Columbus Personal Injury Lawyer

Archive for 2008:

Dog Bites and Other Animal Attacks

R.C. 955.28(B) states that “[t]he owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was *** teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property.” R.C. 955.28 does not provide for the award of punitive damages. Tynan v. Hanlon (1959), 110 Ohio App. 77, 79. “R.C. 955.28 does not establish negligence per se. Rather, the statute establishes liability without regard to fault or the dog owner’s negligence.” Allstate Ins. Co. v. U.S. Assoc. Realty, Inc. (1983), 11 Ohio App.3d 242, 246, citing Hirschauer v. Davis (1954), 98 Ohio App. 479, affirmed (1955), 163 Ohio St. 105; Silverglade v. Von Rohr (1923), 107 Ohio St. 75. “In order to maintain a strict liability cause of action under R.C. 955.28(B), the plaintiff must establish: (1) that the defendant is the owner, keeper or harborer of the dog; (2) that the injury was proximately caused by the dog’s actions; and (3) the monetary amount of the damages.” Bowman v. Stott, 9th Dist. No. 21568, 2003-Ohio-7182, at ¶8, citing Hirschauer v. Davis (1955), 163 Ohio St. 105, paragraph three of the syllabus; Stuper v. Young (May 15, 2002), 9th Dist. No. 20900, at *4.

“Under the common law, a plaintiff suing for damages inflicted by a dog under a theory of general negligence must show: (1) the defendant owned or harbored the dog; (2) the dog was vicious; (3) the defendant knew of the dog’s viciousness; and (4) the defendant was negligent in keeping the dog.” Bowman at ¶19, citing Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25-26. Punitive damages may be awarded in a common law action against the dog owner. Rothenbusch-Rhodes, supra, at ¶38, citing Tynan, 110 Ohio App. at 7

Tags: Dog Bites and Other Animal Attacks

Consortium

There are several types of consortium. Consortium essentially is a derivative claim, meaning that a person can recover money damages for severe injuries to a loved one.

Parental/Filial Consortium

In Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, the Ohio Supreme Court held:

1. A parent may recover damages, in a derivative action against a third-party tortfeasor who intentionally or negligently causes physical injury to the parent’s minor child, for loss of filial consortium. Consortium includes services, society, companionship, comfort, love and solace.

2. In Ohio, a minor child has a cause of action for loss of parental consortium against a third-party tortfeasor who negligently or intentionally causes physical injury to the child’s parent. Consortium includes society, companionship, affection, comfort, guidance and counsel.

Spousal Consortium

Tags: Consortium

Landlord Obligations

Statutory Obligations

The obligations of landlords in Ohio are governed in part by RC 5321.04. Under RC 5321.04 (enacted in 1974), a landlord must (among other things):

(1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety;

(2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition;

(3) Keep all common areas of the premises in a safe and sanitary condition;

(4) Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and appliances, and elevators, supplied or required to be supplied by the landlord.

A landlord is liable for injuries sustained on the demised residential premises that are proximately caused by the landlord’s failure to fulfill the duties imposed by R.C. 5321.04. A violation of a statute which sets forth specific duties constitutes negligence per se. Schell v. DuBois (1916), 94 Ohio St. 93 ; Patton v. Pennsylvania R.R. Co. (1939), 136 Ohio St. 159 ; Grieser v. Huntington Natl. Bank (1964), 176 Ohio St. 291 . However, in addition to negligence per se, proximate cause for the injuries sustained must be established. Schell and Patton, supra. Also it must be shown that the landlord received notice of the defective condition of the rental premises, that the landlord knew of the defect, or that the tenant had made reasonable, but unsuccessful, attempts to notify the landlord. See Shroades v. Rental Homes (1981), 68 Ohio St.2d 20.

Natural Accumulations of Ice and Snow

R.C. 5321.04(A)(3) does not impose a duty on landlords to keep common areas of the leased premises clear of natural accumulations of ice and snow. LaCourse v. Fleitz (1986), 28 Ohio St.3d 209.

DeAmiches v. Popczun (1973), 35 Ohio St.2d 180:

1. The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that a landlord may reasonably expect that a tenant on a common driveway will act to protect himself against them.

2. Where a hole in the surface of a common driveway is covered by a natural accumulation of ice and snow and the tenant’s knowledge of said defect is equal to or superior to that of the landlord, the landlord is not liable for injuries sustained by the tenant as the result of stepping into the hole. (Mikula v. Slavin Tailors, 24 Ohio St.2d 48 , followed.).

3. A tenant, who knowingly and deliberately ventures onto a hazardous area which is covered with a natural accumulation of ice and snow, assumes the risk of any resulting injuries.

