093—Sovereign Immunity

Plaintiff sustained injuries while participating in a softball league at a city park and filed suit against the city on theories of negligence and intentional tort. In addition, plaintiff claimed Ohio's immunity statute (R.C.§2744) was unconstitutional.

The trial court disagreed and granted the city's motion for summary judgment indicating plaintiff was a “recreational user” and, therefore, the city was immune from suit. On appeal, plaintiff argued she was not a “recreational user” because she paid a fee to play in the softball league. An individual is deemed a “recreational user” according to R.C. §1533.18(B) if he “enters or uses municipal land, which is held open to the general public free of charge for recreational pursuits.” Here, the only fee plaintiff paid was to her team's sponsor, not the municipality. Therefore, since plaintiff was deemed a “recreational user,” the municipality was immune from suit.

Stephen Sabulsky v. Trumbull County, Ohio, unreported, Trumbull County—Governmental Immunity for Workplace Intentional Tort

Plaintiff, a corrections officer at the Trumbull County Jail, sued Trumbull County for employer intentional tort, arising from injuries he sustained during an altercation with inmates trying to escape. The inmates were able to get into a position allowing them to escape and to attack appellant, because the electric locking mechanism at the door leading from the maximum security area into the vestibule area had not been working for some time. Despite having been notified that the door was not functioning, and was a safety hazard, it had not been repaired prior to the incident. The officer sued his employer, Trumbull County, for employer intentional tort. Noting that Ohio courts have consistently held that political subdivisions are immune from intentional tort claims under R.C. §2744, the court initially noted that none of the exceptions to liability set forth in R.C. §2744.02(A) were applicable. The court then considered whether any of the exceptions to nonliability, as set forth in R.C. §2744.09 would apply, which provides, in effect, that an employee may sue his employer/political subdivision if the claim arises “out of the employment relationship.” However, the court held that because an intentional tort claim brought against a political subdivision is outside the employment relationship, the immunity afforded a political subdivision under R.C. §2744 applies, and plaintiff's claim was properly dismissed.

Oberschlake v. Veterinary Associates Animal Hospital, 151 Ohio App. 3d 741, 2003 - Ohio - 917, Greene Co.—Damages Recoverable for Injured Dog

A veterinarian mistakenly began a spaying surgery upon plaintiff's dog which was brought to defendant's clinic simply for a teeth cleaning. The appellate court affirmed dismissal of plaintiff's claims for emotional distress and loss of companionship finding that recovery of non-economic damages for such claims is not possible since dogs are regarded as personal property under Ohio law. Damages for loss to personal property are generally limited to the difference between the fair market value of the property before and after the loss.

Pacher v. Invisible Fence of Dayton, 2003 - Ohio - 5333—Damages Recoverable for Injured Dog

Plaintiff's pet dog was injured allegedly due to defendant's defective electrical dog collar. The appeals court held, in light of its Oberschlake v. Veterinary Associates decision, that owners of animals, even companion/pet animals, cannot recover noneconomic damages for themselves, or on behalf of the animals, for loss or injury to the animals.

Burrell v. Iwenofu, 2003 - Ohio - 1158—Landlord Liability for Dog Bite on Premises

A pit bull bit plaintiff in the backyard of her apartment. Plaintiff filed suit against her landlord and co-tenant. It was established the landlord did not reside at the property and did not have possession or control over the backyard, which plaintiff tried to argue was a common area. The court held “[a] lease transfers both possession and control of the leased premises to the tenant and, thus, a landlord is liable only where the landlord permitted the dog in common areas of which he retained possession and control.” Accordingly, the landlord was not liable pursuant to R.C. § 955.28(B), the dog bite statute, because the landlord did not permit or acquiesce in the tenant's dog being kept in common areas, as he had no control over those areas.

