Case Law Summary - 2013: October - December
Employer Intentional Torts
Downard v. Rumpke of Ohio, Inc.
The 12th District Court of Appeals reversed the trial courts finding that an interlock switch was not an equipment safety guard under O.R.C. 2745.01 (C). The removal of an equipment safety guard creates a rebuttable presumption of intent to injure under O.R.C. 2745.01 (A). The presumption can be rebutted by sufficient evidence showing that there was no intent to injure on the part of the employer.
The question before the court was whether the trial court correctly granted a directed verdict for the defendant (Rumpke). Rumpke presented a witness, a former employee, whose testimony served to help rebut the intent presumption and demonstrate that Rumpke did not intend to injure the decedent when the equipment safety guard was removed. The Appeals court held that when a rebuttable presumption is involved, summary judgment can be granted in a case where it is clear that there was no intent to injure by the employer. However, in this case a directed verdict was incorrect because the trial court only had one witnesses testimony to demonstrate that Rumpke did not have the intent to injure the decedent. The case turned on the credibility and weight of the evidence given by Rumpke's former employee. Credibility and weighing of evidence is a consideration for the jury; thus summary judgment/directed verdict was improper in this case.
Downard v. Rumpke of Ohio, Inc., 2013-Ohio-4760 (12th Dist.)
Workplace Accident: Dual Capacity Doctrine
Rivers v. Otis Elevator
Rivers sought to sue her employer, a hospital, for injuries she sustained when she fell while getting into a hospital elevator. Rivers sued, alleging she fell due to her employers negligent repair and maintenance of an elevator in the office. Rivers, the employee, argued that workers™ compensation did not bar her recovery, because she was acting in a dual capacity as an employee and non-employee when she used the elevator. The trial court granted dismissed the case (through summary judgment for the hospital) as they found that the dual-capacity doctrine was not applicable.
The dual capacity doctrine allows an employee to recover outside of the workers compensation scheme when the employer has assumed another capacity and also has assumed independent obligations to their employee unrelated to the obligations arising out of the employment relationship. The key question is whether the injuries are work-related. The court in this case upheld the trial courts grant of summary judgment and found that Rivers was on the clock when she fell while stepping into the elevator. Rivers was neither a patient in the hospital or a visitor; thus the dual-capacity doctrine does not apply.
Rivers's claim under the employer intentional tort claim was unsuccessful as well, because the employer lacked the deliberate intent required to be held liable.
Rivers settled her claim with Otis Elevator, the elevator maintenance company, for $15,000 without notifying the hospital. Under O.R.C. 4123.931 (G), the employer is entitled to receive the full amount paid to Rivers ($61,527.42) because Rivers failed to notify the employer of settlement.
Rivers v. Otis Elevator, 2013-Ohio-3917 (8th Dist.)
Damages - Car Accident
Hacker v. Roddy
Mrs. Hacker's motor vehicle was hit from behind by Ardell Roddy, a 19 year old, when her car was stalled on top of a bridge with the hazards on. The Jury awarded a damage of $1,183 in damages to Mrs. Hacker for economic loss and $0 for non-economic loss. The Hackers were pursuing around $30,000 for lost income, medical bills, pain and suffering, and loss of consortium.
The trial court granted Mrs. Hacker's motion for judgment notwithstanding the verdict (JNOV) on the amount of damages awarded by the jury. Defendants appealed the decision to the 3rd District asserting that the trial court erred in granting JNOV. The Appellate court upheld the trial courts determination that a new trial was needed to determine damages. Specifically, the court found that the jury's award had to be erroneous because Mrs. Hacker's medical bills from the emergency room and her lost income exceeded the amount awarded by the jury.
The appellate court believes the jury erroneously considered contributory fault based on statements made during the defense counsels closing argument. The issue of contributory fault was not allowed for consideration by the jury because the defendant's fault was admitted, and Mrs. Hacker demonstrated that she did not breach her duty of care. The traffic and icy conditions made her decision to stay in the car when it stalled a reasonable one.
Hacker v. Roddy, 2013-Ohio-5085 (3rd Dist.)