The Liability of Landlords for Animals Kept by Tenants

As a general rule, a landlord may not be found liable for injuries to a third person occasioned by a vicious or dangerous animal kept by a tenant on premises within the tenant’s exclusive control. See Annotation, Landlord’s Liability to Third Person for Injury Resulting from Attack on Leased Premises by Dangerous or Vicious Animal Kept by Tenant (1991), 87 A.L.R.4th 1004. See, also, Parker v. Sutton (1991), 72 Ohio App.3d 296. However, landlords out of possession can be found liable for injuries caused by the animal kept on the leased premises by the tenant where the landlord has knowledge of the dangerous or vicious animal but fails to abate the hazard with sufficient time to do so. Flint v. Holbrook (1992), 80 Ohio App.3d 21, 26. “[W]hen it has been shown that the animal has been kept after knowledge of [its] dangerous character has been acquired, or circumstances from which the law would imply knowledge, and an injury has followed, this would be prima facie evidence of negligence.” Hayes v. Smith (1900), 62 Ohio St. 161, 182-183. Accordingly, to find the landlord liable, the court must determine that the landlord harbored the dog with knowledge of its vicious tendencies under common law. Flint at 26.

Call Us:

We represent tenants in personal injury cases against landlords. If you or a loved one have been injured as the result of landlord negligence, please feel free to contact me.

Jeff Beausay, Trial Attorney

Tags: Landlord Tenant Disputes

Different Methods

The “Different Methods” jury instruction (3 OJI Section 331.02, para 3) should only be used when there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition. See Pesek v. Univ. Neurologists Assoc., Inc. (2000), 87 Ohio St.3d 495; Peffer v. Cleveland Clinic Found., 177 Ohio App.3d 403, 2008-Ohio-3688.

Tags: Ohio Jury Instructions

Increased Care Burden

When someone is severely injured in an accident or as a result of medical negligence, the injured party’s spouse sometimes will miss work in order to care for his/her spouse at home. The question is: What damages are recoverable for this care? Can the spouse recover for loss of income if s/he takes off work to care for the injured party? Or can they only recover for the fair market value of the home health care?

In Hutchings v. Childress, 119 Ohio St.3d 486, 2008-Ohio-4568, the Ohio Supreme Court held: The injured spouse can recover the fair market value of the home health care provided by the supportive spouse, but not for the loss of income.

Tags: Damages, Increased Care Burden

Settlement Authority

In Morr v. Crouch (1969), 19 Ohio St.2d 24, the Ohio Supreme Court held:

An attorney who is without special authorization has no implied or apparent authority, solely by virtue of his general retainer, to compromise and settle his client’s claim or cause of action.

This means that an attorney must get his/her client’s authority (permission) to settle the client’s case. Therefore, the client has the ultimate say in whether his/her case is settled, and for how much.

Tags: Settlement Authority

Fast Fair Results

Fast

The Problem. The legal system is anything but fast; the system is simply not equipped to handle the number of cases filed. When a personal injury or medical malpractice case is filed, the trial date is likely one to two years down the road, sometimes longer. If you consider the possibility of appeal, cases can drag out for many years.

The Solution. An experienced trial attorney using cutting edge technology can quickly evaluate your case by meeting with you, getting the needed information (medical records, medical bills, lost income verification, etc.), and communicating effectively with the insurance companies involved. When both the injured person and the insurance company are acting reasonably, most cases can be settled fairly quickly. When either party is unreasonable, the case goes into the SLOW bin (the court system).

Alternative Dispute Resolution. Arbitration and mediation are two under-utilized methods of getting cases resolved without the delay of the court system. Arbitration is a forum whereby the case is submitted (i.e. tried) to usually three arbitrators, who actually decide the case (i.e. determine who was at fault, and award reasonable compensation for the losses suffered). Arbitrations can be either binding or non-binding. Mediation is a process whereby the parties meet with a neutral mediator, and try to settle the case.

Many of our cases are resolved using these alternative dispute resolution methods, and we often encourage our clients to try these techniques to get their case resolved quickly and fairly, particularly when our client needs to have a fast resolution of their case. Alternative dispute resolution offers our clients a faster, less expensive means of getting their case resolved. Make no mistake, we are ready, willing, and able to take your case into the court system and present your case to a jury, if that is in your best interests.

Fair

The Problem. It’s like the old David vs. Goliath story. Our judicial system is adversarial, meaning it pits one party against another (plaintiff vs. defendant; accident victim vs. insurance company; patient vs. physician; etc.). Most of our cases are against insurance companies and those they insure. The plaintiff (victim) is often against a multi-billion dollar insurance company with unlimited financial resources. The plaintiff, on the other hand, normally has few if any resources to fight a huge insurance company when the insurance company does not treat them fairly.

The Solution. At The Donahey Law Firm, we have the skills and resources to take on the insurance companies. We have been doing it for many years, and we do it every day.

I personally have represented all sides (plaintiffs, defendants, injured parties, insurance companies, doctors, hospitals, employers, employees, etc.) in virtually every context (motor vehicle accidents, medical malpractice cases, product liability cases, work-related injuries, etc.), and this gives me a broad perspective that many attorneys do not have. It is very advantageous to know your opponent’s strengths and weaknesses. Having worked both sides, I have that advantage.

Results

Please see, Verdicts & Settlements

Jeff Beausay

Tags: Choosing the Right Lawyer

Subrogation: What is it?

