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 In addition, defendant argued that because the assault was an intentional act, it superseded and cut off any liability it may have.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.

 

Schuerger v. Clevenger, 2005-Ohio-5333 - Dram Shop

Plaintiff brought suit after being assaulted at a bar.  Plaintiff’s assailant was at the bar for a company party, and the employer kept an open tab at the party for the employees.  Plaintiff argued by keeping an open tab the employer was encouraging consumption of alcohol and was somehow acting in conjunction with the bar owner and therefore should be subject to liability as well.  The appellate court disagreed and held the employer could not be found liable for the actions of its intoxicated employee.

 

Sullivan v. Heritage Lounge, 2005-Ohio-4675 - Dram Shop

Plaintiff was injured in an unprovoked assault at a bar.  He sued the bar for allegedly over- serving his assailant.  The assailant had been at the bar for approximately three hours, and during that time drank six beers, all of which he ordered at the actual bar area.  During this three hour period the alleged assailant did not behave violently or aggressively nor did he display any visible signs of intoxication.  The appellate court upheld summary judgment in favor of the bar as there was no evidence the alleged assailant was noticeably intoxicated. 

 

Snider v. Cleveland Indians Baseball Company, 2005-Ohio-1989 - Dram Shop

Plaintiff sued the Cleveland Indians after he fell over a railing at a baseball game.  Plaintiff had become intoxicated while drinking beer at the game.  He claimed the team and/or their vendor were liable for over serving him.  The appellate court felt differently, holding a voluntarily intoxicated adult has no civil recourse against the alcohol provider. 

 

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.

 

Northern Buckeye Education Council Group Health Benefits Plan v. Lawson, 103 Ohio St. 3d 188, 2004-Ohio-4886 - Subrogation, Made Whole Rule

Plaintiff’s minor daughter was injured in an auto accident. Before her health plan would pay any of the daughter’s medical bills, the mother had to sign a subrogation reimbursement agreement, promising she was reimburse the health plan in whole regardless of whether her tort claim recovery fully compensated her and her daughter for her daughter’s injuries. The employee recovered a total of $250,000.00, but refused to reimburse the plan for the $85,945.37 it previously paid. The health plan then filed suit, seeking enforcement of the subrogation agreement.

The Supreme Court did not expressly reject the Made Whole Rule, but did hold this subrogation agreement was enforceable as the specific language in there was clear and unambiguous, and not contrary to public policy. The affect of this decision is insurers of all sorts now have an opportunity to draft stronger subrogation reimbursement language in their policies. This benefits not only health insurers, but also auto insurers who write medical payment coverage.

 

Layne v. Progressive Preferred Insurance Co., 104 Ohio St. 3d 509, 2004-Ohio-6597 - Interest on Settlements

Plaintiff was part of a class action suit which contended once a claim settled, the monetary amount in question was due and payable that same date, and for each day a plaintiff had to wait to receive the payment, there should be an award of interest. Plaintiff relied on the Supreme Court’s earlier decision in Hartmann v. Duffey, 95 Ohio St. 3d, 456, 2002-Ohio-2486. The Supreme Court recognized a distinction from the Hartmann case, noting the release in Layne contained the following clause: “No promise, inducement or agreement not herein expressed has been made to [plaintiff], and that this release contains the entire agreement between the parties hereto.” By signing the release with such terms, the Supreme Court held even if there had been any entitlement to interest, such entitlement was extinguished. The Supreme Court did not overrule the Hartmann decision, but did indicate to the parties to a settlement are responsible for addressing such terms and interest issues.

Weaver v. Edwin Shaw Hospital, 104 Ohio St. 3d 390, 2004-Ohio-6549 - Statute of Limitations for an Incompetent Person

Plaintiff suffered a serious brain injury in a bicycle accident and was adjudicated incompetent. After the accident, and before a guardian was appointed for him, he was the victim of alleged medical negligence. A medical malpractice suit was filed on his behalf one year after he was found incompetent and his guardians appointed. A suit was also filed nearly two years after the alleged medical negligence. The hospital contended the negligence claims were barred by the one year statute of limitations, on the basis the statute of limitations began to run once the guardianship had been appointed. The Supreme Court disagreed acknowledging R.C. 2305.16 tolls the statute of limitations for a person of unsound mind, regardless of whether or not a guardian has been appointed. The Supreme Court also held that if there was to be an exception to this provision for incompetent persons with guardians, that was a matter for the legislature to address. As a result, so long as the person remains competent, the statute of limitations for their claims does not begin to run. The statute begins to run only if and when they are no longer incompetent.

 

Lakatos v. Republic Waste Services of Ohio, 2004-Ohio-495 - Emotional Distress

Plaintiff was a truck driver and while making a pickup at the defendant’s facility, he accidentally ran over and killed one of the defendant’s employees with his truck. It was determined the accident was not plaintiff’s fault, but was the fault of the deceased worker. Plaintiff filed suit against the employer claiming he suffered psychological and emotional injuries as a result of being involved in the employee’s death. Plaintiff did not actually observe the death of the injured employee. The Court of appeals upheld summary judgment in favor of the employer on the basis plaintiff was not a bystander to the accident and did not see it happen, and also did not have any type of close prior relationship with the decedent.

 

Robinson v. Bates, 2005-Ohio-1879 - Collateral Sources

At trial there was a dispute as to the amount of medical expenses plaintiff would be able to claim.  There was a difference between what the medical providers billed and what plaintiff’s health insurer actually paid.  The medical providers wrote off the difference.  Plaintiff contended she should be allowed to present the full amount of her bills as allowing a lesser amount to be presented would violate the collateral source rule.  The defendant contended plaintiff should only be allowed to present bills in an amount necessary to pay any subrogation lien or to reimburse her for out of pocket expenses, as allowing for anything else would result in a win fall to plaintiff.  The appellate court ruled in favor of plaintiff indicating the amount billed by the medical providers was presumed reasonable and under the collateral source rule, a defendant should not be allowed to benefit from the fact a plaintiff may have had health insurance.  This case is currently on appeal to the Ohio Supreme Court.

