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Advocates Circle Firms

Barkan Meizlish, LLP

 

Brian G. Miller Co., LPA

 

Bordas & Bordas, PLLC

 

Charles E. Boyk Law Offices, LLC

 

Christian R. Patno

 

Crandall & Pera Law

 

Eadie Hill Trial Lawyers

 

Elk & Elk

 

Garson Johnson, LLC

 

Geiser, Bowman & McLafferty, LLC

 

The Gervelis Law Firm

 

Grieco Law

 

Kisling Nestico & Redick

 

Kitrick, Lewis & Harris Co.,. LPA

 

Leeseberg & Valentine

 

Leizerman & Associates, LLC

 

Lamkin, Van Eman, Trimble & Dougherty, LLC

 

Meyer Wilson Co., LPA

 

Nurenberg, Paris, Heller & McCarthy Co., LPA

 

O'Connor Acciani & Levy, LPA

 

Rittgers & Rittgers

 

Robert J. Wagoner, Co., LLC

 

Rourke & Blumenthal

 

Spangenberg, Shibley & Liber, LLP

 

Slater & Zurz, LLP

 

Tittle & Perlmuter

 

Tzangas Plakas Mannos Ltd.

 

Young and McCarthy LLP

 


 

                       

OAJ BLOG CENTRAL

Blackouts and Motor Vehicle Accidents

Shared by David Kulwicki of Mishkind Kulwicki Law Co., L.P.A.

www.mishkindlaw.com/blog


Motor vehicle accidents are increasingly common and increasingly deadly. Yesterday, the Journal of the American Medical Association (JAMA) published an alarming article about the incidence of car wrecks occurring due to driver blackouts. Drivers suffer loss of consciousness or syncope for a variety of reasons, including atrial fibrillation (“A Fib”) and other heart rhythm abnormalities, strokes and TIAs, hypoglycemia (low blood sugar), anxiety attack, drug abuse and anemia.

The JAMA article reported that when a patient is treated for a syncopal episode, the patient is at an increased risk for a subsequent car crash. Though the study was based on a Danish national registry, researchers believed that accident rate in the U.S. might be even higher because we have a higher baseline of traffic accidents and fatalities. In the study, the rate of motor vehicle crashes almost doubled for patients seeking treatment for syncope than among the general population (20.6 vs. 12.1 per 1000 person-years). Worse yet, the accident rate was even higher 4 years after the initial syncopal episode.

Under Ohio law, courts are unkind to motorists who suffer personal injury or wrongful death as a result of another driver blacking out and colliding with their car. Ohio courts hold that if an individual suffers a “sudden emergency,” such as a heart attack, and thereby loses control of their automobile, then they are not liable for injuries caused by the resulting collision. The exception to this rule is that loss of consciousness cannot be foreseeable. In other words, if the driver knew that they were at risk of blacking out, and should not have been driving in the first place, then the sudden emergency defense does not apply. 


The Most Dangerous Road is the Mile Closest to Your Home

Shared by The Lawrence Firm, PSC

www.lawrencefirm.com/blog


If you are like most adults, you probably have specific routes that you travel to work and other obligations each day. You may take the same streets habitually, leading you to feel comfortable and safe driving in those areas. However, what you feel is a false sense of security based on your familiarity with those roads and not on the statistical danger you face.

Although you may not worry about a crash right around the corner from your house, that is statistically where you have some of the worst risk for a collision. Your sense of comfort with familiar roads could prevent you from adequately watching for other vehicles, pedestrians and even animals in the street that could cause a crash.

Roughly a third of all major motor vehicle collisions occur within one mile of someone's residence, not far from home. In other words, the roads were you feel the safest may actually be the places that you are most likely to experience a major collision.

Comfort and lack of attention often play a role

The fact that you know those streets closest to your home like the back of your hand doesn't make the roads safer to travel. Instead, your sense of familiarity with the surface streets could lead you to drive dangerously or fail to pay attention to your vehicle and the roads as much as you would in less familiar surroundings.

You might send a last-minute text message to your boss to let them know you're running late while pulling out of your driveway. You could also choose to eat your breakfast at the wheel before you hit the highway or run through your checklist for the day, mentally distracting yourself.

No matter how often you travel on a specific section of road, there is always the risk for a potential collision. You should treat the section of the street that leads to your driveway with the same respect that you use toward the on-ramp for the freeway.

Promise yourself to focus on getting home safely every day

When you leave work and finally get off the highway and are only five to 10 minutes from home, you may start to relax and think about the evening ahead of you instead of the road you have yet to travel. Don't make a mistake that delays your arrival at home by letting your guard down.

One of the best ways that you can reduce the amount of risk that the roads closest to your home pose to you and other people in your vehicle is to commit to maintaining your focus on driving regardless of how close to your home you are. Treating driving as the safety-critical task that it is can help you arrive safely at your destination and mitigate the risks that come from ignoring the dangers on the modern roads.


Dog Breeds at Higher Risk of Becoming Aggressive

Shared by The Stuckey Firm, LLC

www.thestuckeyfirm.com/blog


Countless Ohio residents love dogs. But not all are the cute, fluffy and playful animals social media can make them out to be. Depending on their breed and level of training, some dogs can be dangerous and violent creatures.

Sadly, people who come into contact with a vicious dog could face severe medical consequences. Some of those can include fatal infections, significant nerve damage, permanent scarring and even psychological trauma.

