Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

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Posts tagged tort
“Profit Over People” Prevails Again

             Unfortunately, in Simpkins v. Grace Brethren Church of Delaware, 2016-Ohio-8118 the principle of “profit over people” prevailed yet again.   If there was ever a set of facts to declare as unconstitutional the non-economic damages caps of R.C. 2315.18, this was the case. 

              In Simpkins, the plaintiff brought a lawsuit against a church for its pastor’s actions in forcing oral and vaginal intercourse with her who, at the time of being raped, was 15 years old.   The jury found that the plaintiff was entitled to $3,651,378.85 in compensatory damages, which included the following: $1,378.85 for past economic damages, $150,000 for future economic damages, $1,500,000 for past non-economic damages, and $2,000,000 for future non-economic damages.   

              The trial court, in applying R.C. 2315.18(B)(2), reduced the plaintiff’s non-economic damages from $3.5 million to $350,000 and, accordingly, entered a judgment in plaintiff’s favor for $500,000; which is $3.1 million dollars less than a jury of her peers awarded her.  So why did the court do that?

              As Ohio Supreme Court noted in it’s decision in Simpkins, “[t]he General Assembly enacted R.C. 2315.18 as part of a broader tort-reform bill . . . effective April 7, 2005.  In support of those reforms, the General Assembly recognized the state’s interest in ‘a fair, predictable system of civil justice’ that preserves the rights of injured parties while curbing frivolous lawsuits, which increase the costs of doing business, threaten Ohio jobs, drive up consumer costs, and may hinder innovation.”   In other words, the General Assembly was more interested in protecting corporate interests than those harmed by them; which in Simpkins, means a child rape victim is just too much of a drain on the economy to merit a full-value award as decided by a jury of her peers. 

              Revised Code 2315.18(B)(1) does not place a cap on economic damages; meaning out-of-pocket expenses such as medical bills, loss of wages, or other expenses incurred as a result of the injury.   In Simpkins, the plaintiff’s economic damages were $1,378.85 (the jury also awarded $150,000 for future economic damages).   This is not necessarily unexpected as a rape victim’s economic injuries pale in comparison to the non-economic harm.    Revised Code 2315.18(A)(4) states non-economic harm includes “pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.”

              Unfortunately for the plaintiff in Simpkins, R.C. 2315.18(B)(2) caps non-economic damages that can be recovered at the greater of $250,000 or an amount that is three times the economic loss to a maximum of $350,000.   Sounds confusing, right?   If the jury only found $1,378.85 in economic loss, the plaintiff’s recovery would only be $251,378.85.   This is because 3x the economic loss = $4,136.55; so the $250,000 dollar cap would apply.  However, the jury also found $150,000 in future economic damages.  With this in mind, 3x economic damages = $454,136.55.   As that amount exceeds the $350,000 maximum, the trial court reduced the non-economic damages accordingly. 

              As you can imagine, the plaintiff in Simpkins appealed the substantial reduction of her award claiming the damage caps, as applied to her, were unconstitutional.   Quite literally, the Court found “[w]e do not consider here whether there may exist any set of facts under which application of the statutory damage caps would prove unconstitutional. We conclude only that R.C. 2315.18(B) is constitutional as applied to the facts before us . . . .”  In doing so, the Ohio Supreme Court upheld this outrageous outcome. 

              Think about this for a second: in Ohio, we empower jurors to determine whether or not an individual’s life is worth condemning for their crimes yet we do not trust them to determine the full-value of a person’s injuries.   Of course, this is because the General Assembly was more concerned about the costs of doing business, jobs, consumer costs, and innovations; and not protecting people who are harmed by wrongful and negligent conduct.

              This was not lost on Justice O’Neill, as he stated in his dissent: “[t]his child was raped in a church office by a minister, and a duly empaneled jury established an appropriate level of compensation for the loss of her childhood innocence. We have no right to interfere with that process. Shame on the General Assembly. The children are watching. And I for one do not like what they are seeing.”  

