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Cutting-Edge Strategies for Hard Times Day 1: The New Menace
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Cutting-Edge Strategies for Hard Times Day 2 – New Auto-Win Opening
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Cutting-Edge Strategies for Hard Times Day 3 – Laws Revisited that You Need
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Advocates Circle Firms

Arthur Law Firm Co., LPA.

 

Barkan Meizlish
Handelman Goodin DeRose
Wentz, LLP

 

Bordas & Bordas, PLLC

 

Brian, Zwick, Marchisio & Associates

 

Elk & Elk

 

Geiser, Bowman & McLafferty, LLC

 

The Gervelis Law Firm

 

Kisling Nestico & Redick

 

Kitrick, Lewis & Harris Co.,. LPA

 

Leizerman & Associates, LLC

 

Lamkin, Van Eman, Trimble & Dougherty, LLC

 

Meyer Wilson Co., LPA

 

Murray & Murray Co., LPA

 

Nurenberg, Paris, Heller & McCarthy Co., LPA

 

O'Connor Acciani & Levy, LPA

 

Petersen & Petersen

 

Rittgers & Rittgers

 

Plevin & Gallucci Co., LPA

 

Rourke & Blumenthal

 

Slater & Zurz, LLP

 

Robert J. Wagoner, Co., LLC

 

Tzangas Plakas Mannos Ltd.

 

Young and McCarthy LLP

 


 

                       

 

OAJ BLOG CENTRAL

Fore! Ouch! Golf Course Liability 

Shared by John Sauter, Esq.

https://johnsauter.atavist.com/fore


According to Golf Digest, nearly 40,000 people are treated at emergency rooms across the United States for golf-related injuries each year, with most of the injuries the result of being struck by an errant golf ball or club head. 

Indeed, hitting a golf ball at a high rate of speed involves the very real possibility that the ball will take flight in an unintended direction, causing serious injury. 

But if you are struck by a golf ball while on a golf course, it may be difficult to win a lawsuit if you are struck by an errant shot.  This is because of the well-recognized assumption of the risk doctrine, which can serve as a complete bar injury claims. 

The Ohio Supreme Court, in the case of Marchetti v. Kalish, defined the assumption of the risk doctrine in the context of sporting events when it stated “where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional.’” 

In order for the assumption of the risk doctrine to apply, a court must find that (1) the danger is ordinary to the activity, (2) it is common knowledge that the danger exists, and (3) the injury occurs as a result of the danger during the course of the activity.

As a result, the doctrine of assumption of the risk serves to sever any duty that a fellow participant or owner of a stadium, arena, ball field or practice facility might owe to a participant engaged in a recreational or sporting activity. In accordance with Marchetti, a plaintiff will only be successful when the injury-causing participant or recreational provider engages in conduct that is either reckless or intentionally harmful. In other words, unless the injury-causing participant’s conduct is reckless or intentionally harmful (or outside the scope of anticipated injuries), the person that is injured has assumed the risk of injury through their participation in the athletic contest.

An example of intentionally harmful conduct would be a person deliberately striking a golf ball in the direction of another golfer with the intent to cause a harmful contact.

Reckless conduct, on the other hand, was defined by the Marchetti court as conduct where one “does or fails to do an act” knowing that “an unreasonable risk of harm to another” golfer is likely to occur.

An example of reckless behavior on the golf course can be found in Maxwell v. Rowe, 1998 WL 663228, in which the court stated that if a golfer did not look to the direction in which he or she were to hit the ball.  Similarly, if a golfer looked and saw a person or persons within his or her range and still proceeded with the shot, that golfer would also engage in reckless behavior.

A number of Ohio court decisions interpreting assumption of the risk in athletic activities have denied recovery to an injured golfer or spectator:

  • Alexander v. Tullis, 2006 WL 763088, stated that a poor golf shot that ended up striking a fellow golfer in the head did not rise to the level of recklessness and therefore recovery was denied. 
  • Barnhill v. Tipple stated that a golfer does not owe a duty to yell “Fore!” when the golfer did not know of someone in the ball’s path. 
  • Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513 (1950) held that a participant assumes the ordinary risks of injury when participating in athletic contests. 
  • Gauvrea v. Brentwood Golf Course, 1980 Ohio App. LEXIS 11510, held that a golfer has no duty to yell “Fore!” when an individual was not in the intended path of the ball. 
  • Biggin v. Stark, 1994 Ohio App. LEXIS 3747 denied recovery to a golfer struck in the mouth with a clubhead, holding that the fellow golfer’s act of striking the ball did not rise to reckless behavior. 
  • Bundshur v. Naffah, 147 Ohio App.3d 105 denied recovery to a driving range patron who was struck in the mouth with a ball that ricocheted off a steel fence support, finding that such an injury was within the scope of the risk a driving range patron assumes.
  • Armstrong v. Lakes Golf & Country Club, Inc., 2018-Ohio-1018 held that a country club member who fell into an irrigation box could not prevail in his claim for injuries because the open box adjoining a flower bed was an open and obvious hazard that the club member had an obligation to avoid.

