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When can a business be held liable for an independent contractor’s negligence?

Posted on Friday, September 22nd, 2017 at 11:46 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Sam Hoops, who is pursuing his Juris Doctorate at the University of Kentucky.

In Pusey v. Bator, the court wrestled with the issue of whether a business can be held liable for an independent contractor’s negligence. Although the general rule regarding employer liability for negligent acts of a contractor acknowledges that the employer should not be held vicariously liable, the court here relied on an exception to the rule stemming from the “nondelegable duty doctrine,” specifically the “inherently-dangerous-work” criteria. The majority ultimately determined that the corporation could be held liable should the jury find that the independent contractor acted negligently.

In Pusey, Greif Bros. Corp. (“Greif”), a steel drum manufacturer, owned and operated a manufacturing plant in Youngstown, OH. After several incidents of theft, Greif hired Youngstown Security Patrol (“YSP”) to “deter theft and vandalism.” Although the contract between Greif and YSP did not specify whether YSP guards would be armed or not, the superintendent of Greif had knowledge that YSP guards often carried a firearm while on the job. After several years of providing security for Greif, YSP hired a new security guard, Eric Bator (“Bator”), whom was not licensed to work as an armed guard, yet carried a firearm nonetheless while working the night shift.

The facts giving rise to the case at hand began at approximately 1:00am during which time Bator was the sole guard on duty. Upon noticing two individuals, later identified as Derrel Pusey (“Pusey”) and Charles Thomas (“Thomas”), walking through Greif’s parking lot, Bator questioned the men of their intentions and ultimately ordered them to lie down on the ground with their arms out to their sides. Although Thomas complied with Bator’s orders, Pusey, while lying on the ground, made a quick movement like he was reaching for something in his back pocket, wherein Bator discharged his firearm, fatally wounding Pusey. As such, Pusey’s mother (“Plaintiff”), instituted a wrongful death and survivorship action against Bator, YSP, and Greif. At the trial level, Greif moved for a directed verdict, which was granted and subsequently affirmed on appeal by the Seventh District Court of Appeals.

Plaintiff appealed this case to the Ohio Supreme Court wherein the general rule regarding a company’s liability for an independent contractor’s negligence was examined. The first question in determining the liability of a company for the negligent acts of an independent contract begins with the chief question of whether one is an employee or an independent contractor. In Bobik v. Indus. Comm., the court answered this question by positing that, should “the right to control the manner or means of performing the work” lie with the company, there is an employer-employee relationship, incurring vicarious liability upon the company. In the alternative, should this right lie with the one performing the work, the employer will be insulated from liability. The court then considered exceptions to the general rule regarding independent contractors, specifically those stemming from the “nondelegable duty doctrine,” which includes two separate categories: (1) “affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law and; (2) duties imposed on the employer that arise out of the work itself because it creates danger to others, i.e., inherently dangerous work.”

Should the work assigned fall into one of the two above-listed categories, “the employer may delegate the work…., but he cannot delegate the duty,” i.e., the employer is not insulated from liability. To determine whether the work itself is inherently dangerous, it must create a peculiar risk of harm to others unless the company takes special precautions by ensuring that the work is done with reasonable care. For work to be considered inherently dangerous, “it is sufficient that the work involves a risk, recognizable in advance, of physical harm to others, which is inherent in the work itself.” Although the exception does not apply to a general anticipation of the possibility that an independent contractor will negligently cause harm to a third party, it will apply where the work creates special risks which would cause a reasonable person to recognize a necessity to take special precautions, i.e., the work must create a risk that is “not a normal, routine matter of customary human activity.”

Although Greif argued that hiring armed guards does not create a peculiar risk of harm to third parties, the court disagreed and stated that because YSP guards were instructed to “deter theft and vandalism,” the work contracted for anticipated a confrontation between armed guards and persons entering Greif’s property. Therefore, the work that YSP was hired to do created a foreseeable and peculiar risk of harm to third parties, which was not a normal, routine matter of human activity. As such, the case was remanded to the trial court for a determination of whether Bator acted with negligence in discharging his firearm. Pursuant to the Ohio Supreme Court’s holding, upon a showing of such negligence, Greif should be held liable for the death of Pusey.

In sum, a business may be held liable for the negligent acts of an independent contractor when the employer uses said contractor in a manner that most would consider inherently dangerous, i.e., there is a high chance that the contractor’s actions cause physical harm to others.

Note from Lawrence & Associates:  Most lawsuits related to injury or death are due to negligence, but this is not always the case.  Some lawsuits have layers, such as the instant case where a company’s negligence enabled the intentional act of another party, and these actions in combination got someone killed. If you are trying to figure out whether you should contact an attorney about filing a lawsuit, consider the fact that a good attorney can investigate your claim and will sometimes find issues not immediately obvious to you that indicate you should file a lawsuit related to your injury or the death of a loved one.  If you believe you may have an injury related lawsuit or insurance claim, don’t hesitate to call one of our attorneys for a free consultation.  We’re Working Hard for the Working Class, and we want to help you!


Will Student Loan Debt Cause the Next Financial Crisis?

Posted on Wednesday, August 30th, 2017 at 3:23 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Raphael Jackson, a law student from the Chase School of Law.

According to a recent New York Times article, at least $5 billion are at stake in a protracted legal dispute between student borrowers and creditors. At the center of this dispute is an organization called the National Student Loan Trust (NCT). The NCT is an umbrella organization of fifteen trusts. Having purchased nearly 800,000 student loans, the NCT is one of the largest owners of private student loan debt in the United States. The way the NCT works is that it buys private student loans then subcontracts to collection firms to file lawsuits in U.S. Courts.

Statistics from the student-loan financing website Make Lemonade indicate that 11% of students default on their student loan debt. Private lenders lack many of the powers afforded to federal lenders, such as interception of tax refunds, garnishing of social security benefits, or other seizures of federal income revenue. Therefore private lenders must rely almost exclusively on lawsuits in order to collect on debt. Although the NCT isn’t the only loan purchaser which takes its borrowers to court, NCT is considered to be the most litigious among them. According to the New York Times the NCT files an average of four lawsuits per day throughout the U.S.

Essentially NCT is in the business of purchasing debt, which is also known as securitization. Mass securitization is not an uncommon practice. However, because they purchased the loans in bulk from various private lenders, NCT often cannot provide an unbroken chain of title which links the borrower to the debt actually owed. As a result of this discrepancy, many judges are dismissing NCT cases in court.  Once a case is vacated in the court the borrower is no longer on the hook for the amount the creditor claims he or she owes.

What this means is that if you are one of the 800,000 former students whose student-loan debt is owned by the NCT, it is possible that your debt may be wiped clean.

How can you beat a law suit to collect on a student loan?

