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My Philosophy

I know, this has nothing to do with civil litigation, but I enjoy astronomy, and it’s a good “universal” message. 

The astronomer Carl Sagan gave the following remarks at a university commencement speech.  It’s a good read, especially for those who are prone to self-importance. 

Reflections on a Mote of Dust

– Carl Sagan (1934-1996)

Pale Blue Dot

We succeeded in taking that picture [from deep space, over 4 billion miles away] and, if you look at it, you see a dot (encircled). That’s here.  That’s home.  That’s us.  On it, everyone you ever heard of, every human being who ever lived, lived out their lives.  The aggregate of all our joys and sufferings, thousands of confident religions, ideologies and economic doctrines, every hunter and forager, every hero and coward, every creator and destroyer of civilizations, every king and peasant, every young couple in love, every hopeful child, every mother and father, every inventor and explorer, every teacher of morals, every corrupt politician, every superstar, every supreme leader, every saint and sinner in the history of our species, lived there on a mote of dust, suspended in a sunbeam.

The earth is a very small stage in a vast cosmic arena.  Think of the rivers of blood spilled by all those generals and emperors so that in glory and in triumph they could become the momentary masters of a fraction of a dot.  Think of the endless cruelties visited by the inhabitants of one corner of the dot on scarcely distinguishable inhabitants of some other corner of the dot.  How frequent their misunderstandings, how eager they are to kill one another, how fervent their hatreds.  Our posturings, our imagined self-importance, the delusion that we have some privileged position in the universe, are challenged by this point of pale light.

Our planet is a lonely speck in the great enveloping cosmic dark.  In our obscurity — in all this vastness — there is no hint that help will come from elsewhere to save us from ourselves.  It is up to us.  It’s been said that astronomy is a humbling, and I might add, a character-building experience.  To my mind, there is perhaps no better demonstration of the folly of human conceits than this distant image of our tiny world.  To me, it underscores our responsibility to deal more kindly and compassionately with one another and to preserve and cherish that pale blue dot, the only home we’ve ever known.

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What is Negligence?

Since many of our cases involve negligence of one kind or another, it is necessary to define negligence. The Ohio Supreme Court defines negligence as follows: “Negligence is the failure to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances.” That has been the definition of negligence in Ohio (and probably all other states) for many years. And the courts have of course come up with different ways of expressing this concept.

“In order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom.  The existence of a duty depends on the foreseeability of the injury.”  In other words, one only has a duty toward another if an injury is foreseeable.

For example, if you are approaching a red light and, while talking to a friend on your mobile phone, you run the red light, you are negligent.  People exercising ordinary care and prudence do not talk on mobile phones and run red lights.

Proximate cause is defined as follows: “Where an original act is wrongful or negligent and in a natural and continuous sequence produces a result which would not have taken place without the act, proximate cause is established.  One is thus liable for the natural and probable consequences of his/her negligent acts.”

For example, in our example above, if the driver on the mobile phone runs a red light and crashes into a car traveling lawfully through the intersection, the driver at fault is liable for all damages and injuries that flow directly from his/her negligence.

These same concepts apply to medical malpractice cases.  Physicians and other healthcare providers must exercise ordinary, reasonable care under the circumstances.  If they don’t, they are negligent, and they are liable for any injury caused by their negligence.

Jeff Beausay



Personal Injury Damages Caps Upheld by Ohio Supreme Court

In 2005, the Ohio General Assembly passed several “tort reform” measures, the most controversial being the limits on the amount a jury can award in personal injury and product liability cases.  See RC 2315.18.  Under the 2005 rules, a plaintiff cannot recover more than the greater of (1)$250,000 or (2) three times the economic damages up to a maximum of $350,000, or $500,000 per single occurrence.  These limits do not apply to catastrophic injuries, defined as ”permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system,” or “permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities.”  These changes went into effect on April 7, 2005.

This statute was challenged on constitutional grounds.  In Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, the Ohio Supreme Court held that this and other tort reform provisions do not violate the Ohio Constitution.

TJB’s BS:

Let’s not overreact.  These limits DO NOT apply to medical malpractice cases, wrongful death cases, or cases involving catastrophic injuries (as defined in the statute).  It would be unusual for a jury to award noneconomic damages (e.g. pain and suffering) in excess of $250,000 if the injury is not catastrophic.  So, in reality, this statute will not affect that many cases.

Also, bear in mind, the Ohio Supreme Court, as presently constituted, is a “strict constructionist” court, meaning that the Justices tend to uphold statutes passed by the General Assembly (Congress), unless the statute clearly violates the Ohio Constitution.  Therefore, if the people of Ohio strongly disagree with these tort reform measures, they need to elect different politicians who are more “plaintiff friendly.”

The more interesting constitutional question will arise in the medical malpractice context, where the damages caps have no exception for catastrophic injuries.

Jeffrey Beausay, Trial Lawyer



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