Suppose you are injured in an auto accident caused by another driver. Your medical bills are paid in part by your auto insurance company (Medical Payments Coverage), and in part by your health insurance company. Both insurance companies will want to be reimbursed when you settle your claim against the driver at fault (or his/her insurance company). That is called subrogation. It essentially means that whoever paid your medical bills (or other losses) wants to be reimbursed when your case settles.

The above scenario is an example of contractual subrogation. There also is statutory subrogation: For example, if you are eligible for Medicaid or Medicare and get your bills paid that way, the state and federal government are entitled to subrogation by statute.

Regarding Medicaid subrogation, RC 5101.58 governs the state’s subrogation rights. If an injured party’s medical expenses are paid by Medicaid, the injured party must notify the Ohio Department of Job and Family Services that s/he is pursuing a claim against the third party tortfeasor. After attorney fees and case expenses are deducted from the settlement amount, the ODJFS is entitled to 1/2 of the remaining amount, or the actual amount of the benefits paid (whichever is less). Thus, as a general rule of thumb, you can expect to receive no less than about 1/3 of the settlement in these situations.

In Blue Cross & Blue Shield Mut. of Ohio v. Hrenko (1995), 72 Ohio St.3d 120, the Ohio Supreme Court held:

In Ohio, there are three distinct kinds of subrogation: legal, statutory, and conventional. Legal subrogation arises by operation of law and applies when one person is subrogated to certain rights of another so that the person is substituted in the place of the other and succeeds to the rights of the other person. State v. Jones (1980), 61 Ohio St.2d 99, 100-101. Statutory subrogation is a right that exists only against a wrongdoer. Conventional subrogation is premised on the contractual obligations of the parties, either express or implied. The focus of conventional subrogation is the agreement of the parties. Id. at 101.

This decision was authored by Justice Wright, and agreed to by Justices Moyer, Douglas, Sweeney, Pfeifer, and Cook; Justice Resnick concurred in judgment only. To my knowledge, no Ohio court prior to this recognized these three separate types of subrogation, and I have no idea where this definition of “statutory subrogation” came from (no citation is given). The Jones case referenced in Hrenko does distinguish betweeen legal/equitable subrogation and conventional/contractual subrogation, but I’m not sure where Justice Wright’s definition of “statutory subrogation” came from. Under most subrogation statutes, the statutory subrogee may assert a subrogation claim against both the tortfeasor and the claimant, which seems contrary to the definition provided in Hrenko.

Conclusion

A trial lawyer understands the law, and knows your rights. We often must challenge the subrogation liens when there isn’t enough liability insurance to pay the claims, and this is another way we can help you maximize your recovery in the event of an injury.

Jeffrey Beausay

Tags: Subrogation

Medical Malpractice: Statute of Limitations

Q. Suppose you are severely injured as a result of medical malpractice or hospital negligence. How long do you have to file your case against the negligent party/parties? In other words, what is the statute of limitations in medical malpractice cases in Ohio?

A. Under Ohio law, an action upon a medical claim “shall be commenced within one year after the cause of action accrued.” RC 2305.113. This applies to negligence claims against any type of healthcare provider.

Q. But when does the cause of action accrue?

A. The Ohio Supreme Court has held that a cause of action “accrues” upon the occurrence of a “cognizable event” (substituting another vague phrase). The cognizable event is “some noteworthy event which does or should alert a reasonable person-patient that an improper medical procedure, treatment, or diagnosis has taken place.”

In Norgard v. Brush Wellman, Inc., 2002-Ohio-2007, 95 Ohio St.3d 165, the Ohio Supreme Court held: “Discovery of an injury alone is insufficient to start the statute of limitations running if at that time there is no indication of wrongful conduct of the defendant.” Thus, two things must happen for the one year statute to start running: 1) Patient discovers that s/he is injured (usually–but not always–this is obvious); 2) Patient discovers that his/her injury was caused by the wrongful conduct of the defendant. It is thus the knowledge of the wrongful conduct that triggers the one year statute. Essentially there is a moment in time when a reasonable patient suspects that his/her physician did something wrong; that is the cognizable event as I understand it.

There is a provision in the statute that lets you extend the statute of limitations (SOL) by 180 days, which we refer to as a “180-day letter.” But don’t take any comfort in that because, if your 180-day letter is for any reason not perfected or you don’t serve the right parties, you’re SOL (alternative definition).

Also, there are exceptions to the rule. For example, the SOL does not run as to minors until the minor turns 18 years of age. And the SOL does not apply to mentally incompetent persons. And if medical negligence causes death of the patient, the wrongful death claim carries a 2 year statute of limitations.

TJB’s Comments:

Unlike motor vehicle accidents and wrongful death claims, which carry two year statutes of limitations, medical malpractice cases have a one year statute of limitations. So if you suspect medical malpractice (medical negligence), you should consult an attorney immediately. Understand that it takes us several weeks to gather necessary medical records and send them to experts for review. And there may be exceptions to these rules, so be sure to call and ask if you’re not sure. And don’t wait til the last minute!

Jeffrey Beausay

Tags: Medical Malpractice, Statute of Limitations