However, golfers who have been struck by golf carts have been successful in court.

In the case of Coblentz v. Peters, 2005 Ohio App. LEXIS 1073, the court held that a golfer who was run over by a golf cart was able to recover for his injuries because being struck by a golf cart is not a foreseeable and customary part or risk of golfing. The Court stated that being hit by a ball or club head was within the ordinary risks of the game, but being struck by a golf cart was not.  The plaintiff was therefore able to receive monetary compensation for his injuries. Most recently, in Forman v. Kreps, 2016-Ohio-1604, another golfer run over by a golf cart was able to prevail when the court stated that being run over by a golf cart is not a foreseeable risk of golfing, because while a participant may have reason to believe that he or she may be struck by a golf ball while golfing, the participant does not have reason to believe that he or she will be struck by a golf cart.


How to Handle Disability Discrimination in the Workplace

Shared by The Friedmann Firm

www.thefriedmannfirm.com/blog


Employers that discriminate against people with physical or mental disabilities break the law. Holding them accountable yields benefits for the individuals subjected to unfair and harmful treatment.

Unfortunately, identifying and stopping disability discrimination in the workplace can be difficult. Anyone in Ohio who experiences or witnesses discriminatory behavior based on physical or mental capabilities should seek advice from an Ohio disability discrimination lawyer. Failing to follow the proper procedures for documenting, reporting, and seeking remedies for discrimination can result in no corrective action being taken, and potential loss of legal claims.

Know the Law on Disability Discrimination

The Americans with Disabilities Act (ADA) requires employers, supervisors, managers, and co-workers to treat all employees and job applicants who have disabilities fairly and respectfully. The law covers many aspects of seeking and holding a job. The Ohio-based disability discrimination attorneys with The Friedmann Firm have posted this list of frequently asked questions regarding the ADA. Topics addressed include:

  • Protections offered by the ADA, especially regarding reasonable accommodations;
  • Knowing whether you are protected by the ADA as a “qualified individual”;
  • The definition of disability discrimination;
  • The definition of disability under the ADA;
  • The definition of and examples of reasonable accommodations;
  • Whether an employer can require medical exams for job seekers and employees; and
  • Whether managers and supervisors can ask questions about a suspected disability or known disability. 

 

Recognizing Discriminatory Behavior

The Equal Employment Opportunity Commission (EEOC) enforces the ADA. On its website, the commission makes it clear that the law prohibits unfair or unequal treatment when it comes to “hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.” The ADA also makes it illegal for any person in a workplace to harass someone who is disabled, if the harassment is based on the individual’s disability.

Perhaps the most-important employment protection the ADA provides is the one that requires employers to make reasonable accommodations for workers’ disabilities. When an accommodation is refused for a discriminatory reason and the employer cannot show that granting the accommodation would cause an “undue burden,” the employer may be violating the law.

How To Request A Reasonable Accommodation

An employee is typically responsible for asking for a reasonable accommodation for a disability.  Because of this, speaking with a compassionate disability discrimination lawyer can be a valuable first step. A knowledgeable attorney will be able to offer an opinion on what steps to take.

Generally, the process of requesting a reasonable accommodation for a disability is as follows:  

 

  1. Speak with your manager or supervisor about the need for a reasonable accommodation.   Ask he or she what you need to provide to request a reasonable accommodation.  If this conversation is in-person, ALWAYS follow it with an email and keep a copy of that email. 
  2. If you don’t receive an adequate response, contact Human Resources.  Alternatively, you can go to Human Resources as your first step. 
  3. After you have a conversation about what you need to provide to request a reasonable accommodation, be sure to provide medical documentation from your doctor to prove that you actually need a reasonable accommodation.  If possible, have your doctor review your job description and explain why you need a reasonable accommodation. 
  4. A conversation between you and the employer will likely take place, in which you will be told whether or not your reasonable accommodation can be provided.  If the employer says it cannot provide it, it must prove that doing so would be an “undue burden.”  This typically means too expensive, time consuming, or a waste of resources. 
  5. Lastly, consulting with an Ohio disability attorney throughout this process is vital to ensuring you ask for a reasonable accommodation in the right way.   We can also provide advice as to whether a reasonable accommodation is truly an “undue burden” on an employer. 

Newest Bike Laws Protecting Ohio Cyclists

Shared by Knabe Law Firm Co., LPA

www.klfohio.com/blog


Progress is being made regarding laws that protect us as cyclists.

3 FOOT PASSING LAW:  Ohio’s three-foot minimum safe distance passing requirement, ORC §   4511.27  http://codes.ohio.gov/orc/4511.27 (A) (1) became effective March 21, 2017.