Transworld is the agency that NCT hires to collect their debt and take the consumers to court. According to a review conducted by the New York Times, the lawsuits brought about by the NCT/Transworld are failing in court due to their inability to prove ownership documents. This problem is similar to that which was caused by the ‘robo signing’ which plagued the subprime mortgage crisis of last decade. Attorney Robin Smith of the National Consumer Law Center commented “This is robosigning 2.0 with student loans...You have securitized loans in these large pools; you have sloppy record keeping,” as in the mortgage crisis.”

Federal loans afford a measure of protection to the consumer through income based payment plans, and the ability to discharge the loan in the event that the borrower’s school was closed down due to fraudulent dealings. Private loans on the other hand do not afford such protections to the consumer, furthermore the double digit interest rates, which balloon over time, can leave the borrower to pay hefty monthly sums which are unaffordable to most borrowers.

How do I know if I’m being sued for student debt?

You know you are being sued for the debt if you have received a summons and complaint in the mail. Once you received this summons and complaint from a court you have twenty days in Kentucky to answer it, or twenty-eight days in Ohio. If there are other defendants listed on the lawsuit they are probably your co-signers, who may be equally liable in court. To fail to respond to a summons within the thirty day time frame is to grant your lender a default judgment in court.

Traditionally many debt collectors relied on the default judgments they would receive by defendants’ who either ignored summons or quickly agreed to payment settlement terms. NCT typically puts out lawsuits within 6-12 months of the borrower’s default on the loan. Therefore, whether or not you intend on seeking professional assistance from an attorney be sure to mark your calendar. Once you receive the summons the clock on your lawsuit begins ticking.

Is it always in my best interests to quickly settle?

Some consumers arrange with law firms to make a settlement. What the debt collector is seeking is usually a “consent of judgment” along with an agreed upon monthly payment schedule. Keep in mind that once you sign you are consenting that you are legally liable for the debt. Before you have explored all of your legal options or verified the amount you actually owe, rushing into a settlement may not always be the best strategy. You may be one of the 800,000 consumers who has an affirmative defense. With the assistance of an attorney at the very least, with you may be able to work out a better settlement.

An affirmative defense is additional evidence which negates civil liability even if the initial charge can be proven. One typical affirmative defense is the statute of limitations. In the commonwealth of Kentucky, creditor’s generally take the position that the lawsuit must be filed within five years. In the state of Ohio, the statute of limitations on suing for student loan debt, or debt of any kind, is generally six years.

Finally, the NCT must show actual proof of the debt that you owe. This proof should be in the form of a loan agreement between you and the lender. Oftentimes in cases where the lender possesses some paper work evidence, the exact amount still may be in dispute.

If the collection agency has run the statute of limitations, they are still attempting to collect on the debt in spite of not having the proper documentation, this company may possibly be in violation of the Fair Debt Collections Act.

If you have been sued by your student loan provider, or you believe there is a discrepancy between the amount you owe and the amount that your lender is seeking to collect, contact an attorney as soon as possible for a free consultation.


I Want a Jury Trial for My Workers’ Compensation Claim.  How Can I Get There and What Can They Decide?

Posted on Wednesday, August 16th, 2017 at 1:54 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

The Ohio Workers’ Compensation Code allows an injured worker to appeal a decision by the Industrial Commission to a regular Court of Common Pleas and have a jury trial.  But if a worker makes that kind of appeal, what issues is the jury allowed to hear?  This article will discuss the Ohio Supreme Court’s Opinion in Ward v. Kroger Co., where that question is answered.

On April 26, 2001, Howard Ward (hereinafter “Ward” or “plaintiff”), an employee of Kroger Company (hereinafter “Kroger” or “Defendant”), injured his right knee in the course of his employment. In the Workers’ Compensation claim that followed, Kroger certified the condition of “right knee sprain,” but would not certify the conditions of “medial meniscus tear” and “chondromalacia.” Throughout the administrative review process, a district hearing officer allowed plaintiff’s claim for “right knee sprain,” but disallowed the other claims, a decision that was affirmed by a staff hearing officer. These decisions were not disturbed, due to the Industrial Commission’s refusal to hear a further appeal.

In an effort to have his claims for “medial meniscus tear” and “chondromalacia” allowed, and to participate in the Workers’ Compensation Fund for those conditions, Ward appealed, pursuant to R.C. 4123.512 (an Ohio statute generally allowing for the appeal of certain decisions made by the Industrial Commission in Workers’ Compensation cases), the decisions made throughout the administrative process to the Jefferson County Court of Common Pleas. Shortly before the scheduled trial date, however, plaintiff filed a motion to amend his complaint to add the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis.” Neither of these conditions had been presented to the administrative body.

The trial court granted the plaintiff’s motion to amend his complaint, and the plaintiff dismissed the “chondromalacia” claim. However, the case proceeded to trail by jury on the remaining claims (including the original “medial meniscus tear” condition, as well as the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis” contained in the amended complaint). The jury returned a verdict against the plaintiff on the originally appealed condition (that is, “medial meniscus tear”), but found in favor of the plaintiff on the remaining claims.

Plaintiff’s victory at the trial court was appealed. On appeal, the Court of Appeals reversed the judgment of the trial court, holding that the trial court had “exceeded its jurisdiction by permitting the employee [Ward] to amend his complaint to add these two conditions, which were never presented to the administrative body” (emphasis added). Ultimately, the Court of Appeals held that, when an appeal is being made pursuant to R.C. 4123.512, “the scope of the trial is limited to the condition ruled upon below.” In other words, the trial court had erred in allowing the plaintiff to amend his complaint to add two new conditions (that is, the conditions of “aggravation of preexisting degenerative joint disease” and “aggravation of preexisting osteoarthritis”) because those conditions had never been ruled upon by the administrative body (that is, the district hearing officer, staff hearing officer, and Industrial Commission).

The Court of Appeals’ decision was appealed to the Ohio Supreme Court. The basic issue to be decided by the Court, as alluded to above, was the scope of a R.C. 4123.512 appeal. Specifically, the question to be addressed was whether such appeals were limited in scope to those conditions addressed by the administrative body – in other words, was it permissible for trial courts to allow a plaintiff to amend his or her complaint prior to trial to include conditions that were never presented to the administrative body below?

The Ohio Supreme Court began its analysis by making note of the dichotomy that existed between the district courts of appeals on this particular issue. Some courts were of the opinion that allowing a plaintiff to amend his or her complaint to include conditions not initially or originally presented to the administrative body was permissible. These courts rationalized this conclusion by pointing out that an appeal made pursuant to R.C. 4123.512 is subject to “de novo” review of law and fact, and that, therefore, a plaintiff is not limited to the record formed during the administrative process. In further support of this conclusion, these courts reasoned that R.C. 4123.512 “provides for the application of the Civil Rules, which freely permit amendment of issues and claims.” Additionally, these courts note that R.C. 4123.512 authorizes “the taking of depositions and other discovery,” implying that the General Assembly (Ohio’s legislative body) “contemplated that additional evidence might surface in the court of common pleas and intended, in the interest of judicial economy, to allow for the litigation of new conditions.”