According to the Canine Journal, almost 5 million Americans fall victim to dog bites every year. However, some dogs are known to be more dangerous than others. Often, that’s due to the breed’s size, muscular build and the force of their bite.

Bystanders may want to take precaution

People who come in contact with one of these breeds may want to remain cautious:

  • Bull Terriers: Despite their size, these canines tend to be quite muscular. Before the Bull Terrier became the Target mascot, they were initially bred to be champion dogfighters. Typically, these dogs are often friendly, but parents of small children should keep a close eye when around one.
  • Great Dane: These dogs can sometimes be as tall as humans. While Grate Danes are often sweet and friendly with kids, they can become aggressive if they feel threatened.
  • Doberman Pinscher: Dobermans can make excellent guard dogs, but their protective traits can also be a liability. Depending on their height, high energy, irritability and level of training, they may last out in some cases.
  • Pit Bull: Typically, these dogs can be very playful and affectionate. But even organizations like PETA have advocated for these breeds to be spayed or neutered. That’s because some believe these dogs can be extremely combative with inadequate training or upbringing.

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Supreme Court of Ohio Sends Defamation Case back to Appeals Court to Apply Proper Degree of Fault to Claim. Anderson v. WBNS-TV, Inc.

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


“The question before the court of appeals was whether the trial court erred in holding that the Andersons could not prove the fault element of their defamation claim. The issue whether the publications were defamatory was not before the court.”

Justice Donnelly, Majority Opinion

“The appellate court’s editorializing and commentary, while eye-catching, does not carry with it any weight of authority overruling our precedent in Lansdowne or creating a new duty or fault standard in private-figure defamation cases. See Interstate Sash & Door Co. v. Cleveland, 148 Ohio St. 325, 74 N.E.2d 239 (1947) (obiter dictum has no weight of authority). The court of appeals set forth the issue before it, quickly established its holding, and then began pontificating. The majority has now attached jurisprudential significance to bloviation.”

Justice Kennedy, Dissenting Opinion

On December 18, 2019, the Supreme Court of Ohio handed down a merit decision in Anderson v. WBNS-TV, Inc., Slip Opinion No. 2019-Ohio-5196. In an opinion written by Justice Donnelly, the Court held that the appeals court applied the wrong standard in this private figure defamation case and sent the case back to the appeals court to apply the correct standard. Chief Justice O’Connor and Justices French, Fischer and Stewart joined the majority opinion. Justice DeWine concurred in judgment only, with an opinion.  Justice Kennedy wrote a scathing 33-page dissent. The case was argued April 24, 2019 at Geneva High School in Ashtabula County as part of the Court’s off-site program.

Case Background

On January 20, 2016, the Columbus Police Department sent out a media information sheet to various media outlets including appellant WBNS-TV (“WBNS”), describing the robbery of a hoverboard from an eight-year-old girl in the parking lot of a waterpark on November 26, 2015. The information sheet stated that suspects put a gun to the child’s head and demanded the hoverboard.  This sheet also asked for help in identifying the people in an accompanying photograph.  The people in the photograph were appellees Aaron, Aaronana, and Arron Anderson. The photograph was taken by a surveillance camera when the three siblings entered the park.

WBNS aired this information in a news segment during a 5 a.m. broadcast on January 21, 2016. During that broadcast, the station showed the picture of the 3 Andersons, while stating that the “girl was riding her hoverboard when robbers went up to her, put a gun to her head and took it. Columbus Police say suspects—seen here—took off in a PT cruiser.” An hour later, in another broadcast, the station ran the picture again, this time stating, “Columbus Police hope you recognize these two men who robbed an 8-year-old girl at gunpoint!” And on its website, the station published the picture with this text: “The suspects put a gun to the 8-year-old girl’s head * * *.”

Nanita Williams, the mother of the three Anderson children, saw the early morning broadcast, became extremely upset, woke the children and took them to the police station. After extensive questioning, the police determined that Aaron, Aaronana, and Arron had not been involved in this crime. The Columbus Police then released a statement that the people in the photograph had spoken to the police, who had determined they were not involved in the robbery.  When WBNS got this new information, the station employees removed the picture from its website, and did not use it again.

Appellees, the three Anderson children and their parents Willie Anderson and Nanita Williams (collectively, “the Andersons”) sued WBNS for defamation, among other things. The trial court granted summary judgment to WBNS on all counts, holding that the Andersons could not prove fault, an essential element of their defamation claim.  The Andersons appealed.

In a unanimous decision, the Tenth District reversed the trial court’s judgment on the defamation claim, stating that there was no question that WBNS had defamed some of the Andersons. The appeals court held that there were genuine issues of material fact as to whether broadcasting an accusation that the Andersons were robbers without investigation, and based a set of police documents which claimed only that some of the Andersons were suspects, was sufficient to establish a violation of the requisite duty of care. The authoring judge also wrote “Frankly, a media outlet has a stronger duty to research the facts in such cases than it did when the Lansdowne case was decided.”

Read the oral argument preview of the case here and an analysis of the argument here.

WBNS’ Propositions of Law Accepted for Review

Proposition 1

First Amendment protections and jurisprudence extend to speech published on the Internet, and, specifically, this Court’s decision in Lansdowne v. Beacon Journal Publ’g Co., which set the fault standard in private-figure defamation cases, applies equally to statements published on the Internet.