Samas v. Holliman, et al., 2003 - Ohio - 1647—Landlord Liability for Injuries Caused by Dogs that Escaped Premises

Plaintiff brought suit against Holliman and Charles and Doris Mitchell. Holliman was a tenant of the Mitchells and was caring for two pit bulls when the dogs escaped from the property. The pit bulls attacked a dog owned by plaintiff, who was injured while trying to separate the dogs. Holliman never answered the complaint and a default judgment was obtained against her. When the Mitchells rented the property to Holliman they included a provision in the lease which barred her from having pets on the premises. The Mitchells later became aware that Holliman was harboring two dogs. Holliman told the Mitchells that the dogs belonged to her son and would be on the premises temporarily. The Tenth District did not find the Mitchells liable because (1) the Mitchells were unaware of the breed of dog, (2) nothing indicated the dogs were vicious, (3) the dogs did not bite plaintiff, but only knocked her down, and (4) based on Holliman's comment the dogs were there only temporarily, there was no liability based on a failure to immediately begin eviction proceedings against Holliman.

Rhodes v. Mason, 2003 - Ohio - 4698—Punitive Damages for Dog Bite

Plaintiff was injured as a result of a dog bite to her face inflicted by her neighbor's dog. There was evidence that the dog had bitten several other people prior to this incident. Plaintiff sued the dog's owner for compensatory and punitive damages, alleging the defendant “consciously disregarded” the rights and safety of others by failing to take steps to control the dog's vicious propensities. The defendant counter-argued that each prior incident involved strangers or stressful situations while this case involved a neighbor with whom the dog had interacted in a playful and friendly manner on all prior occasions. Therefore, defendant argued, he had no reason to know the dog would bite his neighbor.

This case went to trial and the jury returned a verdict in plaintiff's favor, awarding $150,000 in compensatory and $100,000 in punitive damages. On appeal, the court upheld the verdict. First, the court found defendant's summary judgment and directed verdict motions were properly overruled despite his evidence suggesting he had no reason to know the dog would bite his neighbor. Next, the court determined evidence was properly admitted over defendant's objection even though it related to communications and events that occurred after the date of plaintiff's injury, because the evidence was relevant to impeach defendant's claim the dog was put to sleep. Finally, the court upheld the jury instructions relative to punitive damages because they were taken verbatim from a prior case and fairly and correctly stated the law applicable to the evidence.

Haller v. Daily, 2003 - Ohio - 1941—Damages

Plaintiff obtained a jury verdict against defendant as a result of a motor vehicle accident. The jury awarded damages for medical expenses and lost wages, but did not award plaintiff damages for pain and suffering. Thereafter, plaintiff filed a motion for new trial, which was denied by the trial court. Plaintiff appealed, arguing that the jury's failure to award damages for pain and suffering, while awarding damages for medical expenses and lost wages is the result of passion and prejudice and against the manifest weight of the evidence. The Second District concluded there was nothing in the record to suggest the jury's verdict was the product of passion or prejudice and there was evidence from which a reasonable jury could have concluded that plaintiff's pain and suffering was de minimis and other pain was not related to the motor vehicle accident. The court further concluded that such an award of damages is not contrary to law because there may be personal injuries requiring medical attention and treatment that are not accompanied by pain and suffering.

Lovett v. Wenrich, 2003 - Ohio - 4587—Damages

Plaintiff appealed a jury verdict in his favor that nonetheless awarded him zero dollars in damages. At trial, the jury was instructed that defendant admitted negligence and that plaintiff suffered some injury as a result of the negligence. Plaintiff's claim for a new trial was primarily based on his contention that since every doctor who testified agreed that Lovett suffered some sort of injury as a result of the accident, a verdict of zero dollars was against the manifest weight of the evidence. Defendant countered with facts outlined by the trial judge in his judgment entry denying a new trial, which included minimal impact, no complaints of injury at the scene, plaintiff driving away from the scene and not seeking medical treatment for three weeks following the accident, as well as plaintiff's involvement in another accident shortly afterwards.

The court of appeals reversed the trial court's decision ruling that, although the facts established at trial could explain an award of very minimal damages, they do not adequately explain an award of zero damages. In reviewing the jury's decision, the court looked to whether there were “objectively discernable reasons” for its decision. Here, since every doctor agreed that plaintiff sustained some injury, the court did not find any objectively discernable reasons for its award. Therefore, the court determined the jury could have awarded very minimal damages, but the evidence did not support an award of zero damages.