As persuasive as the previous reasoning may be, the Ohio Supreme Court’s mindset was more aligned with the opposing view. Those courts that disagree with the foregoing reasoning hold that a plaintiff may not litigate a new or different condition at trial in the court of common pleas. These courts reason that, since the trial is characterized as “de novo,” only “new evidence may be presented with regard to the appealed condition” – “evidence of a new condition may [not] be presented for the first time on appeal.” Additionally, these courts “view the order appealed as framing the jurisdiction of the common pleas court” – in other words, the administrative body must first be presented with and review conditions set forth by the plaintiff before the court of common pleas can adjudicate the issue.

As noted, the Ohio Supreme Court is in agreement with the view that appeals made pursuant to R.C. 4123.512 are limited in scope to those conditions addressed by the administrative body. However, the Ohio Supreme Court, in their decision, expanded upon the reasoning provided by the lower courts. The Ohio Supreme Court reasoned that “allowing consideration of the right to participate for additional conditions to originate at the judicial level is inconsistent with [the] statutory scheme” because, in essence, it eliminates the need and purpose behind the administrative body’s existence in the first place. To put it a slightly different way, the entire reason the administrative body was put in to place was to allow for the introduction of claims and to provide a record upon which higher courts could rely during the appellate process; allowing a plaintiff to amend his or her complaint and introduce entirely new issues for litigation at the trial court would eliminate the need for the administrative body. If such were not the case, plaintiffs should logically initiate their workers’ compensation claims at the trial court itself, as opposed to the Industrial Commission or administrative body, because, under such a scheme, the trial court and the administrative body share the exact same authority to allow for the introduction and adjudication of new and initial claims.

Ultimately, the opinion rendered by the Ohio Supreme Court in this case is consistent with principles of judicial review that have always, and continue to, justify the existence of appellate practice in nearly every jurisdiction in this country. The appeals process is, in a very general sense, meant to ensure against the erroneous application of law by lower courts. Appellate courts do not exist to provide litigants with multiple opportunities to perpetually try the same case over and over again. If this were not the case, every justification provided for the existence of administrative bodies and/or trial courts would be eliminated, leaving litigants with one court, and one court only, to adjudicate their claims from beginning to end. Such a system would result in the eradication of procedural safeguards, the multiplication of incorrect applications of law, and the destruction of all available means of recourse for litigants.


Can I Sue for Being Exposed to Mold in Ohio? A Case Study of Terry v. Caputo

Posted on Wednesday, August 9th, 2017 at 4:15 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

There is only a genuine issue of material fact in mold exposure if the plaintiff is able to demonstrate through expert testimony that mold exposure generally causes the type of injury the plaintiff experienced and the exposure to mold caused the plaintiff’s specific injury. In Terry v. Caputo, the Ohio Supreme Court adopted the above test and reversed the case because the plaintiff failed to demonstrate with medical experts that exposure to mold caused the specific injury at issue.

The Facts of Terry v. Caputo

Ottawa County Board of MRDD leased several suites from W.W. Emerson, and shortly after its employees began to experience headaches and physical ailments. The Ottawa County Board of MRDD conducted a building inspection and found mold in several locations. The employees’ ailments were attributed to the damp conditions in the building, which was subsequently cleaned. The symptoms eased but returned shortly. Further testing revealed several mold spores, including a type of mold that can cause the symptoms the employees experienced.

At trial, the plaintiffs’ medical expert had not personally examined the employees during their exposure to mold, but reviewed their medical records and concluded that the plaintiffs’ symptoms were caused by mold, mildew, and poor ventilation.

The trial court granted summary judgment for the defendant – summary judgment is when a court decides if either or both of the parties are able to present evidence regarding each essential element of a claim – because the plaintiffs failed to present medical evidence that their symptoms were directly caused by the mold. The court found the plaintiffs’ medical expert’s conclusions were broad and correlative rather than specific to the plaintiffs.

The appellate court overturned the trial courts decision to exclude the plaintiffs’ medical expert’s testimony with respect to general causation. However, the appellate court affirmed that the medical testimony did not prove specific causation because the expert relied too heavily on a temporal relationship. The appellate court reversed the grant of summary judgment because the plaintiffs could still demonstrate specific causation through additional evidence.

The Ohio Supreme Court’s Reasoning – How Do You Prove Mold Caused Your Illness?

Prior to this case, the Ohio Supreme Court had yet to rule on this specific issue. The court acknowledged the issue had been frequently considered in federal courts and adopted the test outlined in Knight v. Kirby, which required the plaintiff to demonstrate both general and specific causation. Step one of the Knight test is to prove the plaintiff was exposed to a type of mold (or other toxic substance) that can cause the particular injury experienced. The second step is satisfied if the plaintiff is able to demonstrate the mold, in fact, caused the specific injury in dispute.

To establish both general and specific causation, a plaintiff must present an expert witness. Expert testimony is governed by Evidence Rule 702, which requires, in part, that an expert witness base his or her testimony on reliable, scientific, technical, or specialized knowledge and the expert’s theory must be objectively verifiable or validly derived from widely accepted knowledge, facts, or principles.

In determining if expert testimony should be admitted trial courts are privileged with the role of “gatekeeper,” which gives trial courts discretion to analyze the reliability and relevance of the expert’s testimony. Appellate courts should only overturn the trial court’s determination if the trial court has abused its discretion in deciding the expert testimony was not reliable or relevant.

Expert testimony is reliable if the methodology has been subject to peer review, if the methodology is not known to have a high error rate, and if the methodology is generally accepted in the scientific community. Courts should only be evaluating the reliability of the methodology, not the results. In addition, expert testimony is considered relevant if it advances the matter at hand, which means there is a connection between the scientific research and the test results. This two-step inquiry has been described by a federal court as determining the scientific validity of a particular theory and analyzing the reliability of the expert’s application of the tested principles.

Finally, the Ohio Supreme Court relied on two Virginia cases in which motions for summary judgment were granted and upheld because the expert’s medical testimony was unable to prove the particular type of mold that caused the ailment and the expert was unable to rule out other causes of the plaintiff’s symptoms. When both cases were appealed, the California appellate courts held that the trial courts acted properly in their role as a gatekeeper because the trial courts had determined the expert testimony was not reliable or relevant and was too heavily on temporal correlations.