Proposition 2

The Tenth District’s “stronger duty” requirement is unlawfully vague – it sets a “standard” that is untethered to principles of First Amendment jurisprudence.

Proposition 3

The law does not require the news media to conduct their own investigation or withhold publishing the news until they are able to contact the persons implicated or otherwise inquire into and corroborate official information supplied by law enforcement.

Proposition 4

Persons are not liable under the law of defamation for statements that they do not publish or authorize another to publish.

Proposition 5

In determining whether a statement is defamatory, a court must review the totality of the circumstances and by reading the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory.

Proposition 6

The essential elements of a defamation claim do not turn on the relative financial condition of the plaintiff and defendant.

Does the Court Adopt WBNS’ Propositions of Law?

The majority adopts the first one and declines to address the rest.

 

Click here to continue reading.


Jury Awards Husband and Wife $11.4M Over Workplace Discrimination

Shared by 

www.nachtlaw.com/blog


A husband and wife working for the Michigan Department of Corrections filed a lawsuit alleging racial discrimination and retaliation. The suit resulted in an $11.4 million unanimous jury verdict award. Federal law protects employees from harassment, which includes any instance of discrimination over an individual’s race, ethnicity or marital status. At the law firm of NachtLaw, P.C., we understand how reporting workplace harassment or discrimination may result in an employer retaliating against you.

When a female probation officer working for the MDOC became the subject of continuous racial slurs and harassment, she understood that not bringing attention to it only helped foster a “culture of racism.” When she attempted to file a complaint, however, a harassment counselor sabotaged her efforts. According to the Human Resource publication, HR Dive, instead of the employer fixing any of the problems, the slurs and harassment continued and the probation officer transferred to a different MDOC office. The situation did not improve, however, after she transferred to the other office.

Purportedly, her husband who worked for the MDOC as a deputy warden was forced to retire from his position after she filed a civil rights lawsuit. Her husband’s boss received a copy of the complaint, and alleged phony disciplinary charges were then brought against the probation officer’s husband as an act of retaliation for his wife’s lawsuit. The action resulted in his early retirement.

Bringing to your manager’s attention any negative issues experienced in the workplace should result in a professional response and an appropriate remedial action. The situation may otherwise develop into a hostile work environment. In situations where the hostility centers around an act of retaliation for voicing the complaint, you may need to take legal action.


Should Auto Manufacturers Focus on Backseat Passenger Safety?

Shared by Bey & Associates, LLC

www.beyandassociates.com/blog


Over time, cars have become safer and safer. A lot of safety measures have been implemented throughout the whole vehicle, but the majority of auto manufacturers focus on safety in the front seat. Should they start focusing on back-seat passenger safety to even it out and make the entire vehicle safe?

The inclination to upgrade safety features for the front seat is natural since it’s usually a more dangerous place to sit in the event of an accident. As Consumer Reports notes, on average, just under 20,000 front-seat passengers die each year in auto accidents. Comparatively, about 2,000 back-seat passengers die in crashes. Though that number is only a fraction of front seat deaths, it could always be lowered.

That’s all assuming back seat passengers will wear their seat belts, though. According to Ohio law, only front-seat drivers and passengers are required to wear a seat belt at all times, meaning that back-seat passengers are not legally required to wear a seat belt. In some accidents, wearing a seat belt can be the difference between life and death. If safety features in the back seat are increased, passengers should opt to use them to their full advantage.

Study Finds Backseat Less Safe in Frontal Collisions

Not buckling up is a huge problem in the back seat, but even passengers who wear their seat belts can suffer serious injuries. A recent study done by the Insurance Institute for Highway Safety (IIHS) shows that better restraints are needed in the back seats. In this study, researchers found that most back-seat passengers are hurt more severely than front-seat passengers when the car is in a collision.

Federal law states that front seats must have frontal airbags, but it doesn’t mention back-seat passengers. This same study found that the seat belts used in the back seats can actually cause injury and death in the event of a serious collision. Head injuries from crashes are also a concern because they were one of the most common injuries sustained by back-seat occupants in crashes, second only to chest injuries.

According to NBC News, back seats usually don’t have front airbags, so passengers can hit the seat in front of them in the aftermath of a car accident. Compared to the front seat, back seat seat belts don’t automatically lock when a crash begins, so the seat belt allows passengers to move more than they should. They also don’t use force limiters in the back seat, so seat belts can crush the passenger’s chest.

To combat these findings, some manufacturers, like Ford and Mercedes-Benz, have embedded airbags into seat belts so that they inflate upon impact. But this is only one step toward increasing safety for back-seat passengers in the event of a car accident.


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Physicians Getting Burnt as Electronic Records are Coming in Hot

Shared by McKeen & Associates

www.mckeenassociates.com/blog


Converting to digital medical records was supposed to make your care safer and more efficient. But according to a new study, it may be sending things in the opposite direction.

strong correlation between hard-to-use electronic health records (EHR) and physician burnout has been made in a recent study. The findings reveal that software that might be handling your medical charts is contributing to heightened rates of exhaustion for doctors, which could lead to medical errors and malpractice.

