Slip and Fall at Winery Results in Defense Verdict

Dunn v. Heineman’s Winery, 2015-Ohio-4054

Slip and Fall

In this case, the plaintiff was visiting a gift shop and then proceeded to go outside to an outdoor wine garden. The lawn area had recently been seeded and was covered with straw. It had rained earlier that day and the ground was wet. Three pieces of plywood had been placed on the ground so that customers could walk from the gift shop to the wine garden without getting mud on their shoes. The plaintiff slipped on the wet plywood and was injured.

The Open and Obvious Defense

This case, which was a slip and fall at a winery at Put N Bay, was found in favor of the defendant based on the defense of open and obvious danger. This defense is the most common defense used by owners of property involved in slip and fall claims. The trial court found the piece of plywood an open and obvious danger as a matter of law, leaving the winery with no duty to protect the plaintiff.  “The open-and-obvious doctrine eliminates a premises occupier’s duty to warn a business invitee of static dangers on the premises if the dangers are known to the invitee or are so obvious and apparent to the invitee that he or she may reasonable be expected to discover them and protect himself or herself against them.” Simmons v. Am. Pacific Ent., L.L.C., 164 Ohio App.3d 763, 2005-Ohio-6957, 843 N.E.2d 1271, ¶ 21 (10th Dist.), citing Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968). The case was affirmed 3 to 0 in the Court of Appeals of Ohio, Sixth Appellate District, Ottawa County.

The Ohio Supreme Court Accepts Review of Case Interpreting Ohio's "Good Samaritan" Law

The Ohio Supreme Court Accepts Review of Case Interpreting Ohio's "Good Samaritan" Law

On July 8, 2015, the Ohio Supreme Court accepted the case of Carter v. Reese, 2014-Ohio-5395 for review, which means that the Ohio Supreme Court will decide this appeal from the decision of the Twelfth District Court of Appeals.

Facts of the Case

It is a case involving a man who lost his leg when he was pinned against a loading dock. The man was stuck between the truck and the loading dock, but was uninjured. He was trying to get unstuck when he heard someone nearby. He called out to the man and the man asked what he could do to help him. The pinned man asked him to move the truck forward about a foot, but to make sure that he did not reverse the truck. The man who was attempting to render assistance did not know how to drive the type of truck that the man was pinned behind, but he decided to render assistance anyway and let the truck roll backwards onto the pinned man breaking his leg in three separate places. By the time someone came to render assistance who knew how to drive the truck, the injured man had lost so much blood that he had to be airlifted to the hospital and ended up having to have his leg amputated.

Decisions of the Lower Courts

The Trial Court and the Court of Appeals both affirmed Motions for Summary Judgment based on the "Good Samaritan" law in regard to rendering emergency care, holding that the Good Samaritan law in Ohio protects anyone who renders emergency care from liability for their conduct unless their conduct is willful and wanton. The issue that the Ohio Supreme Court will decide is whether Ohio’s Good Samaritan civil immunity statute only applies when emergency medical care is rendered or when anyone attempts to render emergency care.

What the Good Samaritan Statute Says

The Good Samaritan statute in R.C. 23025.23 states “(no) person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful and wanton misconduct.”

What is the Equitable Result

What do you think? Should the Ohio Good Samaritan law protect non-medically trained individuals from liability? Even if the Ohio Supreme Court determines that the law as written applies to any person, health care professional or otherwise, who administers ‘emergency care,’ medical or otherwise, at the scene of an emergency and who meets the remaining requirements of the statute, e.g. their acts do constitute willful or wanton conduct, this is an inequitable result for this injured trucker and the State of Ohio’s legislature should change the law to reflect this inequitable result. It was clearly negligent for the individual attempting to render assistance to try to drive the truck when he did not know how to operate it and he should be held accountable for his negligence.

West Toledo Motorcycle Accident Attorney

Motorcyclist Killed in West Toledo Crash

A motorcyclist was killed in a crash involving a motorcycle and another vehicle in West Toledo early today. According to the Toledo Blade, a car turned right in front of the motorcycle. Unfortunately, as is far too often the case, the driver of the automobile was not injured – but the rider of the motorcycle lost his life.

What to do if this happens to you

If this happens to you, do not hesitate to call attorney Charles S. Herman. I am a West Toledo motorcycle accident attorney and I represent individuals in all types of accidents in the Toledo, Ohio and surrounding areas. If you have been injured or your loved one or family members has lost their life in a motorcycle collision, do not hesitate to pursue the matter through a lawyer because there may be some difficult legal issues including comparative negligence and uninsured motorist coverage involved in the case. There have been studies done that show that the earlier you get an attorney involved in your case, the better settlement that is obtained on your behalf. West Toledo motorcycle accident attorney Charles S. Herman represents injured motorcyclists on a contingency fee basis. This means that there is no fee unless you win your case and attorney Herman will help you seek reimbursement for all related expenses, including wrongful death, loss of quality of life, pain and suffering, and loss of future earnings. Contact me now for a free consultation or go to my website at www.toledounionattorney.com. 

Ohio County Immunity

Rosenbrook v. Lucas Cty. Bd. of Commrs., Court of Appeals of Ohio, Sixth District, Lucas County

This case arose when the plaintiff slip and fell on a floor mat at the Lucas County Ohio courthouse. She and her husband brought suit against the County and the Court found that summary judgment was proper for the County because the negligence claims stemming from the slip and fall accident that occurred failed to establish an exception to the county’s immunity under R.C. 2744.02(B)(4), and further failed to identify the cause of the fall as required under the general laws of negligence. The county argued that the plaintiff did not allege any facts that would strip appellant of its statutorily imposed governmental immunity.