The Ohio Supreme Court ruled that the appellate court properly held that the plaintiffs’ expert testimony was sufficient to establish a generally connection between the type of symptoms exhibited by the plaintiffs and the type of mold that was discovered at their workplace. The court also held that the appellate court properly determined that the medical evidence was insufficient to establish that the mold was the specific cause of the plaintiffs’ symptoms. However, the court held that the trial courts summary judgment should have been upheld because the plaintiffs’ failed to establish that the mold was the specific cause of the ailments. As a result, the Ohio Supreme Court upheld the appellate court’s test but reversed and granted summary judgment.

Pfeifer Dissent

Justice Pfeifer was the lone dissenter who argued that the majority’s test was correct, but not its application. Pfeifer argued that the prior case law, which the majority relied upon, involved the plaintiff’s expert testimony at trial, but in the present case, the court was only deciding if summary judgment should or should not be granted. In other words, was there a genuine issue of material fact that the mold caused the specific type of symptoms exhibited by the plaintiffs? Pfeifer argued that general medical causation is sufficient to overcome the low burden of summary judgment.

What Does This Mean for My Mold Exposure Claim?

A motion for summary judgment occurs relatively early in the litigation process and the court’s holding in Terry v. Caputo establishes what evidence the parties must be able to demonstrate in mold or toxic exposure cases to successfully survive the motion. If the parties are unable to demonstrate both general and specific causation the parties will see their cases dismissed before trial. Obviously, these are complex issues, and it may be wise to talk to an attorney well before filing a lawsuit or insurance claim to ensure your case is handled correctly.

If you have a personal injury claim, don’t go it alone! Lawrence & Associates may be able to help! Our attorneys offer free consultations, or can refer you to another credible firm. Call us today – We’re Working Hard for the Working Class, and we want to help you!


When Is Creditor Harassment Illegal, and How Can You Stop Harassment?

Posted on Tuesday, August 1st, 2017 at 2:39 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Raphael Jackson, a law student from the Chase School of Law.

During the 2016-2017 school year, Colleges and Universities in the U.S. have awarded approximately; 1 million Associates degrees; 3 million Bachelor’s degrees; 790,000 Master’s degrees; and 180,000 PhD’s. According to the most recent statistics from the Federal Reserve there is 1.2 trillion owed in total student loan debt. Of these approximate 3 million graduates, 11% will default in their student loan debts. Even if you have not taken out student loans, chances are you have, at least once in your life, been in communication with debt collection agents.

Losing your job, being involved in an accident, or losing a loved one are some of the many things that can trigger an unexpected loss or income, or an increase in medical bills. Aside from being tragic these unexpected events can ultimately result in the victim falling into debt. If the consumer has defaulted it is important for them to work out any arrangement they can before the debt goes to a collection agency. Once your debt has been sold to a debt collection agency, it will have been handed off to an entirely new group of people. This new group of people have no knowledge or concern about how the debt was accrued. The collection agencies sole purpose is to collect debt in any way they can.

For those who have been contacted by a debt collector, one of the first steps is to: 1) verify the validity of the debt; and 2) verify that the company contacting you legitimately owns the debt.  Unfortunately many consumers feel the stigma that accompanies being in a state of indebtedness. Among the emotions associated with this stigma is a feeling of defeat and vulnerability. While in such a state of vulnerability, many consumers either forget or fail to realize that they are still entitled to protection against consumer harassment. Some debt collectors take advantage of this circumstance by employing improper tactics in their attempt to collect on your debt. Every consumer reserves the right to not be subjected to such improper tactics regardless of their financial circumstance. Many people acquire debt in the aftermath of a tragic life experience. In the aftermath of a tragedy these same people would be most vulnerable to harassment and exploitation. However, it is important for the consumer to realize that one simply does not relinquish their right to be treated with civility simply because they are in a state of indebtedness.

To ensure that debt collectors do not abuse their power, several states have enacted statutes designed to protect the consumer from unscrupulous debt collection practices. Ohio has enacted the Ohio Fair Debt Collection Practices Act. Although Kentucky has no similar state counterpart, residents of all states are protected by the Fair Debt Collection Practices Act (FDCPA).

What Debt Collectors Are Not Allowed To Do

The FDCPA is a document which enumerates what is considered “fair communication” in debt collection. The entire act consists of eighteen sections and several sub clauses. Among the information contained therein is: the definition of what would be considered harassment or abuse; definition of false and misleading information; and a delineation of the legal parameters of debt collection. The following bullet points cover a general understanding of the issues which most commonly affect the consumer as it pertains to what the debt collector isn’t allowed to do.

  • Harass you by phone- If you make it clear to a debt collector that you do not wish to be called by telephone they must respect this wish. Instead of constant phone calls you can request that the debt collectors relegate their correspondence to written communication. Debt collectors should not correspond by means of post card or any other form in which a third party may discover that you are being contacted in reference to a debt.
  • Contact you outside of a normal time frame – For those who do not mind phone correspondence, rest assured that debt collectors are not allowed to contact you between 9:00pm and 8:00am.
  • Target third Parties – Unless expressly authorized by the addressee, debt collectors are not permitted to intentionally contact third parties for the purposes of collecting your debt. This applies to spouses, children, co-workers, or anyone else who may answer the phone.  A second federal law, called the Telephone Consumer Protection Act also prohibits this kind of harassment.
  • Target you at Work – Unless expressly authorized by the addressee, debt collectors are not allowed to contact you at your workplace.
  • Engage in False Representation – Debt collection specialists are not allowed to represent themselves as court officers, law enforcement agents, or attorneys. They are also not permitted to threaten any legal action – or jail time – that they have no intention of following through with.
  • Circumvent your Attorney – Once you are represented by an attorney, or have otherwise referred the debt collector to contact your lawyer, the debt collector is no longer allowed to contact you directly.

What Can You Do If a Debt Collector Is Violating The Fair Debt Collection Practices Act in Kentucky or Ohio?

Among the debt collection workforce are a large number of part time, seasonal, or non-career employees. While there are several reputable legal firms and skilled attorneys that work in the business of Debt Collection, many of the debt collection specialist jobs require no more education beyond a GED and basic computer proficiency.

Thus, the consumer should never assume that all debt collectors are either thoroughly versed in the Federal Fair Debt Collection Practices Act, or particularly concerned about adhering to their training guidelines beyond what is required for them to remain employed. That being said, among those employed as debt collectors are students, stay-at-home parents, business owners, and others who have full time careers outside of their debt collection jobs.  Thus it should not be a surprise that many collection specialists are knowledgeable in fee dispute resolution and inclined to working with the consumer in an affable way.

Despite this fact, the consumer should never assume that all specialists will follow all guidelines in the absence of any reminders or specific requests from the consumer. It would therefore be wise to make such requests in writing, preferably with a certified letter.