DEAD RED EXCEPTION: The “dead red” exception permits a cyclist to stop, then safely enter an intersection on “dead red” - occurring when a red light malfunctions or fails to trip to green because of failing to detect a bicycle’s presence, ORC §4511.132 (A) (1) (2) (3) became effective March 21, 2017. http://codes.ohio.gov/orc/4511.132


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Ohio Liability Law: Who is Liable for Dangerous Products?

Shared by Lowe Eklund Wakefield Co., LPA.

blog.lewlaw.com/blog


Liability law in Ohio allows people injured by a dangerous product to pursue legal action for their injuries.  But determining who may be held liable for dangerous products and the damages they cause is not always simple.

Vehicles, appliances, tools, and other consumer products may cause injuries for a variety of reasons. Pursuing legal action against the correct parties ensures that your case proceeds as expeditiously as possible, while also protecting your rights and your claims.  Holding all parties responsible also increases the likelihood that you will be able to collect the full and fair value of your claim. 

Below are explanations of the most common defendants in claims involving dangerous products.

Liability Law: Manufacturers

When a manufacturer creates a product that is defective, either in design or in manufacture, then the manufacturer will typically be held liable for damages their product cau0sed.  Product liability cases most often involve lawsuits against manufacturers.  Because greedy businesses continue to release unsafe and defective products, product liability lawsuits are the injured consumer’s primary avenue for justice.

Liability Law: Suppliers

In certain circumstances, a supplier of the product may be held liable in the Ohio courts, either in lieu of or alongside of the manufacturer.  The Ohio Revised Code sets forth the many particular instances when a supplier may be subject to a product liability lawsuit.  Some examples include when a manufacturer has become insolvent, when the supplier created or furnished the product design, and many other instances. 

Knowing when to pursue a supplier in a product liability claim requires legal knowledge and analysis.  That is why retaining an experienced product liability lawyer is recommended for all product related injuries.

Negligence Law: Third Party Maintenance and Assembly

In many cases of product injuries, the product in question was not defective but rather dangerous as the result of third party errors.  Retailers and wholesalers frequently offer assembly and installation services. If these services are rendered negligently, the subject product may become unsafe.

Similarly, when third parties perform maintenance, such as on a motor vehicle or an appliance, failure to take reasonable care may actually make an otherwise safe product unsafe.  When third parties negligently perform these duties for consumers, they may be held liable.

What to Do After a Product Related Injury

Because it can be difficult to know who is responsible when a dangerous product causes injuries, contact an attorney as soon as possible.  In product related claims, preserving evidence, retaining experts, investigating the incident, and pursuing action against all responsible parties may be the only way for you to receive justice.


Construction Season Safety

Shared by Nager, Romaine and Schneiberg 

www.nrsinjurylaw.com/blog


Ohio is said to have three seasons; Winter, Fall and Construction. All joking aside, the warmer temperatures mean construction is in full swing. From road construction to building construction and everything in between, construction safety should be of highest priority.

Roadside Construction Safety

It is imperative that drivers adhere to posted construction speed limits and watch for construction workers and orange barrels. Every year, preventable tragedies occur due to driver distraction or negligence. Not only can a careless mistake cost the life (or quality of life) of a roadside construction worker, but it will forever change the course of life of the negligent driver.

Take extra caution on the roads and give yourself plenty of time to account for construction delays. Do your part to drive aware, and ALWAYS follow construction traffic patterns and safe speed limits.

Building Construction and Fall Safety

Every year the leading cause of construction fatalities is fall deaths. Falls account for more than 38% of the annual commercial and residential construction deaths. Fall fatalities have doubled in residential construction since 2011. The CDC reports that small businesses with 10 or fewer employees account for 61% of the residential fall deaths.

It is critical that construction job site safety practices are in place and followed to the letter. Fall arrest systems and proper training can save at least 300 lives each year. If you see something dangerous in your work environment alert a superior immediately and be the voice needed to prevent the next tragedy.

Trench and Underground Collapse Prevention

Tragically, local headlines last season highlight the very importance of this matter. From the heartbreaking Mentor trench collapse that took the life of a 28 year old, to a laundry list of near close calls – Proper collapse prevention is a corner that simply cannot be cut. Time and again OSHA fines and warnings just are not enough.

Every single trade worker has the right to be safe on his or her job site; this includes proper training and safety equipment. Taking the extra time to secure a trench or underground work space is paramount. 


Ohio's Laws Should Protect the Victims of Sexual Assault and Abuse, Not the Sexual Predators!

Shared by Rourke & Blumenthal

www.randbllp.com/blog


It may come as a shock that Ohio law protects companies and other organizations that negligently hire and retain perpetrators of sexual violence over the rights or their victims. Passed under the guise of so called “tort reform”, Ohio Revised Code § 2315.18(B) limits the amount of damages for pain and suffering, emotional distress, fear, and mental anguish that can be recovered by victims of sexual violence to the greater of $250,000 or three times the injured party’s economic damages (medical expenses and lost wages). This means that organizations and individuals responsible for sexual violence are able to utilize RC § 2315.18(B) to reduce the amount of damages awarded to their victims by the careful decisions of impartial Ohio jurors.

