state of ohio retail compendium of law ......state of ohio retail compendium of law prepared by...
TRANSCRIPT
STATE OF OHIO RETAIL COMPENDIUM OF LAW
Prepared by Bradley A. Wright Tiffany M. Sovik
Roetzel & Andress, LPA 222 South Main Street
Akron, OH 44308 Tel: (330) 376-2700 Email: ralaw.com
2014 USLAW Retail Compendium of Law
INTRODUCTION____________________________________________________________1
A. The Ohio State Court System 1
B. Ohio Federal Courts 1
C. Statutes of Limitation 2
NEGLIGENCE______________________________________________________________ 3
A. General Negligence Principles & Elements of Cause of Action for Negligence 3
B. Legal Status of the Plaintiff 3
C. General Defenses to Personal Injury Claims 4
1. Open and Obvious 4
2. Lack of Notice 7
3. “Two-Inch” Rule 7
4. Comparative Fault/Contributory Negligence 8
OTHER COMMON TORT CLAIMS AGAINST RETAILERS___________________ 10
A. Liability for Violent Crime 10
B. Claims Arising From the Wrongful Prevention of Thefts 11
INDEMNIFICATION AND CONTRIBUTION _________________________________ 13
A. Indemnification 13
B. Contribution 14
DAMAGES _______________________________________________________________ 16
A. Caps of Damages Under The Ohio Tort Reform Act 16
B. Calculation of Damages 16
C. Types of Damages in a Personal Injury Action 16
D. Punitive Damages 20
E. Recovery of Pre- and Post-Judgment Interest 20
F. Joint and Several Liability 21
G. Attorney’s Fees 21
H. Other Common Issues Involving Damages: 22
1. Settlement of Minor’s Claim 22
2. Taxation of Costs 22
3. Unique Damages Issues 23
ALTERNATIVE DISPUTE RESOLUTION_____________________________________24
A. Alternative Dispute Resolution 24
B. Mediation 25
1
INTRODUCTION
A. Organization of the State Court System
Structure. The Ohio state court system consists of three levels of courts: the Supreme
Court, the Court of Appeals, and the Court of Common Pleas. The Court of Appeals is
divided into twelve (12) judicial districts. There is one Court of Common Pleas in each of
88 state counties. Each Court of Common Pleas consists of four divisions: the general
division, the domestic relations division, the juvenile division and the probate division. In
addition, there are 47 county courts, 118 municipal courts, and 440 mayor's courts in the
state. The Mayor's Courts refer cases “up” to the local county Municipal Court.
Generally, appeals from the court and municipal courts go directly to the Court of
Appeals, bypassing the local Common Pleas Court. There is one Court of Claims, located
in Columbus, that hears and determines all civil actions filed against the State of Ohio.1
Judicial selection. Ohio state judges are elected by the voters for a term of six years in
nonpartisan elections after partisan primaries. In order to qualify for the election, a person
must have practiced law, served as a judge of a court, or both, for at least 6 years and
“shall be a qualified elector and a resident of the territory of the court to which the judge
is elected or appointed.” The Ohio Constitution provides for an obligatory termination of
office at the age of 70. A candidate who turns 70 before the first day of the elected term
would be ineligible.2
Relationship to the Federal Rules of Civil Procedure. The Ohio Supreme Court has
adopted its own Ohio Rules of Civil Procedure. Provisions of the Ohio Rules of Civil
Procedure differ from the Federal Rules, but are in large part the same.
B. Federal Courts in Ohio
In Ohio, the federal district courts are made up of the Northern District of Ohio and the
Southern District of Ohio. Cases in the Northern District of Ohio are heard by fifteen (15)
federal district court judges and eight (8) magistrates.3 There are currently fifteen (15)
federal district court judges, including seven (7) with senior status, and nine (9)
magistrate judges in the U.S. District Court for the Southern District of Ohio.4
1 See generally the Supreme Court of Ohio, Ohio Courts, available at:
http://www.sconet.state.oh.us/JudSystem/default.asp (last visited March 10, 2014).
2 See, e.g., Ohio Rev. Code § 1901.06 .
3 See generally the U.S. District Court for the Northern District of Ohio, available at:
http://www.ohnd.uscourts.gov/home/judges/ (last visited March 10, 2014).
4 See generally the U.S. District Court for the Southern District of Ohio, available at:
http://www.ohsd.uscourts.gov/judges.htm (last visited March 10, 2014).
2
C. Statute of Limitations:
In general, time limitations for civil actions that can be brought in Ohio courts are
contained in § 2305.03 – 2305.22 of the Ohio Revised Code.
1. Personal injury. The statute of limitations for a personal injury is governed by
OHIO REV. CODE § 2305.10. An action for damages for an injury to a person shall
be brought within two years after the cause of action accrued.
2. Assault and Battery. The statute of limitations for assault and battery claims are
governed by OHIO REV. CODE § 2305.111(B) . Actions for assault and battery
must be brought within one (1) year after the tort took place or after the plaintiff
learned the identity of the defendant, if unknown before.
3. Libel, Slander, Malicious Prosecution and False Imprisonment. An action for
libel, slander, malicious prosecution or false imprisonment is governed by OHIO
REV. CODE § 2305.11(A) . Any such action must be brought within one (1) year
after the tort took place or after the plaintiff learned the identity of the defendant,
if unknown before.
4. Property damage. The statute of limitations for a property damage action is
governed by OHIO REV. CODE §§ 2305.09-2305.10. Actions to recover
damages for an injury to real property, to recover the possession of personal
property or to recover damages based on physical or regulatory taking of real
property must be commenced within four (4) years after the cause of action
accrued. Actions for injuries to personal property must be brought within two (2)
years after the cause of action accrued.
5. Wrongful death. A wrongful death action must be commenced within two (2)
years after the decedent's death.5
5 OHIO REV. CODE § 2125.02(D)(1) .
3
NEGLIGENCE
A. General Negligence Principles & Elements of Cause of Action for Negligence
“Negligence cannot be established by the mere fact that a person slipped and fell.”6 To
establish a negligence claim, a plaintiff must prove: (1) the existence of a duty; (2) a
breach of that duty; and (3) injuries proximately resulting therefrom.7
B. Legal Status of the Plaintiff
The extent of the duty owed to a Plaintiff depends on the legal status of the Plaintiff.
Generally, customers and prospective customers in a store are invitees, and a property
owner owes such persons a common-law duty to exercise ordinary care for their safety.8
Additionally, independent contractors, and their employees, are “frequenters” under Ohio
law. The duties owed to frequenters are codified in the OHIO REV. CODE R.C.
