A S
UMMARY OF
OPINIONS
REPORTED IN 2004 FROM
OHIO
COURTS
RELATED TO
TORTS AND
DAMAGES
PREPARED BY THE
OHIO
STATE
BAR
ASSOCIATION,
NEGLIGENCE
LAW
COMMITTEE
FOR USE BY MEMBERS OF THE
OHIO
STATE
BAR
ASSOCIATION
Contents
Contents
torts
torts
causation
fiduciary duty
auto accidents/traffic law
business relations interference
consumer sales practices act
contempt of court
conversion
discrimination (non-employment)
emotional distress
fraud
interference with inheritance
“lemon law”
medical malpractice
non-competition agreement
RICO
telephone consumers act
unjust enrichment
warranty breach
premises liability
excavation
nuisance
public roads and sidewalks
defamation
invasion of privacy
family medical leave act
whistleblower act
workplace discrimination
wrongful discharge
alcohol liability
alternate liability
animal liability
bailment/impounded vehicles
negligent supervision
principal-agent liability
respondeat superior/“employee”
corporate veil
implied consent
seat belt use
self-defense
settlement as defense
unconsciousness as defense
recreational user immunity
statutory immunity
damages
damages
contract breach
consortium
collateral source rule
insufficient award
punitive damages
excessive punitive damages
punitive damages and net worth
set-off and credit to damages
tree cutting damages
wrongful death damages
table of cases
table of cases
Torts
CAUSATION
CAUSATION
Carol Roberts was injured at work in 1998 when a piece of steel fell on her foot while she was assisting a forklift operator. During physical therapy, she injured her back and ribs. She made a UM claim. At trial she moved for a directed verdict on causation of the back and rib injuries, and for jury instructions on the effect of subsequent medical malpractice on the issue of causation. The trial court denied both requests and the Court of Appeals affirmed. Based on the evidence, reasonable minds might differ on causation, and the trial court properly denied the motion for a directed verdict. Roberts’ proposed instruction was not an accurate statement of the law, and the trial court properly instructed used OJI 11.30.
Roberts v State Farm Mut Auto Ins, 155 Ohio App 3d 535, 2003 Ohio 5398 (2nd Dist, Montgomery)
FIDUCIARY DUTY
FIDUCIARY DUTY
Jeffrey Groob was interested in buying a hydraulic pump business from Oldfield Equipment, and met with Keybank’s vice president/loan officer Carol Sapinsley for a loan. Sapinsley notified Groob that Keybank was not interested in making the loan. Sapinsley and another Keybank customer then bought Oldfield’s business. Groob sued Keybank and Sapinsley for breach of fiduciary duty. The trial court directed a verdict against Groob but the Court of Appeals reversed. A special duty of confidentiality exists between a loan applicant and a prospective lender. Banks and loan officers cannot use information obtained from loan applicants for their own benefit. This duty should not be viewed broadly; it recognizes standard banking practices and confidentiality.
Groob v Keybank, 155 Ohio App 3d 510, 2003 Ohio 6915 (1st Dist, Hamilton)
AUTO ACCIDENTS and TRAFFIC REGULATIONS
AUTO ACCIDENTS and TRAFFIC REGULATIONS
Nalonni Smith was driving north on Front Street in Marietta in a “left turn only” lane and turned left into Putnam Street, without signaling a left turn. The Highway Patrol stopped Smith using the turn as probable cause, and cited her for failure to signal the turn, §4511.39 ORC, and for OMVI. The trial court dismissed the turn signal charge but found her guilty of OMVI. The Court of Appeals affirmed. The police stop was lawful because §4511.39 ORC requires a signal for a left turn, even from a left-turn-only lane.
State v Smith, 156 Ohio App 3d 238, 2004-Ohio-791 (4th Dist, Washington)
Sheila McFadden was driving in I-75 in Hamilton County when her car was pelted by salt being spread from an ODOT snow plow truck. McFadden sued ODOT, alleging that the salt pellets cracked her windshield. ODOT admitted that the pellets cracked the windshield but denied liability, and asserted that McFadden was at fault for failing to avoid the ODOT truck and the salt it was dropping. The Court of Claims entered judgment for McFadden.
McFadden v Ohio Dept of Transp, 129 Ohio Misc 2d 1, 2004-Ohio-3756 (Court of Claims)
BUSINESS RELATIONS INTERFERENCE
BUSINESS RELATIONS INTERFERENCE
The plaintiff landlord leased space to WHC. Five years into the ten-year lease, two of the three anchor stores left, along with other tenants. WHC invoked a clause in the lease which reduced the rent due if anchor stores were not filled. The landlord sued, and WHC filed a counter-claim for tortious interference with business relations. After a bench trial, the court entered judgment for WHC on the counter-claim but the Court of Appeals reversed. Although a breach of duty under a contract or lease necessarily interferes with the injured party’s business relations with third parties, the injured party is limited to an action for breach of contract and may not recover in tort for business interference. The elements of tortious interference with business relations are that (a) the defendant knew of (b) the plaintiff’s business relationship and (c) intentionally interfered, (d) causing a breach in the relationship (e) which caused damage. WHC did not show any interference was intentional.
Wauseon Plaza LP v Wauseon Hardware Co, 156 Ohio App 3d 575, 2004-Ohio-1661 (6th Dist, Fulton)
CONSUMER SALES PRACTICES ACT
CONSUMER SALES PRACTICES ACT
Cynthia Jemiola filed this class action against XYZ, alleging violation of the Consumer Sales Practices Act, §1345.02 ORC, by sending unsolicited advertisements to a telephone facsimile machine. The Court of Common Pleas certified the class, but noted that Jemiola showed no concrete evidence of other class members receiving facsimiles. The court awarded $200 for each of the six violations, and allowed attorney fees.
Jemiola v XYZ Corp, 126 Ohio Misc 2d 68, 2003 Ohio 7321 (Cuyahoga CP)
Maria Johnson bought a personal computer from a retail merchant, Gateway, with Microsoft’s “Windows 98” operating system already loaded. She sued Microsoft for violation of the Valentine Act anti-trust law, §1331.01 ORC, and the Consumer Sales Practices Act, §1345.02 ORC and §1345.03 ORC. The trial court granted summary judgment for Microsoft and the Court of Appeals affirmed. The Valentine Act relates to anti-trust violations and requires a direct purchase from the alleged violator in order to confer standing on the buyer. The Consumer Sales Practices Act is targeted toward suppliers who are engaged in the business of effecting or soliciting consumer transaMaria Johnson bought a personal computer from a retail merchant, Gateway, with Microsoft’s “Windows 98” operating system already loaded. She sued Microsoft for violation of the Valentine Act anti-trust law, §1331.01 ORC, and the Consumer Sales Practices Act, §1345.02 ORC and §1345.03 ORC. The trial court granted summary judgment for Microsoft and the Court of Appeals affirmed. The Valentine Act relates to anti-trust violations and requires a direct purchase from the alleged violator in order to confer standing on the buyer. The Consumer Sales Practices Act is targeted toward suppliers who are engaged in the business of effecting or soliciting consumer transactions, and does not relate to anti-trust violations.
Johnson v Microsoft Corp, 155 Ohio App 3d 626, 2003 Ohio 7513 (1st Dist, Hamilton)
Maria Johnson sued MC, alleging monopoly pricing of its Windows operating system in violation of the Valentine Act, §1331.01 ORC, and the Consumer Sales Practices Act, §1345.02 ORC and §1345.03 ORC; she attempted to certify the action as a class. The trial court dismissed the action and the Court of Appeals affirmed. The Valentine Act has the same “direct purchaser” requirement as in the federal Clayton Antitrust Act; indirect purchasers, who buy from a middleman instead of the alleged monopolist, do not suffer injury and lack standing to sue.
Johnson v Microsoft Corp, 156 Ohio App 3d 249, 2004-Ohio-761 (1st Dist, Hamilton)
Lisa Hurst bought a house from Frankie and Jacob Lowe under a land contract, and ETA was selected as the escrow agent. After Hurst took possession, she discovered several problems with the building and sued for violation of the Consumer Sales Practices Act. The trial court granted summary judgment for the defendants and the Court of Appeals affirmed. The CSPA prohibits unfair or deceptive acts and unconscionable acts or practices by suppliers in consumer transactions. The CSPA has no application in a pure real estate transaction, and a collateral service solely associated with the sale of real estate is included.
Hurst v Enterprise Title Agency Inc, 157 Ohio App 3d 133, 2004-Ohio-2307 (11th Dist, Lake)
Lisa Eagle bought a new Daewoo Lanos from FMM. She sued for unfair and deceptive sales practices. FMM moved to stay the lawsuit pending arbitration under the sales contract. The trial court sustained the motion over Eagle’s objection, but the Court of Appeals reversed. The arbitration clause required her to waive certain claims available under Ohio law such as a private attorney general action under the Consumer Sales Practices Act, §1345.09 ORC. Failure to provide Eagle with a copy of the sales contract was a deceptive act under the CSPA. The court ruled that the arbitration clause was both procedurally unconscionable and substantively unconscionable.
Eagle v Fred Martin Motor Co. 157 Ohio App 3d 150, 2004-Ohio-829 (9th Dist, Summit)
Robert and Wanda Ell hired architect Courtney Mitchell to design changes to their home, and signed a contract to pat Mitchell an hourly rate plus 15% of the project’s construction costs. After some timRobert and Wanda Ell hired architect Courtney Mitchell to design changes to their home, and signed a contract to pat Mitchell an hourly rate plus 15% of the project’s construction costs. After some time, Mitchell notified the Ells that his services for time were $2,562 to date, and working plans would add $2,450. The Ells discharged him and paid him $600, then retained another architect who provided working plans for $615. Mitchell sued for $2,562 and they represented themselves. The trial court awarded that amount (with a small reduction), and the Court of Appeals affirmed. The Ells were not entitled to recoupment under the Consumer Sales Practices Act for excessive fees either as an unfair or deceptive act, §1345.02 (A) ORC, or an unconscionable act, §1345.03 (A) ORC, since they did not raise it in a counter-claim.