To see the unfairness and inadequacy of RC § 2315.18(B), one need only look to the facts of the 2016 Ohio Supreme Court case upholding the constitutionality of the statute as applied to a teenage rape survivor. Jessica Simpkins, a fifteen-year-old girl, was raped by a youth pastor with a history of sexual misconduct known to his employer. In spite of his history, the rapist’s employer put him in a position of power over adolescent boys and girls. After hearing the case and coming to understand the impact of the rape on Ms. Simpkins’ life and future, an Ohio jury found her to be entitled to $3,651,378.85 in damages. However, the organization that negligently retained the rapist was able to use RC § 2315.18(B) to reduce her damages to a fractional $350,000 in addition to her medical expenses.

Of the many galling aspects of this unfair law is that the most vulnerable and weakest of the victims receive the least amount of compensation. A small child or an elderly nursing home resident typically has no wage loss claim. Their medical expenses also may be minimal. As a result, children and elderly victims of sexual violence and abuse will almost always receive the lowest of awards. In other words, those who deserve the most protection receive the least protection under this unfair law.

Unfortunately, efforts by State Representatives to undo some of the unfairness of RC § 2315.18(B) have stalled. On February 1, 2017, members of the 132nd General Assembly introduced House Bill 20 which would have prohibited application of RC § 2315.18(B) to reduce noneconomic damages in cases involving sexual violence. After being referred to the House Committee for Governmental Accountability and Oversight on February 8, 2017, the bill has still not received consideration by the Committee.

If you agree that Ohio’s cap on noneconomic damages is unfair, we urge you to contact your Ohio House representativeand ask for change.

For more information about House Bill 20 and commentary on the application of RC § 2315.18(B) to cases involving sexual violence, follow these links:

Cleveland Plain Dealer article by Kristin Boggs and Albert Lin

Columbus Dispatch article by Jim Siegel

Track the Bill


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Could a Brain Injury Eventually Lead to Dementia?

Shared by The Heck Law Offices, Ltd. 

www.hecklawoffices.com/blog


Could an accident eventually lead to dementia?

That's the indication from a psychiatric study that looked at 2.8 million patients for evidence that traumatic brain injuries (TBIs) eventually lead to Alzheimer's Disease and other forms of dementia.

Unfortunately for those who have suffered TBIs, it wasn't long before researchers found the connection they suspected was there. In fact, once all other variables were accounted for, just one TBI described as "mild" (like a concussion), raised the likelihood that the victim would eventually develop some form of dementia by as much as 17 percent. There is even worse news for victims who experienced a TBI that was considered severe. Those patients had a 35 percent higher risk than normal of developing dementia.

Other data gleaned from the research was similarly grim. Victims who suffered repeated TBIs, even mild ones, also experienced higher-than-normal rates of dementia. This is particularly significant for those who may be in professions that leave them exposed to head injuries on a regular basis, like sports players and soldiers. Patients who experience four brain injuries during their lifetimes were 61 percent more likely than average to develop dementia. Those who received five head injuries (or more) increased their risk of dementia to 183 percent greater than normal.

The age of the victim at the time of the injury also had some significance in the study. Young victims, those in their 20s, were 60 percent more likely than average to develop dementia by their 50s.

The implications of this study are enormous. It indicates the need for more measures to prevent unnecessary TBIs, with a focus on preventing repeat injuries in particular. It also could have significance in legal arenas as well.


What is a Risk Manager? Whose Side Are They On?

Shared by The Eisen Law Firm

www.malpracticeohio.com/blog


Risk managers work in hospitals and other medical facilities. The goal of risk management is to do exactly what the title suggests—to manage the risk faced by the medical facility and its staff. Specifically, risk managers are responsible for handling issues such as unexpected public relations matters, personnel problems, operations issues, and also financial matters. Everything from daily, minor events through unexpected, catastrophic events may be handled through risk management. Though the details of a risk manager’s work may vary from place to place, the goal is to protect the medical facility.

Risk managers help the medical facility prevent or mitigate any financial losses. All medical facilities must comply with certain rules and laws, and they must also meet various quality control measures. Reducing the number of medical malpractice claims that are filed and maintaining a low rate of employee attrition are key goals for the risk manager, as these are both costly events for the medical facility. Medical malpractice verdicts may be millions of dollars, and training new employees repeatedly is a costly undertaking.