4101.11, which provides the duty of an employer to protect “frequenters” such as
independent contractors and their employees, stating:
Every employer shall furnish employment which is safe for the employees
engaged therein, shall furnish a place of employment which shall be safe
for the employees therein and for frequenters thereof, shall furnish and use
safety devices and safeguards, shall adopt and use methods and processes,
follow and obey orders, and prescribe hours of labor reasonably adequate
to render such employment and places of employment safe, and shall do
every other thing reasonably necessary to protect the life, health, safety,
and welfare of such employees and frequenters.9
“As used in R.C. 4101.11, a frequenter includes an employee of an independent
contractor.”10
However, the statute “is no more than a codification of the common law
duty owed by an owner or occupier of premises to invitees.”11
Thus, the premises owner
is required to keep the premises in a reasonably safe condition and warn of dangers of
which the owner has knowledge.12
6 Hess v. One Americana Ltd. Partnership, 10th Dist. No. 01AP-1200, 2002-Ohio-1076.
7 Strother v. Hutchinson (1981), 67 Ohio St.2d 282.
8 Smith v. United Properties, Inc. (1965), 2 Ohio St.2d 310.
9 (Emphasis added) R.C. 4101.11.
10 McCumbers v. Yusa Corp., 12th Dist. No. CA2006-05-018, 2006- Ohio-5847, ¶6 citing Eicher v. U.S. Steel Corp.
(1987), 32 Ohio St.3d 248, 249.
11 Id. (citation omitted).
12 Id.
4
However, not all persons who enter upon the property are invitees. Those who enter upon
the premises for their own pleasure with the permission of the property owner are
licensees.13
The property owner does not owe a duty of ordinary care. Instead, the owner
must “refrain from wantonly or willfully causing injury.”14
Further, a customer can lose his or her invitee status by going into areas of a store that are
not open to the public. “If the invitee goes outside the area of his invitation, he becomes a
trespasser or a licensee, depending upon whether he goes there without the consent of the
possessor, or with such consent.”15
C. General Defenses to Personal Injury Claims
This next section provides an overview of the common defenses to a personal injury
claim brought against a retailer by a patron.
1. Open and Obvious Hazards
Property owners are not the insurers of their invitees' safety.16
The open-and-obvious
doctrine provides that owners do not owe a duty to persons entering their premises
regarding dangers that are open and obvious.17
The rationale underlying this doctrine is
“that the open and obvious nature of the hazard itself serves as a warning.18
Thus, the
owner or occupier may reasonably expect that persons entering the premises will discover
those dangers and take appropriate measures to protect themselves.”19
By focusing on the
duty prong of negligence, “the court’s analysis focuses on the nature of the dangerous
condition itself, as opposed to the nature of the plaintiff’s conduct in encountering it.” 20
13
Roesch v. Warren Distrib./Fleet Eng. Research, 146 Ohio App.3d 648767 N.E.2d 11872000 -Ohio- 2694 at ¶13.
14 Id. (Plaintiff who merely stopped at service station to utilize free air to fill tires was not an invitee of the business
owner.).
15 Gladon v. Greater Cleveland Regional Transit, 75 Ohio St.3d 312, 316, 662 N.E.2d 287 (1996). See Jeffers v.
Olexo (1989), 43 Ohio St. 3d 140, 539 N.E.2d 614 (Holding that student who purchased ticket to attend football
game was a licensee of fairground property where the student strayed from the walkway and died after inhaling
fumes from helium tanks.). See also Bennett v. Kroger Co. (1996), 109 Ohio App. 3d 727, 672 N.E.2d 1111
(Holding that Plaintiff was a licensee where Plaintiff was attacked by assailants during a time when the store was
closed, which was beyond that to which the store’s invitation extended to the Plaintiff.).
16 Carter v. Miles Supermarket, 2010-Ohio-6365 at ¶ 14 (8th App. Dist.) (citing Jackson v. Kings Island, 58 Ohio
St.2d 357, 358 (1979)).
17 Id. (citing Sidle v. Humphrey, 13 Ohio St.2d 45, paragraph one of the syllabus (1968)).
18 Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5.
19 Carter, 2010-Ohio-6365 at ¶14 (quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644 (1992)).
20 Washington v. Speedway Superamerica, L.L.C., 2012 Ohio 3260 at ¶ 7 (8th App. Dist. Jul. 19, 2012).
5
Customers in retail stores “are under a duty to use ordinary care so as to provide for their
own safety, which includes a duty to look where they are walking.”21
Even when an
invitee does not actually see the object or danger until after he or she falls, “no duty exists
when the invitee could have seen the object or danger if he or she had looked.”22
Courts
must consider whether the object or danger itself was observable.23
When the record
supports a determination that the open-and-obvious doctrine applies, thereby obviating a
property owner’s duty to warn of the hazard and acting as a complete bar to any
negligence claim, then a defendant is entitled to summary judgment.24
However, the existence of an attendant circumstance makes the open-and-obvious
doctrine inapplicable. Although there is no precise definition of “attendant
circumstances,” they would include “any distraction that would come to the attention of a
pedestrian in the same circumstances and reduce the degree of care an ordinary person
would exercise at the time.” And attendant circumstances must, taken together, (1) divert
the attention of the pedestrian, (2) significantly enhance the danger of the defect, and (3)
contribute to the fall.25
The term “refers to all facts relating to the event, and includes
such circumstances as time of day, lack of familiarity with the route taken, and lighting
conditions.”26
Ohio case law presents numerous factual scenarios where the open-and-obvious doctrine
is applied. A few common examples are summarized in the following sections.
(a) Objects & Obstructions in Store Aisles
Ohio courts “have consistently held that objects and obstructions in store aisles are open
and obvious hazards, regardless of whether a customer actually notices the hazard.”27
21
Howard v. Wal-Mart Stores, Inc., 1996 WL 613664 (8th App. Dist. Oct. 24, 1996) (citing Parsons v. Lawson, 57
Ohio App.3d 49, 51 (5th App. Dist. 1989) (summary judgment for store affirmed where plaintiff tripped over empty
boxes in aisle while looking into coolers to select items) (Emphasis added).