Auto Accident: Proximate Causation
Starr v. Wagner
Starr was involved in two separate automobile accidents on the same day. Wagner struck Starr's car first and 10 minutes later her car was struck again by Stock. Starr sustained injuries and sued to recover damages.
The key determination at the lower court was whether Starr's deposition, as the sole evidence relied upon, created a genuine issue as to whether her back injuries were proximately caused by defendant Wagner's negligence.
Starr had stated in her deposition (sworn testimony) that her back and upper neck hurt in response to a question on whether the collision with Wagner caused her injuries. The trial court dismissed the case because they only looked at a portion of Starr's deposition in isolation. In the portion they examined, Starr stated that the contact was light and that she did not think the first accident did anything to her. The court of appeals reversed and remanded the case, reasoning that if the deposition is taken as a whole there remains a genuine issue of material fact sufficient to allow the jury to hear the case.
The court did not consider whether the plaintiff needed expert testimony to support a finding of proximate causation in this case. However, the plaintiff would have needed expert testimony to win the case and survive directed verdict. The key to this cases determination was the context in which the court was addressing proximate causation. If the only item the plaintiff had to support her showing of proximate causation at the conclusion of the trial was her own deposition, then she would have lost on directed verdict. But, the plaintiff did not yet have the opportunity to put on expert testimony because the trial had not commenced.
* For example, see Jefferson v. Careworks of Ohio, Ltd., 193 Ohio App. 3d. 615. Jefferson lost on directed verdict after she failed to present expert testimony regarding the proximate causation of her knee and neck injuries.
Starr v. Wagner, 2013-Ohio-4456 (7th Dist.)
Premises Liability Trip and Fall
Ray v. Wal-Mart Stores Inc.
The plaintiff, Ray, tripped and fell on a black crate protruding from underneath a produce display. The trial court granted summary judgment for Wal-Mart (dismissed the case) because the plaintiff presented no evidence to show that Wal-Mart 1) created the hazardous condition, or 2) that Wal-Mart had breached its duty to warn because it had actual or constructive knowledge of the hazard.
The appellate court affirmed the trial courts decision. The plaintiff's deposition indicated that she did not know who placed the crate in the hazardous position, and therefore there was no evidence to show that Wal-Mart breached its duty by placing the crate underneath the display. Similarly, the plaintiff's evidence did not indicate if an employee saw the crate underneath the display, and there was no evidence to indicate how long the crate was there. Accordingly, the plaintiff did not prove that Wal-Mart had actual or constructive notice of the danger.
Furthermore, the doctrine of res ipsa loquitor does not apply in this case because Wal-Mart did not have exclusive control over the crate. The crate was located in an area of public access, the produce department, where anyone could have created the hazardous condition.
Ray v. Wal-Mart Stores Inc. 2013-Ohio-2684 (4th Dist.)
Romans v. Tex. Instruments, Inc.
Romans brought a products liability and negligence claim against Ford Motor Company, Bridgestone retail, and Texas Instruments ("TI") after his 2001 Ford Expedition caught on fire while parked in his garage in the off position. The fire spread from the garage throughout the entire house and resulted in the death of Mr. Roman's two children and wife. The fire was caused by an alleged defect in the speed control deactivation switch ("SCDS) in the 2001 Ford Expedition. The SCDS was the device that deactivated the cruise control when the user presses on the brake. The issue that lead to the fire was the fact that the Teflon which separated the dry side of the SCDS and the side with the brake fluid can crack from continuous brake use. The crack in the Teflon allows the brake fluid to spill over into the electrical wiring of the SCDS and can create a fire. Texas Instruments was the manufacturer of the component (SCDS) which went into Ford's 2001 Expeditions and many other vehicles.
The National Highway Traffic Safety Admin. (NHTSA) started an investigation into a high number of hood fires in 2001 Ford Expeditions in 2005. The NHTSA found that three conditions must exist for a fire to start in an Expedition in the off position. The conditions for a fire are: (1) the SCDS was powered at all times, (2) the SCDS was oriented in a vertical up or an angled down position, and (3) the brake system produced sufficient vacuum pressure to flip the orientation of the Kapton (Teflon) seal.