In some ways risk managers promote patient safety. By designing patient safety programs and encouraging doctors and nurses to adhere to safe medical practices, risk managers can help a hospital system reduce the number of medical errors. So, to some extent risk managers and are on the “side” of patients and patient safety. However, once a medical mistake has been made, and a patient has been seriously injured, things change dramatically. The risk manager’s role then shifts from patient safety advocate to patient adversary. The risk manager becomes part of a team whose goal is to avoid accountability for the patient’s injury and to deny the patient fair compensation. It would be really nice if this wasn’t true, but it is. Once something bad has happened, the risk manager goes into “protect-the-hospital’s-money” mode. The risk manager collects evidence – such as witness statements — that can then be shielded from patients and their attorneys. The risk manager also may meet with doctors and nurses to make sure that they don’t say anything to the patient that could be used against them in court. They may even coach the doctors and nurses on how to apologize to the patient without admitting any fault or saying anything else that might cause the patient to look for an attorney.

Even worse, the risk manager may meet with the patient and mislead the patient into believing that either there was no mistake or that the mistake didn’t cause the injury. The risk manager may appear friendly and cooperative. The risk manager may even offer a small sum of money to the patient. But make no mistake, the risk manager’s job – once malpractice has occurred – is to limit the hospital’s risk, which usually means to save the hospital’s money.

Now, are there risk managers who don’t like this aspect of their job? Absolutely. And some risk managers are actually instrumental in negotiating a fair settlement, once the patient has obtained an attorney and demonstrated an ability to succeed in court. But if the risk manager can stop a patient from hiring an attorney, he or she likely will try to do so. After all, the risk manager is paid by the hospital, not the patient.

In short, a risk manager is not on your side.


Firefighters at Increased Risk of Workplace Injuries

Shared by Casper & Casper

casperlaw.com/blog


While everyone else runs away from a burning building, firefighters run toward it. Firefighters have one of the toughest jobs out there: it’s a job characterized by danger and injury, where dozens of firefighters are killed and thousands are injured each year.

It’s not just fires that firefighters have to be wary of, however.

An evolving body of research shows that firefighters are at an increased risk of cancer: studies done by the National Institute for Occupational Safety and Health found that, compared with the rest of the American population, firefighters face a 9 percent increase in cancer diagnoses and a 14 percent increase in deaths.

NBC reports that, according to The International Association of Firefighters, cancer is now the leading cause of death in this profession.

FIREFIGHTING AND CANCER

Why is cancer so prevalent among firefighters?

Today’s fires often involve synthetic materials, plastics, and chemicals. When these materials burn, they release compounds that are toxic to the human body. Over time, exposure to these compounds cause a variety of different cancers, from blood cancer to brain cancer.

Firefighters are supposed to wear self-contained breathing apparatus (SBCA) and clean their personal protective equipment (PPE); however, many firefighters take their SBCA off too early or do not clean PPE well enough. Until now, firefighters have not realized the danger of being exposed to toxic soot in the air and on their clothes.

Recent efforts by The National Fire Protection Association (NFPA) urge firefighters to keep their SBCA on for longer periods of time. The NFPA is also working on studies to determine best practices for removing toxic chemicals, pathogens, and other harmful substances from PPE. In addition, firefighting departments around the country are purchasing SBCA that work for 45 minutes (instead of the usual 30 minutes) and are cracking down on firefighters that break protocol.

Unfortunately for many firefighters—who are already injured—this new information comes too late.

WORKERS’ COMPENSATION FOR FIREFIGHTERS

Like almost all employees in the United States, firefighters are entitled to compensation if they are injured on the job or develop a disease as a result of their job; however, special circumstances make the workers’ compensation system work a bit differently for firefighters

Because of new information about the prevalence of cancer among firefighters—and thanks to the tireless efforts of firefighters and their families—the Ohio legislature passed the Michael Louis Palumbo Jr. Act in 2017.

This act, whose namesake has been diagnosed with brain cancer, recognizes cancer as a workplace illness for firefighters. Under the new law, if a firefighter is diagnosed with cancer, it will be assumed that the cancer occurred as a result of the job. This makes it easier for firefighters with cancer to receive the workers’ compensation they need to support themselves and pay for their medical bills.

That being said, firefighters still face some obstacles throughout the workers’ compensation process.

The Michael Louis Palumbo Jr. Act included several conditions to the law: the firefighter had to have been assigned to “hazardous duty” for six or more years, and he or she had to have been exposed to high-level carcinogens. The assumption may not apply if the firefighter was exposed before starting the job or if he or she performed an activity (like smoking cigarettes) that exposed them to cancer-causing agents. This means that, during the workers’ compensation claims process, firefighters must still prove when and how they were exposed — not an easy task for most people.

In addition, though the Michael Louis Palumbo Jr. Act was written to apply for 20 years, recent changes to workers’ compensation law shortens the time limit to 15 years: now, a firefighter must file a cancer-related workers’ compensation claim within 15 years of service.