22 Carter, 2010-Ohio-6365 at ¶ 15 (citing Haymond v. BP Am., 2006-Ohio-2732, ¶ 16 (8th App. Dist.)).
23 Id.
24 Id. at ¶ 16.
25 McGuire v. Sears Roebuck & Co. (1996), 118 Ohio App.3d 494, 499, 693 N.E.2d 807 (citations omitted).
26 Williamson v. Greeting, 12th Dist. No. CA2011-09-011, 2012-Ohio-2849 at ¶22 (citation omitted).
27 Silbernagel v. Meijer Stores Ltd. Partnership, 2006 Ohio 5658 (12th App. Dist.) (citing, e.g., Brooks v. Jo Ann
Stores (Nov. 13, 2001), Butler App. No. CA2001-05-107, 2001 WL 1402982, *3 (“mess” of magazine insert cards
scattered on store floor was open and obvious hazard); Benton v. Cracker Barrel Old Country Store, Inc., Franklin
App. No. 02AP-1211, 2003-Ohio-2890, ¶ 22 (boxes comprising part of store display that protruded into aisle
constituted open and obvious hazard); Prince v. Hills Dept. Store (July 25, 1997), Wood App. No. WD-96-069,
1997 WL 430852, *1 (pile of packing peanuts in store aisle was open and obvious hazard); Austin v. Woolworth
Dept. Stores (May 6, 1997), Franklin App. No. 96APE10-1430, 1997 WL 242891, *3 (partially emptied pallet in
6
(b) Liquids
In addition to the presence of objects, hazards such as water and other liquids have also
been found to be open and obvious hazards. In Colville v. Meijer Stores Ltd., the court
held that a puddle of water, which Plaintiff estimated was three (3) feet long and two (2)
inches wide, was an open and obvious hazard that barred liability against the store
owner.28
In that case, the Plaintiff testified that she had no problem seeing the puddle or
identifying the content as water following her slip and fall.29
(c) Accumulations of Snow & Ice
In some instances, a store patron is injured while entering or exiting a building during or
shortly after inclement weather. In Ohio, the courts have consistently held that water or
snow that is tracked in and exists near a store or building entrance is an open and obvious
condition.30
store aisle was open and obvious hazard); Carter v. Miles Supermarket, 2010-Ohio-6365 at ¶ 14 (8th App. Dist.)
(closed box that was 18-inches high and sitting on the floor in an aisle at the store for stocking was open and
obvious hazard.) See also Sheline v. Denman, 2010 Ohio 2041 at ¶ 24-44 (summary judgment for property owner
where plaintiff testified at deposition that there was nothing preventing her from seeing the item she tripped over);
Carter v. Miles Supermarket, 2010 Ohio 6365 at ¶ 5, 29 (8th App. Dist. Dec. 23, 2010) (summary judgment for
property owner where plaintiff “agreed that she would have seen the box if she had just looked down at it”).
28 2nd Dist. No. 2011–CA–011,2012 -Ohio- 2413 at ¶¶ 7-8.
29 Id. See also Smith v. Kroger Co., 12th Dist. No. CA2010–09–233, 2011-Ohio-1871, at ¶4, ¶19 (Circular puddle
of water was open and obvious hazard where puddle measured approximately three feet in diameter and was
observable by Plaintiff from distance of ten feet away after the fall.); Hughes v. Forsyth-Moto, Inc., 4th Dist. No.,
2010-Ohio-1078 at ¶17 (Oil spill measuring approximately two feet in diameter near gas pump was open and
obvious hazard.); Leake v. Valley Sports, Ltd., 7th Dist. No. 02CA159, 2003-Ohio-4741 at ¶9 (brown liquid spilled
on bleachers was an open and obvious hazard where Plaintiff testified that she encountered the liquid while
ascending the stairs.); Robinson v. Kroger, 10th Dist. No. 00AP-100, 2000 WL 1125731 at *1-2 (orange juice
spilled by store patron was an open and obvious defect that precluded liability against store.).
30 See Blair v. Vandalia United Methodist Church, 2nd Dist. No. 24082, 2011-Ohio-873, ¶43 (area just inside church
entrance, which was naturally wet from rain tracked in by members of the voting public, was not a latent or hidden
defect, and defendant did not have a duty to post a warning for the open and obvious condition; by her own
admission, plaintiff “was aware that the floor in and around the church entrance might be slippery because it was
raining outside.”); Towns v. WEA Midway, LLC, 9th Dist. No. 06CA009013, 2007–Ohio–5121, ¶ 14 (“appellant
knew it had been raining when she entered the mall and presumptively knew as a result of the rain that the floor
might be wet and slippery. Therefore * * * appellee met its burden * * * to show the absence of a genuine issue of
material fact as to whether the dampness on the floor where appellant slipped and fell was an open and obvious
danger”); Johnson v. Serv. Ctr. Invest. Trust (Dec. 2, 1999), 8th Dist. No. 75256 (in light of weather conditions,
plaintiff “should have been aware or anticipated the presence of water on the floor inside the mall because on a rainy
day, one can expect to find water on the floor in such heavily trafficked areas”); Lupica v. Kroger Co. (May 29,
1992), 3d Dist. No. 9–91–48 (the fact that water during a rainstorm has blown into the front of a store on account of
the opening of the door, and incoming shoppers carry in moisture on their feet, causing the floor inside the door to
become more slippery than is the dry floor in other parts of the store, “will not give rise to a cause of action against
the owner or lessee of the store in favor of a later incoming patron who slips or falls on such damp floor and is
injured by such fall”).
7
2. Lack of Notice
The exercise of ordinary care generally means that the premises owner (1) must not
create a dangerous condition on its premises, and (2) must warn its invitees of latent or
concealed dangers, if the premises owner has actual or constructive knowledge of those
dangers.31
The premises owner also must “inspect the premises to discover possible dangerous
conditions of which [the premises owner] does not know.”32
A premises owner or
occupier has constructive notice of a defective condition if the condition existed for such
a time that it would have been revealed by a reasonable inspection.”33
The courts have not definitively established a set length of time for which a hazardous
condition must exist before constructive notice is imputed on the premises owner or
occupier. However, some parameters have been established by the Courts. Ohio courts
have consistently held that where a customer seeks to recover on a premises liability
claim, the customer must present evidence of how long the hazardous condition existed
before any jury question is created on the issue of whether the hazard existed for an
unreasonably long period of time. “When a plaintiff attempts to establish a negligence
claim by showing that the substance was on the floor long enough to justify an inference
of negligence, evidence of how long the hazard existed is mandatory.”34
3. “Two-Inch” Rule
An injury may occur in areas where there is a raise or dip in the walking surface.
However, an insubstantial defect or minor imperfection does create liability against a
property owner. The Ohio Supreme Court has stated that:
The owners or occupiers of private premises are not insurers of the safety
of pedestrians traversing those premises, and minor or trivial
imperfections therein, which are not unreasonably dangerous and which
are commonly encountered and to be expected, as a matter of law do not
create liability on the part of such owners or occupiers toward a pedestrian
who, on account of such minor imperfection, falls and is injured.35
31
Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 358; Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51;
Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589.
32 Perry, 53 Ohio St.2d at 52, 372 N.E.2d 335 (citations omitted).
33 Presley v. City of Norwood (1973), 36 Ohio St.2d 29.
34
(Emphasis added.) O’Hail v. JG Mansfield, 5th Dist. App. No. 01 CA 78, 2002-Ohio-2893 (citation omitted).
35 Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 69, at syllabus.
8
In Helms, the court held that a hole measuring one and one-quarter inches in diameter and
one half inch deep was a minor imperfection that was not actionable as a matter of law.