Faulty systems

Offices across the country have installed EHR programs at break-neck speeds in recent years, thanks in large part to billions of dollars in federal incentives. The fast-paced rollout has left doctors trying to play catchup, the director of the Clinical Informatics Fellowship at Yale, Edward R. Melnick, told YaleNews. And those playing catchup are generally the ones spending more time staring at a computer screen than helping patients.

Technical difficulties

For every hour that a doctor sees you in their office, they might be spending up to two hours working with an EHR. Then they might add another two hours of EHR work in their personal time. And all this may not provide any payoff for you or them. Physicians still complain the structure doesn’t do much to improve the care that you receive, says Melnick. Rather, it places the focus on billing instead of communication.

Burning both ends

All these frustrations don’t come without consequences. Doctors that are worn down by convoluted systems are more likely to show symptoms of burnout, according to the study. The repercussions of this debilitating fatigue could pass on to you in many forms, such as errors in judgment, missed diagnoses and medication errors.


Passing Illegally Could Result in Catastrophic Car Accidents

Shared by Sandel Law Firm

www.sandellaw.com/blog


Nearly every driver has become frustrated with a slower driver in front of him or her at some point. On many two-lane roadways, passing can only occur when it is safe and legal. Unfortunately, some drivers fail to wait for the way to be clear, safe and legal before they begin passing the vehicle or vehicles in front of them. This action could easily result in catastrophic car accidents involving serious or deadly injuries.

For example, the Ohio State Highway Patrol recently responded to the scene of a four-vehicle crash on State Route 173. Shortly before 6 a.m. on a Thursday morning, a westbound vehicle began passing the slower vehicle in front of it. The driver's attempt was illegal since it was over a double yellow line on the crest of the hill. Perhaps predictably, other vehicles were headed right toward his vehicle from the opposite direction.

Two of the vehicles collided head-on, and the westbound vehicle then slammed into the other westbound vehicle, which ended up in a ditch. When these three vehicles came to a rest, a fourth vehicle headed eastbound over the crest of the hill collided with the wreckage of the passing westbound vehicle. The driver of that vehicle died, and the driver of the vehicle it initially collided with suffered severe injuries.

The seriously injured driver may pursue restitution for the financial losses associated with the crash. As is the case in other car accidents in which the at-fault driver dies, the personal injury claim may be filed against the decedent's estate. Otherwise, the progression of the claim essentially remains the same as any other in an Ohio civil court.


Achieving Equal Protection against Discrimination through the Ohio Fairness Act

Shared by Cooper & Elliott

www.cooperelliott.com/blog


The law is intended to protect the rights of all citizens equally. But what happens to equal protection when the laws are inconsistent from one jurisdiction to the next? In that case, the promise of protection waivers, and the rights of certain individuals and groups become unclear.

That’s what is going on right now in Ohio regarding LGBT rights. There is, however, a potential solution on the horizon—if Ohio’s legislators can demonstrate the commitment to fairness required to enact it.

Hit-or-miss discrimination laws

Nearly half of the states in the U.S. lack a statewide law offering blanket protection of civil rights for LGBT citizens. Ohio is one of those states.

Some of Ohio’s municipalities and counties have anti-discrimination laws that address sexual orientation and transgender identity. But in localities where there are no laws covering specific instances of LGBT discrimination, there are no legal means to fight against or seek damages for those injustices.

Federal law does not fill the gap. Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees by employers on the basis of sex, race, color, national origin, or religion. This law generally only applies to employers with 15 or more employees, including federal, state, and local governments. Title VII also fails to specifically address situations that involve housing, education, and credit.

Historically, courts are divided as to whether Title VII protections extend to gay and transgender people.

Protecting LGBT rights with the Ohio Fairness Act

The Ohio legislature has addressed the issue of statewide protection for LGBT rights, but it has not completed its task. House Bill 160 would introduce the Ohio Fairness Act. This sweeping anti-discrimination legislation is fair and needed.

Unfortunately, as of now, the bill is still only pending.

The proposed House Bill 160 aims to extend legal protection against discrimination specifically to the LGBT community. It would make it illegal for any Ohio employer, employment agency, or labor organization to discriminate against an employee or applicant based on an individual’s sexual orientation, gender identity or expression.

Similar versions of House Bill 160 have been introduced over the last decade, yet none have passed. The current version of the bill had its hearing earlier this year, but the legislature, once again, failed to pass it.

In our opinion, that failure hurts all of Ohio’s citizens.

Why equal protection matters

Enacting the Ohio Fairness Act is not only the right thing to do for Ohio and its citizens. It also has real-life benefits for the people of Ohio.

As civil rights attorneys, we routinely field inquiries from people who have been discriminated against based on sexual orientation or transgender identity. While we do have resources and alternate avenues by which we can help people seek justice for discrimination, we’re not able to use the full potential of the civil litigation system for individuals who don’t live and work in one of the few Ohio localities where appropriate discrimination laws are already in effect. Passing House Bill 160 would empower us to use civil litigation to its fullest against discriminating parties anywhere in Ohio.

In addition, the non-discrimination protections afforded by House Bill 160 would be good for Ohio’s economy and business environment. By protecting the LGBT community’s right to work, the bill could only enhance the ability of Ohio businesses to attract and retain talent. That’s why House Bill 160 is backed by numerous chambers of commerce as well as Ohio Business Competes, a collective of more than 475 statewide businesses.