This change is an unfortunate blow to firefighters who deserve compensation for their service. While 15 years might seem like a long time to file a claim, it’s important to remember that certain cancers are latent. This means that the cancer can take years or even decades after the initial exposure to become active and cause symptoms.


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Increased Recourse for Victims of Sex Trafficking

Shared by McKeen & Associates, PC

www.mckeenassociates.com/blog


On Wednesday, the Allow States and Victims to Fight Online Sex Trafficking Act--dubbed "FOSTA" for short--was signed into law. The law is intended to bolster accountability among websites that--directly or indirectly--facilitate sex trafficking.

The impetus

The new legislation comes on the heels of a large-scale indictment against Backpage.com--a website that hosted third-party classified ads. Many ads on the site were for prostitution and child sex trafficking. Backpage has been charged with 93 counts of sex-trafficking related charges. Last week, the U.S. Department of Justice seized the website.

What the new law does

The new law sends a strong message to websites: if you're hosting questionable content, you can be held liable--even if you're not the one creating the content. Under FOSTA, any website that knowingly hosts content which enables or promotes prostitution or sex trafficking can be held liable. The law increases criminal penalties for such offenders and allows sex trafficking victims to take civil action against such companies to recover damages.

In addition, under the new law, state attorneys general can prosecute such websites, even if the defendants violated federal prostitution law. Putting this authority in the hands of the states--rather than federal authorities--is expected to expedite the pursuit of justice.

Reaction to the law

Many have applauded the new law, hoping that enhanced website accountability will help curb instances of such crimes.

However, some sex worker advocates claim that websites provided women with a safe space to screen clients, and also provided an open platform for the government to track such activities. They argue that FOSTA will not stop sex trafficking from happening--it will just move it to spaces that are harder to control, such as the dark web, social media or outside the nation's borders.

In response to the passing of FOSTA, other sites hosting third-party content have begun large-scale self-censorship. Craiglist has removed its Personals, Dating and Missed Connections sections from its website, citing concern that unknown mis-use by third parties could put their company in jeopardy.

Some critics are also concerned that the new law opens up companies to liability for hosting questionable content they knew nothing about. In addition, if a company discovers suspicious content and takes steps to remove it, there is concern that the acknowledgement of such content demonstrates knowledge of it--which could also put website hosts on the chopping block.

The passing of FOSTA was received with both praise and consternation. Time will tell what the long-term implications of the new legislation will be.


Wearable Technology Being Adapted to Combat Driver Fatigue

Shared by Young & McCarthy LLP 

www.truckcrashvictimhelp.com/blog


Almost three-quarters of the products purchased by consumers in Ohio and around the country are transported using large commercial vehicles, and tractor-trailer drivers commonly spend up to 70 hours behind the wheel during a typical workweek to keep up with this demand. Truck driver fatigue has been a road safety issue in the United States for decades, and even strict hours of service regulations are not enough to prevent about 100,000 accidents each year involving drowsy tractor-trailer drivers.

A startup technology company formed by University of Oklahoma graduates aims to address the issue of truck driver fatigue by using the sort of wearable devices favored by fitness enthusiasts. BlyncSync is developing a range of products similar to the heart monitors and calorie counters worn by joggers to monitor how often truck drivers blink, nod their heads or yawn. These devices are designed to be connected to logistics companies or dispatchers and send alerts when truck drivers may be becoming dangerously drowsy.

The company's first offering is a pair of safety goggles that keep track of how often truck drivers blink. Hats, bands and watches capable of monitoring fatigue-related biometric data are also being developed according to a BlyncSync representative. The company plans to bring the safety goggles to market once they have been thoroughly tested and evaluated in the field by trucking companies.

Drowsy truck drivers rarely apply their brakes or take other forms of evasive action before crashing, and the accidents they are involved in may be catastrophic in nature as a result. Experienced personal injury attorneys may introduce hours of service records in truck accident cases to show that truck drivers willfully ignored federal regulations designed to keep road users safe. Attorneys might also pursue civil claims against logistics companies when official records reveal a pattern of hours of service irregularities or a history of safety violations.


Better Safe Than Sorry: Updating Your Estate Plan as Your Family Changes

Shared by The Probate Pro

theprobatepro.com/probate-pro-blog


Family Situations Can Change Often

Time flies by faster than you think, but this is not merely an observation about life. The fact of the matter is, what works for you and your family today may not make sense tomorrow, or in a few years from now. Maintaining and updating your estate plan very important, there could be updates needed to your will, trust or beneficiary designations based on the current dynamic of your family.

Just as an example, let’s say you are married with a couple of younger children. Your parents are still living, but maybe you don’t get along with them the way you used to. In this example, it makes sense to designate your children and your spouse as a beneficiary in your will. It seems like common sense. However, that is only your life today.

Now let’s fast forward a decade or two. More likely than not, your kids are grown up and on their own. Maybe you are also married to someone else, and they too may have children, younger or older. Your parents may or may not still be living, and maybe you and your parents put your differences aside and you are ready to bring them back into your life.

