The Legal Calculus Blog by Tom Gelwicks

Empowering lawyers and clients - Techniques and strategies for winning results

Evidence Presentation and Lawyer Credibility

A common failure of inexperienced Cincinnati car accident lawyers is exaggerating the evidence. It is generally true that “facts can’t speak for themselves.”  At the same time, they don’t stretch – facts lack elasticity. However, in the pressure of litigation combat, many lawyers oversell what the facts truly represent, irrespective of who is hearing the case in the Cincinnati courtroom. What feels right at the time, in an adrenalin rush, can inflict wholesale damage on the plaintiff’s otherwise solid car accident case. The trier of fact – arbitration, mediation, judge or jury – can be relied upon to receive the facts for what they are.

Once the exaggeration line has been crossed, credibility is gone. And if opposing counsel is sharp, they will use it against you as they would a stiletto blade. What is true for spouses is equally true with attorneys. Once credibility is impaired, regaining it is difficult if possible.

Service Issues – Filing Suit in Light of the Requirement for “Perfection”

The Ohio Supreme Court decision of Gliozzo v. University Urologists of Cleveland (2007), 114 Ohio St. 3d 141 has put a treacherous spin on the always-tricky matter of perfecting service. Astute lawyers always approach service of process with contemplation of the details that can cause an action to fail before it starts. The Gliozzo decision has just made causes of action anything but routine.

The Ohio Court dismissed a medical malpractice suit, stating that the service was never perfected on the defendant hospital. The plaintiff filed suit in a way that seems beyond dispute. However the defendant attacked on grounds of sufficiency of process. The case was conducted with the usual discovery in excess of one year. The case even advanced through many depositions, reports and pretrial practice. Yet 17 months subsequent to the answer being filed, the defendant then moved to dismiss on the basis of process insufficiency. Justice Lanzinger wrote the majority opinion, upholding the trial court’s granting of the motion. This hyper-technical finding is adverse to a reasonable administration of justice. But that’s the law we are obliged to follow, or risk termination of all claims even long after the defendant insurance company has been aware of all allegations.

It would be wise to diary to re-check after the answer is filed, as to whether there has been proper Ohio service of process, irrespective of what the defendant is claiming at that time. If there is any question about this, make a personal appeal as to what the Cincinnati-based defense counsel is stating, depending upon your relationship with them in the Cincinnati bar. Otherwise, consider clearing this up through admissions or even stipulations.

Jurisdiction and Venue – Divining the Proper Attack

Whether consideration of the proper jurisdiction or venue is complex or not depends on the circumstances of the claim. These matters can be transparently obvious or can be maddeningly difficult. Forum selection, which is inadequately thought out, can lead to a great deal of unnecessary challenges – particularly in the Cincinnati-based federal court. This can delay the processing of the action, which for the auto accident plaintiff and their family is always exquisitely frustrating.

Ohio civil practice compels legal counsel to entertain all subject matter jurisdictional issues. The limits for monetary damages and territorial scope are key. Whether the defendant in the Cincinnati court system is amenable to suit in Ohio is a consideration for the court as well.

If there is a possibility that the defendant might seek removal to federal court from the Ohio state court – based on diversity – this is important. Often an attorney in southwestern Ohio develops a reputation for how aggressive or frequently they will challenge on this basis.

Ohio Civil Rule 3(B) guides lawyers in southwestern Ohio to not overlook the county of proper venue. If there is more than one proper forum available, then the Cincinnati-area court has almost complete discretion as to the disposition of the matter. The court will look to practical considerations such as relative convenience, docket traffic, and the local practices within our southwestern Ohio legal community.

Estoppel and Waiver Applied to Insurance Policy Coverage

When practicing in the courts of southwestern Ohio, it is important to remember that the doctrines of waiver and estoppel will usually not be applied to expand an auto or malpractice policy’s coverage. Most courts will hold that an insurer will not be able to avoid liability under circumstances in which it voluntarily relinquishes a known right. This applies equally if there has been inducement of another into changing a party’s position. Determine if there has been reliance on the insurer’s conduct, when the insured has been prejudiced by that very reliance.

If an insurer is defending its insured, without reserving its rights until shortly before trial, the court may find that the insurer waived their reservation of rights. Often what will follow is a court declaration that they should be estopped from denying coverage. In depositions, diligently clarify the time line – and codify it in an attractive manner before approaching any judge from Cincinnati or the surrounding counties.

Discovery in southwestern Ohio can lead you to the information that the insured made false statements in the insurance application. This most often is true as to the past claims that have been filed against them, especially in professional malpractice claims. A “breached warranty” will almost certainly result in you have a defendant who must be sued directly, and without benefit of coverage. The courts in Hamilton County are not reluctant to find policies void ab initio. This truth can be underscored if the misrepresentation was material, leaving the policy null and without effect. Then it’s time to make a hard decision as to whether your action should proceed, after completion of a sophisticated asset check.

Res Ipsa Loquitur

As an evidentiary rule, res ipsa loquitur permits – but does not actually require – an inference of negligence. As a matter of law and of practicality, the doctrine of res ipsa loquitur is determined on a case-by-case basis.

