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Negligence of Minors

Can a person under the age of 18 be “negligent?”  Recall that negligence is the failure to exercise ordinary care for the safety of others.  Well, the answer is:  it depends how old the minor is.  Infants under seven years of age are “incapable of negligence;” children between 7 and 14 are presumed to be incapable of negligence, but the presumption can be rebutted by showing that the child is of sufficient maturity and capacity to avoid danger and make intelligent judgments with regard to the activity in which s/he had engaged; children 14 and older are capable of negligence, but the issue must be determined by the jury. 

In Wheaton v. Conkle (1937), 57 Ohio App. 373, the court stated:

This proposition is supported by the case of Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St., 283, 20 N. E., 466, 3 L. R. A., 385, which has never been reversed and is now the law of this state, dealing with the degree of care required of children. On page 289 of the opinion it is stated:

“Children constitute a class of persons of less discretion and judgment than adults, of which all reasonably informed men are aware. Hence ordinarily prudent men, reasonably expect that children will exercise only the care and prudence of children, and no greater degree of care should be required of them than is usual under the circumstances, among careful and prudent persons of the class to which they belong.”

In the case of Fightmaster v. Mode, 31 Ohio App., 273, 167 N. E., 407, at page 281, we note the following:

“1. In the application of the doctrine of contributory negligence to children, in actions by them, or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that of adults; and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them, is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances. * * *.

“Children are not chargeable with the same care as persons of mature years. Although children are required to exercise ordinary care to avoid the injuries of which they complain, such care, as applied to them, is that degree of care which children of the same age, education and experience, of ordinary care and prudence, are accustomed to exercise under similar circumstances.”

In Cleveland, C., C. & St. L. Ry. Co. v. Grambo, Sr., Admr., 103 Ohio St., 471, 134 N. E., 648, 20 A. L. R., 1214, at page 476, it is held:

“The standard governing such negligence on the part of a youth is not the same as that of an adult.”

This request, when carefully read, does not say that Section 6310-36, General Code, had no application to Anson Wheaton, aged fifteen. It does say that in the jury’s determination of any violation of the section by him that he is only required to exercise such care as one of his age, of ordinary care and prudence, is accustomed to exercise under similar circumstances.

Some other cases on point are:

  • Foulke v. Beogher (2006), 166 Ohio App.3d 435, 2006-Ohio-1411
  • Rolling Mill Co. v. Corrigan (1889), 46 Ohio St. 283 
  • Lake Erie & Western R.R. Co. v. Mackey (1895), 53 Ohio St. 370
  • Holbrock v. Hamilton Distributing, Inc. (1967), 11 Ohio St.2d 185

Jeffrey Beausay  

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Negligence Per Se

Negligence is a failure to do what the reasonable person would do under the same or similar circumstances.  We also refer to this as the “standard of care.”  The standard of care to be exercised for the protection of others can be established by legislative enactment, judicial decision, or by the facts and circumstances of the case.

Where a statute or ordinance imposes a specific duty, or prohibits certain conduct, for the protection of others, and the failure to perform that duty, or the violation of the prohibited act, results in injury to another, the person is “negligent per se” or negligent “as a matter of law.”  See Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367; Swoboda v. Brown (1935), 129 Ohio St. 512.

The violation of an administrative rule does not constitute negligence per se; however, such a violation may be admissible as evidence of negligence.  Chambers v. St. Mary’s School (1998), 82 Ohio St.3d 563; Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495 (The open and obvious doctrine may be asserted as a defense to a claim of liability arising from a violation of the Ohio Basic Building Code.”)

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Damages

We are often asked what damages are recoverable when someone is injured by someone else’s negligence.  (Wrongful death damages are covered in another post:  Wrongful Death).  As a general rule, an injured person is entitled to recover an amount that will fairly and justly compensate him/her for the injury sustained.  The injured party shall have compensation for all of the injuries sustained.  Compensatory damages are intended to “make the plaintiff whole.”  The three most common categories of recoverable damages are:

I. Medical Expenses (past and future)

II. Lost Earnings and Loss of Earning Capacity (past and future)

III. Pain and Suffering.  The most common noneconomic loss is the physical pain and mental suffering endured by the plaintiff as a direct result of the injury sustained.  The amount of money damages for pain and suffering is strictly a matter for the jury to decide.