But wait a minute! That same will, trust, and beneficiary designations that you setup a few years ago is suddenly looking out of date, and the people you care about may not be adequately provided for. When you name a beneficiary to an account, the funds go straight to that person when you pass away, rather than having to go through a probate process. Did you know that a beneficiary designation trumps any language in a will or trust? At the same time, you do not want to wait until it is too late to change your policies to reflect your current family situation. Unfortunately, “too late” sometimes comes when we least expect it. Don’t make this common estate planning error.

What is there to update and how do I do it?

It is much easier to name the correct beneficiaries now than to have your heirs try to figure it out later. Double-check your beneficiaries early and often – it is easy to do. Have your account information handy and call the customer service department for your retirement and other investment accounts, insurance policies, or any other accounts with a beneficiary. Many times, this information can also be verified online.

If you want to update any of your beneficiary designations, the forms to do so can oftentimes be found online, or you can call the company and they will send you a form to fill out. The form might request the new beneficiaries’ social security numbers. You may also need a signature from your spouse.

Make sure you are looking – and planning – a step ahead. Designate your assets for the loved ones you want to receive them today, not 20 years ago.


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Ohio’s 3-Foot Passing law, Ohio Revised Code (ORC) §4511.27 and ORC §4511.132—the “dead red” exception—eff. 3-21-17

Shared by Kenneth Knabe | Knabe Law Firm Co., LPA

http://klfohio.com/blog


Bicycling is the second-most popular outdoor activity; commuter cycling is also on a steady upswing with an alarming increase in bicycle accidents and even deaths.  Ohio has recognized this increase in cycling and accidents and has joined numerous other states in passing the three-foot safe distance passing law.  Many thanks to Bikecleveland.org, Ohio Bicycle Federation, Ohio House and Senate, and the Governor for passing much-needed bicycle safety law on a statewide basis.

Ohio’s three-foot minimum safe distance passing requirement, ORC §4511.27 and the “dead red” exception, ORC §4511.132 became effective March 21, 2017.

Under newly-enacted ORC §4511.27(A)(1) & (2), a driver of a car passing a cyclist riding in the same direction shall pass to the left at a distance of three feet or more, not driving again to the right until the driver's vehicle has safely cleared the cyclist.  (This rule does not apply at intersections controlled by traffic control signals.)  Upon the car’s audible signal, the cyclist being passed must give way to the right in favor of the overtaking car, and the cyclist shall not increase speed until completely passed by the car.  A driver that violates this section is guilty of a minor misdemeanor unless convicted of one or more “predicate motor vehicle or traffic offenses” which include most other traffic offenses. See ORC §4511.27 (B) & §4511.01 (III) (1)

ORC §4511.132 was amended to permit a cyclist to stop and then safely enter an intersection on “dead red”. This occurs when a red light is not tripped to green because of failing to detect a vehicle, i.e. a bicycle. This is not a license for cyclists to ride through red lights but a specific exception when the light fails to detect the presence of a bicycle and stays red. Entering must be done with great caution and in complete deference to cars entering the intersection on green who have the right of way.


Pregnancy Discrimination: Words Versus Deeds

Shared by NachtLaw PC 

www.nachtlaw.com/blog


Sexual harassment in the workplace has been the topic of the last year. Another troublesome niche in workplace gender inequality still gets less attention: it is subtle to overt pregnancy discrimination.

As a short-term disability, the months of pregnancy require prenatal appointments, added trips to the restroom and often lifting weight restrictions. When a request to stop lifting heavy boxes is denied or jokes about your size make you uncomfortable, start taking notes to document what is happening.

The fashion industry

A recent example comes from a fashion house of a designer lauded for inclusion and fundraising for anti-harassment efforts. According to a former employee, the work environment did not live up to the external image.

At six months of pregnancy, the sales director had to hear derogatory comments about her weight gain and answer questions about whether she was getting enough exercise. When she suffered from the swelling of preeclampsia, the comment was “Maybe dresses aren’t the best option, nobody should see those legs.” She asked to wear flats. Her employer objected.

She explained how she felt a target and began to document what was happening. After a c-section and concerns about breast-feeding, she asked to work part-time from home. The company asked her to return to the office full time. She could not and lost her job. Was it a termination or resignation? Not surprising, each party framed it differently, but the label may not matter based on an individual situation.

Was it an isolated incident? Reports from other employees indicate a systemic disdain for anyone taking time off for any type of medical leave.

Is this legal?

From 2010 to 2015, the Equal Employment Opportunity Commission received 31,000 pregnancy discrimination complaints. That may not fully reflect the problem because many women report fearing to request any accommodation in the first place.

