Category Archives: Business & Civil Litigation

We’ve heard it from television commentators and even youth league coaches, “injuries are part of the game.” Nearly every game; from football to soccer, baseball, basketball, cycling, and running; whatever the sport, there comes with it a chance of injury.

And it’s not just sports commentators and coaches who understand the risk of injury. Ohio’s courts recognize the old maxim as well. Ohio law protects against liability for injuries sustained during recreational activity, where that injury was the result of mere negligence.

As enunciated by Ohio’s Supreme Court: “Where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either ‘reckless’ or ‘intentional’” Marchetti v. Kalish.

Underlying this rule is the assumption that by voluntarily participating in a recreational activity, one has consented to the ordinary risks inherent in that activity.

This rule has been applied not only on the field of traditional sports, but even in some rather unusual “recreational activities.” In Konrad v. Morant, the “recreational activity” involved two children and one BB gun. They took turns chasing each other and shooting at each other, all very fair and sportsmanlike. Likewise, in Marcum v. Zerkle, there was no liability for injuries sustained in a paintball game.

This same rule has also been applied to injuries sustained by spectators.

In Ohio, whether you’re on the field or in the stands, you’ve assumed the ordinary risks associated with the activity you’re engaged in or even merely watching.

In an important decision for this firm and several of our clients, the Finney Law Firm this week won an important victory in a $3.5 civil conspiracy case.

The case involved a 2004 sale of real property in Hamilton County Ohio.  There, the buyer quickly marked up and “flipped” the property to several tenant-in-common owners as part of tax-free 1031 exchanges.  The middleman was accused of making certain fraudulent misrepresentations in the sale to its buyers.  Our clients, the first sellers, knew nothing about the transaction between the initial buyer and the ultimate investors, yet was charged at the trial with being part of a civil conspiracy to defraud the TIC owners.

Another firm handled the six week jury trial.  We were hired as appellate counsel.  The First District Court of Appeals correctly ruled that Plaintiffs in a civil conspiracy “must at least show ‘a common understanding or design, even if tacit, to commit an unlawful act.'”  Because in this case there was not a shred of evidence that our clients knew of, much less participated in the acts to defraud the TIC owners, summary judgment should have been rendered in our client’s favor.  The Court of Appeals ruled that the matter never should have been presented to a jury.

Occasionally, we get calls from clients who have received a notice from the Courts to show up for Jury Duty.  Usually, they relate that they have busy lives and responsibilities and don’t want to take time to serve.  Do they have to appear?

First, from a legal perspective, yes, you do have to show.  The summons form the Court is a legal notice that is ignored at your peril.  You could be arrested and serve time for contempt of Court if you fail to comply.

Second, if the dates you have been summoned to Jury Duty are temporarily inconvenient, it can be fairly easy to schedule your service to another time.  This is because the Jury Commissioner is glad to have cooperation from responsible citizens.  It is, of course, responsible citizens who have jobs, civic responsibilities, and family obligationss and it is that type of citizen that the officials are delighted to see serve on jurys.

Further, if your life circumstances — work travel schedule, health issues, family duties —  simply makes it impossible to serve, it is possible to be formally excused from jury service.  This can be handled informally, or by formal motion to the Court.

However, we advise clients to make every attempt to cooperate in serving on jury duty.  It is always interesting.  And, even though you typically are summoned to serve for two weeks, most jurors really serve just a few days.  And finally, consider if we take from jury duty the responsible citizens who hold jobs, raise families and have active civic involvement, then to whom are we relegating jury duty?  Judges, prosecutors, and defense attorneys want intelligent, engaged, active, jurors who have diverse life experiences to whom to present and argue the tough cases.  If those with your unique background refuse to serve, aren’t the participants deprived of your life experience and knowledge?

Consider serving if you possibly can fit it in..

The statute of limitations for a medical malpractice claim is one year. In other words, you will lose your right to seek compensation for medical malpractice if you fail to file your claim within the one-year period. While this is simple enough on its face, the right to recover on a medical malpractice claim often turns on precisely when that one-year statute begins to run. A recent case out of Ohio’s Fifth District Court of Appeals explains how Ohio courts determine this important date.