Mitchell v Ell, 157 Ohio App 3d 271, 2004-Ohio-2812 (12th Dist, Butler)
CONTEMPT OF COURT
CONTEMPT OF COURT
The State sued SMC alleging contamination of wetlands and other violations. The parties signed a permanent injunction consent order (PICO). Five years later the State filed this contempt action, alleging SMC violated the PICO. The trial court ruled that the State failed to show beyond a reasonable doubt that SMC had intentionally, recklessly or willfully violated the PICO and dismissed the claim. The Court of Appeals reversed. A contempt finding may be civil or criminal. Civil contempt is remedial or coercive and punishment may be terminated once the contemnor obeys. Criminal contempt punishes past disobedience. Alleged violation of the PICO is civil and the trial court applied an incorrect standard of proof.
State ex rel Atty Gen of Ohio v Shieldalloy Metallurgical Corp, 156 Ohio App 3d 409, 2004-Ohio-982 (5th Dist, Guernsey)
OCC and Citizens for a Strong Ohio ran ads during the 2000 campaign for election of Supreme Court justices. The trial court sustained OEC’s subpoenas for OCC’s and CSO’s contribution records, and set a sanction of $25,000 per day for failure to comply, stayed pending appeal. The Court of Appeals affirmed. The excessive fines clause of the Eighth Amendment does not apply to civil contempt sanctions. The test for determining whether a sanction is criminal or civil is whether the sanction is designed primarily (a) to coerce compliance with a court order, or whether it is (b) to punish, vindicate the court’s authority or deter future misconduct. Most sanctions contain a coercive and punitive element. If the party is able to purge the contempt by an affirmative act, the order is coercive and civil; if there is no ability to purge, the order is generally considered punitive and criminal.
Ohio Elections Comm v Ohio Chamber of Commerce, 158 Ohio App 3d 557, 2004-Ohio-5253 (10th Dist, Franklin)
CONVERSION
CONVERSION
Akron erected a dam in Portage County in 1912 and created Lake Rockwell to provide drinking water. As time passed, Portage County and downstream municipalities desired additional water to be released from the dam to dilute their water treatment plant discharge, and sued. The trial court ruled against Akron and the Court of Appeals generally affirmed. The 1911 statute involved transferred to Akron only those ownership right the State had, not the riparian rights of other downstream property owners. The State may take riparian rights for public use in eminent domain proceedings but must compensate the owner. The owners of land situated on the banks of navigable streams are also owners of the beds of the rivers to the middle of the stream (although the federal government might have retained an easement of navigation on the river). Owners of land on the banks may use the water, or the river, in any way not inconsistent with the public easement to travel on the river, or of private rights of other riparian owners, and neither the State nor any individual has the right to divert water to another’s injury. When a natural watercourse passes through a person’s land, he obtains riparian rights; he is entitled to have the water continue to flow across his land in the same quantity, quality and manner as it would naturally flow, and he may use the water for any useful purpose that does not interfere with the riparian rights of a downstream owner. An owner of land is not privileged to deal with surface water as he pleases nor absolutely prohibited from interfering with their natural flow; each possessor is legally privileged to make reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, and the possessor incurs liability only when his harmful interference with the flow of surface water is unreasonable. Riparian rights are a property right, not just an easement or appurtenance.
Portage Cty Bd of Commrs v Akron, 156 Ohio App 3d 657, 2004-Ohio-1665 (11th Dist, Portage)
In a dispute over riparian rights to the Tuscarawas River, Akron sued Portage County for conversion. The trial court granted summary judgment against Akron and the Court of Appeals affirmed. Conversion is the wrongful control of personal property belonging to another in denial of the owner’s rights; it is a tort applicable to personal property and water in the ground or in a river is not a chattel subject to ownership.
Portage Cty Bd of Commrs v Akron, 156 Ohio App 3d 657, 2004-Ohio-1665 (11th Dist, Portage)
William Long bought an eight-day-old African lion cub from a federally licensed exotic animal breeder and seller, and the USDA acquisition form listed Long as the owner. Long planned to take the cub to a nature preserve in California, but because it was so young, he had it taken to NLA’s exotic animal shelter for a short time. NLA refused to return the cub, asserting that it was sick and Long was unable to care for it. Four weeks after leaving the cub, Long sued in replevin for its return, and for conversion. The trial court granted summary judgment to Long on the replevin claim, but noted that a conversion claim is for money only, not possession. The Court of Appeals affirmed.
Long v Noah’s Lost Ark Inc, 158 Ohio App 3d 206, 2004-Ohio-4155 (7th Dist, Mahoning)
DISCRIMINATION (other than employment)
DISCRIMINATION (other than employment)
Kenneth Jackson was indicted for complicity to possess drugs, a third degree felony. The trial court overruled his motion to dismiss, then accepted his plea of no contest and sentenced him to two year in prison. Jackson appealed the failure to dismiss, arguing that he was addicted to methamphetamine and therefore disabled under the ADA, 42 USC §12101 et seq, so the State’s orchestrated sale of the drug to him was outrageous. The Court of Appeals affirmed the conviction. The ADA is designed to prevent discrimination against persons with disabilities, which include alcoholism and drug addiction. However, the ADA specifically excludes from protection those currently engaging in the illegal use of drugs.
State v Jackson, 157 Ohio App 3d 574, 2004-Ohio-3446 (6th Dist, Huron)
EMOTIONAL DISTRESS
EMOTIONAL DISTRESS
Sherry Scarabino suffered from extreme migraine headaches which caused work absences at ELCH. Her supervisor noted that Scarabino was missing a lot of work and recommended that she go to the Gateway Employee Assistance Program (an ELCH employee benefit) for medical advice. Scarabino sued for intentional infliction of severe emotional distress. The trial court granted summary judgment for ELCH and the Court of Appeals affirmed. ELCH’s actions were neither extreme nor outrageous. Scarabino argued that the court should not use an ordinary person standard, but look at the conduct in relation to her own “delicate emotional and psychological state,” but even under that test the conduct was not tortious.
Scarabino v East Liverpool City Hosp, 155 Ohio App 3d 576, 2003 Ohio 7108 (7th Dist, Columbiana)
John Dobran had a mole removed from his left arm and a biopsy determined it was malignant melanoma. He had two sentinel lymph nodes removed for testing to determine whether the melanoma had metastasized. One tested negative at a local medical center. The second was frozen and sent to California for polymerase chain reaction (PCR) screening, but it thawed before testing and was unusable. Dobran sued for negligence, alleging that the PCR test would have defined the probability of metastasis and his life expectancy, and that he suffered extreme emotional distress by the uncertainty. The trial court granted summary judgment for the defendants. The court of appeals reversed, ruling that the lost opportunity of early diagnosis was an actual physical peril. The Supreme Court reversed, and reinstated the summary judgment. Ohio does not recognize a claim for negligent infliction of serious emotional distress where the distress is caused by the plaintiff’s fear of a non-existent physical peril. The “loss of chance” theory is not applicable to this matter. (Opinion by O’Connor; Moyer, Stratton and O’Donnell concur; Resnick, Sweeney and Pfeifer dissent.)
Dobran v Franciscan Med Ctr, 102 Ohio St 3d 54, 2004-Ohio-1883, appeal from Montgomery App
OPA was having problems related to its collective bargaining agreement which had expired, and union members put up signs, chanted, and wrote graffiti. Jeff Woodell, a first line supervisor at OPA’s smelting plant, was the target of some of the union activity, including graffiti making obscene comments about his wife and suggesting that he should be murdered. Woodell suffered stress and took a leave of absence while being treated for post-traumatic stress syndrome. OPA’s independent medical examination, after a new CBA was signed, indicated that Woodell could return to work but his own physician disagreed. Woodell was terminated and sued the union. The trial court granted summary judgment for the union and the Court of Appeals affirmed. The National Labor Relations Act §7 (29 USC §257) guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. If the acts are not protected, or are unlawful under §7, the accuser must establish by clear proof (unequivocal and convincing proof) that the union or its officer authorized, participated in or condoned such acts.
Woodell v Ormet Primary Aluminum Corp, 156 Ohio App 3d 602, 2004-Ohio-1558 (7th Dist, Monroe)
FRAUD
FRAUD
CSI and Gideon, Frederick & Coe, both electrical engineering firms, submitted bids for work on ECSD buildings. ECSD accepted GFC’s lower bid and CSI sued for fraud. The trial court granted summary judgment against CSI and the Court of Appeals affirmed. The plaintiff in a fraud action must prove all of the following: (a) a representation, or where there is a duty to disclose, concealment of a fact, by the defendant (b) which is material to the transaction at hand, (c) made falsely either with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) with justifiable reliance by the plaintiff upon the representation or concealment, and (f) resulting injury proximately caused by the reliance.
Current Source Inc v Elyria City School Dist, 157 Ohio App 3d 765, 2004-Ohio-3422 (9th Dist, Lorain)
INTERFERENCE WITH INHERITANCE
INTERFERENCE WITH INHERITANCE
Judith’s will left her estate to her children Robert and Stephanie. Robert filed a will contest in the Probate Court and added his father Earl; Robert and Earl alleged in the Probate action and in a separate action in the general division of the court of common pleas that Stephanie had tortiously interfered with their expectancy of inheritance. Each court dismissed the tort claim and the Court of Appeals affirmed. The Probate Court did not have jurisdiction over the tort claim. The claim was not yet ripe for judicial review in the general division. Intentional interference with expectancy of inheritance may not be pursued if adequate relief is available through probate procedures, such as a will contest. If Earl and Robert maintain both actions, they might make a double recovery: their inheritance in the will action, and money damages equal to the inheritance in the tort action. If they are successful in the will contest, then they will have suffered no tort damages.
Roll v Edwards, 156 Ohio App 3d 227, 2004-Ohio-767 (4th Dist, Ross)
LEMON LAW
LEMON LAW
Beatrix Maitland bought a Ford, Elton Shaw bought a Pontiac, and Duane Adams leased a Dodge. Each of them had problems with her car, made a claim under the “Lemon Law,” §1345.71 et seq ORC, arbitrated the claim, and each arbitrator applied a set-off for mileage. The plaintiffs sued the manufacturers under the “Lemon Law.” The trial court sustained the defendants’ motion to dismiss, since the plaintiffs had accepted the arbitration award and were precluded from seeking further damages. The court of appeals reversed, ruling that the “Lemon Law” did not provide for a set-off. The Supreme Court reversed, affirming the dismissal. §1345.72 allows a consumer refund of the full purchase price without a set-off for mileage, but this remedy does not necessarily apply to an arbitration award. Under the “Lemon Law,” the consumer is required to first resort to an informal dispute-resolution process (at no cost to the consumer, §109:4-4-04 OAC) if one is available; the manufacturer is bound by the award, but the consumer may reject the award and sue. (Opinion by Stratton; Moyer, O’Connor and O’Donnell concur; Resnick, Sweeney and Pfeifer dissent.)