What is pregnancy discrimination? It includes:

  • Refusing to hire an applicant because she is pregnant
  • Demoting or terminating a pregnant employee
  • Denying a mother the same job she had before taking parental leave
  • Treating a pregnant woman differently than other temporarily disables employees (denying a lifting restriction for a pregnant woman but allowing the same request to another employee recovering from a surgery)

Title VII includes the Pregnancy Discrimination Act of 1978. The PDA clarifies the prohibition on discrimination related to pregnancy, childbirth and related conditions. This federal legislation applies to all employers with more than 15 employees.

For larger employers with more than 50 employees, the FMLA guarantees 12 weeks of unpaid leave where your health benefits remain in place to care for a newborn or adopted child. This law also requires that you receive the same job when you return with the same pay and benefits.

The Americans with Disabilities Act prohibits discrimination related to disability. Recent changes added pregnancy-related impairments to the list that requires reasonable accommodations.

The only way to put a stop to pregnancy-related discrimination is to stand up. 


Oral Argument Preview: Personal Foul! Should Ohio’s Discovery Rule Toll Claims Involving Latent Brain Diseases Like CTE? 

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


On April 11, 2018, the Supreme Court of Ohio will hear oral argument in the case Steven Schmitz et al v. National Collegiate Athletic Ass’n et al, 2017-0098. At issue in this case is whether a diagnosis of a latent brain disease sufficiently tolls Ohio’s statute of limitations under the discovery rule, and whether the fraudulent concealment and constructive fraud claims should be subject to the two year or four year statute of limitations. The case will be argued at Ottawa-Glandorf High School in Putnam County as part of the court’s off-site program.

Case Background

Steven Schmitz was a running back and receiver for the University of Notre Dame du Lac (“Notre Dame”) football program from 1974 to 1978. During this period, the university was a member institution of the National Collegiate Athletic Association (“NCAA”) (collectively, the “Defendants”).

Almost forty years later, in December of 2012, Schmitz was diagnosed at the Cleveland Clinic with chronic traumatic encephalopathy (“CTE”). CTE is a latent disease of the brain, which is purported to be the result of repetitive head impacts. At fifty-seven, Schmitz suffered from memory loss, early onset Alzheimer’s disease, traumatic encephalopathy, and dementia.

Less than two years after his diagnosis, in October of 2014, Schmitz and his wife Yvette filed suit against Notre Dame and the NCAA for negligence, fraud by concealment, constructive fraud, breach of express and implied contract, and loss of consortium. In sum, Schmitz alleged that the Defendants knew, or should have known, about the increased risks of brain injury football posed to players during and after their collegiate careers, but the Defendants ignored these risks. Schmitz died on February 13, 2015, and his estate was substituted as plaintiff with Yvette acting as the fiduciary. Yvette remained a plaintiff in her individual capacity.

On September 1, 2015, Cuyahoga County Court of Common Pleas Judge Deena R. Calabrese granted the Defendants’ motion dismissing Schmitz’s complaint as time-barred.

The Appeal

In a unanimous decision authored by Judge Mary J. Boyle, joined by Judges Larry Jones, Sr. and Frank Celebrezze, Jr., the Eighth District Court of Appeals reversed the trial court’s dismissal on statute of limitations grounds of Schmitz’s claims of negligence, fraudulent concealment, constructive fraud and loss of consortium, affirmed the dismissal of the contract claims as time-barred, and not subject to the discovery rule, and affirmed the dismissal of the constructive fraud claim against NCAA on non-statute of limitations grounds. Following other courts addressing similar issues around the country, the Eighth District found that the discovery rule applied to Schmitz’s latent brain injury because it was unknown until he received his formal diagnosis in 2012. The court also found a prior toxic-tort case, Liddell v. SCA Servc., to be particularly instructive.

The Eighth District also held that the claims of fraudulent concealment and constructive fraud were separate and distinct from the claims for bodily injury, and therefore, were subject to the four year statute of limitations in R.C. 2309.09(C).

Votes to Accept the Case

Yes: Justices O’Donnell, O’Neill, French, and Fischer.

No: Chief Justice O’Connor, and Justices Kennedy and DeWine.

Click here to continue reading blog.


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About the Blog
OAJ Blog Central showcases informative blog posts from law firms and trial attorneys throughout Ohio. 

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Recent Posts:
 Fore! Ouch! Golf Course Liability
How to Handle Disability Discrimination in the Workplace
Newest Bike Laws Protecting Ohio Cyclists
•  Ohio Liability Law: Who is Liable for Dangerous Products?
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Keywords: Golf LiabilityDisability Discrimination, WorkplaceBike LawsProduct LiabilityConstructionTort Reform, House Bill 20, Sexual AssaultBrain Injury, DementiaRisk ManagerFirefighters, Workplace InjuriesFOSTA, Human TraffickingTechnology, Driver FatigueEstate Plan3-Foot Passing Law, Pregnancy Discrimination, Ohio Supreme Court, Oral Argument, Concussions

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