By Attorney Julie Fenstermaker
Frantz Ward LLP
(Editor's Note: This article is reprinted with permission and is not intended to represent the opinion of Judge James L. Kimbler or any member of his staff.)
In these economic times, companies are keeping a watchful eye on legal expenses. One possible, and often underutilized, avenue of relief is the “tort of another” doctrine. This principle enables a company, in certain instances, to recoup the attorneys’ fees incurred in defending an action that was based solely on another’s wrongdoing.
While the United States’ legal system follows the “American rule,” which requires each party to pay its own legal fees, companies are usually familiar with a way to circumvent this outcome through a contractual provision providing that attorneys’ fees are paid to the prevailing party. In lieu of a contractual provision, or an applicable statute, however, the “tort of another doctrine” can provide another option depending on what jurisdiction you are in and the particular circumstances of the case.
Ohio courts follow the Restatement (Second) of Torts § 914, which provides:
One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorneys’ fees and other expenditures thereby suffered or incurred in the earlier action.
Thus, in Ohio, there is an independent tort exception to the traditional American rule. Such an exception could be extremely useful to companies that are involved in litigation solely because of an employee’s actions or those of a third party. For example, in Reiner v. Kelley, 8 Ohio App. 3d 390 (Franklin Cty. 1983), an action was brought against a law firm and both of its attorneys for fraudulent acts. After finding that one partner had neither participated in, nor ratified the fraudulent acts, the appellate court determined that the law firm was entitled to full indemnity, including both the cost of the judgment that was entered against it and the reasonable value of the fees it had incurred in defending against the third person’s [the plaintiff’s] claims.
Accordingly, counsel should evaluate whether they may be able to assert the “tort of another” doctrine. However, there are some limitations to consider before asserting the doctrine. First, a party invoking the “tort of another” doctrine must take care to introduce sufficient evidence of the specific legal expenses incurred in defending a particular action. In Wilson v. Cadwell, 1988 Ohio App. LEXIS 1883 (Ohio Ct. App., Cuyahoga Cty. 1988), the appellate court rejected the plaintiff’s contention that recoverable fees included those that arose as a “natural and proximate consequence of [the defendant’s] activities” because “the remedy does not encompass other damages incurred by the indemnitee as a consequence of the indemnitor’s tortious conduct.” Because no evidence was presented concerning the specific fees incurred in defending just against the plaintiff’s complaint, none were awarded.
Further, the Cadwell case also suggests that in Ohio a party cannot wait and file a subsequent action to recoup its attorneys’ fees. Instead, it must plead the “tort of another” doctrine as a separate cause of action in the complaint or cross-claim against the responsible party. Id at *8. Further, as the name of the doctrine suggests, it can only be applied where there has been an actual tort committed by the other party. Good Samaritan Hosp. & Health Ctr. v. Wright State Univ., 82 Ohio App. 3d 30, 33 (Franklin Cty. 1992). The doctrine cannot be expanded to seek indemnification from innocent parties. Id.
Finally, use of the “tort of another” doctrine may be limited if the cause of action is preempted by a federal statute. An example of this can be seen in Werner v. Primax Recoveries, Inc., 2008 U.S. Dist. LEXIS 102804 (N.D. Ohio August 6, 2008). While Werner recognized that a party can recover fees incurred in defending an action against a third person for fault of another, the claim in this case was preempted by ERISA, and, therefore, a moot issue.
Despite of such limitations, the “tort of another” doctrine potentially can be a powerful tool for a corporate defendant. Parties should consider this cause of action to recover fees incurred in defending claims in which they are held vicariously liable despite their lack of knowledge or participation in the wrongful acts.
Julie Fenstermaker is an attorney at Frantz Ward LLP where she focuses her practice on intellectual property, business disputes and general commercial litigation. For more information on the "tort of another" doctrine, please contact Julie at 216.515.1660.
Showing posts with label tort law. Show all posts
Showing posts with label tort law. Show all posts
Saturday, September 18, 2010
Thursday, June 10, 2010
Law Bars Tort Claim Based on ‘Take Home’ Exposure to Asbestos from Workplace
Where Exposure Takes Place Away from Property Owner’s Premises
Boley v. Goodyear Tire & Rubber Co., Slip Opinion No. 2010-Ohio-2550.
Cuyahoga App. No. 91404, 2009-Ohio-491. Judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2550.pdf
(June 10, 2010) The Supreme Court of Ohio ruled today that a premises owner is not liable for tort claims arising from exposure to asbestos located on the owner’s property, unless the exposure occurred at the owner’s property. The Court’s 5-1 decision, which affirmed a judgment of the 8th District Court of Appeals, was authored by Justice Terrence O’Donnell.
Clayton Adams of Cleveland was exposed to workplace asbestos while he was employed by the Goodyear Tire & Rubber company between 1973 and 1983. During that period Clayton’s wife, Mary Adams, routinely shook asbestos-bearing dust from his work clothes in the course of doing her husband’s laundry. In March 2007, Mary was diagnosed with malignant mesothelioma, a lung disease linked to inhalation of asbestos fibers. She died of the disease four months later.