Maitland v Ford Motor Co, 103 Ohio St 3d 463, 2004-Ohio-5717, appeal from Franklin App
MEDICAL MALPRACTICE
MEDICAL MALPRACTICE
Helen Schirmer had a 33% chance of passing a serious genetic defect to her children. Schirmer became pregnant and MAOG conducted a chorionic villus sampling test that indicated the unborn child was probably a female without the defect; however, if the test actually used Schirmer’s own tissue, it would not be accurate. Schirmer gave birth to a son with the defect, resulting in profound mental and physical disabilities requiring round the clock care. Schirmer sued for economic costs of raising and supporting her son, and non-economic costs for the emotional and physical burden of raising and supporting the child. The trial court ruled that the economic and non-economic damages were not recoverable. The Court of Appeals reversed regarding the economic damages but affirmed regarding the non-economic damages. Schirmer’s claim is for the type of medical malpractice commonly called “wrongful birth,” brought by parents of a child born with birth defects, alleging that due to negligent medical advice or testing, they were precluded from making an informed decision about whether to conceive a disabled child or, in the event of a pregnancy, commit an abortion to lawfully kill their child prior to his birth. In contrast, a medical malpractice claim commonly called “wrongful life” is brought by the child (and this action is contrary to public policy in Ohio), and a medical malpractice claim commonly called “wrongful pregnancy” results from an unsuccessful sterilization (this action is allowed in Ohio for costs associated with the pregnancy, but extraordinary medical expenses resulting from the child’s birth defects are not reasonably foreseeable and not recoverable). Consequential economic damages for reasonable costs of child rearing are not recoverable in wrongful pregnancy and wrongful life cases, but Ohio law does allow recovery of extraordinary damages, the costs of raising a disabled child over and above ordinary child rearing expenses for a normal child. However, a claim for non-economic damages would require the court to weigh the difference between being and non-being, which is contrary to public policy.
Schirmer v Mt Auburn Obstetrics & Gynecological Assoc, 155 Ohio App 3d 640, 2003 Ohio 7150 (1st Dist, Hamilton)
David Lykins had pain in his shoulder and nausea, but no fever or wound. That day he saw Quazi Hossain MD at an urgent care center, who treated him for nausea and referred him to the MVH emergency room for blood work and to rule out septic arthritis. Lykins complained of pain, chills, nausea and fever to ER triage nurse Jan Licht, who examined him, found vital signs were normal and categorized him as non-urgent. Physician assistant Edward Chance examined Lykins and ordered shoulder x-rays, which were normal. Timothy MacLean MD agreed that there was no indication of a septic joint and discharged him with a diagnosis of shoulder strain/sprain. Lykins’ condition worsened overnight. His family physician Todd Kepler MD suspected sepsis and referred Lykins back to MVH ER. He was diagnosed with acute soft tissue infection in the left side of the chest, septic shock, multiple organ failure, and acute renal and hepatic failure, and placed on antibiotics. He had contracted neocroticizing fascitis and myositis, caused by group A streptococcus (“flesh eating bacteria”) which does not eat flesh but does cut off blood supply to tissue, causing its death. Gary Anderson MD, a general surgeon, ordered a CAT scan and then surgery. Despite two operations, Lykins died two weeks later. His estate sued. Defense experts testified that the medical providers were not at fault for failing to initially diagnose the disease, because classic symptoms were not shown, and the disease quickly became untreatable. The jury returned a defense verdict and the Court of Appeals affirmed.
Lykins v Miami Valley Hosp, 157 Ohio App 3d 291, 2004-Ohio-2732 (2nd Dist, Montgomery)
During Lois Coleman’s pregnancy, an ultrasound of her unborn child’s organs were “suboptimally visualized,” despite attempts by the technician. Lois testified that the technician said everything looked fine. Radiologist Vikram Dogra MD reviewed the 38 views, determined that seven were suboptimal (including the heart, head, brain and face) and noted the report indicated no gross abnormalities. Dogra did not follow the usual step of ordering a more invasive ultrasound; he testified that he preferred that the physician who ordered the ultrasound request a clearer test. Debra Hanson CNM initialed the report, indicating that it had been read and appropriate action taken. Hanson and Ann Raffis CNP testified that the ultrasound report did not mention routinely reported areas of the brain. Hanson testified that it was her responsibility to request further testing if necessary, but that she relied on Dogra’s expertise in interpreting the ultrasound, and that Dogra did not recommend another ultrasound in his report as other radiologists did when needed. Lois underwent other tests to rule out other fetal defects and problems. When San’Tara Coleman was born, Hanson noticed facial deformities and irregular breathing. Tests revealed alobar holoprosencephaly, a genetic defect where the brain does not develop properly, which usually results in death within a few months. There is no medical procedure to prevent or correct the condition, before or after birth. San’Tara died twelve days after birth. Lois testified that if she had known San’Tara would be born with severe health problems and imminent death, she would have had San’Tara avoid suffering after birth by being aborted prior to birth. Lois and San’Tara’s estate sued for medical malpractice. The trial court granted summary judgment for the defendants. The Court of Appeals ruled that San’Tara’s claim was for “wrongful life,” a tort not recognized in Ohio, and affirmed that part of the summary judgment. The Court of Appeals ruled that Lois’ claim for “wrongful birth,” based on failure to adequately advise her, is allowed under Ohio law, and reversed that part of the summary judgment.
Coleman v Dogra, 157 Ohio App 3d 530, 2004-Ohio-3190 (8th Dist, Cuyahoga)
NON-COMPETITION AGREEMENT
NON-COMPETITION AGREEMENT
Lee Columber worked for LLEG and signed a non-competition agreement. When he was discharged ten years later he formed a similar business. LLEG sued Columber for breach of the agreement, and Columber moved for summary judgment based on lack of consideration. The trial court granted the motion. the court of appeals affirmed, but the Supreme Court reversed. Continued employment of a current at-will employee is sufficient consideration for a non-competition agreement. (Opinion by Moyer; Stratton, O’Connor and Handwork concur; Resnick, Sweeney and Pfeifer dissent.)
Lake Land Emp Group of Akron LLC v Columber, 101 Ohio St 3d 242, 2004 Ohio 786, appeal from Summit App
David Taylor, general manager and vice president of sales for LCP, was given the opportunity to purchase shares in the corporation if he executed a standard Security Holder’s Agreement, which included a non-competition clause for two years after leaving LCP. Taylor later divorced and transferred all his shares to an independent trustee for the benefit of his minor children. Taylor left LCP and was hired by a direct competitor. LCP sued to enforce the non-competition clause. The trial court denied LCP’s motion for a preliminary injunction, on the basis that the clause was overly broad in its geographical limits, and further, since Taylor was no longer a shareholder, LCP had no legitimate business interest to protect. The Court of Appeals affirmed.
LCP Holding Co v Taylor, 158 Ohio App 3d 546, 2004-Ohio-5324 (11th Dist, Portage)
R. I. C. O.
R. I. C. O.
William Turchyn was a member of St Vladimir church in the diocese of the Ukrainian Orthodox Church USA. The Ukrainian Orthodox Church USA (and with it St Vladimir) decided to transfer affiliation from the Orthodox Church of the Ukraine to the Ecumenical Patriarch in Turkey. Turchyn did not approve and was placed on spiritual suspension. He sued, alleging a pattern of corrupt activity, fraud, a scheme to defraud St Vladimir members of property and assets, and violation of the Ohio RICO statute, §2923.31 et seq ORC. The trial court sustained the defendants’ motion to dismiss for failure to state a claim. RICO requires that (a) the conduct of the defendant involve the commission of two or more specifically prohibited state or federal offenses, (b) the defendant’s prohibited criminal conduct constitute a pattern of corrupt activity, and (c) the defendant has participated in the affairs of an enterprise or has acquired and maintained an interest in or control of an enterprise. Neither the change of affiliation nor the suspension is a prohibited criminal conduct. Further, an “enterprise” may not be composed simply of a corporation and its officers or employees.
Turchyn v Nakonachny, 157 Ohio App 3d 284, 2004-Ohio-2692 (8th Dist, Cuyahoga)
TELEPHONE CONSUMER PROTECTION ACT
TELEPHONE CONSUMER PROTECTION ACT
Cynthia Jemiola filed this class action against XYZ, alleging violation of the Telephone Consumer Protection Act, 47 USC §227, by sending unsolicited advertisements to a telephone facsimile machine. The Court of Common Pleas certified the class, but noted that Jemiola showed no concrete evidence of other class members receiving facsimiles. The court awarded the statutory amount of $1,500 for each of the six violations, and ruled that attorney fees were not recoverable under the Act.
Jemiola v XYZ Corp, 126 Ohio Misc 2d 68, 2003 Ohio 7321 (Cuyahoga CP)
UNJUST ENRICHMENT / IMPLIED CONTRACT / QUANTUM MERUIT
UNJUST ENRICHMENT / IMPLIED CONTRACT / QUANTUM MERUIT
Lester Cooper was hospitalized for a serious injury. His acquaintance Julie Smith visited him, they became romantically involved and Cooper proposed marriage. Julie accepted and began to divorce her estranged husband. Cooper moved in with Julie in her mother Janet Smith’s home. Out of his $180,000 injury settlement he bought Julie an engagement ring, car, computer, tanning bed and horses, and paid off Janet’s car loan and for a new furnace in her home. After disagreements, Cooper left and sued Julie and Janet for the value of the gifts, alleging that they were made in contemplation of marriage. Julie returned the ring. At trial the court entered judgment against Cooper, ruling that the gifts to Julie were not in contemplation of marriage since Julie was still married to another man, that Cooper was at fault for breaking the engagement; and that the gifts to Janet were not conditional. The Court of Appeals affirmed for different reasons. The court noted five different methods of resolving such claims, and adopted the theory that (a) the gift of an engagement ring implies that it was in contemplation of marriage unless the parties had agreed otherwise, and (b) other gifts are considered completed inter vivos gifts unless the donor expressed an intent that the gift be conditioned on the subsequent marriage. Unjust enrichment occurs when a party retains money or benefits which in justice and equity belong to another; the plaintiff must show that (a) he conferred a benefit on the defendant, (b) the defendant knew of the benefit, and (c) the defendant retained the benefit under circumstances where it would be unjust for her to retain the benefit without payment.