If all else fails, contact an attorney to stop the harassment. Attorneys that can help with situation generally come in two varieties – those who file bankruptcies, and those who file civil actions under the Fair Debt Collection Practices Act. Either kind of attorney can help stop the harassment. A bankruptcy attorney is typically better for those who actually owe the debt and are no longer able to set up a reasonable budget to pay it back. A civil court, FDCPA lawsuit is better for those who don’t owe the debt, or who have the ability to make payments on it but simply need the creditor or collection agency to stop violating the law. When it pertains to creditor harassment each person has her own unique set of circumstances. By contacting either type of attorney, you can be ensured that the debt collector will cease harassing you; and that your attorney will be able to represent you in court if necessary.

At Lawrence & Associates, we file bankruptcies to stop creditor harassment, and we will bring the creditors to federal court for harassment that occurs after the bankruptcy’s filing. If you are being harassed by a creditor, call one of our attorneys today for a free consultation. We’re Working Hard for the Working Class, and we want to help you!


Does My Insurance Company Have to Pay If an Unidentified Vehicle Hits My Car?

Posted on Monday, July 24th, 2017 at 2:15 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Jessie Smith, a law student from the University of Kentucky.

A Brief Review of the Ohio Supreme Court’s Opinion in Smith, et al. v. Erie Insurance Company

In Smith, et al. v. Erie Insurance Company , the Ohio Supreme Court held that an insurance company was obligated to provide coverage to a policy-holder when an unidentified motorist caused a no-contact accident, resulting in injury to the policy-holder.

At first blush, for those not well-versed in insurance law, the legal concepts that underlie this case seem to be somewhat out of the ordinary. However, upon closer inspection, it becomes clear that the primary, driving force behind this decision is derived from well-settled principles of contract law. For laymen who may be unfamiliar with contract law, the facts of the case may, nonetheless, seem all-too familiar.

Before delving into the legal analysis employed by the court, and before determining how and why an insurance company was held liable for an accident resulting from the actions of an unidentified motorist, becoming acquainted with the basic facts of the case is necessary.

In July of 2011, Scott Smith (hereinafter “plaintiff” or “insured”) was driving his vehicle on what appears to have been a two-lane road. As the plaintiff progressed south down the highway, another motorist (hereinafter “unidentified motorist”), traveling northbound, crossed the center-line. The plaintiff, in an effort to avoid a head-on collision, swerved off of the road and crashed into a small collection of trees. As a result of this crash, the plaintiff suffered several injuries.

Soon thereafter, the plaintiff contacted the appropriate authorities. Upon arrival, law enforcement took photos of the accident scene, completed an accident report, and, relying upon the plaintiff’s statement, incorporated into the report the following: “[plaintiff was traveling southbound when he] swerved to avoid an unknown northbound vehicle that was left of center. [Plaintiff’s vehicle] went off the right side of the road and struck several small trees.”

The plaintiff held an auto insurance policy with Erie Insurance Company (hereinafter “Erie,” “insurer,” or “defendant”). In order for the policy to apply to situations in which an unidentified or unknown motorist was the cause of an injury, the plaintiff was required to “provide ‘independent corroborative evidence’ that the unknown driver caused the injury.” In other words, the plaintiff was required, by the terms of the policy, to provide some additional evidence, separate from his own account of the accident, that an unknown motorist had caused the harm in question; otherwise, the policy would not cover the costs of the plaintiff’s injuries.

The plaintiff had filed a claim with Erie; however, Erie denied the claim, grounding the basis for their denial in the language of the policy. Under Erie’s interpretation of the contractual language at issue, there was no “independent corroborative evidence” that the unknown driver had caused the injury, because the only evidence that existed to such effect, asides from the plaintiff’s own account of the accident, was a police report (and accompanying photographs) that had been produced only because of the plaintiff’s recollection of the events at issue. In other words, the police report was not “independent corroborative evidence” because it owed its entire existence to the plaintiff’s own testimony, and did not rest on any independent, third-party accounts of the accident that corroborated the plaintiff’s version of events.

The plaintiff filed suit, and the trial court granted summary judgment in favor of Erie, basing their decision upon the contractual language contained in the policy. The court held that “the policy requiring the insureds to provide ‘independent corroborative evidence’ that the unknown driver caused the injury meant that the [plaintiff] had to submit evidence, independent of [plaintiff’s] own testimony, corroborating that the accident was caused by an unknown motorist, which they failed to do.” In essence, the trial court agreed with Erie’s interpretation of the contractual language: evidence cannot be “independent,” nor “corroborative,” if that evidence rests entirely upon the plaintiff’s own account of the accident. In other words, if not for the plaintiff’s own testimony, the police report itself would never have existed. Therefore, the police report cannot be said to have been “independent.”

The plaintiff appealed. The intermediate appellate court found that the language contained in the policy was susceptible to two interpretations. The first, the interpretation advanced by the plaintiff, was that “‘additional evidence’ may consist of items of evidence, such as medical records and police reports, that are based on the testimony of the insured” (emphasis added). The second interpretation, the interpretation adopted by Erie, was that “‘additional evidence’ must be independent, third party evidence not derived from the insured.”

Because the policy language was susceptible to more than one interpretation, the appellate court considered it to be ambiguous. Applying principles of insurance and contract law (specifically, the principle of “contra proferentum,” or the idea that, particularly in the case of “adhesion contracts,” any ambiguity present in a contract should be construed against that of the drafter, or the “master,” of the contract), the court construed the language of the policy “strictly against the insurer and liberally in favor of the insured.” In reaching this conclusion, the court found in favor of the plaintiff, holding that “[additional evidence] may consist of items of evidence, such as medical records and police reports, that are based on the testimony of the insured.”

The Ohio Supreme Court also found in favor of the plaintiffs. Citing the general contract principle that “in interpreting contracts, courts must give effect to the intent of the parties,” and “that intent is presumed to be reflected in the plain and ordinary meaning of the contract language,” the court concluded that the policy language meant, essentially, just what it said – that “[t]estimony of [the insured] does not constitute independent corroborative evidence, unless the testimony is supported by additional evidence” (emphasis added). Thus, the court concluded, the insured’s testimony can constitute “independent corroborative evidence” so long as that testimony is “supported by additional evidence” (emphasis added).

To put it a slightly different way, in the Ohio Supreme Court’s view, Erie itself defined the phrase “independent corroborative evidence,” and that definition explicitly provided that testimony of the insured party is “independent corroborative evidence” if it is supported by “additional” evidence. Erie itself, as drafters of the contractual language, had every opportunity to define “independent corroborative evidence” in any way that they wished. Erie itself decided that mere “additional” evidence was enough to constitute “independent corroborative evidence.”

Therefore, it seems that, in the Ohio Supreme Court’s view, the policy language, even if ambiguous, should not be interpreted against the insured simply because Erie failed to define “independent corroborative evidence” as, for example, “independent evidence derived solely from a third-party’s own recollection or account of the events that transpired” or simply “independent third-party testimony.” Therefore, from the court’s perspective, any evidence, so long as it is in addition to the insured’s testimony, would satisfy the dictates of the contractual language, even if that evidence was derived solely from the insured’s testimony.

