Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

Understanding Your Rights


Posts tagged Liability
Crossing Outside the Crosswalk: Am I Barred from Recovering?

We’ve all done it before – especially anyone who frequents the Justice Center – crossing the street outside the crosswalk or in the crosswalk but when there is the “do not walk” signal.   Through my unofficial and unverified observations, 99% of the time it is done without incident.  However, what happens during the other 1% of the time?   Can the individual who was struck and injured recover for their loss?    My answer: it depends.

In most cases, your personal injury claim will be based upon a theory of negligence.  In order to establish a claim of negligence, you must show

  1. the existence of a duty;
  2. a breach of a duty;
  3. an injury; and
  4. that your injury was caused by the breach of duty.

In my pedestrian crossing outside the crosswalk scenario, the law requires the pedestrian to yield the right-of-way to all vehicles in the roadway.  It logically follows that the law recognizes that a motor vehicle has the right to proceed uninterruptedly in a lawful manner in the direction in which it is traveling in preference to any vehicle or pedestrian approaching from a different direction crossing its path; in other words, the motor vehicle has the right-of-way. 

With this in mind, the law does not require drivers to look for pedestrians or other vehicles violating their right-of-way (i.e. no duty).  This, however, is not absolute.  If the driver has reason to suspect a pedestrian would violate the right-of-way – i.e. driving around the Justice Center or through any college campus – there is a duty to look out.   Moreover, if the driver actually observes someone violating their right-of-way or otherwise discovers a dangerous situation, they must exercise due care to avoid colliding with a pedestrian or vehicle. 

As you can imagine, whether or not the operator of a motor vehicle owed a duty in the first place and, if so, breached it, is fact-specific and unique to each case.  

Moreover, this analysis in not limited to just pedestrians crossing outside the crosswalk.   It would equally apply to any cyclist using “stop as yield” or “red as a stop;” a runner going against the flow of traffic; another driver running a red light at an intersection; or an accident where someone was pulling out of their driveway.

If you have been injured in a similar situation, don’t let the insurance companies tell you can’t recover because it was your fault.  Instead, contact Scott for a no cost, no obligation consultation and case evaluation. 

Suing the State: Political Subdivision Tort Liability

If you were injured by the conduct of an employee or agent of a city, county, or other government entity, bringing a suit for damages can be difficult.   Historically, individuals could not sue the government in tort as it was immune from liability.   In 1985, however, the Ohio General Assembly enacted R.C. § 2744, the Political Subdivision Tort Liability Act, paving the way for political subdivisions of the State of Ohio to be sued in limited circumstances.      

A political subdivision has been defined as “a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state.”

To determine whether or not a political subdivision is liable in tort requires a three-step analysis.  The first step provides a general grant of immunity, stating that “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.”    Governmental functions typically involve functions like police, fire, public education, and maintenance of roads.   Proprietary functions typically involve functions like operating a zoo, public stadium, or utility system.   Once you determine what type of function the political subdivision was engaged, you move on to step two.

The second step of the immunity analysis focuses on the exceptions to immunity located in R.C. 2744.02(B) which are:

1.       Negligent operation of a motor vehicle, unless the police officer, firefighter, or ambulance personnel operating the vehicle was responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct;

2.       Negligent conduct of employees while carrying out a proprietary function;

3.       A municipality’s failure to keep roads and sidewalks free from nuisance;

4.       Injury or loss that occurs on or within buildings used for governmental functions and is caused by the negligence of the municipality’s employees; and

5.       Any other situation in which liability is expressly imposed by the Revised Code.

In order to establish liability, a plaintiff must establish one of the five exceptions exist, otherwise the political subdivision will be immune.   However, even if a plaintiff establishes one of the five exceptions exist, it does not mean that the political subdivision will be liable.  

The third and final step of the immunity analysis provides that immunity may be reinstated if a political subdivision can successfully assert one of the defenses to liability listed in R.C. 2744.03 which are summarized as:

1.       Immune if the employee involved was engaged in judicial, quasi-judicial, prosecutorial, legislative, or quasi-legislative function;

2.       Immune if the employee conduct was required or authorized by law or was necessary or essential to the exercise of powers of the political subdivision or employee;

3.       Immune if the employee conduct was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee;

4.       Immune from liability if the injury was to a person who was convicted of a criminal offense and, at the time of injury, was performing community work service;

5.       Immune from liability if the injury resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.

In addition to the defenses listed in R.C. 2744.03, an employee of a political subdivision is also immune, personally, unless it can be shown that the employee's acts or omissions were:

1.       Manifestly outside the scope of the employee's employment or official responsibilities; or

2.       With malicious purpose, in bad faith, or in a wanton or reckless manner.

If you were injured by the conduct of an employee or agent of a city, county, or other government entity, please contact Scott for a no cost, no obligation consultation and case evaluation.