Moreover, there is a line of cases in Ohio that stands for the proposition that a change of
elevation of two inches or less is an insubstantial or trivial imperfection as a matter of
law.36
This “two inch” rule creates a rebuttable presumption that a defect of two inches or
less in height is insubstantial for purposes of a negligence claim.37
If the claimed defect is
two inches or less in height, then a plaintiff cannot establish a genuine issue of material
fact absent a demonstration that attendant circumstances surrounding the incident created
a greater than usual risk of injury. In other words, only if the attendant circumstances
surrounding the incident establish a greater than usual risk of injury does an otherwise
insubstantial defect become actionable.38
4. Comparative Fault/Contributory Negligence
In Ohio, a finding that the plaintiff is contributorily negligent does not automatically bar
him or her from recovering damages. Ohio is a modified comparative fault state. Under
the comparative negligence statute, so long as plaintiff’s contributory negligence is equal
to or less than the combined negligence of all the defendants, the plaintiff is entitled to a
recovery.39
Conversely, if a jury determines that a plaintiff’s negligence is greater than
the combined negligence it attributes to the other defendants, then the plaintiff is barred
from any recovery. 40
Contributory fault must be asserted as an affirmative defense on which the defendant
bears the burden of proof.41
A defendant must prove this by a preponderance of the
evidence and the burden of proof will not shift to the plaintiff.42
i) Reckless or intentional torts. Comparative negligence cannot be asserted
as a defense in cases involving reckless or intentional torts.43
36
See Cash v. Cincinnatti (1981), 66 Ohio St.2d 319, 321.
37 Stockhauser v. Archdiocese of Cincinnati (1994), 97 Ohio App. 3d. 29, 33, 646 N.E.2d 198, 200-201.
38 Cash, 66 Ohio St. 2d. at 324.
39 R.C. 2315.19.
40 Id.
41 Dixon v. Penn Central Co., 481 F.2d 833, 837 (6th. Cir. 1973).
42 Hawkins v. Graber, 176 N.E.2d 600, 603 (Ohio Ct. App. 1960).
43 See OHIO REV. CODE § 2315.32 ; Schellhouse v. Norfolk & W. Ry. Co. (1991), 61 Ohio St. 3d 520, 525.
9
ii) Minors. Comparative negligence defense does not apply in cases
involving minors under seven years of age because they are incapable of
negligence as a matter of law.44
Regardless of the duties imposed on property owners, a person on the premises of another
must still act in a reasonable manner. A property owner will not be liable for the harm
caused to an invitee due to his or her own negligent acts. 45
The apportionment for negligence is usually a task for the trier of fact.46
However, a
finding of contributory negligence can reduce or extinguish a plaintiff’s recovery. Under
OHIO REV. CODE §2315.35, a plaintiff is barred from recovery damages if found by the
trier of fact to be more than fifty-percent (50%) at fault for the alleged injuries. If this
occurs, the court must enter judgment in favor of the defendants barring any recovery to
the plaintiff.47
If the trier of fact determines that the Plaintiff is fifty-percent or less at
fault for the alleged injuries, the court must reduce the Plaintiff’s award by his or her
percentage of fault.
44
Stinespring v. Natorp Garden Stores, Inc., 711 N.E.2d 1104, 1107-08 (Ohio Ct. App. 1998).
45 See e.g. Doekler v. Ohio State Univ., 61 Misc. 2d 69, 573 N.E.2d 809 (Ct. Cl. 1990).
46 Bobbitt v. Ruymann, 1992 WL 142372 (Ohio App. 10 Dist.).
47 OHIO REV. CODE §2315.35 .
10
OTHER COMMON TORT CLAIMS AGAINST RETAILERS
A. Liability for Violent Crime of a Third Party.
A premises owner and/or retailer may be found liable for the criminal acts of third parties
under a limited set of conditions. Generally, there is no duty to control the conduct of a
third person and prevent him or her from causing harm to another; however, a duty may
arise when a special relationship exists between the defendant and the third person.48
“Relationships that may give rise to a duty to control a third person's conduct include the
following: (1) parent and child; (2) master and servant; and (3) custodian and person with
dangerous propensities.”49
While the relationship between a premises owner and invitee is considered be a “special
relationship,” the duty of a business owner or occupier to warn or protect an invitee from
the criminal acts of third parties extends only where “the business owner knows or should
know that there is a substantial risk of harm to invitees.”50
A premises owner or occupier
is not liable when the owner or occupier did not or could not, in the exercise of ordinary
care, know of the danger that causes injury to the business invitee.51
The test becomes
one of foreseeability, which is determined utilizing one of two tests.
Prior Similar Acts Test. This test looks at the defendant’s knowledge of past
similar criminal acts.52
Totality of the Circumstances Test. This test is broader as to the type of crime
and location. The court will review the occurrence of similar criminal activity at
or near the area where the injury occurred. The court will review the occurrence
of previous similar crimes and the specifics of the incident itself.53
Additionally, there are limited circumstances when a premises owner or occupier may be
liable for intentional torts committed by its employees under the doctrine of vicarious
liability. Generally, an intentional tort by an employee constitutes an act outside the
scope of employment. However, an employer may be found liable for an intentional tort
committed by one of its employees if the behavior that gave rise to the tort was
48
Gelbman v. Second Natl. Bank of Warren, 9 Ohio St.3d 77, 79, 458 N.E.2d 1262 (1984); Commerce & Industry
Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188, 1192 (1989).
49 March v. Steed Ents., Inc., 5
th Dist. No. CT2012–0058, 2013-Ohio-4448, at ¶27 (citation omitted).
50 Id. at ¶28 (internal quotations and citations omitted).
51 Id.
52 Id. at ¶30.
53 Williams v. Prospect Mini Mart, 11th Dist. No.2002–L–084, 2003–Ohio–2232, at ¶ 23 (citations omitted).
11
“calculated to facilitate or promote the business for which the servant was employed.”54
“An intentional and willful attack committed by an agent or employee, to vent his own
spleen or malevolence against the injured person, is a clear departure from his
employment and his principal or employer is not responsible therefore.”55
The burden is
on the plaintiff to establish that the employee’s intentionally tortious act(s) facilitated or
promoted the employer’s business.
Thus, a determination of whether an employee was acting within the course and scope of
employment may be decided as a matter of law when the act was intentional and there is
no evidence that the act furthered the employment.56
B. Claims Arising From the Wrongful Prevention of Thefts
A premises owner or occupier may face lawsuits related to the stop and detention of
customers who are suspected of committing crimes in the store, including theft.