Cunningham v. Aultcare Corp., 2003 - Ohio - 2410—Subrogation/Reimbursement

Plaintiffs were injured in an automobile accident and incurred over $166,000 in medical and hospital bills. At the time of the accident, plaintiff was employed at the U.S. Department of Justice and was a covered participant under the Federal Employee Health Plan, which was administered by Aultcare. The Plan included a reimbursement provision. Plaintiffs filed a claim for declaratory relief seeking to prevent Aultcare from recovering until they had been fully compensated for their damages. The Fifth District Appellate Court held that whether Ohio or Federal law governed the claim, the Plan's reimbursement clause was ambiguous and did not override the “make whole” rule since it did not disclose the insurer's rights to priority of reimbursement if recovery was incomplete. The appellate court, however, did reverse and remand the trial court's decision since there had been no prior determination that plaintiffs had not been made whole.

Carrie Daklin v. Charles Lyle, et al., 2003 - Ohio - 2231—Duty to Control Actions of Another

In May 2000, the plaintiff returned to Ohio from her home in Minnesota to be with her mother, who was scheduled to undergo cancer surgery. In addition to the plaintiff, the plaintiff's father, brother, sister-in-law, and a family friend and his wife were also staying at the plaintiff's parents' home. Returning from visiting her mother after the surgery, the plaintiff purchased several copies of the book Death and Dying, intending to give a copy to each couple. However, when she attempted to give the books to the intended recipients, they became upset and informed her they thought the gesture was in bad taste. Shortly afterwards, the plaintiff retired to her bedroom, but overheard the family friend make a disparaging remark about her with which her father agreed. She left her bedroom, confronted the family friend, and then returned to her bedroom, followed by her father and brother. There, the parties continued to argue and a violent physical altercation arose between the plaintiff and her brother. During this time, the plaintiff's father was in the bedroom, and was, at times, no more than six inches away from his son. The father, however, made no effort to halt the fight.

The plaintiff brought suit against her brother and father, alleging against her father that he negligently failed to control the actions of the plaintiff's brother and failed to protect her from injury. The court granted summary judgment in favor of the father, stating he owed no duty to protect the plaintiff from injury.

The Eleventh District Court of Appeals upheld the lower court's decision, noting there is generally no duty to control the actions of a third party to prevent him from causing harm to another. However, the court went on to explain that a duty might arise where a special relationship exists between the defendant and the third party. The duty would arise where the defendant (a) knew or had reason to know that he had the ability to control the third person and (b) knew or should have known of the necessity and opportunity to exercise such control. On the facts of this case, however, the evidence indicated plaintiff's father could not have foreseen the parties' disagreement could escalate to a physical confrontation arising between the plaintiff and her brother. Therefore, the trial court's grant of summary judgment was proper.

Hardy v. Hall, 2003 - Ohio - 4978—Assumption of Risk

Hardy agreed to remove a large pine tree that grew on Hall's property. They devised a plan in which Hardy would ascend the tree on a ladder, using a chain saw to cut off the tree's branches as he did. When he neared the top, Hardy would “top off” the tree by cutting through its trunk, allowing the top to fall away. A neighbor raised concerns that the tree might fall on his property. To avoid that, Hall and Hardy proposed to tie ropes from the top of the tree to the bumper of Hall's truck, keeping the lines taut until the tree top began to fall away. As it did, Hall was to use his truck to pull the top down, away from the direction of his neighbor's property. The job went as planned until Hardy completed cutting through the tree's trunk to top it off. Instead of falling away from the tree, the top fell downward. In the process, branches from the tree top struck Hardy, throwing him from the steps of the ladder on which he stood and causing him to fall to the ground, 30 or 40 feet below, injuring him in the process. The Second Appellate District overruled the trial court's grant of summary judgment because while Hardy's injuries clearly resulted from his fall, the fall itself resulted from Hardy's being struck by a branch or branches of the tree top, which was a proximate result of Hall's failure to pull the tree top away with the ropes attached to his truck, as the two men had planned and agreed. Hall denied he failed to pull the treetop away. However, evidence from a neighbor who was watching the work suggests that Hall may have done that. Hall's failure was not, at least according to their plan, a regular feature of the activity concerned, such that the risk it created was directly associated with it. One does not by participating in an activity assume the risk of any injury caused by another participant's failure to observe the rules of the event. Whether such a failure occurred is a genuine issue of material fact that precluded summary judgment.