To warrant the application of the res ipsa loquitur rule, the plaintiff must provide evidence in support of two conclusions. The first is that the instrumentality which caused the harm, at the time of the injury (or the creation of the condition) was under the exclusive management and control of the defendant. Secondly, it must be shown that the injury occurred under circumstances that “in the ordinary course of events” would not have have taken place if ordinary care had been observed.

No Ohio court is going to allow application of res ipsa loquitur if the facts are such that an inference can be drawn that the accident was due to a cause other than the defendant’s negligence.

Premises Liability

Ohio law still requires plaintiff’s counsel to establish the applicable duty. This is achieved by you showing the relationship between the landowner and the plaintiff when the alleged negligence took place. Within the premises-liability context, the usual requirements must be evident – the duty of care owed to the plaintiff, the defendant’s breach of that duty, and the proximate cause of the breach which lead to the injury. A failure on any single element will result in a defeated claim. Shopkeepers, with few exceptions, owe their business invitees a duty of ordinary care in maintaining the premises in a reasonably safe condition. There is the bedrock requirement, as has been true for decades, the duty to warn invitees of latent or hidden dangers.

A through investigation from the start will help you discern if the employees of the defendant were responsible for the hazard which caused the injury. At least one person must have had actual knowledge of the hazard. And there must have been negligence as to whether adequate notice was provided of the hazard’s presence. This invariably gets into difficult time line factors. Did the danger exist for a sufficient length of time to justify the inference that the failure to warn amounted to a failure of ordinary care? Invitees may not reasonably be expected to protect themselves from a risk they could not fully appreciate.

Statutory Construction

Meaning by Nuance

When a court is interpreting a statute, the question is not what did the General Assembly intend to enact – but what is the meaning of that which it did enact.

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Vehicles – Foreseeability and Risk Acceptance

Foreseeability and Risk Acceptance

The risk of crashing into a bicycle on a trail is generally regarded as a foreseeable and customary risk. It is part of the package of risks inherent in the recreational activity of bicycling.

The limitation of liability for negligence during recreational activities is based on the notion that some risks are so much a part of an activity that the risks cannot be eliminated. By choosing to participate in such an activity, the participant implicitly accepts these risks. For a fuller treatment, see Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St. 3d 427, 431, 659 N.E. 2d 1232.

The exception is if the plaintiff can show that the other participant’s actions were either reckless or intentional.

The definition usually accepted by the Ohio courts can be found most authoritatively in Sections 500 and 8A of the Restatements of Torts 2d. This rule has its genesis in the doctrine of primary assumption of risk. It’s based on the rationale that a participant to a sporting event or recreational activity accepts the risks associated with the activity.

Understanding the Dynamics of Motorcycles For a Stronger Case

Studies underscore that the number of motorcyclists in the US has grown over the past 5 years. It is also worth noting that the average age of motorcyclists (do not call them “bikers”) has risen. Now nearly 100,000 motorcycle riders are seriously injured each year. That this number is increasing is not surprising.

When representing motorcyclists, it is wise to learn the fundamentals of motorcycle function. If proceeding to trial then it will likely be necessary to retain a motorcycle expert. The trier of the fact must become basically knowledgeable with motorcycle handling. First and foremost, they are not small cars and do not operate like them.

Sovereign Immunity

Exceptions to Sweeping Sovereign Immunity Barriers

The general rule is that a political subdivision is immune from liability incurred in performing either a governmental function or a proprietary function. A careful review of RC 2744.02 (A) (1), (B), 2744.03 is necessary.
The immunity is not absolute. It is subject to statutory exceptions and defenses.

Defense counsel can be expected to argue that the political subdivision legitimately exercised its judgment discretion in how to use its resources.

Through investigative work you can often uncover evidence that the subdivision, in fact, used its discretion in a wanton or reckless manner. For example, in a negligent foliage claim involving leaves obstructing a STOP sign, did the defendant municipality have a formalized vegetative maintenance program? Was there reasonable compliance with the implementation of their own protocol?

Recreational Torts

Premises Owners and the Recreational Users Statute

Within the meaning of the recreational use immunity statute, premises owners do not owe absolute duties to recreational users to keep the area fully safe for public use. As to motor vehicles not enjoying an exemption, see RC 1533.181.

Ball Players, Beware

The Ohio Courts will usually find a way to determine that recreational injuries are non-compensable. This is true even if there is a clear violation of ordinance.

Many adult recreational softball leagues, for example have no-collision rules. However, aggressive base runners will sometimes plow into defensive base players, especially catchers.

The bias is against finding any reckless behavior if, say, a base runner collides and causes injuries. The courts generally claim that athletic contests carry with them foreseeable hazards.

The fundamental rule is that there is a separation between sporting events and tort actions. What constitutes an unreasonable risk, and thus recklessness, must be evaluated on the particular circumstances of the sporting event. The rules and customs that shape the participants’ ideas of foreseeable conduct will be looked to by the courts.

The Marchetti v Kalish pronouncement from the Supreme Court, in 1990, is not likely to be eroded in the near future. Individuals who engage in sports or recreational activities assume “the ordinary risks of the activity and cannot recover for any injuries unless there is a showing that the other participant’s actions were intentional or reckless.” This thinking squares with the definitions of Sections 500 and 8A of the Restatement of Torts 2d.