The lower court dismissed the claim against TI, and the appellate court upheld the trial court's ruling because the component part doctrine applied. Under the component parts doctrine, a manufacturer of a component part is not liable for a defect in a completed product unless: (1) the component itself is defective or dangerous, or (2) the component manufacturer constructs or assembles the completed product or substantially participated in the design of the final completed product. Since Ford was ultimately the party that decided how the part was installed in the Expedition and created the specifications as to the brake pressure, "TI" could not be liable under the components part doctrine. The SCDS was only in a defective condition because of the manner in which it was integrated into the Expedition by Ford and TI did not substantially participate in the assembly of the Expedition.
The 12th District also affirmed the dismissal of the claim against Bridgestone. Bridgestone attempted to repair a problem that caused a blown fuse in the Expedition two weeks before the fire. The repairman replaced a brake switch and after doing so the Expeditions fuse did not blow, therefore, he thought the problem was solved. The court held that the repair shop had no duty to repair the SCDS because they were not told that this was the problem. Also, a duty to warn did not arise because the repair shop did not know of the defect at the time of the repair. The defect was ultimately latent.
Romans v. Tex. Instruments, Inc., 2013-Ohio-5089 (12th Dist.)
Assumption of Risk/ Recreational Activity Doctrine
Madden v. Prod. Concrete, Inc.
In 2006, Larry Madden and his company installed a sewer pipe in Unit 1 of Creekside Condominiums. In 2007, Products Concrete ("PC") dug a large hole over the same sewer pipe to install a water meter. PC admits to negligently installing the water meter and causing damage to the pipe. In March 2008, Larry Madden was called to repair a backup in the sewer pipe at Creekside Condominiums Unit 1. While digging a trench to repair the pipe, Larry Madden was injured when the trench collapsed. Larry Madden brought a negligence action against PC to recover for his injuries.
The trial court granted PC summary judgment, because Madden had not established that PC proximately caused his injury. The 10th District upheld the trial court's grant of summary judgment for PC, but the court found summary judgment proper because PC did not owe Larry Madden a duty.
The 10th District held that Larry Madden voluntarily assumed the risk of a trench collapse. The court cited two other district court's that have found trenching to be an inherently dangerous activity. Therefore, Larry's reasonable assumption of a known risk extinguishes the duty owed to him by PC under the doctrine of primary assumption of the risk.
Madden v. Prod. Concrete, Inc., 2013-Ohio-5393 (10th Dist.)
Pauley v. City of Circleville
A child and many others were sledding in a city park down a dirt mound covered with snow when 18 year old Jeremy Pauley struck a concealed railroad tie in the dirt mound. The dirt and railroad tie were apparently placed in the park when the city ran out of storage. Jeremy suffered severe injuries and is now a quadriplegic. The city knew kids played in the park and sledded down the hill, but the court held that the city was immune under the recreational user statute.
In this case, the Supreme Court of Ohio reaffirmed and arguably strengthened the recreational user statute, O.R.C. §1533.181(A). The statute provides that owners who allow the public to use their land for recreational activities should not be liable for injuries that occur on the premises.
The two dissenting Justices argued that the storage of the dirt fundamentally changed the character of the land; thus, the recreational user statute should not have applied in this particular case. But the majority ruled that the property must be looked at as a whole when determining whether a property is covered under the statute. This property as a whole was necessarily recreational in nature, as it was a community park, and therefore was covered under the recreational user statute.
Pauley v. City of Circleville, 2013-Ohio-4541 (Ohio)
King Estate v. Wachauf
Barry King, plaintiff's husband and decedent in this case, was involved in a motorcycle accident. Barry was struck by Jenifer Wachauf, and the plaintiff sought underinsured motorist coverage from Progressive and Hamilton insurance companies. The motorcycle was not listed on the underinsured policy.
The court held that the other-owned autos exclusions that disclaim uninsured coverage represents a clear intent to limit coverage to bodily injuries suffered in the vehicles specifically covered under the policy. Summary judgment was affirmed for the insurance company.
King Estate v. Wachauf, 2013-Ohio-2498 (3rd Dist.)
Artisan & Truckers Cas. Co. v. JMK Transp., LLC
JMK, a company owned by Adrienne Barkley, acquired a 2001 Crown Victoria in October 2008. The acquisition was from A&K, a company owned by Barkley that sold all of its assets in July 2008. In October, a Crown Victoria titled under A&K was transferred to a Miami town lot owned and operated by JMK.. The crown Victoria was later involved in an auto accident in May 2010.