Knop Chiropractic, Inc. v. State Farm Ins. Co., 2003 - Ohio - 5021—Assignments

Chiropractor could not enforce patient's assignment of prospective claim proceeds against automobile insurer because assignment was created before patient had brought civil action against insurer. Insurer was not in privity with assignment between patient and chiropractor. Chiropractor had no right to file action against insurer at the time the assignment was made. An assignment must be found against a right in being. Under R.C. §3929.06(B), assignment not actionable against insurer based on assignment created prior to existence of a civil action.

Heritage Insurance Company v. Ohio Department of Transportation, 2003 - Ohio - 3111—Contribution Against Governmental Entity

The Jurgensen Construction Company entered into a contract with ODOT to build improvements at a state intersection. Heritage was the liability insurer for Jurgensen. ODOT approved a change in the sequence of signal lights, without notification to Jurgensen. A driver was killed at the intersection as the result of the signal change, and her estate sued Jurgensen. The jury returned a verdict in the amount of $487,500 against Jurgensen. Heritage paid the judgment to the estate, and Jurgensen paid a $50,000 deductible to Heritage, pursuant to the policy. Heritage and Jurgensen then sued ODOT for contribution. ODOT argued Heritage was not entitled to recover, on the basis of R.C. §2743.02(D), which mandates reduction in recoveries against the state by the “aggregate of insurance proceeds, disability award or other collateral recovery received by the claimant.” In sustaining the insurer's motion for summary judgment, the Court of Appeals held that Jurgensen was not a “claimant,” nor an injured party who received any sort of collateral recovery in the form of insurance proceeds for any injury. As a result, the court held Heritage was not subject to the limitations imposed by the statute. The case was remanded to determine whether the State was negligent and, if so, whether Jurgensen was entitled to contribution for the benefit of Heritage.

Raj v. Burkhardt, 2003 - Ohio - 245—“Two Inch Rule”

The plaintiff was injured when walking between two medical buildings due to an irregular surface difference between two adjoining pieces of concrete of approximately one and one quarter inches. While the “two inch” rule in Ohio, which provides that a difference in elevation in a sidewalk less than two inches is insubstantial, as a matter of law has been modified in that it now creates a rebuttable presumption that this less than two inch difference is insubstantial as a matter of law, it may be rebutted by a showing of attendant circumstances. The court of appeals held type of premise involved and the particular traits of invitees are not attendant circumstances that renders the defect substantial.

Conver v. EKH Co., 2003 - Ohio - 5033—Duty to an Invitee

Estate of a limousine passenger who suffered fatal injuries after exiting a limousine to use an ATM and then venturing off into the dark to a stairwell to relieve herself brought action against the bank, limousine service and limousine driver for negligence and breach of contract. Summary judgment motion of all defendants was granted. Passenger was a trespasser on bank's premises after venturing off in the dark to find an area to relieve herself. Thus the bank owed her only a duty to refrain from willful and/or wanton conduct. The limousine service was a private carrier and owed only a duty to exercise reasonable ordinary care which did not extend to time passengers exited limousine to use ATM or to relieve themselves. The limousine driver had no duty to warn passengers of darkened stairwell on bank premises and did not breach contract by failing to prevent passenger's accident.

Graham v. Golden Arch Realty Corp., 2003 - Ohio - 5264—Slip and Fall

Plaintiff was injured when she slipped and fell on a patch of ice in a restaurant's parking lot. The restaurant had no duty to warn or protect an invitee concerning the patch of ice as ice is a natural accumulation. Where the top portion of a natural accumulation of ice and snow is plowed, the ice that remains is still a natural accumulation.

Hake v. Delpine, 2003 - Ohio - 1591—Open and Obvious Defense

A property owner owes no duty to light a walkway, and if the owner so chooses to light a walkway, the property owner owes no duty to provide adequate lighting.

Darkness is always a warning of danger, thus an unlit walkway is an open and obvious danger of which the property owner has no duty to warn an invitee.

Scheetz v. Kentwood, Inc., 152 Ohio App.3d 20,—Slip and Fall

Plaintiff was injured when she tripped over a ramp that provided access to a restaurant for disabled individuals. Plaintiff alleged negligence in failing to provide adequate lighting and alleged the construction of the ramp violated provisions of the Americans with Disabilities Act (ADA). The court held the restaurant had no duty to provide adequate lighting in its parking lot as a matter of law. Further, the court held the plaintiff not only failed to identify the alleged flaw in the ramp but also failed to show this alleged deficiency was the proximate cause of the plaintiff's injuries.