              Nor was it lost on Justice Pfeifer: “’[t]ort reform,’ however misguided and unconstitutional, was designed to protect doctors and corporate interests. . . . Today, we learn that ‘tort reform,’ not surprisingly, had unintended consequences. It turns out that ‘tort reform’ (and the justices who sanctioned it) also ensured that rapists and those who enable them will not have to pay the full measure of the damages they cause—even if they rape a child. It is past time for the General Assembly (and this court) to reconsider ‘tort reform’ and return the authority to determine damages to juries, where it rightfully and constitutionally belongs.”

            If you think this is an unjust result, contact your senator and representative and demand change.

            If you have been injured by the wrongful acts or negligence of another, contact me for a no cost, no obligation consultation and case evaluation; I will fight for you. 

Overcoming Ohio's "No Duty" Winter Rule

If you didn’t notice the parking lot on I-271 or I-480 this morning, winter is here.   As the conditions become slick due to the snow, ice, and slush, it is not uncommon that individuals to sustain significant injuries in slip and falls.  

In Ohio, there is a “no duty” winter rule which comes into play in – you guessed it – winter; and ill typically apply in falls in parking lots, entryways, and sidewalks, to name a few.   However, this “no duty” winter rule does not foreclose an injured individuals ability to recover.   

Before I discuss the winter rule, remember that when the alleged negligence occurs in the premises-liability context, the applicable duty is determined by the relationship between the landowner and the injured party.  Ohio adheres to the common law classifications of invitee, licensee, and trespasser.  An “invitee” is one who enters the premises of another by invitation for some purpose that is beneficial to the owner or occupier.  A “licensee” person who enters an owner’s premises, with permission or acquiescence, for personal benefit.  A “trespasser” is one who enters property without invitation or permission, purely for his or her own purposes or convenience.  

Usually, the injured party is an “invitee” as he or she was injured in a store parking lot or entryway.   In such cases, the owner owes the injured party a duty of ordinary care to maintain the premises in a reasonably safe condition and to warn them of hidden dangers. Additionally, the owner must also inspect the premises to discover possible dangerous conditions of which he or she does not know, and take reasonable precaution to protect the invitee from dangers which are foreseeable from the arrangement or use.

However, in ice and snow cases, the winter rule says “no liability will attach to the occupier of premises for a slip and fall occurring due to natural accumulations of ice or snow, these being deemed open and obvious hazards in Ohio's climate, from which persons entering the premises must protect themselves.”   Thus, in Ohio, a property owner has no duty to remove natural accumulations of ice and snow from private driveways, walks, and steps on the premises. “Natural” accumulation is created by meteorological forces of nature including low temperatures, strong winds and drifting snow.   Conversely, “unnatural” accumulation is caused by the intervention of human action doing something that would cause ice and snow to accumulate in unexpected places and ways or, in other words, man-made conditions.

There are, however, common-law exceptions to the winter rule.   The first exception to the winter rule is where a property owner is actively negligent in creating or permitting an unnatural accumulation of ice and snow.  The second exception to the winter rule is where the property owner has been shown to have had notice, actual or implied, that a natural accumulation of snow and ice on his premises has created a condition substantially more dangerous than what the business invitee should have expected in light of generally prevailing conditions, negligence may be proven.   If an injured party can show either exception applies, he or she can prevail and recovery for their injuries.    As such, it is advisable to speak to an attorney immediately following any unfortunate fall.

In addition to the above exceptions, an injured party may also be able to recovery under a theory of negligence per se if there was a statute or ordinance which requires the removal of snow and ice.  Generally speaking, if a statute or ordinance imposes a specific duty on the property owner to keep the their property in good repair, his or her failure to do so may be actionable.   Here is an example of a local ordinance which could provide an avenue to recover for your injuries: 

No owner or occupant of lots or lands abutting any sidewalk, curb or gutter shall fail to keep the sidewalks, curbs and gutters free from snow, ice or any nuisance, and to remove from such sidewalks, curbs or gutters all snow and ice accumulated thereon within a reasonable time, which will ordinarily not exceed 12 hours after any storm during which the snow and ice has accumulated.  

Some municipalities have similar ordinances, others do not.   As such, if you have been injured as a result of a slip and fall, please contact Scott for a no cost, no obligation consultation and case evaluation.

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.