False imprisonment is the unlawful restraint by one person of the physical liberty of
another.57
Under Ohio law, "false imprisonment" occurs when a person confines another
intentionally without lawful privilege and against his consent within a limited area for
any appreciable time, however short.58
Shopkeeper’s Privilege. The Ohio General Assembly provides a statutory right
for premises owners and occupiers to prevent thefts that can be used as a defense
to a false imprisonment claim.59
Under the statute, a retail establishment or its
employee who has probable cause to believe that a person has unlawfully taken
merchandise may: (1) detain the person in a reasonable manner; (2) for a
reasonable length of time; and (3) within the store or its immediate vicinity for the
purposes of one of the following:
54
Byrd v. Faber, 57 Ohio St.3d 56, 58 (1991) quoting Little Miami RR Co. v. Wetmore, 19 Ohio St. 110, 132 (1869).
55 Paugh v. P.J. Snappers, 2005 WL 407592, *4 (11th App. Dist. 2005) quoting Schulman v. Cleveland, 30 Ohio
St.2d 196, 198 (1972).
56 Reddick v. Said, 11th Dist. No. 2011-L-067, 2012-Ohio-1885, ¶55. See also Hester v. Church's Fried Chicken
(1986), 27 Ohio App.3d 74 (holding that “when the evidence shows that a supervisor had no authority from his
employer to assault a subordinate, and that the employer did not ratify the assault, it is proper for the trial court to
conclude as a matter of law that the employer is not liable under the doctrine of respondeat superior.”).
57 Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451 (1918).
58 Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007).
59 See OHIO REV. CODE §2935.041 .
12
To recover the property;
To cause an arrest to be made; or
To obtain an arrest warrant.60
Damages in a false imprisonment case are usually limited to compensatory damages to
reasonably compensate the Plaintiff for the harm done.61
Although damages may be
incapable of exact measurement, they must rest largely in the discretion of the jury.62
60
OHIO REV. CODE §2935.041(A) and (C) .
61 Rainey v. Lorain Correctional Facility, 121 Ohio App. 3d 428, 700 N.E.2d 90 (10th Dist. Franklin County 1997).
62 See Id.
13
INDEMNIFICATION AND CONTRIBUTION
A. Indemnification
Indemnity arises from contract, express or implied, and is the “right of a person, who has
been compelled to pay what another should have paid, to require complete
reimbursement.”63
A person has a right to indemnity only if his liability is secondary, i.e.
when he himself is passively negligent, but a relationship exists between him and a
tortfeasor because of which he may be held liable for tort.64
There is no right to
indemnification between two parties who actively participate in the commission of a tort,
and thus are joint tortfeasors.
Circumstances. A person, who can be held constructively liable in tort, is entitled to
indemnity regardless of whether the liability is imposed on him by a statute or common
law, and whether there was an express contract to indemnify between him and a
tortfeasor.65
Ohio law recognizes two types of indemnity.
1. Express indemnity.
The right of indemnity may result from an express agreement or contractual
provision in which one party, who has been compelled to pay what the other party
should have paid, reserves the right to require complete reimbursement.66
Contracts of indemnity purporting to relieve one from the results of his own
failure to exercise ordinary care will be strictly construed, and will not be held to
provide such indemnification unless so expressed in clear and unequivocal
terms.67
2. Implied indemnity.
“[A]n implied right to indemnification arises only within the context of a
relationship wherein one party is found to be vicariously liable for the acts of a
tortfeasor.”68
63
Travelers Indemn. Co. v. Trowbridge, 321 N.E.2d 787, 789 (Ohio 1975).
64 Whitney v. Horrigan, 679 N.E.2d 315, 317 (Ohio Ct. App. 1996).
65 Burns v. Pennsylvania Rubber & Supply Co., 189 N.E.2d 645, 649 (Ohio Ct. App. 1961).
66 Worth v. Aetna Cas. & Sur. Co., 513 N.E.2d 253, 256 (Ohio 1987) (citing Travelers Indemn. Co. v. Trowbridge,
321 N.E.2d 787 (Ohio 1975)).
67 George H. Dingledy Lumber Co. v. Erie R. Co., 102 Ohio St. 236, 239 (1921).
68 Indiana Ins. Co. v. Barnes, 846 N.E.2d 73, 77 (Ohio Ct. App. 2005).
14
Relationships. Classic situations when a right to indemnity arises are employee-
employer, retailer-manufacturer of a defective product, or lessor-lessee relationships.69
An insurer may also have a right to indemnity from the party against whom the insured
had a right to indemnity, providing that the insured himself was not negligent. As a
general rule, an insurer has no right to indemnity (subrogation) from the insured.70
Settlements. The right to indemnity also exists in situations when the claim was not
litigated, but was settled. Thus, the voluntary payment of the claim does not negate the
right to indemnity. In order to collect indemnity for sums paid in settlement of a claim,
the party seeking indemnity must prove that the party from whom indemnity is claimed
received proper and timely notice of the settlement, that legal liability required the
settlement, and that the settlement was fair and reasonable.71
Notice. As a condition precedent to an indemnification action, Ohio law requires a
written and prompt notice of an underlying action to be given to an indemnitor. “Prompt
notice is required so that an indemnitor has a meaningful opportunity to investigate the
claim, to determine the applicability of the indemnity provision, to join and control
potential litigation, and otherwise to protect its interests.”72
The notice must be not only
prompt, but also adequate, so that the indemnitor receives an opportunity to defend or
participate in the defense of the underlying action.73
B. Contribution.
Contribution is a separate and distinct right from indemnification. “Contribution is
defined as the ‘tortfeasor's right to collect from others responsible for the same tort after
the tortfeasor has paid more than his or her proportionate share, the shares being
determined as percentage of fault.74
OHIO REV. CODE § 2307.25(A) provides that a tortfeasor who was found jointly and
severally liable and who has paid more than his proportionate share of liability has a right
to recover the amount that he paid in excess of his proportionate share from other
tortfeasors. “No tortfeasor may be compelled to make contribution beyond that
69
See, e.g., Indiana Ins. Co. v. Barnes, 846 N.E.2d 73 (Ohio Ct. App. 2005) (employer-employee).
70 Id.
71 Globe Indemn. Co. v. Schmitt, 53 N.E.2d 790, 794 (Ohio 1944).
72 Bank One, NA. v. Echo Acceptance Corp., 522 F.Supp.2d 959, 966 (S.D. Ohio, 2007).
73 Id. at 968.
74 US. v. Atlantic Research Corp., 127 S. Ct. 2331, 2337-338 (U.S. 2007) (quoting Black’s Law Dictionary 353 (8th
ed. 2004)). Ohio's contribution statute is set forth in Ohio Rev. Code § 2307.25 .
15
tortfeasor's own proportionate share of the common liability. There is no right of
contribution in favor of any tortfeasor against whom an intentional tort claim has been
alleged and established.”
Settlement. A tortfeasor who, in good faith settles the case with the claimant and pays
the damages is not entitled to contribution from another tortfeasor, whose liability is not
extinguished by the settlement.75
75
OHIO REV. CODE § 2307.25(B).