In Kelly v. Aultman Physician Center, Jaquayla Kelly sued a physician group for medical malpractice claiming that she suffered complications arising from the physicians’ negligent treatment. The physicians had placed a Mirena intrauterine device (“IUD”) in Kelly’s uterus for contraceptive purposes in June of 2008. Over the next 18 months, Kelly intermittently returned to the physicians complaining of abdominal pain. Eventually, in April of 2010, it was discovered that the IUD had pierced Kelly’s uterine cavity. As a result, Kelly underwent a total abdominal hysterectomy, removal of both ovaries and fallopian tubes, bilateral gutter abscess removal, appendectomy, and removal of multiple pelvic abscesses. Kelly then developed septic shock and multi-organ system failures, ultimately requiring her to spend four days on a ventilator in the intensive care unit and another two weeks in the hospital before she recovered.
In September of 2012, Kelly saw a legal advertisement on television advising viewers of complications related to the use of the Mirena IUD device. Kelly sought legal advice based on the commercial and her lawyers were able to obtain medical records documenting the alleged malpractice in early 2013. Kelly then filed her medical malpractice claim in March of 2013.

The trial court dismissed Kelly’s medical malpractice claim, finding that she filed the claim beyond the one-year statute of limitations period under R.C. 2305.113. On appeal, Kelly argued that the one-year statute of limitations did not begin to run until she acquired medical records containing evidence of the malpractice in early 2013. Thus, she claimed that the statute had not elapsed when she filed the claim in March of 2013.

The Fifth District Court of Appeals noted that the one-year period commences to run (a) when the patient discovers, or should have discovered, the injury, or (b) when the physician-patient relationship for that condition terminates, whichever occurs later. The appellate court further noted that the Ohio Supreme Court previously held that under the discovery rule, a “cognizable event” triggers the running of the statutory time. A “cognizable event” is something that should alert a reasonable patient that an improper medical procedure, treatment or diagnosis has taken place. Constructive knowledge of facts, rather than actual knowledge of their significance, is enough to start the statute running. The Fifth District explained that “the statute of limitations in a medical malpractice case will be triggered even if a potential plaintiff has not uncovered all relevant facts to constitute her cause of action to trigger the running of the statute of limitations. Thus, the occurrence of a cognizable event makes it incumbent upon that individual to investigate his or her case completely.”

In applying this analysis to Kelly’s case, the court determined that the discovery of the complications caused by the IUD and the resulting major surgery in April of 2010 was the cognizable event that triggered the statute of limitations. According to the court, the events in April 2010, “should have given Kelly reason to believe or at least investigate her claim that malpractice may have been committed in the placement of the IUD or during her treatment of her complaints with the IUD.” Because Kelly filed her medical malpractice claim in 2013 (after the one-year statute expired in April 2011) the Fifth District affirmed the trial court’s dismissal of Kelly’s medical malpractice claim.

This case highlights the grave consequences that may befall a patient who delays pursuing a medical malpractice claim. A person injured by a physician’s malpractice must commence his or her lawsuit within one year of the date that person discovered, or should have discovered reason to believe that malpractice may have been committed. If you believe you may have suffered an injury as a result of medical malpractice it is imperative that you seek representation immediately. The process of obtaining medical records and an independent review of the records takes time, and generally must be done before a lawsuit can be commenced. Our litigation team can obtain the necessary information to evaluate your case, and will diligently seek compensation from negligent parties. Please do not hesitate to contact us if you have reason to believe you have suffered from medical malpractice.

Many commercial contracts have provisions mandating binding arbitration of disputes.  These contractual provisions have powerful consequences for the parties accepting them.

As a matter of due process, under our legal system, everyone has access to the Courts for resolution of disputes, unless they have waived that right, for example, by agreeing to submit disputes to a private arbitration process.

Arbitration is generally a non-governmental process for the resolution of disputes. In arbitration, a single arbitrator or panel of arbitrators acts in the role of a “judge” deciding disputes.  This is in contrast to mediation in which a third party “neutral” attempts to convince the parties to settle the dispute between or among them. A chosen arbitration process can be either “binding,” meaning that the parties are bound by the decision of the arbitrator, or non-binding, in which case the decision essentially is merely advisory.

We advise clients that arbitration is typically both the first and last stop on the railroad of dispute resolution for two main reasons:

1. First, an arbitration clause is generally enforceable in commercial contracts.  (In consumer contracts, perhaps not so much.)  As such, the arbitration process will be mandatory for all dispute resolution.  O.R.C Section 2711.01 provides:

“A provision in any written contract…to settle by arbitration a controversy that subsequently arises out of the contract…shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity for the revocation of any contract.

1. Second, an arbitration decision is not appealable in the manner that a court judgment is appealable.  For court judgments, appeals can be based upon an error of law or even that the judgment was “against the manifest weight of evidence.”  It is not quite a “second bite at the apple,” but it can be close.       Arbitration awards, on the other hand, can only be challenged on the basis of some corruption, fraud or partiality in the arbitration process, a very difficult hurdle indeed.  Thus, regardless of how outrageous an arbitration award may be, it generally is final and very difficult to appeal. See, O.R.C Section 2711.010.

So, consider agreeing to arbitration clauses carefully. You may not be able to reconsider that decision.