Cooper v Smith, 155 Ohio App 3d 218, 2003 Ohio 6803 (4th Dist, Lawrence)
Just before Lou Balk resigned as body shop manager at SCI, he deleted 1,500 repair estimates from the CCC Pathways computer, took an appointment calendar and customer list, disposed of a computer software disc, and contacted four insurance companies to remove SCI from their preferred lists of body shops. SCI also alleged that he had performed poor service, resulting in additional costs, and that supplies were missing while he was manager. SCI sued Balk in County Court. Balk asserted that he was an at-will employee without a contract, so he could not have breached a contract. The trial court concluded that SCI was entitled to $27,823 which it reduced to the $15,000 jurisdictional limit. The Court of Appeals affirmed. There is no cause of action for breach of the covenant of good faith and fair dealing by an at-will employee where he is suing for wrongful discharge. However, just because an employee is at-will for purposes of termination or resignation, does not mean that an implied contract, or even an express one, does not exist to govern the relationship prior to termination. There are three types of contract: express, implied in fact and implied in law. An implied-in-law contract, or quasi contract, is a legal fiction based on unjust enrichment, not a meeting of the minds. An implied-in-fact contract involves a meeting of the minds, as in an express contract, but is established by the surrounding facts and circumstances, and tacit understanding, rather than words. It is an implied condition of employment that an employee will exercise reasonable care and diligence in performing tasks, act in good faith and not act to the detriment of the employer. In some cases an agent or employee owes his employer a duty to exercise the utmost good faith and loyalty in performance of his obligations. An employer may sue an employee, or former employee, for a breach of the duty, and may also recover for converted property. The employee impliedly agrees to indemnify his employer against loss paid under respondeat superior liability.
Staffilino Chevrolet Inc v Balk, 158 Ohio App 3d 1, 2004-Ohio-3633 (7th Dist, Belmont)
Braden Greene’s car was damaged in a collision, and Hollis removed it at the request of Sugarcreek Township police. The car was a total loss with a $50 salvage value. CitiFinancial was the lienholder and had insurance coverage on the car. Hollis charged $90 for towing, and $12 daily for storage for about nine months. Hollis sued for $2,970 towing and storage, alleging that CitiFinancial informed Hollis that $4,000 insurance coverage was available, and that Hollis relied to its detriment on the representation. The trial Braden Greene’s car was damaged in a collision, and Hollis removed it at the request of Sugarcreek Township police. The car was a total loss with a $50 salvage value. CitiFinancial was the lienholder and had insurance coverage on the car. Hollis charged $90 for towing, and $12 daily for storage for about nine months. Hollis sued for $2,970 towing and storage, alleging that CitiFinancial informed Hollis that $4,000 insurance coverage was available, and that Hollis relied to its detriment on the representation. The trial court ruled that Hollis had no obligation to hold the car for CitiFinancial, and dismissed CitiFinancial. The Court of Appeals affirmed. An implied contract is one inferred by a court from the circumstances surrounding the transaction, making a reasonable or necessary assumption that a contract exists between the parties by tacit understanding. Quantum meruit is a theory of recovery based on implied contract. CitiFinancial had no interest in possessing the car, was a lienholder and not the owner, did not request the towing or storage, and received no benefit. Further, §4505.101 ORC provides how a repair garage or towing facility may obtain title to a vehicle worth up to $2,500 left for more than fifteen days, and §4513.61 ORC provides how a car towed from public property may be sold at auction after proper notice to the owner. The Court also questioned the reasonableness of $2,900 charges on a $50 vehicle.
Hollis Towing v Greene, 155 Ohio App 3d 300, 2003 Ohio 5962 (2nd Dist, Greene)
WARRANTY BREACH
WARRANTY BREACH
Gladys Evilsizor contracted with Becraft to paint her house; the contract stated that the work was guaranteed for one year and the paint had a 20-year manufacturer’s warranty. Close to two years later Evilsizor noticed that the paint was cracking and peeling; Becraft failed to make repairs and Evilsizor had another contractor make the repairs. Evilsizor sued Becraft. After a hearing the trial court entered judgment for Evilsizor and the Court of Appeals affirmed. §1302.28 ORC implies a warranty of fitness for a particular purpose when the seller at the time of contracting knows the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods. §1302.29 (B) ORC permits an express disclaimer of implied warranties. §1302.30 (C) ORC provides that express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. Evilsizor relied on Becraft’s judgment, creating the implied warranty, and Becraft did not expressly waive the implied warranty.
Evilsizor v Becraft & Sons Gen Construction, 156 Ohio App 3d 474, 2004-Ohio-1306 (2nd Dist, Clark)
PREMISES LIABILITY
PREMISES LIABILITY
Constance Francis’ employer contracted to clean Showcase Cinema Eastgate’s theater. Part of her job involved taking trash to a dumpster in the parking lot, reached by using a short flight of steps that did not have a handrail. One night while returning from the dumpster, Francis tripped and fell while going down the steps. She could not state what caused her fall, but did testify that if there had been a handrail, it would have broken her fall. The trial court granted summary judgment against Francis, based on an open-and-obvious defect, and on Francis’ inability to state what caused her fall. The Court of Appeals reversed the summary judgment. Violation of the Ohio Basic Building Code (regarding handrails in this case) can be evidence of negligence (but not negligence per se) and evidence of a breach of duty, thereby avoiding summary judgment. While a plaintiff usually must state what defect caused her fall, in this case the claim was not based on what caused the fall but on whether the fall would have been broken by a handrail.
Francis v Showcase Cinema Eastgate, 155 Ohio App 3d 412, 2003 Ohio 6507 (1st Dist, Hamilton)
Erica Aponte (age 7), was at Michael and Deborah Castor’s home for Thanksgiving dinner. After dinner Erica (without permission) went outside and crawled under an electric wire fence enclosing the Castor’s horse paddock, where a horse kicked Erica in the face. Erica sued the Castors. The trial court granted summary judgment for the Castors, ruling that Erica was a trespasser, that the Castors did not owe her a duty of ordinary care, and their conduct was not willful or wanton. The Court of Appeals affirmed. Invitees are persons who rightfully come upon the premises of another by invitation (express or implied) for some purpose which is beneficial to the owner. The status of an invitee is not absolute but is limited by the invitation; if the invitee goes outside the area of her invitation, she becomes a licensee or trespasser. A landowner has a duty of ordinary care to an invitee, but only a duty to refrain from willful, wanton or reckless conduct which is likely to injure a trespasser or licensee. A host owes a duty to a social guest (a) to exercise ordinary care not to injure his guest by any act of the host and (b) to warn the guest of hidden dangers know to the host. However, a host is not the insurer of a social guest and there is no implied warranty that the premises are safe; a social guest assumes the ordinary risks of the premises. Erica was aware of the danger.
Aponte v Castor, 155 Ohio App 3d 553, 2003 Ohio 6769 (6th Dist, Williams)
Attractive nuisance.Attractive nuisance. Erica Aponte (age 7), was at Michael and Deborah Castor’s home for Thanksgiving dinner. After dinner Erica (without permission) went outside and crawled under an electric wire fence enclosing the Castor’s horse paddock, where a horse kicked Erica in the face. Erica sued the Castors. The trial court granted summary judgment for the Castors, ruling that the doctrine of attractive nuisance did not apply. The Court of Appeals affirmed. Even if a landowner has an attractive nuisance, he has a duty only to act with ordinary care and does not automatically become liable for any injury a child trespasser may suffer. The doctrine includes a requirement of foreseeability, and does not extend to conditions and risks which are obvious to and should be fully realized by the child. Further, an animal is not an “artificial condition” invoking the doctrine of attractive nuisance.
Aponte v Castor, 155 Ohio App 3d 553, 2003 Ohio 6769 (6th Dist, Williams)
John Zuzan was installing carpet at Richard Shutrump’s home and made four trips through the front door. On the last trip out, while carrying a power stretcher, Zuzan stepped onto an uneven crack in the front stoop and dropped the stretcher onto his foot. Zuzan stated that the crack was of good size, but that he had not noticed it. Zuzan sued Shutrump. The trial court granted summary judgment to Shutrump and the Court of Appeals affirmed. Shutrump owed a duty of ordinary and reasonable care to his business invitee Zuzan, including a duty to warn him of latent or hidden defects of which Shutrump knew or should have known. In Armstrong v Best Buy Co Inc, 99 Ohio St 3d 79, 2003 Ohio 2573, the court had photographs of the alleged defect; in this case there are only vague descriptions and the court cannot conclude as a matter of law that the defect was open and obvious. Knowledge may be shown by prior usage; a party cannot claim that a defect was so insubstantial that he did not notice upon entering premises, yet it was so unreasonably dangerous as to impose liability on the owner when the party later fell. Zuzan argued that “attendant circumstances” contributed to the fall. Attendant circumstances are attractions or distractions that divert or obscure the pedestrian’s attention, but they must be beyond the control of the claimant, for example heavy traffic, shadows and foreign articles on the sidewalk. Carrying heavy objects is not an attendant circumstance.
Zuzan v Shutrump, 155 Ohio App 3d 589, 2003 Ohio 7285 (7th Dist, Mahoning)
Yeoung Lee, a tenant at Dragoo’s apartment complex, was supervising her children and her guest Nina Bae (age 6) at the apartment swimming pool. Bae drowned and her estate sued Dragoo, alleging that Bae was an invited guest and that Dragoo was negligent in its supervision, maintained a nuisance and failed to follow necessary safety regulations. The trial court ruled that Bae was a guest of Dragoo’s tenant, and therefore Dragoo’s business invitee, and Dragoo owed a duty of ordinary care to her to see that the premises were reasonably safe. The trial court ruled that a swimming pool is an open and obvious danger, and determined that Dragoo followed the guidelines and requirements for public pools, OAC §3701-31-05. The trial court grantYeoung Lee, a tenant at Dragoo’s apartment complex, was supervising her children and her guest Nina Bae (age 6) at the apartment swimming pool. Bae drowned and her estate sued Dragoo, alleging that Bae was an invited guest and that Dragoo was negligent in its supervision, maintained a nuisance and failed to follow necessary safety regulations. The trial court ruled that Bae was a guest of Dragoo’s tenant, and therefore Dragoo’s business invitee, and Dragoo owed a duty of ordinary care to her to see that the premises were reasonably safe. The trial court ruled that a swimming pool is an open and obvious danger, and determined that Dragoo followed the guidelines and requirements for public pools, OAC §3701-31-05. The trial court granted summary judgment for Dragoo and the Court of Appeals affirmed, ruling that Dragoo was not negligent. The Court of Appeals declined to rule on whether a swimming pool is an open and obvious danger to a child under age seven.