Lopez v. Dave's Supermarket, Inc., 2003 - Ohio - 1350—Premises Liability

Plaintiff brought suit against grocery store for injuries she sustained in tripping on a box sitting on the floor in an adjacent cashier's stall as plaintiff was attempting to walk around a shopping cart. Defendant argued plaintiff became a licensee, rather than remain an invitee, when she stepped into the cashier's stall because this was an area for employees and not the general public. The court ultimately determined that plaintiff remained an invitee, despite her entrance into the cashier's stall, because defendant did nothing to prevent its customers from entering vacant cashier's stalls and customers freely entered those areas while they were passing through the checkout aisles.

Blain v. Cigna Corp., 2003 - Ohio - 4022—“Two-Inch Rule”

Plaintiff was injured when she tripped on uneven pavement while entering a retail store. The parties did not dispute the fact that the difference in elevation between the pavement tile and the surrounding ground measured less than two inches. The trial court granted summary judgment in defendant's favor based on the Ohio Supreme Court's promulgation of the so-called “two-inch rule,” which provides a difference in elevation in a sidewalk or walkway, which is less than two inches, is insubstantial as a matter of law absent attendant circumstances. On appeal, plaintiff argued defendant's prior knowledge of the defect constituted an attendant circumstance creating a jury question regarding negligence. In affirming the trial court's decision, the Court of Appeals declined to adopt the rule that an owner's prior knowledge of a defect could create an attendant circumstance. Here, the court limited the scope of attendant circumstances to that which would “divert the attention of the pedestrian, significantly enhance the danger of the defect, and contribute to the fall.” Defendant's prior knowledge, the court said, “neither increased the dangerousness of the defect nor played any role in appellant's fall.” Therefore, since the difference in elevation was less than two inches and plaintiff was unable to offer evidence of an attendant circumstance that would have increased the dangerousness of the situation, summary judgment was proper.

McKinley v. Chris' Band Box, 2003 - Ohio - 4086—Dram Shop Liability

Plaintiff was injured when two men attacked him after exiting through the front door of the defendant tavern. Plaintiff brought suit against the tavern under Ohio's Dram Shop Act alleging the tavern negligently sold alcohol to the two attackers knowing they were already intoxicated, which negligence proximately resulted in the assault that produced his injuries. During his deposition, plaintiff was unable to say whether the men who attacked him were in the tavern that night. Based on plaintiff's testimony, defendant moved for summary judgment arguing it precluded a finding of negligence. In addition, defendant argued that because the assault was an intentional act, it superseded and cut off any liability it may have. Plaintiff responded with an affidavit of a witness stating the two men were served alcohol and were “clearly intoxicated.” The affidavit contradicted this witness' prior deposition testimony that she could not determine whether the two men were clearly intoxicated. Finding no evidence that the assailants were clearly intoxicated, the trial court granted defendant's motion for summary judgment.

The appellate court reversed the trial court's decision on summary judgment. First, the court found the discrepancy between the witness' deposition and affidavit testimony was not a “fatal conflict” because she also testified regarding the assailants' physical conditions and observing them consume multiple rounds of drinks. The court recognized the general rule that an affidavit contradicting the affiant's prior testimony is not competent evidence to defeat a motion for summary judgment. Here, however, the court distinguished this case on the fact there was corroborating evidence, over and above the contradictory statement, from which reasonable minds could conclude the two assailants were intoxicated. Therefore, summary judgment was not proper.

Voelzke v. Fowler, 2003 - Ohio - 1419—Choice of Law

This litigation stems from an auto accident in Williams County; however, all parties to the accident were residents of the State of Michigan, which is also the state plaintiffs were issued their insurance policy. Generally, the place of injury determines which state law to apply, unless another jurisdiction has a more significant relationship to the lawsuit. In this case, because all parties were from Michigan and the insurance was issued in that state, the court held Michigan had a more significant relationship to the lawsuit than Ohio, and as such, Michigan law applied.