Smith, et al. v. Erie Insurance Company broadly stands for the proposition that an insurance company can be obligated to provide coverage to a policy-holder when an unidentified motorist causes a no-contact accident, resulting in injury to the policy-holder. Perhaps more significantly (and perhaps more importantly to legal practitioners), however, Erie serves as an important reminder of how very vital the careful, and extremely precise, drafting of contractual provisions can be. As was the case in Erie, regardless of whether evaluated from the point of view of the plaintiff or the defendant, it can mean the difference between victory and defeat for one’s case.

Have you been involved in an automobile accident with a hit-and-run driver, or with an uninsured driver? We can help! Call one of our attorneys for a free consultation. We’re Working Hard for the Working Class, and we want to help you!


Why the Industrial Commission Can Stop your Workers Compensation Settlement Payments

Posted on Monday, July 10th, 2017 at 1:06 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

One of the first steps in pursuing litigation is to determine which court has jurisdiction over a claim. Jurisdiction is a court’s power to hear and decide a case. Failing to file a claim with the proper court will either result in the case being dismissed or the judgment will be appealed on the grounds that the original court did not have jurisdiction. The Ohio Supreme Court has clarified which courts have jurisdiction over claims regarding worker’s compensation lump sum payments.

Prior to the Ohio Supreme Court’s ruling, Ohio case law indicated that two courts could hear cases regarding worker’s compensation lump sum payments. The first was the Ohio Court of Common Pleas, which has general jurisdiction over all civil disputes with more than $500 in controversy. Second, was the Ohio Court of Claims, which has exclusive jurisdiction over civil suits against the State of Ohio for money damages that are “sound in law.” After the Ohio Supreme Court’s ruling in Measles v. Industrial Commission, the Ohio Court of Claims has exclusive jurisdiction over workers’ compensation lump sum disputes.

Studying Measles v. Industrial Commission: Background information

A class action suit was brought against the Industrial Commission of Ohio for stopping weekly payments of workers’ compensation benefits. The individuals in the class action had opted to receive a partial lump sum and then receive discounted weekly distributions for the remainder of their life. However, in taking the partial lump sum the recipients signed a contract that provided, in part, “Lump Sum Payment is granted it will result in a permanent reduction of weekly benefits which shall continue for the life of the claim.” The members of the class action in this suit were only individuals who had taken a partial lump sum, but each member could have selected to receive a full lump sum payment and no weekly distributions at the time of selection.

The Industrial Commission of Ohio stopped paying weekly benefits to the members of the class action when the individual member’s weekly distributions and partial lump sum totaled the amount each recipient would have received if he/she had selected to receive the full lump. The Industrial Commission of Ohio argued that when the recipients signed the contract to receive partial lump sum payment the recipients had agreed to receive a specific amount of money; therefore, once that specific amount of money had been paid the Industrial Commission of Ohio was not responsible for continuing to make discounted monthly payments.

In contrast, the members of the class action argued that they were entitled to receive a reduced weekly disability payment for the remainder of their life. Therefore, the Industrial Commission of Ohio was statutorily required to continue to make payments for the remainder of their life even if the amount they would receive would exceed the amount originally offered in a lump sum.

Why the Court Decided the Industrial Commission Could Stop Payments

The court reasoned that the class action members were suing under the contract they had signed with the state. A contract is “sound in law” because it is legally binding. Therefore, the members of the class action needed to sue in the Ohio Court of Claims.

The Ohio Supreme Court differentiated between two prior cases. First, Cristino v. Ohio Bur. of Workers’ Comp. involved a class action who sued after receiving a full lump sum payment. The court held that the claim needed to be filed in the Ohio Court of Claims because the contract needed to be analyzed to determine if the state entered into a contract that the state was statutorily prohibited from entering.

The Ohio Supreme Court differentiated Cristino from Santos v. Ohio Bur. of Workers’ Comp. where Santos sued the state for money the state claimed in subrogation. Santos was not controlling in the present case because Santos sued to recover money already paid through subrogation, which, unlike a contract subrogation is not “sound in law.”

Speaking in general terms, the Ohio Supreme Court noted that if a contract was signed regarding workers’ compensation or disability benefits, then the contract always needed to be analyzed by the court to determine if the state entered into a contract that was outside of the state’s authority. In cases involving partial or full lump-sum disability payments, the parties are disputing the “consequences of the contract.” As a result, the contract must be analyzed, which means the Ohio Court of Claims has exclusive jurisdiction.

Why This Matters for Your Case

Filing a claim in a court that has jurisdiction is an important early step in the litigation process. Filing in a court that lacks jurisdiction can waste time and money. The Ohio Supreme Court has clarified that the Ohio Court of Claims has exclusive jurisdiction over workers’ compensation cases where individuals selected to receive a partial or complete lump sum payment.

Beyond workers’ compensation disputes, the Ohio Supreme Court’s decision has clarified that when a contract was signed between the state and individuals the dispute must be litigated in the Court of Common Pleas. When a contract is present, individuals or classes of individuals will be suing the state because the terms of the contract were violated. As a result, the dispute will regard the terms of the contract; therefore, the dispute will be “sound in law” and under the exclusive jurisdiction of the Ohio Court of Claims.

Do you have an Ohio Workers Compensation claim and want full compensation in your settlement? Our attorneys offer free consultations! We’re Working Hard for the Working Class, and we want to help you!


What Lawsuits Can Be Filed for Accidents Involving Drones?

Posted on Thursday, June 29th, 2017 at 10:44 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Raphael Jackson, a law student from the Chase School of Law.

Drones are becoming more and more common in the sky.  The law is struggling to evolve to address what can happen if drones are used improperly, and if someone is hurt as a result of drone use.  While that may seem far-fetched now, some shipping companies such as Amazon are experimenting with having packages delivered by drones.  If these experiments are successful, drone use will increase exponentially.  This article will discuss what drones are, and what can be done if you or a loved one have been hurt by a drone aircraft.

What is a Drone?

UAV, or unmanned aircraft, is the technical name for drones. Drones are increasing in popularity as they are becoming more affordable to the average consumer. Prices can range from eighty dollars to upwards of two thousand dollars depending on their strength, range, and technical capabilities.   Drones can weigh from as little as twelve grams to as much as fifty-four pounds. Drones weighing more than fifty-five pounds are typically not of the recreational variety and as such would require registration with the Federal Aviation Administration (FAA).  Safe piloting of a drone entails the pilot to fly below four hundred feet, so as not to interfere with the traffic of manned aircraft.