Since the 1960s, our society has—piece by piece—pulled down the walls of discrimination that unfairly blocked good people from basic rights and opportunities. The malicious discrimination of the past—common prejudices based on race, gender, religion, disabilities, and national origins—were remedied starting with laws that empowered enforcement agencies and set the stage for private lawsuits. The explicit statewide protections that would be afforded by the Ohio Fairness Act are no less needed, and the LGBT community no less deserving.

As the new Ohio Legislature returns to office this fall, a number of things could happen with House Bill 160.


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Roadway Construction Zones Have a High Rate of Accidents

Shared by Philip J. Fulton Law Office

www.ohiocompensationlawyer.com/blog


When most people think of what types of jobs involve the highest risk for workplace accidents, they probably think of jobs that involve construction and the use of heavy machinery, and rightfully so. These types of jobs do indeed come with an increased risk of potential workplace accidents and resulting worker injuries. Roadside construction zones, according to a recent report, have a very high rate of accidents.

According to the report, in Ohio last year there were 4,600 motor vehicle accidents in construction zones. Not only does this put drivers and their passengers in danger, but it also places roadside construction workers at a higher risk of being injured in the aftermath of such a car accident. These construction workers are oftentimes only protected by the placement of reflective barrels to mark off the construction zone or, in the best-case scenarios, by concrete barriers. Nevertheless, the danger of being hurt by a car accident that takes place nearby is very real for these construction workers.

In fact, there are usually a couple of news reports each year about construction workers who are struck and killed in roadside construction zones. So, not only do these workers need to worry about injuries, they also need to be aware of the potential for a life-threatening workplace accident occurring.


Merit Decision: Township Not Liable for High-Speed Chase Accident Caused by Police Officer. McConnell v. Dudley

Shared by Marianna Brown Bettman

www.legallyspeakingohio.com


“R.C. 2744.02(B)(1)(a) makes plain that it is the driver’s conduct and culpability in operating a vehicle—not the political subdivision’s—that determines whether the political subdivision may be held liable under the statute.”

Justice Kennedy, majority opinion

On November 20, 2019, the Supreme Court of Ohio handed down a merit decision in McConnell v. DudleySlip Opinion No. 2019-Ohio-4740. In an opinion written by Justice Kennedy, the Court held that a political subdivision’s hiring, training and supervision of a police officer does not constitute “operation of a motor vehicle” for purposes of imposing liability on the political subdivision for an accident caused by the police officer during an emergency run.  Justices French, DeWine, and Kennedy joined the majority opinion in full. Chief Justice O’Connor and Justice Donnelly concurred in judgment only, and Justice Stewart wrote a brief separate concurrence. The case was argued June 12, 2019.

Case Background

Coitsville Township Police Officer Donald Dudley, Jr. was investigating a stolen vehicle. In attempting to follow the suspects he thought were involved, he began a high-speed chase. As he approached an intersection, he was trying to radio his position and failed to notice that the light was red when he entered the intersection. A house and a tree obstructed his view to the right, so he also failed to see a westbound car driven by Renee McConnell (“McConnell”) who was on her way to work.  Dudley collided with McConnell’s car. McConnell sustained serious injuries.

McConnell and her husband and children sued Officer Dudley, Coitsville Township and its board of trustees, and the Coitsville Township Police Department (collectively, “the township”) alleging that Officer Dudley’s negligent, willful, or wanton operation of the police cruiser and the township’s negligent, willful and/or wanton conduct in establishing policies and procedures for pursuit training, and in its hiring, training and supervising of Officer  Dudley caused McConnell’s injuries and loss of consortium of her spouse and children.

Officer Dudley and the township moved for summary judgment on the basis of immunity. The trial court denied the motion. The trial court found that although Officer Dudley was operating a motor vehicle within the scope of his employment and in response to an emergency call, there were genuine issues of material fact as to whether his conduct rose to the level of wantonness or recklessness. Wanton misconduct by Officer Dudley would mean the political subdivision could be liable under R.C. 2744.02(B)(1)(a). Wanton or reckless behavior by Officer Dudley would mean he could be liable as an employee of a political subdivision under R.C.2744.03(A)(6)(b).  The trial court also found genuine issues of material fact on the claim that the township was negligent in hiring, training, and supervising its officers—which is the subject of this appeal.

The Appeal

The Seventh District Court of Appeals affirmed in part and reversed in part. The appeals court agreed there were genuine issues of material fact as to whether Officer Dudley’s actions constituted willful and wanton misconduct, and whether the township was negligent in training and supervising him.  But because the McConnells had failed to plead a claim against Officer Dudley in his individual capacity, the appeals court held that the trial court erred in finding that a genuine issue of material fact existed as to Dudley’s personal liability.

Read the oral argument preview of the case here and the analysis of the argument here.

Key Precedent

R.C. 2744.02(A)(1) (A political subdivision is generally immune from liability for its acts and for the acts of its employees in connection with a governmental function, unless one of the exceptions within the statute applies.)

R.C. 2744.02(B)(1)(a) (Political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority. But political subdivisions are immune from damages caused by a police officer operating a motor vehicle while responding to an emergency call unless the officer’s actions were willful or wanton.)

R.C. 2744.01(C)(2)(a) (“The provision or nonprovision of police, fire, emergency medical, ambulance, and rescue services or protection” is a governmental function.)