As stated by the Ohio Supreme Court, a “three-tiered analysis” is used to determine whether a political subdivision is immune from liability. Under the first tier, we examine whether the general grant of immunity provided by R.C. 2744.02(A) applies. If it does, the second tier requires us to determine whether immunity has been abrogated by the exceptions set forth in R.C. 2744.02(B). If an exception applies, the third tier involves a determination of whether the political subdivision is able to successfully assert one of the defenses listed in R.C. 2744.03, thereby reinstating its immunity.

R.C. 2744.02(B)(4) abrogates the general immunity afforded political subdivisions engaged in a governmental activity only if an injury is: 1) caused by employee negligence, 2) on the grounds or in buildings used in connection [with] that governmental activity, and 3) due to physical defects on or within those grounds or buildings.

In order to establish employee negligence, appellants must show the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. As a threshold matter, the Court had to determine the appropriate duty of care owed to the plaintiff. To determine the duty of care owed in premises liability actions, the Court examined the relationship between the owner or occupier of the premises and the injured party and found that the plaintiff was a licensee to whom the county owed no duty except to refrain from willfully or wantonly causing injury. The Court further found that plaintiff failed to show that there was no evidence of willful or wanton misconduct surrounding the County’s handling of the floor mats.

This case is in line with others that have been decided involving similar facts. In slip and fall cases, it is very difficult – if not impossible, to overcome the immunity defense of political subdivisions. If you think that you may have an Ohio premises liability action against a State of Ohio political subdivision, it is important to speak with an Ohio premises liability attorney who can help you decide if you have a case that is worth pursuing.

Ohio’s Saving Statute

Mays v. Toledo Hospital, 2015 Ohio 1865 – Ohio: Court of Appeals, 6th Appellate Dist. 2015

This was a case for a wrongful death action and the Court held that Ohio’s saving statute does not apply to allow a person to bring a claim for wrongful death for a third time.

The first time that the case was brought by the pro se plaintiff, the Court dismissed the complaint finding that the claims were required to be brought by an attorney and that the complaint lacked an affidavit of merit pursuant to Civ.R. 10(D)(2). The Court found that Ohio’s saving statute may be used only once to refile a case and that it cannot be used to keep actions alive indefinitely. The Court went onto state that to allow a plaintiff to use R.C. 2305.19 more than once would frustrate the purpose of the civil rules which are intended to prevent indefinite filings.

A review of the procedural posture of this case is a good reminder of why it is so important for people with potential claims to speak with an experienced attorney and to seek help with their case. There are a myriad of complicated procedural rules that must be followed when bringing a wrongful death action based on medical malpractice. In this age of Google, many people read about how something is done on the internet and think that they can go ahead and do it themselves. There is nothing wrong with a party going pro se in limited circumstances, but in actions such as medical malpractice and wrongful death it is imperative to hire experienced counsel.

Ohio Premises Liability

Combs v. Ohio Dept. of Natural Resources, 2014-Ohio-4025

On 4-8-15 the Supreme Court of Ohio took in the case of Combs v. Ohio Dept. of Natural Resources, 2014-Ohio-4025, which dealt with immunity in regard to a recreational user.

The case dealt with Ohio Revised Code 1533.181, commonly known as the recreational user statute"

"(A) No owner, lessee, or occupant of premises:

(1) Owes any duty to a recreational user to keep the premises safe for entry or use;

(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;

(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.

(B) Division (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises, whether or not the premises are kept open for public use and whether or not the owner, lessee, or occupant denies entry to certain individuals."

The Trial Court had found immunity when a person who was on some State property was going to do some fishing and was hit by a stone that was thrown by a lawn-mower that was being operated by a State employee. The Supreme Court of Ohio found that the immunity statute did not apply unless there was actually a defect in the premises. The Court found that, although Combs was a recreational
user, R.C. 1533.181(A)(1) does not immunize ODNR from liability for his injuries.

Wrongful Death Results from Negligent Toledo, Ohio Driver in Motor Vehicle Accident

Wrongful Death Results from Negligent Toledo, Ohio Driver in Motor Vehicle Accident

Wrongful death from driver's attempt to beat the light resulted in a fatal crash and a verdict for the Plaintiff in Toledo, Ohio. The decedent was driving his car southbound on Talmadge Road near the intersection of the eastbound entrance ramp to I-475 when he attempted to take a left hand turn onto Springbrook Drive when he was hit by a speeding northbound vehicle whose driver attempted to beat the light and ended up running the red light at the intersection. The jury found that each of the parties were partially at fault for the car accident.

The case involved the Toledo, Ohio attorney introducing evidence from the black box data of the northbound vehicle and light sequencing data in an effort to show that the northbound vehicle was speeding. The decedent suffered blunt force head trauma and died five days post-accident after being removed from life support. Prior to the trial, the demand in the wrongful death case was $500,000 by the plaintiff and the offer from the insurance company was $200,000.

After trial, the jury attributed 60 percent liability to the defendant (driver of the northbound vehicle) and 40 percent liability to the decedent (plaintiff). The jury returned a $750,000 wrongful death verdict, which was reduced to $450,000 due to the comparative negligence finding. That is, in Ohio, under Ohio Revised Code 2315.33, the contributory fault of a person does not bar the person as plaintiff from recovering damages that have directly and proximately resulted from the tortious conduct of one or more other persons, if the contributory fault of the plaintiff was not greater than the combined tortious conduct of all other persons from whom the plaintiff seeks recovery in this action and of all other persons from whom the plaintiff does not seek recovery in this action. In this case, the court diminished the compensatory damages recoverable by the plaintiff by an amount that was proportionately equal to the percentage of tortious conduct of the plaintiff as determined pursuant to the law.