Bae v Dragoo & Assoc Inc, 156 Ohio App 3d 103, 2004 Ohio 544 (10th Dist, Franklin)
Tamara Shupe was driving on SR 99 when a tree limb overhanging the road broke off and fell on her var. She sued ODOT. The Clerk of the Court of Claims entered judgment for Shupe but the Court of Claims reversed. Shupe presented no evidence regarding the condition of the tree limb. The trier of fact may not make an inference, including res ipsa loquitur, of ODOT’s constructive notice unless evidence is presented in respect to the time the defect was present in (or above) the roadway.
Shupe v Ohio Dept of Transportation, 127 Ohio Misc 2d 8, 2004 Ohio 644 (Court of Claims)
Yvonne Krause was assaulted while putting her groceries in her car in the Foodtown parking lot. Spartan owned the Foodtown store and R&D Investors owned the shopping center. Krause sued Spartan and R&D. The trial court granted summary judgment to the defendants and the Court of Appeals affirmed. A business owner has no duty to protect its customers from criminal acts of third parties unless the criminal act was foreseeable and the business owner was in possession and control of the premises. A court uses the totality of the circumstances test to determine foreseeability, including the location and character of the business, and past crimes of a similar nature. Since criminal acts are largely unpredictable, the totality of the circumstances must be “somewhat overwhelming” in order to create a duty. Krause did not show that the assault was foreseeable.
Krause v Spartan Stores Inc, 158 Ohio App 3d 304, 2004-Ohio-4365 (6th Dist, Lucas)
Yvonne Krause was assaulted while putting her groceries in her car in the Foodtown parking lot. Krause sued R&D Investors, which owned the shopping center. The trial court granted summary judgment to R&D and the Court of Appeals affirmed. A business owner has no duty to protect its customers from criminal acts of third parties unless the business owner was in possession and control of the premises. R&D owned the parking lot and had a duty under leases to its tenants to light it, but had a duty to make it available to Spartan and not make changes without Spartan’s consent. The trial court determined that R&D had a duty to exercise ordinary care to keep the parking lot in a reasonably safe condition. The Court of Appeals disYvonne Krause was assaulted while putting her groceries in her car in the Foodtown parking lot. Krause sued R&D Investors, which owned the shopping center. The trial court granted summary judgment to R&D and the Court of Appeals affirmed. A business owner has no duty to protect its customers from criminal acts of third parties unless the business owner was in possession and control of the premises. R&D owned the parking lot and had a duty under leases to its tenants to light it, but had a duty to make it available to Spartan and not make changes without Spartan’s consent. The trial court determined that R&D had a duty to exercise ordinary care to keep the parking lot in a reasonably safe condition. The Court of Appeals disagreed, ruling that control involves both the right and power to admit or exclude persons from the premises, as well as a substantial exercise of that right, and there was no evidence that R&D had ever exercised such a right.
Krause v Spartan Stores Inc, 158 Ohio App 3d 304, 2004-Ohio-4365 (6th Dist, Lucas)
EXCAVATION
EXCAVATION
Stout was excavating a new housing development in a 500’x1000’ area. Before beginning excavation, Stout contacted Ohio Utilities Protection Service (OUPS) requesting marking of the entire location. Yellow flags were set to mark NONG’s pipes, but the flags indicated a straight line when the pipes actually curved. Stout struck and damaged the pipe. NONG sued for the damages, the trial court granted summary judgment for Stout and the Court of Appeals affirmed. An excavator has a non-delegable duty to inform himself whether utility lines exist below ground and thereby avoid damaging them. When he fails to inform himself, he proceeds at his own risk and incurs liability for damage to the lines. However, once an excavator notifies a utility of private improvement plans, the utility then bears the primary responsibility for supplying reasonably accurate information regarding the approximate location of the underground facilities, §3781.25 et seq ORC. The excavator must notify OUPS at least forty-eight hours and not more than ten days before excavation is scheduled to commence; if the utility cannot accurately mark the approximate location, then it must notify the excavator that the marks may not be correct and provide additional guidance to the excavator.
Northeast Ohio Natl Gas v Stout Excavating, 156 Ohio App 3d 144, 2004 Ohio 600 (9th Dist, Wayne)
NUISANCE
NUISANCE
German Township granted a permit for Sprintcom to erect a cell phone tower about a quarter mile from Gary Leppla’s home. Leppla sued, alleging that the tower was a nuisance since it had ineffective warning lights at night and a plane might fly into it. He had sued in federal court, which ruled against all his federal claims. The trial court granted summary judgment for the defendants. The Court of Appeals reversed in part, ruling that Leppla’s common law nuisance claim is not preempted by federal law. Although federal law controls the airspace, it does not bar an action for violation of federal law. The tower may be a “qualified nuisance,” which occurs when a negligent condition creates an unreasonable risk of harm that ultimately results in injury, since Leppla testified to diminished property value.
Leppla v Sprintcom Inc, 156 Ohio App 3d 498, 2004-Ohio-1309 (2nd Dist, Montgomery)
PUBLIC ROADS AND SIDEWALKS
PUBLIC ROADS AND SIDEWALKS
Tamara Shupe was driving on SR 99 when a tree limb overhanging the road broke off and fell on her car. She sued ODOT. The Clerk of the Court of Claims entered judgment for Shupe but the Court of Claims reversed. Shupe presented no evidence regarding the condition of the tree limb. The trier of fact may not make an inference, including res ipsa loquitur, of ODOT’s constructive notice unless evidence is presented in respect to the time the defect was present in (or above) the roadway.
Shupe v Ohio Dept of Transportation, 127 Ohio Misc 2d 8, 2004 Ohio 644 (Court of Claims)
Nicole Urbana was driving south on I-75 in a repaving construction zone when something in the roadway punctured her tire. Urbana sued ODOT, which asserted that Urbana failed to prove her damage was proximately caused by roadway conditions caused by ODOT or its contractor. The Court of Claims ruled that ODOT had a duty to maintain the road in a safe and drivable condition and could not delegate this responsibility to an independent contractor, and entered judgment for Urbana.
Urbana v Ohio Dept of Transp, 128 Ohio Misc 2d 1, 2004-Ohio-2380 (Court of Claims)
LaSharn Carrington was driving on I-480 near I-71 when her car was struck by a road sign that had detached and been blown by wind from its anchoring post. Carrington sued ODOT, the sign’s owner, for the damage. ODOT denied knowledge of any debris on I-480, denied that Carrington had proved negligence, and stated it had inspected the sign five months before the incident. The Court of Claims entered judgment for Carrington. ODOT is not an insurer of its roads. A plaintiff must show the four elements of negligence, and in particular must show that (a) ODOT had actual or constructive notice of the defect and failed to make repairs in a reasonable time, or (b) ODOT generally maintains its highways negligently. The Court notes that properly maintained signs do not usually fly from anchorages without negligence involved, and found ODOT was negligent.
Carrington v Ohio Dept of Transp, 128 Ohio Misc 2d 31, 2004-Ohio-3264 (Court of Claims)
Mark Stuthard, employed by CSC, was driving a truck with a Ryder Logistics & Transportation placard when he spilled grain across both westbound lanes of US 33 over a distance of 20-30 feet. Marysville police officers were on the scene directing traffic and cleaning equipment was being unloaded when Bruce Willis approached on his motorcycle. Willis lost control on the grain and was injured. Willis sued Marysville for violation of its common law and statutory duty to keep roads free from nuisance and obstruction, former §723.01 ORC. The trial court granted summary judgment for Marysville based on statutory immunity and the Court of Appeals affirmed. Former §2744.02 (B)(3) ORC provided an exception to statutory immunity where the political subdivision failed to keep roads open and free from nuisance. Not all obstructions or impediments on public roads are “nuisances,” nor are municipalities insurers against accidents on its streets. [The court noted cases ruling whether or not certain situations were nuisances.] The grain was not a “nuisance,” Marysville did not create the condition, and did take the necessary measures to clean the grain as soon as it was notified. Marysville police used discretion in determining that the road was not too dangerous for the heavy traffic to proceed across the grain at reduced speeds.
Willis v Commodity Specialists Co, 158 Ohio App 3d 444, 2004-Ohio-4807 (3rd Dist, Union)
DEFAMATION
DEFAMATION
Christopher Verich was appointed to the Ohio House of Representatives to replace his brother Michael. Christopher lost the Democratic primary, and The Vindicator published an article stating that Christopher had “zero credentials” for the job. Christopher sued, the Court of Common Pleas dismissed the action, and the court of appeals (see 152 Ohio App 3d 127, 2003 Ohio 1210) affirmed. The article was in the editorial section and a reader would assume that the comment was the columnist’s opinion, not a statement of fact.
Verich v Vindicator Printing Co, 126 Ohio Misc 2d 24, 2002 Ohio 7482 (Trumbull CP)
The defendant employees published an article in their union newsletter asserting that procedures used by supervisor Nancy Jacobs to allocate overtime work did not conform to the contract. Jacobs sued the members and the union for libel per se and libel per quod. The trial court granted summary judgment for the defendants but the Court of Appeals reversed. The plaintiff must show (a) a false and defamatory statement, (b) about the plaintiff, (c) published without privilege to a third party, (d) with the requisite degree of fault, (e) that was either defamatory per se or caused special harm to the plaintiff. Statements of opinion are constitutionally protected, but these were statements of fact; they were objective statements of factual reporting, not subjective hyperbole; and the article implied that it was accurate and verifiable.