Doe v. Marlington, 2009-Ohio-1360 (The exception to immunity in R.C. 2744.02(B)(1) for the negligent operation of a motor vehicle pertains only to negligence in driving or otherwise causing the vehicle to be moved.)

Smith v. McBride, 2011-Ohio-4674 (R.C. 2744.02(B)(1)(a) applies “when an officer is responding to a call to duty, which includes responding to a dispatch for assistance out of a professional obligation to do so.”)

Pelletier v. Campbell, 2018-Ohio-2121 (Determining whether a political subdivision is immune from tort liability involves a three-tiered analysis. First, R.C. 2744.02(A)(1) grants general immunity to political subdivisions. Second, a court must determine whether any exception within R.C. 2744.02(B) is applicable that would expose the political subdivision to liability. Third, a court must determine whether any defense within R.C. 2744.03 is applicable to restore the political subdivision’s immunity.)

Township’s Proposition of Law Accepted For Review

A political subdivision is immune from liability for allegations of negligent hiring, or failure to train or supervise police officers, as such allegations do not fall within any of the exceptions found within R.C. 2744.02(B)(1) through (B)(5).

Does the Court Adopt the Township’s Proposition of Law?

The court agrees with the township that the exception for negligent operation of a motor vehicle provided in R.C. 2744.02(B)(1) does not include negligent hiring, training, or supervising the employee who drove the vehicle.

Position of the Parties

The Township

The township argues that there is no exception to immunity encompassed in R.C. 2744.02(B) for negligence in hiring, training, or supervising its employees, and, of particular significance to this case, that the exception for negligent operation of a motor vehicle provided in R.C. 2744.02(B)(1) does not include negligent hiring, training, or supervising the employee who drove the vehicle. Only the employee’s own actions are relevant in determining whether that employee engaged in willful or wanton misconduct in response to an emergency call.

The McConnells

The defense to liability for emergency calls is not implicated here because it was the township’s own negligence that caused this accident. The township failed to ensure that Officer Dudley was properly qualified, trained and supervised in how to perform a high- speed chase, and this negligence occurred before the emergency run itself, so is actionable pursuant to R.C. 2744.02(B)(1). So, no heightened willful-and-wanton standard review is even necessary.

Merit Decision

Analysis

Executive Summary

It is the employee’s conduct, not that of the political subdivision, that establishes the exception to immunity under the statute.  And there is no additional exception to the immunity statute that imposes liability on a political subdivision for its actions in the hiring, training or supervising of an employee.

 

Click here to continue reading.


How “Assembly Line Medicine” May Contribute to Medical Negligence

Shared by Lafferty, Gallagher & Scott, LLC

www.lgslaw.net/blog


For the past decade or so, and into the near future, hospitals have increased the output of their surgeons by having them schedule several surgeries in one day. Doctors will often find themselves working 14-hour days going from one room to the next and performing the most complicated parts of a surgery while they leave residents and other assistants to do the rest.

While medical review boards insist that the practice is safe, many wonder how that could be. Doctors are required to go over the patient’s charts, ensure they are getting the best quality of care, and it is not clear how that happens with the assembly line style of care.

DOCTORS AGAINST ASSEMBLY LINE MEDICINE

Not all doctors agree that the process is safe. In fact, there have been some outspoken critics of the process who contend that patient care suffers as a result of assembly-line medicine. Among their chief complaints are that patients require personalized care that they do not receive when they are the 10th patient their doctor has seen in the past hour. This is largely a response, they contend, to the corporatization of the medical industry.

When people suffer a negative medical outcome, they are entitled to pursue a lawsuit against their doctor. That does not mean that their lawsuit has merit or will be successful. In order to prove medical negligence or medical malpractice occurred, they must show that the doctor failed in his or her duty of care.

In cases in which the patient was one of 10 other patients that a doctor either saw or performed surgery on that day, the question will always be: Did the quality of care suffer as a result of the practice? The medical profession at large says no, while individual doctors have varying opinions on the practice. However, the fact that one doctor saw so many patients in one day and the patients suffered injury as a result of their care can be used as an argument against the doctor in court.


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CDC Investigates Legionnaires Disease Outbreak

Shared by Crandall & Pera Law, LLC

www.injuryverdicts.com/blog


The Ohio Department of Health and the Centers for Disease Control and Prevention have sent personnel to a Clermont County hospital to trace the source of a recent outbreak of Legionnaires' disease. Two patients at the Mount Carmel medical facility have already been diagnosed with the potentially deadly condition. A hospital representative said that the facility was cooperating with health inspectors and is continuing to provide medical services during the investigation.

Legionnaires' disease is a severe type of pneumonia that is caused by bacteria that is commonly found in fresh water sources like lakes and streams. The bacteria thrives in hot water tanks, air conditioners and cooling towers when it finds its way into the water systems of large buildings. People usually become infected after inhaling mist that contains the bacteria. Symptoms of Legionnaires' disease include nausea, vomiting, muscle aches, and shortness of breath. About one in 10 of the people who become infected die of the condition.

The hospital says that it is hyperchlorinating its entire water supply to prevent the spread of the disease. Health inspectors are worried that other patients may have already become infected. An outbreak of Legionnaires' disease at a nearby hospital in May led to the death of a 75-year-old woman. The outbreak occurred just weeks after the $361 million facility opened its doors. At least seven medical malpractice lawsuits have been filed against the hospital in connection with the outbreak.