Permanent Disability.  For very serious injuries, if the plaintiff has suffered a permanent disability, such as the inability to perform the usual activities of life, the basic mechanical body movements of walking, climbing stairs, feeding oneself, driving a car, etc., or by way of the inability to perform the plaintiff’s usual specific activities that had given pleasure to the plaintiff, the jury can make a separate award for permanent disability, which is separate from pain and suffering.

Other Damages.  In addition to the main categories, additional damages may be awarded in certain circumstances, such as recovery for scars and disfigurement, family losses (loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education), increased care burden, etc.

For a comprehensive discussion of recoverable damages for personal injury under Ohio law, see Fantozzi v. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d 601.  A fairly comprehensive list of the recoverable damages for personal injury is:

  • Medical Expenses
  • Loss of Income
  • Physical Pain:  Physiological (discomfort, distress, or agony)
  • Mental Suffering:  Psychological; the mental or emotional consequences of the plaintiff’s injury (includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror, ordeal, etc.)
  • Inability to Perform Usual Activities/Loss of Enjoyment of Life:  These are broken down into basic activities such as walking, climbing stairs, feeding oneself, driving a car, and activities specific to the plaintiff’s lifestyle, such as golfing, fishing, yardwork, bowling, hobbies, dancing, outdoor activities, playing musical instruments, etc.  

Comments:

While medical expenses and loss of income are usually easy to calculate, the noneconomic (intangible) losses of pain, suffering and permanent disability are difficult to predict-the jury is free to award whatever they deem fair and reasonable.  Nevertheless, an experienced trial attorney will have a general sense of what a jury will award in any given case.

Jeff Beausay

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What’s My Case Worth?

We take many factors into consideration in evaluating a case.  These include but are not limited to:

• Do the facts of the case cause an unusual reaction?
• Are the parties and witnesses likeable and believable?
• Is the case venued in a conservative, moderate, or liberal jurisdiction?
• The skill level of the defense attorney
• The severity of the injuries
• The economic losses (usually medical expenses and loss of income)
• The non-economic losses (pain and suffering, emotional distress, permanent disability, disfigurement, etc.) (See Damages).

Comments

Remember, there are three main categories of damages in most cases:  Medical expenses, lost income, and pain and suffering.  Medical bills and loss of income are easy to determine.  As for pain and suffering, it just depends on how serious the injury is, how long it takes to recover, and whether there is permanancy. 

These are some of the important factors taken into consideration.  Our attorneys have had years of experience handling cases similar to yours in a variety of circumstances, and therefore are in the best position to evaluate your case.

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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

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Ohio Workers’ Compensation Subrogation Statute Upheld by Ohio Supreme Court

The Ohio Supreme Court has upheld the Ohio Workers’ Compensation Subrogation Statute, which was attacked on constitutional grounds.  The case is Groch v. Gen. Motors Corp., Slip Opinion No. 2008-Ohio-546.

If a worker in Ohio is injured on the job due to the negligence of a third party (i.e. someone other than his/her employer), the worker has both a workers’ compensation claim, and a claim against the person who caused the injury.  If the Bureau of Workers’ Compensation pays benefits to the worker in the form of medical expenses and/or loss of income, the Bureau has a right of subrogation against both the party at fault and the injured worker. 

The bases for the constitutional challenge were fairly complicated and beyond the scope of this post.  Suffice it to say that the statute has been upheld, so the injured worker is strongly advised to retain a lawyer to help navigate the murky waters of this statute.

TJB’s Take:

The current workers’ compensation subrogation statute is actually the General Assembly’s third try at passing an essentially fair statute.  Two prior attempts failed in that the Ohio Supreme Court held them unconstitutional.  The current statute has the exact same flaws that the prior statutes had, but the current court did not recognize this, probably because they genuinely do not understand the new statute–it is fairly convoluted. 

Word to the wise:  Retain a trial lawyer if you find yourself in a position like this. 

Jeff Beausay, Trial Attorney 

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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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