Even lower-end drones have the capability of flying outside of the range of your own backyard, which is where the fun, and also much of the legal liability, begins. The cameras that many drones come equipped with encourage drone pilots to fly their craft over many scenic places. Unfortunately, some of these locations involve public places with a moderate amount of pedestrian traffic. Studies indicate that drones are more likely to crash than civil aircraft, and as evidenced by the rising popularity of the Youtube channel “Drones vs. Humans,” collisions between drones and human beings are becoming more and more common. As drones increase in popularity and affordability, this phenomena will become more common place as time goes on.

Drones and Tort Law

Legal dockets have yet to see any recreational drone involved in intentional collisions. However, pilot negligence, unexpected weather conditions, and faulty manufacturing are all factors that can lead to accidental collision and subsequent injury. Drones have fast moving metal or plastic propeller blades. Additionally, crashes from high altitudes, or from rapid speeds can be the cause of substantial injury.

Despite petitions to the contrary, as of this writing courts have yet to reach a consensus as to whether recreational drone flying, in it of itself, is considered an abnormally dangerous activity. Thus a person who has been injured by a drone would likely find recourse within the same traditional common law remedies which she would seek had she been injured by a mishandled frisbee, kite, or football.

Collision injuries notwithstanding, other torts likely to fall within the realm of drone use are trespass, invasion of privacy, or conversion. A person claiming trespass will generally need to show interference with their actual use of, or substantial damage to, their land. Tort claims for trespass have succeeded at heights of twenty to thirty feet. If someone wrongfully confiscates your drone, they may be liable for conversion. Conversion is the wrongful possession or disposition of another’s property as if it were one’s own.

What Can I Do if Someone Intentionally Destroyed My Drone?

Self-help is a common law remedy which gives the landowner a right to exercise reasonable force to remove trespassers from their property.   Although the law is divided across the states, shooting a drone out of the sky may not generally be considered a viable self help remedy, particularly for those who live in urban, or suburban settings. Ryan Calo, a noted drone scholar at the University of Washington, thinks a person or property “would probably have to be threatened . . . for [one] to be able to destroy someone else’s drone without fear of a counterclaim.”

The FAA has classified drones as aircraft.  Intentional destruction of an aircraft carries the risk of federal prosecution. Thus, it behooves the property owner to exercise reasonable limits when seeking self-help remedies.  Rather than shooting down a drone, a less confrontational way of deterring a drone would be to create and display a sign which reads “PLEASE RESPECT OUR PRIVACY.” Pilots understand that once within reach, drones are fairly easy to take down. Given the money that they have invested in their hobby, the pilot is likely to cede to your request over risking unnecessary loss of or damage to her drone. Both parties should bear in mind that, should the pilot decide to file a counter claim against the property owner, footage filmed by the drone can work for or against the petitioner.

Can Using a Drone Result in an Invasion of Privacy?

Many people have witnessed the camera mounted vehicles which capture images for google street view. Many drones have similar image capture capabilities. As a general rule if the photographed subject is already a matter of public record, then merely viewing or storing the image within your drones’ camera is not likely to give rise to a tort liability. The Supreme Court under U.S. v. Causby, ruled that the space in a backyard at eye level is certainly within the “immediate reaches of the enveloping atmosphere” that is under the “exclusive control” of the landowner. So as long as the flight path is indiscriminate and is not over an intimate personal space scrutinized under a “reasonable expectation of privacy” analysis, then the drone pilot may be within her legal means of flying.

Photographs or video recordings made in public might not necessarily constitute an invasion of privacy. Nonetheless, if the photographer intends to make these images public by means of the internet or magazine publication, she should take special care to obscure the image of any subject who has not consented to being photographed. There are several free apps online that can edit images accordingly.

Conclusion

Laws dealing with drones are relatively new, and constantly evolving. As such, drone operation, or interference thereof may incur various legal consequences. That being said, injury by drone whether due to pilot negligence, or manufacturing defect, is still covered by our existing body of law.

If you or a loved one has been injured by a drone; you have evidence that a drone has invaded your privacy; or you are a drone pilot that would like to file a claim against a property owner who has unlawfully destroyed your drone, you should contact one of our attorneys for a free consultation.  We’re Working Hard for the Working Class, and we want to help you!


Subrogation – How Your Ohio Worker’s Compensation Claim Can Take Money Away from Your Personal Injury Claim

Posted on Tuesday, June 20th, 2017 at 7:54 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

Worker’s Compensation allows employees to recover medical expenses and lost wages for injuries that occur on the job. When employees are injured on the job by a third-party, the Bureau of Worker’s Compensation (BWC) may file a subrogation claim. Subrogation provides the BWC or a self-insured employer with the right to collect back costs of the worker’s compensation claim from the third-party who caused the injury if the injured employee receives a settlement or judgment from a third party.

This blog post is about Ohio Worker’s Compensation claims. If you have a Kentucky Worker’s Compensation claim that is also a personal injury claim – such as getting into a car accident while on the job – check out this subrogation blog post to find out more about the Kentucky system.

How Ohio’s Worker’s Compensation Subrogation Works

In Ohio, car accidents or construction projects are the leading causes of subrogation claims. For example, consider when an employee is stopped at a red light while driving his/her company’s car and is hit from behind. The employee files a worker’s compensation claim and receives lost wages and medical expenses. The Ohio BWC has the right to recover the lost wages and the medical expenses from the third-party who hit the employee from behind, if the injured employee sues the third-party who hit him/her. If the employee sues the third-party driver for medical expenses and lost wages, the Ohio BWC has the right to recover the expenses the Ohio BWC already paid, and the employee keeps any additional amount recovered.

Money recovered from a third-party is not automatically subject to subrogation. Rather, injured employees must be given the chance to demonstrate the money he/she received from a third-party was not for the same expenses already paid through worker’s compensation.

Unlike other civil actions brought against third parties, subrogation has a six-year statute of limitations. Typically, the statute of limitations is two years for actions brought against third parties.

The Ohio Subrogation Claim Process

In Ohio, subrogation claims begin with a referral – usually from a BWC claims service specialist. Once the referral is reviewed, Ohio BWC employees will mail a letter asserting a claim against all third parties. The BWC asserts a claim by placing a lien – or right of first access – to all money the injured employee receives from the third-party. If the third-party and the injured employee settle their dispute outside of court, the Ohio BWC will negotiate the settlement with the injured employee.

Ohio statutes limit the amount the Ohio BWC may recover to the amount of money the Ohio BWC has paid or is expected to pay due to the injury. If the settlement is less than the amount the Ohio BWC has paid then the Ohio BWC and the injured employee will negotiate a settlement. If agreed, the Ohio BWC will receive its portion and the injured party will receive the remaining amount. When negotiating a settlement, the Ohio BWC considers what expenses were paid through the settlement. Usually, the Ohio BWC is only able to recover a portion of its full lien if the settlement is less than it previously paid in worker’s compensation benefits.