Hospitals are expected to take all reasonable precautions to protect their patients from deadly diseases caused by unsanitary conditions. 


Ohio Nursing Home Neglect Can Be as Dangerous as Abuse

Shared by Plevin & Gallucci

www.plevinandgallucci.com/legal-news-blog


Horrifying stories of vulnerable elderly and disabled people being hit, unreasonably restrained, and even sexually assaulted catch the media’s attention and put families on guard. But the risks to nursing home residents go far beyond intentional violence. For those who are wholly or partly dependent on others for their food, hygiene, and medical care, neglect can be fatal. 

One of these risks was briefly in the spotlight earlier this year, when six employees and a contractor at Whetstone Gardens and Care Center in Columbus were charged with involuntary manslaughter and a mix of other crimes. One of the two patients at the center of the investigation and resulting charges died of septic shock as a result of untreated bedsores. 

Bedsores, also known as pressure ulcers, are common in nursing homes and other residential care facilities because many residents have limited mobility or are bedridden. However, the level and quality of care provided plays a significant role in determining both the rate at which residents suffer from bedsores and the likelihood of serious complications. For example, a facility providing high-quality care will ensure that residents move around to the degree they are able. Maintaining mobility has many possible health benefits, including reducing the risk of pressure sores. 

Even if a resident’s mobility is seriously limited, measures such as ensuring that a wheelchair is properly fitted and shifting the resident’s weight at regular intervals when bedridden can significantly reduce the likelihood of bedsores. When a resident does have bedsores, immediate and appropriate care can make all the difference. Neglected bedsores may have a wide range of serious consequences, including gangrene and other infections that can lead to the loss of a limb or death.

Bedsores are both serious enough and indicative enough of negligent care that the Centers for Medicare & Medicaid Standards (CMS) regulations include specific provisions relating to identification, avoidance, and treatment of pressure ulcers. But there are many other serious risks associated with nursing home negligence.

What is Nursing Home Neglect?

Nursing home neglect has been described as “the failure of the facility, its employees, or service providers to provide goods or services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.” Neglect is not willful–withholding of the same types of goods and services intentionally or as punishment would be classified as abuse, though the impact might be identical.

Some of the most common types of nursing home neglect include: 

Falls: Falls are common among the elderly, whether in residential care facilities or living independently. According to the Centers for Disease Control and Prevention (CDC), about three million older Americans are treated for fall-related injuries each year. More than 280,000 older adults are hospitalized for hip fractures sustained in falls each year, and about 30,000 die. But many falls are avoidable. Nursing homes are required to conduct fall assessments on residents, and to adapt the resident’s care plan based on that risk. 

Choking: While a person of any age can choke, the elderly and people with certain diseases and disorders are at higher risk. More than half of choking fatalities occur among those aged 75 and older. The risk can be minimized in a nursing home setting by properly assessing the patient and providing an appropriate diet, including a soft or pureed diet if necessary. Staff training is also critical, since the ability to recognize signs of choking and respond swiftly and appropriately can mean the difference between life and death.

Dehydration and Malnutrition: A wide variety of factors can impact nutrition and hydration in the elderly, from loss of appetite to problems absorbing nutrients. In some cases, the cause may be as simple as an elderly person forgetting to drink throughout the day, or not having easy access to water in a facility. Nursing home staff must monitor what residents eat and drink and take note of inadequate consumption and/or any changes in body weight, skin texture, or other health issues that may indicate the resident is not getting enough nutrients or hydration.

Medication Errors: Nursing home residents in the United States suffer more than one million avoidable adverse drug reactions each year. Tens of thousands of these reactions are fatal or life-threatening. Some common causes include administering the wrong medication, administering the wrong dosage, neglecting to administer medication, or giving medication to the wrong resident.

Infections: The elderly and disabled may be particularly susceptible to infections that impact people of all ages. For example, those who are incontinent, are dehydrated, and/or are catheterized are at greater risk for urinary tract infections. And elderly people who may be experiencing cognitive deterioration may not recognize or report symptoms. But urinary tract infections, pneumonia, and other common infections can be fatal if left untreated.

Be Alert for Signs of Nursing Home Neglect

It’s important to be on the lookout for signs of neglect, both when choosing a nursing home for a loved one and during residency. Educating yourself in advance can help you recognize signs and assess risk factors. For instance, one recent study showed that neglect was more common in for-profit residential care facilities than in nonprofit nursing homes. 

Some signals to watch for include: 

  • Poor personal hygiene among residents generally and your loved one in particular;
  • Unsanitary conditions in common areas, resident rooms, bathrooms, and other areas;
  • Loss of mobility after entering the facility;
  • Decline in general health, such as signs of malnutrition;
  • Cognitive decline;
  • Unexplained injuries.

Can I Sue Uber or Lyft if a Rideshare Driver Caused the Car Crash That Left Me Injured?

Shared by Barkan Meizlish LLP

barkanmeizlish.com/blogs-news


Yes, you can generally file a personal injury claim if a rideshare driver causes a traffic accident that injures you.

Despite a series of class action lawsuits, Lyft and Uber drivers remain classified as independent contractors rather than employees of the rideshare companies for which they work. As a result, rideshare drivers are generally required to carry at least two separate forms of car insurance that cover accidents involving injuries to passengers, pedestrians, bike riders, and people in other vehicles.