The issue was whether the Crown Victoria was covered by the insurance policy entered into by JMK with Artisan in 2009. To qualify for insurance the crown Victoria had to be considered an â€œinsured autoâ€ under the Artisan insurance policy.
The insurance policy provided insurance coverage for: 1) any auto listed on the declaration page; and 2) additional autos. The Crown Victoria was not listed on the declaration page; therefore, the court went on to determine whether the car was covered as an additional auto. All additional autos were only covered for 30 days and after that 30 day period the insured must request coverage for the auto. Additional autos included cars acquired during the policy period, cars that were not covered under any other insurance policy, and all other vehicles owned that are used in conducting business.
The court used UCC 2-401, adopted in Ohio in O.R.C. Â§1304.42(B), to determine when JMK acquired or possessed the auto. UCC 2-401 essentially states that title passes with physical delivery of the goods. Here, the Crown Victoria was transferred to JMK in October 2008 and the accident occurred in May 2010, thus the automobile was not covered for purposes of the policy. 30 days had elapsed for the purposes of the additional auto coverage and JMK had not requested coverage of the vehicle. The trial courtâ€™s determination was affirmed, as the court correctly applied UCC 2-401 to determine ownership under the insurance policy.
Artisan & Truckers Cas. Co. v. JMK Transp., LLC, 2013-Ohio-3577 (12th Dist.)
Hoyle v. DTJ Enters
The trial court granted the insurerâ€™s motion for summary judgment, in an employer intentional tort action, concluding that coverage was excluded because the employee could have recovered on the basis of deliberate intent to injure. The insurance policy excluded coverage when there was "liability for acts committed by or at the direction of an insured with the deliberate intent to injure." However, the policy provided coverage for "bodily injury" caused by an "intentional act," which it defines as an act where the insured (1) knows of the existence of a dangerous condition within its business operation, (2) knows that if an employee is subjected to the dangerous condition, then harm to the employee will be a "substantial certainty," and (3) requires "the 'employee' to continue to perform the dangerous task."
The 9th District court of appeals reversed the trial court. They held that based upon the presumption of deliberate intent under R.C. 2745.01(C), there could exist a circumstance where an employee prevails on an intentional tort claim without the complained action constituting "deliberate intent" to injure under the terms of the policy.
Under R.C. 2745.01 (C), deliberate intent is presumed if the employer removes a safety mechanism. The employer does not have to have the deliberate intent to injure under R.C. 2745.01(C), and here the plaintiff is relying on the removal of a safety mechanism from a scaffold to make his claim. The court found that the plaintiffâ€™s claim was not excluded from coverage under the insurance policy because deliberate intent (as described in the policy) is not required to recover.
Hoyle v. DTJ Enters., 2013-Ohio-3223 (9th Dist.)
Reed v. Davis
Reed brought an action against Davis for the serious injuries Davis caused to Reed when he struck him in the face. Nationwide sought to intervene in the action as David's insurer. The trial court granted Nationwide summary judgment (dismissed the case) based upon an unsworn exhibit that purported to contain the insurance policy issued to Davis. The attached policy contained an intentional act exclusion.
The 10th District court reversed and remanded the proceedings based upon a finding that there was no clear insurance policy language identified that could be applied to examine whether insurance coverage was excluded. Summary judgment was inappropriate when based upon policy language in an unsworn exhibit. While the language in the Exhibit could have been considered, the consideration was invalid because of the various intentional-act exclusions that could have been the correct policy language. Since the correct policy language was unidentified, it was impossible to determine whether insurance coverage extended to the facts of this case.
Reed v. Davis, 2013-Ohio-3742 (10th Dist.)
***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.***Construction/
Accidents Motor Vehicle Accidents: Auto, Truck, Bus, Motorcycle Accidents Bicycle/Racing
Claims Premises Liability:
Slip & Fall
and Safety Claims
Death Claims General Negligence
General Civil Litigation Pedestrian
Injuries/Accidents Animal Claims
and Dog Bites
Contract Disputes Appellate
Practice Mediation and