If the claim remains unresolved, it may be referred to mediation. If mediation fails, the Ohio BWC gives all claims to the attorney general’s office.

Ohio’s Process is Slightly Different for Self-Insured Employers

Self-insured subrogation cases must often arise in construction projects when a subcontractor’s employee is injured. If the general contractor is self-insured, it is the employer of all employees, including subcontractors, for worker’s compensation purposes. Therefore, an employee of a subcontractor can recover against the general contractor, and any funds received by the employee would be subject to subrogation by the Ohio BWC.

An injured employee could also sue the subcontractor, which would be subject to subrogation. However, under Ohio law, a subcontractor is not liable for claims of employees of other subcontractors working on the same general project provided the claim would fall under worker’s compensation law. Subcontractors may still be liable for actions that do not fall under worker’s compensation, such as an employee dropping construction equipment on another subcontractor’s employee.

Should You Talk to a Lawyer about Subrogation Between Workers’ Compensation and Personal Injury Claims?

There can often be offsets to the subrogation rights that the Bureau of Worker’s Claims recognizes, which means you can keep more of your personal injury settlement or judgment than you might first realize. However, many of the important things done to create an offset are done before the settlement of either the personal injury or the worker’s compensation claims. Therefore, it is important to talk to an attorney early. By retaining an attorney early, you maximize your chances of keeping your money.

However, not all attorneys are created equal. Make sure the attorney you hire works in a firm that practices in both personal injury and workers’ compensation. A lack of experience in either field could limit the attorney’s understanding of subrogation issues. Further, you should sit down with your attorney and ask the attorney what possibilities exist for limiting the Bureau of Worker’s Compensation’s subrogation rights. Although the attorney will not be able to give specific numbers at the beginning of the case, he or she should have the ability to explain the basic avenues that he or she will use to try to limit what you have to pay in subrogation. And if the attorney won’t take the time to sit down and explain things to you, that is probably not the attorney you want to use.

If you’ve been injured and have either a personal injury or a worker’s compensation claim, please call one of our attorneys for a free consultation. We’re Working Hard for the Working Class, and we want to help you!


What Kind of Damages Can You Get for a Dog Bite in Ohio?

Posted on Tuesday, June 13th, 2017 at 12:02 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Ian Fasnacht, a law student from Ohio State University Moritz College of Law.

According to the case Beckett v. Warren, Ohio residents may simultaneously pursue statutory and common law damages for injuries sustained as a result of a dog bite. Ohio’s dog bite statute does not permit punitive damages, monetary compensation award beyond medical expenses; however, dog bite victims may seek punitive damages under the common law if the victim can demonstrate the dog owner knew the dog was vicious.

Facts of the Case

A minor child suffered injuries to her head when she was visiting the home of Richard Warren and Mary Wood. Approximately two weeks earlier Mr. Warren and Mrs. Wood’s dog had attacked another individual, and Mr. Warren and Mrs. Wood took no additional precautions despite having a child in their home.

Common Law v. Statutory Law

Common law is judge made law, which means it is created in a courtroom by a judicial decision rather than by a legislature passing a bill. At the common law, to recover for a dog bite an injured party has to prove that (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 dog was kept in a negligent manner after the keeper knew of its viciousness.

The requirement that the dog owner had to know the dog is vicious in order for the injured party to recover created the “one free bite” problem. Unless the injured party could prove a previous person had been bitten he/she could not recover. Therefore, a dog owner could escape liability for one bite before he/she could be held liable for injuries sustained as a result of their dog’s bite.

Ohio codified – meaning they created a statute – the common law dog bite rule, but took out the knowledge requirement. Therefore, Ohio’s dog bite statute, R.C. 955.28, is strict liability. The injured party only needs to prove that (1) ownership or keepership [or harborship] of the dog; (2) whether the dog’s actions were the proximate cause of the injury; and (3) the monetary amount of the damages. Because the injured party does not need to prove the dog owner knew his/her dog was vicious, no punitive damages are available.

Ohio Supreme Court’s Holding

In determining that both remedies were available, the Ohio Supreme Court interpreted the U.S. Supreme Court’s 1964 Warner v. Wolfe holding, which allowed a suit under the “statute or at common law.” The Ohio Supreme Court held the “or” did not require an injured party to chose which law he/she would bring a suit under but rather allowed an injured party to bring a suit under both.

In further support, the Ohio Supreme Court’s decision referenced the text of R.C. 955.28, which did not indicate an injured party could only bring a suit under either the common law or statutory law.

The Ohio Supreme Court worried if injured parties were forced to pick between the two causes of action some injured parties would not receive compensation for their sustained injuries because he/she would file the case under the common law and lose.

Therefore, The Ohio Supreme Court interpreted the Warner decision and R.C. 955.28 as eliminating the “one free bite” problem by allowing injured parties to always recover his/her medical expenses without proving the dog owner knew the dog was vicious. Conclusively, an injury party will always receive monetary compensation for his/her medical expenses under Ohio’s statutory law but only receive punitive damages if the injured party can prove the dog owner knew the dog was vicious under the common law.

The Ohio Supreme Court disagreed with Justice O’Donnell that juries would be confused by the court’s holding because a judge could instruct the jury to award additional punitive damages if the jury found the dog owner knew his/her dog was vicious. Both common law and the statutory law allowed for the injured party to receive medical expenses, therefore, a party would not recover twice because the judge would either award damages based on the statutory or common law depending on if the jury determined the defendant had the requisite knowledge.

O’Donnell’s Dissent

Justice O’Donnell dissented because in his opinion the Warner decision required injured parties to bring a suit either under the statute or at common law, but a party could not bring both suits. Choosing between the two would not have served as a barrier for injured parties because if the injured party could prove knowledge then he/she could recover both medical and punitive damages. In contrast, if the injured party could not prove knowledge then he/she would bring a statutory claim and recover medical expenses.

Under Justice O’Donnell’s theory, if an injured party brought a common law suit and lost the injured party would receive nothing and be barred from bringing a statutory claim for the same injury. However, this negative consequence was within the injured parties choice and necessary for courts to supply juries with simple instructions.

Justice O’Donnell argued that choosing between the two actions was necessary because juries would be confused if forced to apply two different rules to the same set of facts. He argued that jurors now have to ignore facts presented during trial that relate to the parties knowledge while applying statutory law, but then the jurors have to apply facts indicating the defendant knew the dog was vicious to the common law.

He argued the Warner decision removed this confusion and allowed juries to apply whichever law the injured party filed his/her action under.

If you or someone you love has been injured by a vicious dog, you have rights. Call Lawrence & Associates today for a free consultation to find out how you can recover. We are Working Hard for the Working Class, and we want to help you!

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