Typically, the at-fault Uber or Lyft driver will be the liable party, with the rideshare company being secondary/additional. However, certain factors, like if the negligent or reckless driver was acting as an employee of a rideshare company at the time of the accident, can alter who the liable party actually is. How your case will go largely depends on which of the following scenarios describes what happened.

Were You Injured While Riding as an Uber or Lyft Passenger?

Rideshare companies require their contract drivers to carry personal car insurance coverage. Additionally, rideshare companies commonly provide, and in most states are required to provide, approximately $1-million in insurance coverage. The additional $1 million policy can apply when passengers suffer injuries in crashes a rideshare driver caused.

How much an injured passenger can claim will depend on a number of factors, including the severity of the injuries, the amount of the medical bills, and the number of injured people who have valid insurance claims. The final factor comes into play because the $1 million limit covers all crash victims.

Was the Uber or Lyft Driver En Route With a Passenger When They Hit You?

Under the laws of Ohio, pedestrian, motorcycle riders, and individuals in other vehicles may not have access to the full $1 million of injury liability coverage carried by Uber and Lyft drivers. Consulting with a knowledgeable and experienced rideshare accident attorney will clarify how to maximize insurance settlements, and ensure all potential avenues of recovery have been investigated. 

Did the Uber or Lyft Driver Have the App Open but No Passenger in Their Vehicle?

Rideshare drivers who are “available” and logged into the rideshare company’s app, but have not yet picked up a passenger, are generally covered by their Uber or Lyft policy for up to $100,000 in liability. The driver’s own personal insurance may provide coverage, as may underinsured motorist provisions of the injured person’s insurance.

Did the Uber or Lyft Driver Have the App Closed and No Passenger in Their Vehicle?

Yes, you can generally file a personal injury claim if a rideshare driver causes a traffic accident that injures you.

Despite a series of class action lawsuits, Lyft and Uber drivers remain classified as independent contractors rather than employees of the rideshare companies for which they work. As a result, rideshare drivers are generally required to carry at least two separate forms of car insurance that cover accidents involving injuries to passengers, pedestrians, bike riders, and people in other vehicles.

Typically, the at-fault Uber or Lyft driver will be the liable party, with the rideshare company being secondary/additional. However, certain factors, like if the negligent or reckless driver was acting as an employee of a rideshare company at the time of the accident, can alter who the liable party actually is. How your case will go largely depends on which of the following scenarios describes what happened.

Were You Injured While Riding as an Uber or Lyft Passenger?

Rideshare companies require their contract drivers to carry personal car insurance coverage. Additionally, rideshare companies commonly provide, and in most states are required to provide, approximately $1-million in insurance coverage. The additional $1 million policy can apply when passengers suffer injuries in crashes a rideshare driver caused.

How much an injured passenger can claim will depend on a number of factors, including the severity of the injuries, the amount of the medical bills, and the number of injured people who have valid insurance claims. The final factor comes into play because the $1 million limit covers all crash victims.

Was the Uber or Lyft Driver En Route With a Passenger When They Hit You?

Under the laws of Ohio, pedestrian, motorcycle riders, and individuals in other vehicles may not have access to the full $1 million of injury liability coverage carried by Uber and Lyft drivers. Consulting with a knowledgeable and experienced rideshare accident attorney will clarify how to maximize insurance settlements, and ensure all potential avenues of recovery have been investigated. 

Did the Uber or Lyft Driver Have the App Open but No Passenger in Their Vehicle?

Rideshare drivers who are “available” and logged into the rideshare company’s app, but have not yet picked up a passenger, are generally covered by their Uber or Lyft policy for up to $100,000 in liability. The driver’s own personal insurance may provide coverage, as may underinsured motorist provisions of the injured person’s insurance. 

Did the Uber or Lyft Driver Have the App Closed and No Passenger in Their Vehicle?

When a rideshare driver is neither available to take passengers nor actually working for Uber or Lyft, their own car insurance policy generally applies to any crash they cause.

So, when can Uber or Lyft be sued if the driver was not actually working for the rideshare company at the time of the accident/injury? A few of the situations in which a rideshare company could be named as a defendant in a civil lawsuit are when:

  • The company allowed a driver to operate without carrying the required coverages.
  • The company contracted with a driver who has a criminal history of driving under the influence and the wreck involved drunk or drugged driving—a situation described as “negligent employment.”
  • The company contracted with a driver who had a criminal history of sexual or physical assault and the driver assaulted you while you were a passenger.

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

Blog Policies

Recent Posts:
• Blackouts and Motor Vehicle Accidents
 The Most Dangerous Road is the Mile Closest to Your Home
• Dog Breeds at Higher Risk of Becoming Aggressive
• Supreme Court of Ohio Sends Defamation Case back to Appeals Court to Apply Proper Degree of Fault to Claim
• Jury Awards Husband and Wife $11.4M Over Workplace Discrimination

Keywords: Motor Vehicle Accidents, Road SafetyDog Bites, Aggressive Dog BreedsAnderson v. WBNS-TVWorkplace DiscriminationBackseat Passenger SafetyElectronic RecordsIllegal Car PassingOhio Fairness Act, Construction Zones, AccidentsMcConnell v. Dudley, Township Liability, Assembly Line MedicineLegionnaires DiseaseNursing Home NeglectUber, Lyft

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