Jacobs v Budak, 156 Ohio App 3d 160, 2004-Ohio-522 (11th Dist, Trumbull)
London High School football coach David Daubenmire was warned or reprimanded several times by the superintendent about his management and discipline of the team, and he was criticized by parents, including criticism for religious activity and prayers by the team. Several parents and faculty members lobbied the Board of Education to not renew his contract, and when unsuccessful, spoke publicly about Daubenmire. He sued for defamation, the trial court granted summary judgment for the defendants on the basis that Daubenmire was a limited purpose public figure and a qualified privilege applied, and the Court of Appeals affirmed. There are four categories of defamation plaintiffs: (a) private persons, (b) public officials, (c) public figures, and (d) limited purpose public figures. Whether a plaintiff is a public figure is a question of law; it does not depend on the plaintiff’s wishes, and a plaintiff may not escape public figure status if he voluntarily engages in a course of conduct that invites attention and comment. A limited purpose public figure is a person who becomes a public figure for a specific range of issues by being drawn into or voluntarily injecting himself into a specific public controversy. Public figures and limited purpose public figures must show by clear and convincing evidence that the statements were made with actual malice.
Daubenmire v Sommers, 156 Ohio App 3d 322, 2004-Ohio-914 (12th Dist, Madison)
Raymond Grabow, Mayor of Warrensville, pleaded guilty to receiving improper compensation, paid a fine and resigned. In an editorial two years later about the new mayor, the Call & Post stated in an editorial that Grabow was a convicted felon who stole city assets. Grabow sued for defamation and the paper published a retraction stating that Grabow had been convicted of two misdemeanors, not a felony. The trial court granted summary judgment against Grabow and the Court of Appeals affirmed. “Opinion” based defamation is not afforded any additional protection under the First Amendment to the US Constitution than is “fact” based defamation that could be proven to be untrue. However, Article I §11 of the Ohio Constitution does protect expressions of opinion. It is true that Grabow was convicted of the charges, and the only inaccuracy was calling Grabow a felon instead of a misdemeanant. The overall language of the editorial, and its caption, would lead the average reader to conclude that it was opinion, not a factual statement.
Grabow v King Media Enterprises Inc, 156 Ohio App 3d 443, 2004-Ohio-1122 (8th Dist, Cuyahoga)
Columbus mayor Gregory Lashutka authorized an investigation of police department mismanagement, including an alleged gambling ring involving a murdered retired police sergeant, a prostitution ring, favoritism to or by police employees, and other misconduct. The report was released to the public. Police commander Walter Burns and his wife Kathleen Burns, secretary to police chief James Jackson, sued for defamation. The trial court entered summary judgment against the plaintiffs and the Court of Appeals affirmed. The plaintiffs, as public figures, must prove actual malice. The commission’s failure to include exculpatory statements does not demonstrate actual malice, unless the selection of material for inclusion is made with a view toward the dissemination of false information.
Burns v Rice, 157 Ohio App 3d 620, 2004-Ohio-3228 (10th Dist, Franklin)
INVASION OF PRIVACY
INVASION OF PRIVACY
Brittanie Cecil (age 13) died after being struck in the head by a hockey puck at a Blue Jackets game. Jody Sergent was appointed estate administrator and reached a settlement with the hockey team and others. Sergent filed an application with the Probate court to approve the settlement, and moved to seal the application and any entries or reports, arguing that there was a confidentiality clause in the settlement agreement. The Probate court sustained the motion. WBNS filed this mandamus action in the Supreme Court. The respondents asserted that a constitutional right of privacy prohibited disclosure. The Supreme Court granted the writ, §149.43 ORC. Constitutional privacy rights are “state or federal law” prohibiting the disclosure of certain records (including Social Security numbers, certain personnel information on undercover police officers and personal information kept by recreation departments on children). Respondents did not establish the same high potential for victimization as in these other situations. (Per curiam; Moyer, Sweeney, Pfeifer, Stratton, O’Connor and O’Donnell concur; Resnick dissents.)
State ex rel WBNS TV Inc v Dues, 101 Ohio St 3d 406, 2004-Ohio-1497, in mandamus
FAMILY & MEDICAL LEAVE ACT
FAMILY & MEDICAL LEAVE ACT
Patti Hollingsworth was an auditor for TWC. TWC granted her intermittent leave under the Family and Medical Leave Act, 29 USC §2601 et seq, for chronic sinusitis and then pregnancy; Hollingsworth filed a complaint with the US Department of Labor which investigated and found general compliance with the FMLA. TWC then discovered that Hollingsworth had improperly audited the accounts of an employee who embezzled $18,000, and had otherwise failed to properly perform her duties. TWC discharged Hollingsworth, who sued for wrongful and retaliatory discharge under the FMLA and violation of Ohio public policy. The trial court granted summary judgment for TWC but the Court of Appeals reversed under the FMLA, finding a fact question regarding TWC’s asserted non-pretextual reason for discharge. However, the Court affirmed regarding the public policy claim, ruling that Ohio does not recognize a cause of action for wrongful discharge in violation of public policy based solely on violation of the FMLA.
Hollingsworth v Time Warner Cable, 157 Ohio App 3d 539, 2004-Ohio-3130 (1st Dist, Hamilton)
Pamela Anderson was injured in an auto accident and her employer Wellman allowed her three months off under the Family and Medical Leave Act, 29 USC §2601 et seq. Four months after returning she noticed shoulder and neck pain while operating a machine press at work. That day she received the last of several write-ups for mistakes under Wellman’s progressive discipline procedures and was to be discharged the following day. The next morning Anderson telephoned to request time off under the FMLA. Anderson did not call back during the next three weeks, was discharged, and sued for wrongful discharge. The trial court granted summary judgment to Wellman and the Court of Appeals affirmed. FMLA entitles eligible employees to twelve weeks of unpaid leave during any twelve-month period for purposes including serious health conditions that cause the employee to be unable to do her job. Because of her prior time off, Anderson was not entitled to FMLA at the time of discharge.
Anderson v Wellman Products Group, 157 Ohio App 3d 565, 2004-Ohio-3420 (7th Dist, Mahoning)
WHISTLEBLOWER ACT
WHISTLEBLOWER ACT
Bruce Schumacher sued his employer ALI, alleging that he was discharged for reporting that its director of operations had piloted a chartered plane while under the influence of alcohol, in violation of the Whistleblower Act, §4113.52 ORC. The trial court sustained ALI’s CR 12 (B)(6) motion to dismiss, but the Court of Appeals reversed. The federal aviation whistleblower protection program, 49 USC §42121 (a)(1), did not preempt the Ohio statute.
Schumacher v Amalgamated Leasing Inc, 156 Ohio App 3d 393, 2004-Ohio-1203 (3rd Dist, Hancock)
Cindy Grove was employed as a human resources administrator at FM’s meat plant, and her job included completing “form I-9” Immigration & Reform Act paperwork for new employees. Grove filed an e-mail report with her supervisor and with INS describing violation of the federal law and employment of illegal aliens. She was discharged for filing the report. She sued for violation of the Whistleblower Act, §4113.52 ORC. The trial court granted summary judgment for FM and the Court of Appeals affirmed. Grove’s report to her supervisor did not include sufficient detail and facts to support Whistleblower status, and the Act requires strict coCindy Grove was employed as a human resources administrator at FM’s meat plant, and her job included completing “form I-9” Immigration & Reform Act paperwork for new employees. Grove filed an e-mail report with her supervisor and with INS describing violation of the federal law and employment of illegal aliens. She was discharged for filing the report. She sued for violation of the Whistleblower Act, §4113.52 ORC. The trial court granted summary judgment for FM and the Court of Appeals affirmed. Grove’s report to her supervisor did not include sufficient detail and facts to support Whistleblower status, and the Act requires strict compliance with each of its terms.
Grove v Fresh Mark Inc, 156 Ohio App 3f 620, 2004-Ohio-1728 (7th Dist, Columbiana)
WORKPLACE DISCRIMINATION AND HARASSMENT
WORKPLACE DISCRIMINATION AND HARASSMENT
Age, James Coryell (age 49) was terminated by Bank One and replaced by John Kozak (age 42). Coryell sued for age discrimination, §4112.02 ORC. The trial court granted summary judgment to Bank One and the court of appeals affirmed. The Supreme Court reversed. §4112.14 ORC describes the protected class as persons age forty or older, and Ohio courts have required a showing that a person outside the class replaced the plaintiff or was retained instead of him. However, the statute deals with discrimination based on age, not necessarily with a protected person being replaced by, or the employer retaining, another person also in the protected class. A plaintiff may show a prima facie case of age discrimination where he has been replaced by, or the employer retains, a person “substantially younger” than he, and “substantially younger” is determined by the particular facts of each case. (Opinion by O’Connor; Moyer, Resnick and Pfeifer concur; Sweeney, Stratton and O’Donnell dissent.)
Coryell v Bank One Trust Co NA, 101 Ohio St 3d 175, 2004 Ohio 723, appeal from Franklin App
Age. Plaintiff sued for wrongful discharge and age discrimination, asserting that she was over age 40 and was replaced by a person under age 40. The Court of Claims ruled against her. The Court also noted that the three supervisory persons involved were all over age 40 and that it strained credulity to believe that their motivation to discharge her was a discriminatory animus against a person in their own age group.
White v Ohio State Univ, 129 Ohio Misc 2d 12, 2004-Ohio-4717 (Court of Claims)
Disability. Patricia Fitzmaurice was diagnosed with multiple sclerosis. Her employer GLC transferred and then discharged her. She sued for handicap discrimination, §4112.02 ORC. The trial court granted summary judgment for GLC but the Court of Appeals reversed. A physical impairment, alone, does not necessarily constitute a handicap under the statute; it must substantially limit a major life activity, which was not the case here. However, a person may also be “handicapped” under the statute if she is regarded by her employer as being disabled. Based on the evidence, there is a fact question whether GLC regarded her as having a disability, 29 CFR 1630.2(k), and would thereby be “handicapped.”
Fitznaurice v Great Lakes Computer Corp, 155 Ohio App 3d 724, 2004 Ohio 253 (8th Dist, Cuyahoga)
Disability. Patricia Ferguson worked at Lear’s injection molding plant. She suffered repeated allergic reactions to chemicals and her physician instructed her to work in non-chemical areas only. She was assigned to various other positions but suffered allergic reactions at each job, or might have had a risk of a reaction. Lear determined that it had no jobs meeting her needs and put her on layoff until the medical restriction was alleviated. Ferguson then sued Lear for workplace disability discrimination. The trial court granted summary judgment for Lear. The Court of Appeals reversed, finding fact questions whether Ferguson was “disabled” under the ADA, 42 USC §12102 (2), 29 CFR §1630.2 (k), or §4112.02 (A)(13) ORC, and whether Lear discriminated against her.
