Brian Miller Columbus Ohio Personal Injury Attorney    

Case Law Summary - 2013: July - September

   

Slip and Fall / Open and Obvious Doctrine

Sleeper v. Casto Mgt. Servs.

The commercial tenant owed the injured Plaintiff no duty of care because the allegedly leaky gutter was under the possession and control of the landlord under the terms of the lease, which gave “exclusive control” of the gutters to the landlord.

The landlord was not actively negligent in permitting or creating an unnatural accumulation of ice and snow, and no evidence indicated that the landlord had actual or implied notice that the natural accumulation created a condition substantially more dangerous than a business invitee should have anticipated.

Hearsay comments of the tenant’s employee are not admissible against the landlord because they do not satisfy Evid. R. 801(D)(2)(d) requirements which permit a statement to be used as evidence if it was made by an agent or employee of the party-opponent during the existence of the relationship.

Sleeper v. Casto Mgt Servs., 2013-Ohio-3336 (10th Dist.)

   

King v. E. Worthington Vill.

Tenant filed suit against landlord, E Worthington Village, after she fell on a patch of ice outside of her apartment. The court held that an owner of property owes no duty either to remove or warn a person of natural accumulations of snow. Individuals are presumed to know the risks associated with ice and snow.

Here the tenant tried to show that the snow was an unnatural accumulation formed by a downspout. The court held that the tenant’s affidavit did not raise an issue of material fact. In the tenant’s affidavit she stated that the ice was accumulated at the location of her fall because of the placement of the downspout, but she contradicted herself by stating that she did not know what a downspout was.

King v. E. Worthington Vill., 2013-Ohio-4160 (10th Dist.)

   

Semprich v. County of Erie

Priscilla Anderson (“the decedent”) was struck by Robert Schmidt’s tow truck while she was crossing Bagley road. The decedent was 14 feet from the curb when she was hit by the truck, which was turning right at approximately 6-7 mph. The decedent’s estate sued the Robert Schmidt for damages.

The appellate court held that pedestrians have an absolute right to proceed when they have the right of way and need not look for vehicles violating the right of way. Also, contrary to the trial court’s jury instruction, the pedestrian has no duty to look for danger unless there is reason to expect it.

Anderson v. Schmidt 2013-Ohio-3524 (8th Dist.)

 


 

Wrongful Death

Wemer v. Walker

The plaintiff filed a lawsuit to recover damages for injuries they suffered after being bitten by the defendant’s pony. A horse owner would normally be immune from liability arising from actions taken by their horse under Ohio’s Equine Activity Liability Act, O.R.C. 2305.321. But in this case the defendant waived the affirmative defense of immunity because he failed to raise it in a timely fashion. An affirmative defense cannot be raised for the first time in a motion for summary judgment.

Wemer v. Walker 2013 Ohio App. LEXIS 1887 (Ohio Ct. App. Knox County)

 


 

Negligence - Utility Lines

Vectren Energy Delivery of Ohio, Inc. v. Huber

In this case Vectren Energy was granted summary judgment against a landowner who negligently cut underground utility lines while excavating. The excavator failed to call Vectren or Ohio Utilities Protection Services (OUPS) to inquire about underground lines.

The common law imposes an affirmative and nondelegable duty on a person excavating underground to inquire about any underground utilities in the excavation site so that he or she can avoid damaging them. If a person has failed to inquire about underground utilities and commences excavation anyway they will be liable for any damage done to the underground utilities.

Vectren Energy Delivery of Ohio, Inc. v. Huber, 2013-Ohio-4069 (2nd Dist.)

 


 

Assumption Risk / Recreational Activity Doctrine

Thomas v. Strba

Thomas was constructing a tree stand with Strba for their use in hunting the next day when Thomas was injured. Thomas brought suit against Strba, and the trial court granted summary judgment against Thomas. Usually, those engaged in recreational activities such as hunting assume the inherent risk of such activities and cannot bring suit for injuries that occurred while related to these activities. The trial court found that Thomas was engaged in a recreational activity (hunting) and therefore was immune since Strba’s actions were not reckless or intentional.

The 9th Circuit reversed, and held that Thomas had not assumed the risks involved in hunting because he had not started hunting. Preparations to participate in a recreational activity are not considered participation in a recreational activity. Until a plaintiff is actually participating in a recreational activity the doctrine of assumption of the risk does not apply.

Thomas v. Strba, 2013-Ohio-3869 (9th Dist.)

 


 

Insurance & Government / Police Immunity

Marusa v. Erie Ins. Co.

Maria Marusa and her daughter were injured in an auto accident due to a police officer’s negligent operation of his police cruiser. The officer and his employer were immune under the Ohio Political Subdivision Tort Liability Act (O.R.C. 2744.01) since the officer was responding to an emergency situation. Accordingly, Maria brought suit against her insurance company to get compensation for their injuries under the uninsured motorist provision.

The appellate court ruled that the lower court had improperly granted summary judgment against Maria. The defendant, Erie Insurance, improperly denied coverage because they believed the Marusas were not “legally entitled to recover.”

The insurance policy contained two distinct phrases. The first was included under the uninsured motorist provision of the policy, which included a motor vehicle whose operator has immunity as uninsured. The more general provision stated that coverage does not apply if the policyholder is not “legally entitled to recover.” The court reasoned that the more specific provision controls the general and held that Erie must provide coverage under Maria’s uninsured/underinsured policy.

Marusa v. Erie Ins. Co., 136 Ohio St. 3d 118 (2013)

 


 

Worker's Compensation

Armstrong v. John R. Jurgensen Co.

An injured worker developed post-traumatic stress disorder (PTSD) as a result of the accident. However, the court found that in order for the PTSD to qualify as compensable the injured worker must establish that the PTSD was causally related to his compensable physical injuries and not simply to his involvement in the accident.

Armstrong v. John R. Jurgensen Co., 2013-Ohio-2237 (Ohio Supreme Court)

   

State ex rel. Coleman v. Indus. Comm.

The commission must conduct an independent evaluation of the facts when considering an application for statutory permanent total disability under ORC § 4123.58(C), even in the presence of a prior award under ORC § 4123.57(B) (scheduled loss compensation) for the same body part or parts because the purposes of the two awards differ.

Because there was evidence in the record to support the basis for the commission’s decision, the commission did not abuse its discretion when it denied the award.

State ex rel. Coleman v. Indus. Comm. 2013-Ohio-2406

   

State ex rel. Scott v. Indus. Comm.

Commission did not abuse its discretion when it relied on Gilbert to support its conclusion that the OSHA test results constituted some evidence upon which it could rely when denying injured worker’s application for an award for violation of specific safety requirements (VSSR) at his workplace.

State ex rel. Scott v. Indus. Comm. 2013-Ohio-2445 (Ohio Supreme Court)

    ***These case summaries were adapted from the Ohio State Bar Association's official reports. All cases appear on the OSBA website at www.ohiobar.org, as well as in the OSBA Report Online.***

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