 

Sinclair v. Gram, 2005-Ohio-1096 - Emotional Distress

Plaintiff was involved in an accident where the wrongdoer was killed.  In a suit against the wrongdoer, plaintiff claimed emotional distress as a result of witnessing the wrongdoer’s death.  The court held because plaintiff was not in the same vehicle as the wrongdoer and had no relationship to him, plaintiff was not entitled to make a claim for emotional or psychological distress based upon observing the death.

 

Cashin v. Cobett, 2005-Ohio-102 - Pre-judgment Interest

Plaintiff sued defendant following an automobile accident.  Plaintiff subsequently voluntarily dismissed the suit without prejudice and re-filed it nine months later.  The case went to trial and plaintiff received a substantial verdict, much more than the insurer previously offered.  The trial court awarded plaintiff pre-judgment interest.  The defendant argued there should be no pre-judgment interest awarded for the nine months between the dismissal of the first suit and the filing of the second.  The appellate court disagreed and held pre-judgment interest would run uninterrupted from the day of the accident.

 

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.

 

Daklin v. Lyle, 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.

 

Gentry v. Craycraft, 101 Ohio St. 3d 141, 2004-Ohio-379 - Recreational Activities

A 4-year old boy suffered an eye injury while watching several older boys hammering nails into a wooden chair. A nail flew out of the chair, striking the young boy in the eye. Suit was filed against the boy who was hammering and his parents.

This Supreme Court upheld summary judgment in favor of the defendants, on the basis both the boy using the hammer and the boy watching were engaged in a recreational activity. The Court determined when an injured person is a participant or spectator at a sport or recreational activity, there age for the purposes of assumption of risk is irrelevant, as long as the defendant’s conduct was not reckless or intentional. The Court concluded hammering nails into the chair was sufficient to constitute recreational activity.

 

Gable v. Gates Mills, 103 Ohio St. 3d 449, 2004-Ohio-5719 - Seatbelt Defense

Plaintiff brought a product liability suit against Daimler Chrysler following an auto accident where he was a passenger. He was not wearing a seatbelt. The Supreme Court initially acknowledged the failure to wear a seatbelt is ordinarily inadmissible. The Supreme Court recognized an exception to this general rule to rebut plaintiff’s claims there was a design defect in the car. While this decision is largely limited to automobile product liability claims, it is important to keep in mind Senate Bill 80 allows for the failure to wear a seatbelt to be admissible under a broader range of circumstances.

 

Ellery v. The Ridge Club, 2005-Ohio-1873 - Assumption of Risk

Plaintiff lived adjacent to a golf course.  Two of her vehicles were damaged by golf balls and she sued the course for not taking adequate precautions to protect surrounding property owners.  The appellate court ruled in favor of the golf course, noting plaintiff was aware she was moving next door to a golf course when she bought her home.  Furthermore, in a twenty year period there had only been four other instances where golf balls damaged adjacent property. 

 

Calich v. Allstate Insurance Company, 2004-Ohio-1619 - Excess Verdict

Plaintiff made a third-party BI claim against an Allstate insured. When Allstate would not accept plaintiff’s settlement demand, which was within policy limits, plaintiff entered into a consent judgment with the insured, for an amount exceeding the policy limits. Plaintiff then filed a bad faith action against Allstate, based upon the consent judgment given by Allstate’s insured, and the contemporaneous assignment of the bad faith claim. The court of appeals ruled there was no bad faith claim as a matter of law, as there was never an excess judgment adjudicated against Allstate or its insured. The only judgment in question was the consent judgment entered into by Allstate’s insured. The court ruled there was no bad faith or detrimental injury to Allstate’s insured as the plaintiff’s claims against the insured had never gone to trial and had not even necessarily been shown to have merit.

 

Cogswell v. Clark Retail Enterprises, Inc., 2004-Ohio-5640 - Parental Liability

Plaintiff was shot and injured when the gas station where she worked was robbed. This appeal involved the plaintiff’s claims against the juvenile who drove the get-away car and the juvenile’s mother. The juvenile was not the shooter. Plaintiff claimed the parents were liable under a theory of negligent supervision, as well as R.C. 3109.10 which imposes statutory liability on parents for assaults committed by their children. The court of appeals upheld summary judgment in favor of the parents, noting there was no evidence to establish a negligent supervision claim. The court of appeals also noted the parental liability statute did not apply here since the juvenile in question was merely an accomplice to the assault, and did not actually commit the assault herself.

 

Bartimus v. Pasley, 2004-Ohio-5189 - Admission of Mistake

The defendant was a surgeon who, following a procedure, admitted to the patient and her family that he made a mistake during the course of performing surgery. The plaintiffs filed a medical malpractice suit against the doctor and the jury returned a verdict in favor of the doctor. At trial the doctor did not deny admitting to making a mistake, but argued there was a distinction between making a mistake and failing to read the applicable standard of care. The jury’s verdict was upheld on appeal and the court of appeals acknowledged his admission as a mistake is not necessarily an admission of liability.

 

Parianos v. Bruegger’s Bagel, 2005-Ohio-113 - Foreign Object in Food

Plaintiff sued Bruegger’s, claiming while eating a bagel sandwich she bit on a bonelike object in her sausage.  The appellate court ruled in favor of Bruegger’s holding the bone was natural to the sausage and was something plaintiff should have anticipated and guarded against.