Ferguson v Lear Corp, 155 Ohio App 3d 677, 2003 Ohio 7261 (6th Dist, Erie)
Disability. KCP’s secretary Gloria House needed back surgery to relieve pain from an earlier auto accident, and would be off work for four months. After almost six months she was not able to return and KCP discharged her. House sued for disability discrimination, the trial court granted summary judgment against her and the Court of Appeals affirmed. Under the ADA, 42 USC §12112(a), and §4112.02 (A) ORC, the plaintiff must show that (a) she was disabled, (b) adverse employment action was taken, at least in part, due to the disability, and (c) she can safely and substantially perform the essential functions of the job. The court ruled that sitting for extended periods, lifting and kneeling were “major life activities” under the statutes in regard to termination of employment. A court should consider (a) the nature and severity of the impairment, (b) the actual or expected duration of the impairment, and (c) the actual or expected permanent or long-term impact of the impairment. In this case, House has not shown that her disability creates a “significant” restriction on her activities, or a severe restriction on her ability to do her job. Further, House has not shown that she is able to perform the essential functions of the job.
House v Kirtland Capital Partners, 158 Ohio App 3d 68, 2004-Ohio-3688 (11th Dist, Lake)
Disability. FEC noticed that a large number of its employees had medical restrictions related to working overtime, which shifted the overtime burden to a smaller group of employees. FEC asked its employees to update their medical information related to any restrictions on working overtime, and warned employees that permanent inability to work overtime could jeopardize their job due to inability to perform essential job functions. Clinton Sanders’ physician notified FEC that Sanders permanently suffered from sleep apnea and could not work overtime. FEC discharged Sanders, who sued for disability discrimination. The trial court granted summary judgment for FEC and the Court of Appeals affirmed. Although Sanders might show that he was disabled and that his employer took adverse employment action because of the disability, he cannot show that he was able to substantially perform an essential function of the job, working overtime.
Sanders v First-Energy Corp, 157 Ohio App 3d 826, 2004-Ohio-3214 (7th Dist, Jefferson)
Pregnancy. Resthaven Nursing Home employed Crystal Rigsby as an activities aide and housekeeper, which did not require heavy lifting. Rigsby notified RNH that she was pregnant, and RNH told her to stay off work until she had a doctor’s note that she could work without restrictions. She presented a note with a 25-pound lifting restriction and was discharged. Rigsby filed a complaint with OCRC for sex discrimination based on pregnancy. OCRC found discrimination, §4112.02 (A) ORC, issued a cease-and-desist order, back pay and reinstatement. On administrative appeal the court of common pleas and Court of Appeals affirmed.
Voiers Ent Inc v Ohio Civil Rights Comm, 156 Ohio App 3d 195, 2004-Ohio-738 (4th Dist, Scioto)
Pregnancy. Patti Hollingsworth was employed as an auditor by TWC. While she was pregnant, TWC discovered that she had improperly audited the accounts of an employee who embezzled $18,000, and had otherwise failed to properly perform her duties. TWC discharged Hollingsworth, who sued for wrongful discharge. The trial court granted summary judgment for TWC but the Court of Appeals reversed after finding a fact question. The Pregnancy Discrimination Act of 1978, 42 USC §2000e (k), prohibits discharge an employee due to pregnancy, childbirth or related medical conditions. §4112.02 ORC prohibits employment discrimination on the basis of sex. TWC did not dispute that Hollingsworth was female and pregnant, was subjected to an adverse employment decision and was qualified for the job she lost. TWC disputed under federal law whether other similar employees received more favorable treatment, but Hollingsworth asserted that two non-pregnant women who made similar errors were not discharged. TWC asserted non-pretextual reasons for the discharge under Ohio law, but Hollingsworth disputed these.
Hollingsworth v Time Warner Cable, 157 Ohio App 3d 539, 2004-Ohio-3130 (1st Dist, Hamilton)
Race. Patricia Ferguson worked at Lear’s injection molding plant. She suffered repeated allergic reactions to chemicals and her physician instructed her to work in non-chemical areas only. She was assigned to various other positions but suffered allergic reactions at each job, or might have had a risk of a reaction. Lear determined that it had no jobs meeting her needs and put her on layoff until the medical restriction was alleviated. Ferguson then sued Lear for workplace race discrimination. The trial court granted summary judgment for Lear and the Court of Appeals affirmed. Ferguson did not show that members of the non-protected group were treated more favorably.
Ferguson v Lear Corp, 155 Ohio App 3d 677, 2003 Ohio 7261 (6th Dist, Erie)
Race. John Grooms was a crew leader for SCOPE, which provides home-improvement services to low income persons. Grooms, who had inspector certification, informed his supervisor Leonard Florence and a higher-level supervisor Dave Eldridge that he was interested in an available inspector position. Eldridge told Grooms that the job would not be filled, then it was filled by Brian Davis, who did not have inspector certification. Grooms is white and Davis is black, and Eldridge reported that his supervisor Joyce Price preferred to promote blacks because “they have been done wrong for so many years.” Grooms was later discharged (for giving an angry client SCOPE’s telephone number, as found in the telephone book, characterized by SCOPE as divulging business information) and replaced by a black employee. Grooms sued for race discrimination, the trial court granted summary judgment for SCOPE but the Court of Appeals reversed. To prevail on a claim of reverse race discrimination, the plaintiff must show (a) background circumstance supporting the suspicion that the defendant is that unusual employer who discriminates against whites, (b) that the plaintiff applied for and was qualified for an available promotion, (c) that despite his qualifications he was not promoted, and (d) a black employee of similar qualifications was promoted.
Grooms v Supporting Council of Preventative Effort, 157 Ohio App 3d 55, 2004-Ohio-2034 (2nd Dist, Montgomery)
Sex. MDK hired Griffin as manager of one of its Denny’s restaurants. Several months later MDK transferred Griffin to another location, citing complaints by waitresses that Griffin sexually harassed them. MDK cited further similar complaints and discharged Griffin. Griffin sued for race discrimination, and presented evidence indicating that the complaints were fabricated. The trial court excluded testimony regarding the later complaints. The jury awarded Griffin compensatory and punitive damages, and the Court of Appeals affirmed the jury’s determination.
Griffin v MDK Food Serv Inc, 155 Ohio App 3d 698, 2004 Ohio 133 (8th Dist, Cuyahoga)
Sex. Steve Persichillio sued his employer MCS and his supervisor Kevin Tomlinson for sexual harassment and constructive discharge, alleging verbal and physical sexual harassment by Tomlinson. Tomlinson denied and explained the incidents. The trial court granted summary judgment for the defendants and the Court of Appeals affirmed. Under federal EEOC regulations, sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature; 29 CRF §1604.11 (a). Under Ohio law, harassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment if it is directed at the plaintiff because of his sex. The test in a same-sex case requires evidence that the harasser (a) is homosexual and the harassment is motivated by sexual desire, (b) is motivated by hostility to the presence of the victim’s gender in the workplace, or (c) treated males and females differently in a mixed-gender workplace.
Persichillio v Motor Carrier Serv Inc, 156 Ohio App 3d 383, 2004-Ohio-1042 (6th Dist, Wood)
Sex. Willowood had a policy against co-employee dating. Willowood demoted its administrator Eric Koski for dating its nurse Linda Palpas. Koski sued for constructive discharge and sex discrimination, asserting that he was treated differently from Palpas, who was not demoted. The trial court granted a directed verdict for Willowood and the Court of Appeals affirmed. Koski and Palpas were not similarly situated, since Koski was a supervisor.
Koski v Willowood Care Ctr of Brunswick Inc, 158 Ohio App 3d 248, 2004-Ohio-2668 (9th Dist, Medina)
WRONGFUL DISCHARGE and RETALIATORY ACTION
WRONGFUL DISCHARGE and RETALIATORY ACTION
Sherry Scarabino’s extreme migraine headaches caused her to miss work at ELCH. She was a union member subject to a collective bargaining agreement. After disputes with her supervisors over emergency room facilities, Scarabino alleged that she suffered a nervous breakdown and was unable to work. She sued for workplace harassment in violation of public policy, alleging conduct against her in retaliation for trying to protect the public. The trial court granted summary judgment for ELCH and the Court of Appeals affirmed. Scarabino did not allege that she was discharged or disciplined (in violation of public policy or otherwise). Ohio does not recognize harassment in violation of public policy as a tort. Further, her claim is based on an exception to the employment-at-will doctrine, which does not apply to employees subject to a CBA.
Scarabino v East Liverpool City Hosp, 155 Ohio App 3d 576, 2003 Ohio 7108 (7th Dist, Columbiana)
Patricia Ferguson worked at Lear’s injection molding plant. She suffered allergic reactions to chemicals in 1993, 1996 and 1998, and her physician instructed her to work in non-chemical areas only. Ferguson also filed an OSHA complaint. She was assigned to various other positions but suffered allergic reactions at each job. Lear determined that it had no jobs meeting her needs and put her on layoff until the medical restriction was alleviated. Ferguson then sued Lear for retaliatory discharge. The trial court granted summary judgment for Lear and the Court of Appeals affirmed. Retaliatory discharge for an employee who has reported a workplace violation to OSHA is in violation of public policy. However, Ferguson did not show that Lear was even aware of her OSHA complaint when she was laid off. Further, the doctrine of retaliatory discharge is an exception to the employee-at-will doctrine, and not applicable to Ferguson, who is a union member with a CBA.
Ferguson v Lear Corp, 155 Ohio App 3d 677, 2003 Ohio 7261 (6th Dist, Erie)
Deborah Moskowitz was an employee of Progressive Insurance, and also its policyholder. She asked her supervisor about the possibility of suing Progressive in regard to her insurance coverage, unrelated to her employment. She alleged that Progressive then set unattainable and unrealistic goals for her, then discharged her. Moskowitz sued for wrongful discharge in violation of public policy. The Court of Common Pleas overruled Progressive’s motion for summary judgment.