16
DAMAGES
A. Caps on Damages Under The Ohio Tort Reform Act.
Punitive damages may not be in excess of two times the amount of compensatory
damages, however, the jury may not be informed of this limitation.76
Compensatory
damages, however, are unlimited so long as they represent the economic loss of a
person.77
Compensatory damages for non-economic loss is limited in Ohio to
$250,000.00 or three times the economic loss.78
Damages for non-economic loss will not
be limited when awarded for a substantial physical deformity, loss of use of a limb, or
loss of a bodily organ system; or permanent functional injury that prevents the injured
person from being able to independently care for himself.79
B. Calculation of Damages
A reasonable basis of computation is all that a party must present the court in order for
the trier of fact to calculate damages.80
The results may be approximate if the case's
nature does not allow for a more precise accounting.81
The uncertainty of the existence of
damages precludes recovery, however, uncertainty as to a damage amount does not.82
C. Available Items of Personal Injury Damages
1. Past medical bills. Expenses incurred as a result of past medical treatment should
be included within a damage award to the extent such treatment was proximately
related to the injury.83
Admissibility of Write-offs- In Robinson v. Bates, the Ohio Supreme Court ruled that
medical bills are admissible to show the reasonableness of any damage claims.84
Thus,
bills may only be admissible in actions for damages arising from personal injury and
76
OHIO REV. CODE §2315.21 .
77 OHIO REV. CODE §2315.18(B)(1) .
78 OHIO REV. CODE §2315.18(B)(2) .
79 OHIO REV. CODE §2315.18(B)(3) .
80 Geygan v. Queen City Grain Co., 71 Ohio App. 3d 185 (12th Dist. 1991).
81 Cincinnati Bell, Inc. v. Hinterlong, 70 Ohio Misc. 38 (Mun. Ct. 1981).
82 Accurate Die Casting Co. v. City of Cleveland, 2 Ohio App. 3d 386 (8th Dist. 1981).
83 Buchman v. Board of Educ., 73 Ohio St. 3d 260 (1995).
84 OHIO REV. CODE §2317.421; Robinson v. Bates, 112 Ohio St. 3d 17 (2006).
17
wrongful death.85
Under Robinson, the common law collateral-source rule does not apply
to bar evidence of the amount accepted by a medical care provider from an insurer as full
payment for medical or hospital treatment.86
After Robinson, a minority of courts in Ohio misapplied or decided not to apply this rule
in Ohio. Some courts relied on OHIO REV. CODE §2315.20 in holding that evidence of
write-offs are inadmissible. That statute abrogates the common-law collateral-source
rule, but provides exceptions, such as when the source of collateral benefits has a
contractual right of subrogation.87
The Robinson Court did not apply OHIO REV. CODE §
2315.20 because the statute was enacted after the cause of action had accrued.
In 2010, the Ohio Supreme Court reaffirmed its holding in Robinson.88
The Ohio
Supreme Court held that “evidence of write-offs is admissible [at trial] to show the
reasonable value of medical expenses.”89
The Court explained that, because OHIO REV.
CODE § 2315.20 “is no different substantively from the common-law rule described in
Robinson . . . [o]ur common-law analysis from Robinson applies equally in the context of
the statute.”90
Since the decisions, several cases have permitted evidence of write-offs,
relying on the Jaques holding.91
However, some courts remain resistant and have
excluded such evidence.92
In October 2013, the Ohio Supreme Court addressed the admissibility of write-offs as
evidence of the Plaintiff’s reasonable medical expenses for the third time. In Moretz v.
Muakkassa, the Ohio Supreme Court reaffirmed its holdings in both Robinson and
Jacques that evidence of write-offs in medical bills are admissible.93
Such evidence is
prima facie evidence of the reasonable value of medical services.94
The court further held
85
Id.
86 Id.
87 OHIO REV. CODE §2315.20 .
88 Jaques v. Manton, 928 N.E.2d 434 (Ohio 2010).
89 Id. at 439.
90 Id. at 438.
91 See e.g. Posel v. Dayton Power & Light, 2012 WL 524475 (S.D. Ohio Feb. 16, 2012); Martin v. Am. Natl. Prop.
& Cas. Co., 2010-Ohio-3370 (12th App. Dist. Jul. 19, 2010)..
92 See e.g. Yeoman v. Clark, Case No. CV 11-751485 (Cuy. Cty. Com. Pleas Feb. 28, 2011) (Holding that evidence
of write-offs was inadmissible under Evid. R. 403 due to concerns that such admissibility would confuse the jurors);
Jenkins v. Disabato, Case No. 2011 CV 727 (Stark County Com. Pleas Dec. 21, 2011) (Holding that evidence of
write-offs was inadmissible under Evid. R. 403 due to danger of unfair prejudice and confusing the jury.).
93 137 Ohio St.3d 171, 2013-Ohio-4656 at ¶92 (remanded to trial court for retrial).
94 Id.
18
that a defendant was not required to introduce write-offs through expert testimony.95
The
court expressly stated that the defendant would be permitted to argue that the write-offs
reflected on the plaintiff’s medical bills were the reasonable value of medical treatment.96
This recent decision is demonstrative that the plaintiff’s write-offs are admissible and
may be used by the finder of fact when determining the reasonable value of medical
expenses.
2. Future medical bills. Juries are not permitted to speculate as to the amount of
future expenses.97
Thus only those future medical bills reasonably certain to
follow from an injury may be included within a damage award.98
3. Hedonic damages. The inability to do things a party once enjoyed should be
measured on a particularized basis.99
An award of hedonic damages may include
anything from the inability to play golf to the inability to dance. A party must be
able to show that these activities were usual and specific to the plaintiff.100
4. Increased risk of harm. An increased risk of harm may be included in
compensatory damage awards provided there is expert testimony to that effect.101
If the injury is permanent and objective in nature, however, then the jury may be
allowed to draw its own conclusion.102
5. Disfigurement. A plaintiff permanently disfigured or impaired should be
recompensed if such impairment is the proximate result of defendant's actions.103
Such compensatory damages must be applied beyond purely economic damages,
otherwise the trial court rightly sets the award aside.104
6. Loss of normal life. Loss of normal life damages are the foil of hedonic damages,
encompassing those normal day-to-day activities, not those which a party
95
Id. at ¶94.
