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Every year, the legal landscape in our state changes. Here is a thumbnail view of some significant decisions, which currently impact civil litigation practice in Ohio:

1. INSURANCE LAW:

INSURANCE COVERAGE: EXPECTED OR INTENDED POLICY EXCLUSIONS INAPPLICABLE WHEN NEGLIGENCE OF OTHER INSURED IS PREDICATED ON THE COMMISSION OF INTENTIONAL/ ILLEGAL ACTS

Safeco Ins. Co. of Am. v. White (2009), 122 Ohio St. 3d 562, 913 N.E. 2d 426

When a liability insurance policy defines "occurrence" as an "accident", a negligent act committed by an insured that is predicated on the commission of an intentional tort by another person, e.g., negligent hiring or negligent supervision, qualifies as an "occurrence."

Insurance-policy exclusions that preclude coverage for injuries expected or intended by an insured, or injuries arising out of or caused by an insured's intentional or illegal acts, do not preclude coverage for the negligent actions of other insured under the same policy that are predicated on the commission of those intentional or illegal acts, e.g., negligent hiring or negligent supervision.

(Syllabus, at Para. 1, 2)

This case involved an incident where a minor, attacked and stabbed a 13-year old girl. The girl survived the attack. The attacker lived with his parents at the time of the incident. He pled guilty to attempted murder and felonious assault. He was convicted and sent to prison.

After his conviction, the victim and her parents sued the attacker and his parents on multiple claims, including, battery, negligent supervision, negligent entrustment and negligent infliction of emotional distress. The matter proceeded to trial and a jury returned a verdict in favor of the victim and her family. The jury found that the attacker was 30% responsible for the compensatory damages for his intentional act, and his parents were 70% liable for the damages for their negligence.

At the time of the incident, the attacker's family was insured by several insurance policies, including a homeowner's policy and a separate umbrella policy issued by Safeco. Safeco contended that its policies did not provide coverage for the parents of the attacker for two reasons: 1) the injury resulted from the intentional act of their son, an insured under the policy; and 2) the policies explicitly excluded coverage for the intentional acts of an insured and the severability clauses did not render the exclusionary clauses ambiguous.

The Court focused on the principle that whether the act is intentional must be determined from the perspective of the person seeking coverage. In this case, the attacker's parents did not intentionally cause injury to the victim. From their perspective, the injury was "accidental" and therefore, the act that caused her injury constitutes an "occurrence."

In examining the exclusionary language of both policies, which precluded coverage for injuries arising from or caused by the intentional or illegal acts of an insured, the Court found them inapplicable because the injuries caused by the attacker's parents were distinct from the injuries caused by the intentional or illegal acts of their son.

2. PREMISES LIABILITY:

THE OPEN- AND -OBVIOUS DOCTRINE APPLIES EVEN WHERE THERE IS A OHIO BASIC BUILDING CODE VIOLATION

Lang v. Holly Hill Motel, Inc. (2009), 122 Ohio St. 3d 120, 909 N.E. 2d 120

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.

The open-and-obvious doctrine provides that where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises. Armstrong v. Best Buy Co. Inc. (2003), 99 Ohio St. 3d 79, 788 N.E. 2d 589. While the open-and-obvious doctrine can excuse a defendant's breach of a common-law duty of care, it does not override statutory duties. Robinson v. Bates (2006), 112 Ohio St. 3d 17,25, 857 N.E. 2d 1195. Violation of a statutory duty constitutes negligence per se. Id. at 23-25.

In this case, the Court was faced with the issue of whether the violation of an administrative rule, such as a Building Code violation, also constitutes an exception to application of the open-and-obvious doctrine. The case arose from a trip and fall incident where a hotel patron fell and broke his hip as he attempted to climb two steps. The patron's wife sued the hotel for negligence, alleging that the step over which he tripped exceeded the height limitations of the Ohio Basic Building Code.

The Court refused to carve out an exception to the open-and-obvious doctrine for violation of administrative rules. The Court reasoned that such evidence may show that the condition at issue was dangerous or that the landowner breached the duty of care, but it does not raise an irrebuttable presumption of negligence.

The Court emphasized that its decision applies only "to those cases in which an alleged Building Code violation creates an alleged danger that is allegedly open and obvious to the plaintiff." Id. at 125.

3. EMPLOYMENT LAW:

ELECTION OF REMEDIES

Neal v. Franklin Plaza Nursing Home (Ohio App. 8 Dist. 2009), 2009 Ohio 2034

In this case, the Court focused upon a Plaintiff's testimony that she intended administrative agencies, the EEOC and/or OCRC, to investigate her charges of age discrimination. The Court held that such testimony demonstrated an "election of remedies" and barred a claim for age discrimination pursuant to O.R. C. 4112.02 and 4112.99.

4. NEIGHBORHOOD ACCIDENTS AND MINORS

Most people know that your average run of the mill neighborhood accident (car accident, bike accident, etc.) is easy enough to resolve. But what happens when these accidents involve a minor’s negligent actions? That’s when your average neighborhood accident becomes a complicated matter. In Ohio, the age of the minor involved is key to figuring out how to recover for your injuries.

Ohio recognizes the Tender Age doctrine, meaning children under the age of seven are incapable of negligence. Thus, when an accident is caused by the negligence of a child under the age of seven, then you will be unable to bring a claim against that child (or their guardians) for negligence.

Your next best option then becomes bringing a negligent supervision claim against the minor’s parents or guardians. The standard set out by the Supreme Court of Ohio for this claim is high however. The Supreme Court has stated that in order to find a parent liable for negligent supervision of a minor, the Plaintiff must show (1) the parents knew of their child’s particular reckless or negligent tendencies (thus knew they needed to exercise control over him); (2) the parents had the ability to exercise control; and (3) the parents did not exercise that control.

This is where your typical neighborhood accident gets bogged down into complicated litigation. Here at Keis George we have numerous injury cases involving this issue and many other similar issues. If you have experienced injury as a result of the actions of a minor, contact the attorneys at Keis George for a consultation.

Topics

Car Accidents
Construction Accidents
Drunk Drivers
Motorcycle Accidents
Negligence of Minors
Nursing Neglect
Pedestrian & Bicycle Accidents
Rules & Regulations of Truck Drivers
Wrongful Death

Recent Updates

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