Moskowitz v Progressive Ins Co, 128 Ohio Misc 2d 10, 2004-Ohio-3100 (Lake CP)
Alice Bicudo sued her employer for wrongful discharge based on sex, national origin and disability discrimination, §4112.02 ORC, in violation of public policy. The jury returned a verdict for Bicudo but the trial court granted JNOV and the Court of Appeals affirmed. There was no evidence of sexual advances, sexual innuendo or bias against women; paternalistic comments about boyfriends do not establish sexual discrimination. Bicudo’s one episode of asthma does not constitute a “disability” and further there is no evidence that Lexford required Bicudo to do work herself that her asthma would prevent. There is no evidence that national origin is related to this claiAlice Bicudo sued her employer for wrongful discharge based on sex, national origin and disability discrimination, §4112.02 ORC, in violation of public policy. The jury returned a verdict for Bicudo but the trial court granted JNOV and the Court of Appeals affirmed. There was no evidence of sexual advances, sexual innuendo or bias against women; paternalistic comments about boyfriends do not establish sexual discrimination. Bicudo’s one episode of asthma does not constitute a “disability” and further there is no evidence that Lexford required Bicudo to do work herself that her asthma would prevent. There is no evidence that national origin is related to this claim.
Bicudo v Lexford Properties Inc, 157 Ohio App 3d 509, 2004-Ohio-3202 (7th Dist, Mahoning)
KCP’s secretary Gloria House needed back surgery to relieve pain from an earlier auto accident, and would be off work for four months. After almost six months she was not able to return and KCP discharged her. House sued for wrongful discharge, the trial court granted summary judgment against her and the Court of Appeals affirmed. Under the ADA, 42 USC §12112(a), and §4112.02 (A) ORC, the plaintiff must show that (a) she was disabled, (b) adverse employment action was taken, at least in part, due to the disability, and (c) she can safely and substantially perform the essential functions of the job. The court ruled that sitting for extended periods, lifting and kneeling were “major life activities” under the statutes in regard to termination of employment. A court should consider (a) the nature and severity of the impairment, (b) the actual or expected duration of the impairment, and (c) the actual or expected permanent or long-term impact of the impairment. In this case, House has not shown that her disability creates a “significant” restriction on her activities, or a severe restriction on her ability to do her job. Further, House has not shown that she is able to perform the essential functions of the job.
House v Kirtland Capital Partners, 158 Ohio App 3d 68, 2004-Ohio-3688 (11th Dist, Lake)
James Sidenstricker sued his employer for wrongful discharge subsequent to a workers compensation claim, in violation of public policy, §4123.90 ORC. The trial court entered judgment for Miller after a bench trial but the Court of Appeals reversed. A wrongful discharge plaintiff must show (a) a clear public policy exists and is manifested in the law, (b) his dismissal jeopardizes that public policy, (c) conduct related to that public policy motivated the discharge, and (d) the employer had no overriding justification. The first two issues are questions of law for the court, but the second two are questions of fact for the jury. Although a statutory retaliation claim under §4123.90 ORC is equitable and affords no right to a jury trial, a wrongful discharge claim based on violation of public policy under §4123.90 ORC is a common law claim supporting a right to a jury. The two claims have different remedies: the statutory claim allows only equitable relief (back pay and reinstatement) while the common law claim allows a full range of remedies, including damages.
Sidenstricker v Miller Pavement Maintenance Inc, 158 Ohio App 3d 356, 2004-Ohio-4653 (10th Dist, Franklin)
VOA was licensed by the Ohio Department of Rehabilitation and Corrections to operate a treatment center for felons, which has a substance-abuse halfway house, sex offenders and persons with mental illness and drug-related problems. VOA employees Diana Hale RN and Carol Becker frequently complained about the facility’s operation to its management and in response to an ODRC questionnaire. Hale and Becker were discharged and sued for wrongful termination in violation of public policy. The trial court granted summary judgment to VOA and the Court of Appeals affirmed. At-will employees may be discharged for any reason, or no reason at all, unless the termination is contrary to public policy. The clear public policy may be based on common law, Ohio statutes, the Ohio or federal constitution, and administrative rules and regulations. Hale and Becker’s claim was based on the Whistleblower Act, §4113.52 ORC, but they did not meet the requirements of the Act. Even if an employee does not comply with the Act, she may maintain a common law public policy claim if she can identify a source of public policy separate from that in the Act; but Hale and Becker did not do this.
Hale v Volunteers of America, 158 Ohio App 3d 415, 2004-Ohio-4508 (1st Dist, Hamilton)
ALCOHOL LIABILITY
ALCOHOL LIABILITY
AFLAC issued an accidental death policy to Marcus McKeehan, with his mother Grace as beneficiary. The policy excluded coverage if the covered person was injured as a result of participating in any activity or event while intoxicated. Marcus had a 0.183 BAC when he fell out of the bed of a pickup truck on I-71 and was killed. AFLAC denied the claim, the trial court agreed but the Court of Appeals reversed, finding the policy language ambiguous. The drunk-driving statute, RC §4511.19 ORC, does not define the term “intoxicated” and applies only to the activity of operating a motor vehicle. While a person with a 0.183 BAC may be intoxicated, Ohio law requires more than just a BAC level to prove that a person is intoxicated (for purposes other than operating a motor vehicle).
McKeehan v Am Family Life Assur Co of Columbus, 156 Ohio App 3d 254, 2004-Ohio-764 (1st Dist, Hamilton)
ALTERNATE LIABILITY
ALTERNATE LIABILITY
Betty Serio was making a left turn in her car and collided with an on-coming car driven by Willetha Carmichael; each claimed the traffic light was in her favor. Serio’s passenger Christina Peck sued Serio and Carmichael. At trial Peck offered only the testimony of the two drivers, each asserting the other was at fault. The magistrate overruled Peck’s motion for a directed verdict based on alternative liability and refused to instruct the jury on alternative liability. The jury returned a verdict for both defendants, and the Court of Appeals affirmed. The phrase “alternative liability” is misleading, since the liability itself is joint and several; it is the causation that is alternative, since one but not both alleged tortfeasors is the cause of the harm. The theory shifts the burden of proof of causation to the defendants when their negligence has been established. The plaintiff still has the burden of proof of negligence. If the plaintiff proves that two or more defendants acted tortiously, but it is proved that only one of them caused harm to the plaintiff and there is uncertainty as to which caused the harm, the burden is on each defendant to prove that he did not cause the harm.
Peck v Serio, 155 Ohio App 3d 471, 2003 Ohio 6561 (10th Dist, Franklin)
ANIMAL LIABILITY
ANIMAL LIABILITY
Erica Aponte (age 7), was at Michael and Deborah Castor’s home for Thanksgiving dinner. After dinner Erica (without permission) went outside and crawled under an electric wire fence enclosing the Castor’s horse paddock, where a horse kicked Erica in the face. Erica sued the Castors. The trial court granted summary judgment for the Castors, ruling that the doctrine of attractive nuisance did not apply. The Court of Appeals affirmed. An animal is not an “artificial condition” invoking the doctrine of attractive nuisance.
Aponte v Castor, 155 Ohio App 3d 553, 2003 Ohio 6769 (6th Dist, Williams)
Jeffrey Maurer told the Portage County deputy dog warden that his wife had been attacked by two dogs owned by his neighbor Janice Cowan. The deputy determined that the dogs were dangerous and advised Cowan of her legal responsibilities and that she must confine the dogs in a certain way. On two subsequent occasions the dog warden was called out and both times found the dogs tethered but not in a locked, fenced yard or enclosed pen. Cowan was charged with failing to confine a vicious dog [§955.22 (D)(1) ORC], failing to obtain required liability insurance for a vicious dog [§955.22 (E) ORC], and failing to restrain a dangerous dog [§955.22 (D)(2)(b) ORC]. The jury found Cowan guilty but the court of appeals reversed, finding the statutes an unconstitutional violation of due process because Cowan had no opportunity to be heard before property rights were substantially and adversely affected; the dog warden had unfettered discretion and there was no mechanism for appeal. The Supreme Court affirmed the court of appeals’ decision. (Opinion by Sweeney; Resnick, Pfeifer and Stratton concur; Moyer, O’Connor and O’Donnell dissent.)
State v Cowan, 103 Ohio St 3d 144, 2004-Ohio-4777, appeal from Portage App
Taylor Corum bought a new bull and left it in his corral. The bull escaped, probably through a thirty-foot section of pasture fence that had been cut, removed and rolled up by unknown persons. The bull got onto the road where Laura Petersheim drove into it and was injured. She sued, the trial court granted summary judgment for Corum but the Court of Appeals reversed after finding a fact question. A plaintiff must prove negligence against the owner of livestock that escapes from a farm to a public highway. Petersheim’s agricultural engineering expert testified that (a) Corum could not have adequately surveyed the entire perimeter fence in the way he claimed, and that the fence most likely had been cut earlier, and (b) (based on Petersheim’s testimony that Corum told her he let the bull out of the corral and into the pasture) Corum was negligent in leaving a new bull out of a corral.
Petersheim v Corum, 158 Ohio App 3d 377, 2004-Ohio-4297 (5th Dist, Licking)
BAILMENT LIABILITY and IMPOUNDED VEHICLES
BAILMENT LIABILITY and IMPOUNDED VEHICLES
Braden Greene’s car was damaged in a collision, and Hollis removed it at the request of Sugarcreek Township police. The car was a total loss with a $50 salvage value. CitiFinancial was the lienholder and had insurance coverage on the car. Hollis charged $90 for towing, and $12 daily for storage for about nine months. Hollis sued for $2,970 towing and storage, alleging that CitiFinancial informed Hollis that $4,000 insurance coverage was available, and that Hollis relied to its detriment on the representation. The trial court ruled that Hollis had no obligation to hold the car for CitiFinancial, and dismissed CitiFinancial. The Court of Appeals affirmed. An implied contract is one inferred by a court from the circumstances surrounding the transaction, making a reasonable or necessary assumption that a contract exists between the parties by tacit understanding. Quantum meruit is a theory of recovery based on implied contract. CitiFinancial had no interest in possessing the car, was a lienholder and not the owner, did not request the towing or storage, and received no benefit. Further, §4505.101 ORC provides how a repair garage or towing facility may obtain title to a vehicle worth up to $2,500 left for more than fifteen days, and §4513.61 ORC provides how a car towed from public property may be sold at auction after proper notice to the owner. The Court also questioned the reasonableness of $2,900 charges on a $50 vehicle.
Hollis Towing v Greene</