96 Id. at ¶95.
97 Hammerschmidt v. Mignona, 115 Ohio App. 3d 276 (8th Dist. 1996).
98 Jordan v. Elex, Inc., 82 Ohio App. 3d 222 (1st Dist. 1992).
99 McGarry v. Horlacher, 149 Ohio App. 3d 33 (2d Dist. 2002).
100 Ramos v. Kuzas, 65 Ohio St. 3d 42 (1992).
101 Day v. Gulley, 175 Ohio St. 83 (1963).
102 Id.
103 Farley v. Ohio Dept. of Rehab & Corr., 128 Ohio App. 3d 137 (10th Dist. 1998).
104 Iames v. Murphy, 106 Ohio App. 3d 627 (1st Dist. 1995).
19
enjoys.105
In personal injury actions, such damages can be awarded separate of
general pain and suffering damages.106
7. Disability. A disability may result in loss of time and loss of earning damages.107
The jury may award a reasonable amount which is the direct and natural result of
defendant's actions.108
8. Past pain and suffering. Past pain and suffering damages are awarded in an
attempt to make the plaintiff whole for those costs already incurred.109
Damages
based on past pain and suffering are not to be set aside unless so excessive that
they are obviously the result of passion or prejudice, or manifestly against the
weight of the evidence.110
9. Future pain and suffering. Damages are not permitted under this element unless
supporting evidence is provided.111
If the injury is of an objective nature, then that
is all that need be shown and the jury may draw its own conclusions as to future
pain and suffering.112
If the injury is subjective in nature, though, an expert must
testify as to the future pain and suffering that a particular plaintiff may face.113
10. Loss of society. A parent, spouse or other family may present evidence showing
that it will suffer injury due to loss of society of companionship of the victim or
decedent.114
Such damages may take into account services, comfort, love, solace,
society, and companionship.115
11. Lost income, wages, earnings. A loss of earnings or time must be shown by the
weight of the evidence and must be capable of reasonable calculation.116
Damages
105
Ramos, 65 Ohio St. 3d 42 (1992).
106 Id.
107 Rutherford v. Ohio Finance Co., 1954 WL 8036 (Ohio C.P.).
108 Id.
109 Carter v. Simpson, 16 Ohio App. 3d 420 (10th Dist. 1984).
110 Id.
111 Hammerschmidt v. Mignogna, 115 Ohio App. 3d 276 (8th Dist. 1996).
112 Ramos v. Kuzas, 65 Ohio St. 3d 42 (1992).
113 Id.
114 Gallimore v. Children’s Hosp. Med. Ctr., 67 Ohio St. 3d 244 (1993).
115 Id.
116 Mikula v. Balogh, 9 Ohio App. 2d 250 (2d Dist. 1965).
20
may be awarded for the period from the time of the injury until plaintiff's death.117
A living defendant may also be able to recover for future lost earning capacity
provided an expert testifies as to potential earnings for the period of the average
life expectancy.118
D. Punitive Damages
In Ohio, punitive damages may only be given upon a finding of actual malice.119
Actual
malice exists if a defendant is shown to possess either a state of mind evincing hatred, ill
will or a spirit of revenge; or conscious disregard for the rights and safety of other
persons.120
Punitive damages may not be awarded in the absence of actual or
compensatory damages.121
In a tort action, punitive damages may not be in excess of two
times the amount of compensatory damages, however, the jury may not be informed of
this limitation.122
If permitted expressly by statute double and treble damages may be
permitted such as in anti-trust cases.123
E. Recovery and Pre- and Post-Judgment Interest
After money becomes due and payable, the creditor is entitled to an interest rate of ten
percent (10%) per annum unless otherwise provided for by contract or settlement.124
Post-judgment interest is recoverable according to statute whether or not noted by court
or requested by creditor.125
Prejudgment interest is within the discretion of the trial
court.126
The court must find that the party seeking the prejudgment interest sought, in
good faith, to settle and that the party against whom the interest is sought acted in bad
faith in settlement negotiations.127
117
Id.
118 Matthews v. Mumey, 15 Ohio App. 2d 5 (3d Dist. 1968).
119 Rice v. CertainTeed Corp., 84 Ohio St. 3d 417 (1999).
120 Ward v. Hengle, 124 Ohio App. 3d 396 (9th Dist. 1997).
121 Id.
122 OHIO REV. CODE § 2315.21 .
123 Id.
124 OHIO REV. CODE § 1343.03(A) .
125 Wilson v. Smith, 85 Ohio App. 3d 78 (9th Dist. 1993).
126 Carmo v. Frankel, 17 Ohio Misc. 2d 3(C.P. 1984).
127 Id.
21
F. Joint And Several Liability
The Ohio Tort Reform Act distinguishes between economic or non-economic damages as
to joint and several liability.128
Economic Loss. Under Ohio law, defendants that are found to be more than fifty percent
(50%) liable are jointly and severally liable with the other defendants for all economic
damages. Defendants whose fault is fifty percent (50%) or less are liable for only their
percentage of fault.129
Non-economic Loss. As for non-economic damages, defendants who are found liable for
the plaintiff’s injuries are liable for only their percentage of fault.130
G. Recovery of Attorney’s Fees
Ohio courts are given more discretion in awarding attorney fees than is common in either
federal or other state courts. An award of attorney fees by a trial court is judged by an
abuse of discretion standard.131
Yet a trial court is only afforded this level of discretion
when an exception to the American Rule has been found.132
Attorney fees may only be
awarded when (1) a statute creates a duty to pay such fees; (2) a contract term provides
for the fees; or (3) the losing party has acted in bad faith.133
Regardless of the exception,
trial courts are charged with awarding reasonable attorney fees even if an amount or
percentage has previously been contracted or stipulated to by the parties.134
The Ohio Supreme Court recently held that an award of attorney fees, awarded as a result
of a punitive damages claim, could fall under an insurance policy’s general coverage of
“damages which an insured person is legally obligated to pay” because of “bodily
injury.”135
The Court explained that “[a]lthough . . . attorney fees were awarded as a
result of an award of punitive damages, they also stem from the underlying bodily
injury.”136
Further, the language of the policy at issue did not limit coverage to damages
128
See OHIO REV. CODE §2307.22.
129 Id.
130 Id.
131 Keal v. Day, 840 N.E.2d 1139 (Ohio Ct. App. 2005).
132 Id.
133 Nottingdale Homeowners' Assn., Inc. v. Darby, 33 Ohio St. 3d 32, 33-34 (1987); Hagans v. Habitat Condo.
Owners Assn., 166 Ohio App. 3d 508 (2d Dist., 2006).
