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Case Law Summary - 2015: January – March


Employer Intentional Tort Claims

Pixley v. Pro-Pak Industries, Inc.

Pixley sustained injuries when he was struck by a transfer car in the course and scope of his employment at Pro-Pak. Although the transfer cars are built with a safety mechanism which should have forced the car to shut off upon impacting Pixley, the car did not stop and only stopped when the operator shut it off manually. Pixley brought an intentional tort claim against his employer.

The Sixth District Court of Appeals affirmed the trial court’s grant of summary judgment (dismissal of the case) for Pro-Pak industries.

An employer intentional tort claim brought pursuant to R.C. 2745.01 requires proof of the employer’s deliberate intent to cause injury to an employee, but there is a rebuttable presumption that the employer acted with the intent to injure another if an injury directly results from the deliberate removal of an equipment safety guard.

In this case, Pixley failed to prove that Pro-Pak deliberately removed or disabled the safety bumper on the transfer car that injured him, and therefore the trial court properly entered summary judgment in favor of Pro-Pak.

Pixley v. Pro-Pak Industries, Inc.,142 Ohio St.3d 203, 2014-Ohio-5460.



Torts - Trip and Fall

Rayburn v. Delaware Cty. Agricultural Soc.

A plaintiff tripped and fell on disintegrating concrete at a junction of a sidewalk and a parking lot. When the plaintiff sued, the court dismissed the case based on the open and obvious doctrine. The court found that the disintegrating concrete was an open and obvious danger that the plaintiff should have seen. Further, the court found that the crowd of people exiting a nearby building did not constitute a sufficient attendant circumstance (distraction) to excuse the plaintiff for overlooking the disintegrating concrete.

Rayburn v. Delaware Cty. Agricultural Soc., 2015-Ohio-1903 (5th Dist.)



Torts - Good Samaritan Statute

Carter v. Reese

After leaving the brake of his tractor disengaged while going outside of his tractor to work on the trailer, a truck driver’s leg became stuck when he fell between the loading dock and the trailer. He yelled and banged on the trailer for help.

A young man came to help. The truck driver instructed him to pull the truck forward a few feet, but to absolutely not put it in reverse. The young man went to the tractor, the truck revved, but did not move forward. The truck driver heard the air brake release and the truck rolled backwards, crushing the truck driver’s leg and resulting in amputation.

The Twelfth District affirmed the trial court’s decision and held that the man who helped was protected by the Good Samaritan statute. The statute protects anyone who is providing emergency care during from liability, absent willful or wanton misconduct. The Court’s interpretation of the statute rejected the Plaintiff’s argument that “emergency care” should be more narrowly defined as “emergency medical care.” The court found that in order for the Good Samaritan to be liable he would have had to exhibit “no care whatsoever,” of which there was no indication.

Carter v. Reese, 2014-Ohio-5395, 25 N.E.3d 1086



Torts - Qualified Nuisance

Link v. FirstEnergy Corp.

A motorcyclist ran into an unauthorized utility pole after being struck by deer, and then sued the utility company for the injuries he sustained.

The appellate court found that the motorcyclist could recover for qualified nuisance because the pole he struck was left there by an electric utility without permission from county. The county engineer’s office had previously sent a letter to the utility, and had noted its concerns for drivers and the utility’s potential tort liability. The office also warned the utility that the locations of some of the poles were hazardous. The township also wrote to the utility with similar concerns. In both instances the utility refused to move the poles unless it was at the county’s expense.

However, a new trial was warranted to determine punitive damages in this case because the jury’s answers to interrogatories were internally inconsistent or inconsistent with the verdict.

Link v. FirstEnergy Corp., 2014-Ohio-5432



Insurance - Domicile of Insured under Policy

Schill v. Cincinnati Ins. Co.

Robert Schill was driving in Geauga County when he struck a bicyclist and killed him. He was driving his own vehicle, which was insured under a policy with a $500,000 liability limit. The bicyclist’s wife settled with his insurance company, and Robert sought additional coverage under his parents’ personal umbrella coverage.

Robert’s parents’ umbrella policy provided coverage for “resident relatives,” which the policy defined as “a person related to you by blood, marriage, or adoption that is a resident of ‘your’ household and whose legal residence of domicile is the same as yours.” The 8th district found that Robert was covered under this policy.

The Ohio Supreme Court reversed. The court held that domicile is where a person has a true, fixed, permanent home to which he always has an intention of returning to. Residence in fact and purpose to make place of residence one’s home are essential elements of domicile. Domicile cannot be temporary or transient. Further, the question of domicile is one of fact.

The court found that Robert was unquestionably domiciled in Ohio at the time of the accident. His father however, lived in Florida but spent approximately two weeks per month in Ohio working for a business. The Court found the two weeks per month to be not enough to establish an Ohio domicile, since he always intended to and did return to his home in Florida. Therefore, Robert was not of the same domicile as his father, and was not covered under the umbrella policy.

Schill v. Cincinnati Ins. Co., 141 Ohio St.3d 382, 2014-Ohio-4527, 24 N.E.3d 1138



Insurance Disputes

G & K Management Services, Inc. v. Owners Insurance Co.

The insured was a dance studio franchisor who filed a declaratory judgment action (lawsuit) against his commercial insurer alleging the insurer had a duty to defend him in the underlying personal injury lawsuit.

The Fifth District Court of Appeals held that the plaintiff in underlying case did not allege a “personal injury,” as was required to trigger the insurer’s duty to defend. The underlying case alleged breach of contract, invasion of privacy, intentional infliction of emotional distress (IIED), unjust enrichment, and other causes of action resulting from the dance studio abruptly shutting its doors.

G & K argued that IIED resulted in coverage because it was within the scope of the policy’s definition of “personal injury.” The policy lists the following as “personal injury” causes it covers: “false arrest, malicious prosecution, wrongful eviction and other related claims, slander and libel, violation of privacy, and discrimination, humiliation, sexual harassment and any violation of civil rights caused by such discrimination, humiliation, or sexual harassment.” The Court held that emotional distress is not a “personal injury” under this policy and therefore found the insurance company had no duty to defend.

Schill v. Cincinnati Ins. Co., 141 Ohio St.3d 382, 2014-Ohio-4527, 24 N.E.3d 1138

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

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