134 Id.; Leal v. Holtvogt, 702 N.E.2d 1246 (Ohio Ct. App. 1998).
135 Neal-Pettit v. Lahman, 928 N.E.2d 421 (Ohio 2010).
136 Id. at 424.
22
solely because of bodily injury.137
Noting that both parties had offered their own separate
interpretations of the language of the policy, both of which were plausible, the Court
stated that it “must resolve any uncertainty in favor of the insured.”138
Therefore, the
Court held that attorney fees are distinct from punitive damages, and public policy does
not prevent an insurance company from covering attorney fees on behalf of an insured
when they are awarded solely as a result of an award for punitive damages.139
H. Other Issues Involving Damages:
1. Settlement Involving Minors
In order for a settlement to be binding on minors, a court must first appoint a guardian ad
litem to represent the minor’s interests, unless the proposed settlement is for an amount
less than $25,000.00.140
Once a court has determined that the minor's interests have been
adequately represented, it has a duty to enforce the settlement.141
Regardless of whether
or not a guardian is appointed, all settlements involving minors must obtain probate court
approval.142
2. Taxation of Costs
OHIO CIV. R. 54(d) makes costs available to the prevailing party. These costs can only
include those necessary at trial either due to local rules or necessity. Expert witness fees,
cost of depositions not used in trial, etc. are unnecessary costs and accordingly cannot be
taxed.143
137
Id.
138 Id.
139 Id. at 425.
140 OHIO REV. CODE §2111.05.
141 In re Layshock, 2001 WL 1667872 (7th Dist.).
142 OHIO REV. CODE § 2111.18.
143 Amerifirst Savings Bank of Xenia v. Krug, 136 Ohio App. 3d 468 (2d Dist. 1999).
23
3. Unique Damages Issues
Certain losses may damage some plaintiffs and not others, or in the alternative, may
damage different plaintiffs in different amounts.144
Thus, when a claimed type of damage
is so subjective, there need be testimony specifically establishing the value of the damage
to that particular plaintiff.145
Damages will not be awarded when they are too remote or
speculative.
144
Lookabaugh v. Spears, 2008 WL 867730 (2d Dist. 2008).
145 Id.
24
ALTERNATIVE DISPUTE RESOLUTION
A. Alternative dispute resolution.
There is no statute in Ohio requiring the parties to engage in dispute resolution before
they can turn to courts. However, various sections of the Ohio Revised Code provide that
the courts of different levels may establish procedures for the resolution of disputes
between parties to any civil action or proceeding that is within the jurisdiction of the
court. In addition, the Ohio Supreme Court Rules set general guidelines for mediation
procedures to be established in the lower courts.146
1) Commission on dispute resolution and conflict management. OHIO REV. CODE
§ 179.02 established the Ohio Commission on Dispute Resolution and Conflict
Management. The Commission consisted of twelve members and its primary
purpose is to provide and fund education in the field of dispute resolution and to
assist persons and entities that are engaged in activities related to dispute
resolution.
However, this section of the Ohio Revised Code was subsequently repealed and
on January 5, 2012, the Supreme Court of Ohio created a new Dispute Resolution
Commission.147
In voting to create this new Commission, the Supreme Court assumed two
programs that were “formerly operated by the disbanded Ohio Commission on
Dispute Resolution and Conflict Management . . . [which] include managing the
former commission’s truancy mediation program and the conflict resolution
services program for government officials. Additionally, the Court has been
identified as the repository for all original paperwork and other intellectual
property of the former commission.”148
The governing provisions for the Commission can be found in Rules 16.01
through 16.14 of the Rules of Superintendence for the Courts of Ohio.149
The new
Commission will consist of twenty-one (21) members that “will be nominated by
146
Ohio Sup. Ct. R. 16 .
147 See generally the Supreme Court of Ohio, Judicial System News, available at
http://www.supremecourt.ohio.gov/PIO/news/2012/disputeResComm_010512.asp (last visited June 1, 2012).
148 Id.
149 Id. See also Rules Establishing Commission, available at
http://www.sconet.state.oh.us/Boards/disputeResolution/rule.pdf (last visited June 1, 2012).
25
various judicial, legal, and Ohio government-related associations and
organizations and appointed by the Chief Justice and Justices of the Court.”150
B. Uniform Mediation Act.
Ohio has adopted the Uniform Mediation Act that has been codified in Chapter 2710 of
the Ohio Revised Code (2008). OHIO REV. CODE § 2710.01(A) defines mediation as “any
process in which a mediator facilitates communication and negotiation between parties to
assist them in reaching a voluntary agreement regarding their dispute.” Mediation is not
allowed in cases of domestic violence or violation of a protection order.
A number of Ohio courts utilize court-appointed mediators in cases involving personal
injury. Further, a number of courts that lack mediation departments encourage private
mediation and other forms of ADR as a means to resolving a legal dispute.
This Compendium contains a brief overview of certain laws concerning various litigation and legal
topics facing retailers. The compendium provides a simple synopsis of current law and is not
intended to explore lengthy analysis of legal issues. This compendium is provided for general
information and educational purposes only. It does not solicit, establish, or continue an attorney-
client relationship with any attorney or law firm identified as an author, editor or contributor.
The contents should not be construed as legal advice or opinion. While every effort has been made
to be accurate, the contents should not be relied upon in any specific factual situation. These
materials are not intended to provide legal advice or to cover all laws or regulations that may be
applicable to a specific factual situation. If you have matters or questions to be resolved for which
legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in
the state for which you are investigating and/or seeking legal advice.
150
Id.
26
Roetzel & Andress
Roetzel represents a diverse range of retail clients including clothing retailers, drug store
retailers, regional shopping malls, international specialty retailers, and retail property managers
and developers. Our attorneys provide a broad range of transactional and litigation services to
retail industry clients to address the myriad of legal issues that affect their businesses.
Our Risk Management and Liability Defense team at Roetzel offers experienced, aggressive
counsel to defend lawsuits brought against large or small corporations and retail entities. We
recommend solutions to our clients based upon practical business sense, not just an analysis of
legal issues. Our attorneys act as advocates for our clients by helping them decide the appropriate
course, whether it includes compliance, preparation for trial or alternative dispute resolution. We
recognize that our clients require representation not only during pending litigation, but also
before legal issues and claims arise. We respond to that concern by proactively developing and
implementing immediate response protocols for our clients nationwide.
Our group of trial attorneys offers extensive knowledge in each of the disciplines that make up
an effective risk management team. When appropriate, we call upon the resources and integrated
capabilities of our attorneys from other practice areas within the firm to provide a comprehensive
approach to a case or legal issue. Our attorneys act as supervising counsel on a local, regional
and national basis, coordinating all types of litigation. Roetzel is a member of USLAW Network,
a legal network with more than 6,000 attorneys from 110 defense-based law firms, spanning the
United States, Canada, Latin America, Europe, Asia, and Africa. Affiliation with USLAW
promotes sharing of information between member firms in order to enhance the speed, breadth
and geographic reach of legal services provided to each member's clients.
Additionally, Roetzel attorneys have experience in handling legal matters with the affecting
corporate and retail clients, including, but not limited to, defense of liability; employment claims;
worker’s compensation, product liability; commercial leasing; bankruptcy; environmental law;
contract disputes; insurance coverage; and transportation. We partner with our clients to identify
the most critical issues that face their businesses and provide pragmatic legal counsel to address
those issues.