Clayton Adams and the administratrix of Mary’s estate, Cheryl Boley, filed a lawsuit against multiple defendants including Goodyear in the Cuyahoga County Court of Common Pleas, asserting among other claims that Goodyear had been negligent in exposing its workers’ family members to the risk of asbestos-related illness arising from asbestos dust the workers brought home on their persons and clothing.
Goodyear moved for summary judgment dismissing Boley and Adams’ claims against the company. They cited R.C. 2307.941(A)(1), a “tort reform” provision enacted by the General Assembly in 2005, which exempts property owners from liability “for any injury to any individual resulting from asbestos exposure unless that individual’s alleged exposure occurred while the individual was at the premises owner’s property.” The trial court granted summary judgment in favor of Goodyear, ruling that claims based on “second-hand” exposure of workers’ family members to asbestos the employee brought home from the workplace were explicitly barred by R.C. 2307.941(A)(1). On review, the 8th District Court of Appeals affirmed the trial court’s judgment. Clayton Adams and Boley sought and were granted Supreme Court review of the 8th District’s decision.
In today’s lead opinion, Justice O’Donnell wrote: “Clayton and Boley contend that R.C. 2307.941(A), which provides that subdivisions (A)(1), (2), and (3) are applicable only to tort actions for asbestos claims against a premises owner for ‘exposure to asbestos on the premises owner’s property’ (emphasis added), does not apply to their claims because Mary’s ‘exposure to asbestos’ occurred at her home rather than on Goodyear’s property. Therefore, they assert that R.C. 2307.941(A)(1) does not bar Goodyear’s liability, and they urge that a contrary interpretation would violate their rights to due process.”
“When the statute is read in its entirety, the legislative intent behind R.C. 2307.941(A) is apparent – R.C. 2307.941(A)(1) bars tort liability for asbestos claims stemming from exposure that does not occur at the premises owner’s property. ... Were we to apply the interpretation offered by Clayton and Boley, which is to read the phrase ‘exposure to asbestos’ in R.C. 2307.941(A) as modifying ‘on the premises owner’s property,’ we would be giving no meaning to subdivision (A)(1). Specifically, the event that would prohibit liability pursuant to subdivision (A)(1) – asbestos exposure away from the premises owner’s property – would also preclude R.C. 2307.941(A)(1) from barring such claims.”
“The better view is to read the statute to give effect to all of its parts. ... The only interpretation of R.C. 2307.941 that gives effect to the language employed by the General Assembly in subdivision (A)(1) is that which interprets the phrase ‘on the premises owner’s property’ to modify the word ‘asbestos.’ Moreover, when read together, R.C. 2307.941(A)(1), (2), and (3) further reveal the General Assembly’s intent to limit the liability of a premises owner to instances where the exposure occurred at its property. Specifically, subdivisions (A)(1), (2), and (3) each restrict the owner’s liability to exposure that occurred at the premises owner’s property. Subdivision (A)(1) provides a general exception from liability for a premises owner when the asbestos exposure does not occur at the owner’s property; subdivisions (2) and (3) further limit that liability by precluding liability in certain circumstances where exposure occurred at the owner’s property.”
“Thus, the General Assembly has manifested its intent to preclude liability for premises owners from claims for asbestos exposure that occurs away from the owner’s premises. ... Because Mary’s exposure did not occur at Goodyear’s property, R.C. 2307.941(A)(1) precludes Goodyear’s liability as to this claim.”
Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice O’Connor also entered a separate opinion, joined by Justice Lanzinger, in which she responded to the appellants’ argument that the statute’s preclusion of employer liability for “take home” asbestos exposure of employees’ family members left them without legal recourse for Mary Adams’ asbestos-related illness and death.
Justice O’Connor observed that a different provision in the 2005 asbestos litigation reform bill, R.C. 2307.92(D)(2), provides a legal basis for asserting wrongful death claims against defendants other than the premises owner for take-home exposure of family members to occupational asbestos. She also noted that Clayton Adams and Boley had named more than 200 defendants other than Goodyear in their complaint, and that their attorneys had indicated during oral argument that they had proceeded to trial against at least one other defendant and had resolved and/or settled claims against others. While acknowledging the plaintiffs’ dissatisfaction with a statutory scheme that bars any recovery from Goodyear for Mary’s asbestos-related illness and death, Justice O’Connor wrote that the Ohio Constitution precludes courts and judges from usurping the power of the legislative branch to adopt or amend statutes that set the public policy of the state.
Justice Paul E. Pfeifer entered a dissent noting that the plain language of R.C. 2307.941 limits the application of that statute to claims brought against a premises owner “for exposure to asbestos on the premises owner’s property.” He wrote: “Boley does not claim that Adams was exposed to asbestos on Goodyear's property, and yet she is being told by this court that she can’t bring a claim for ‘exposure to asbestos on [Goodyear's] property.’ ... Boley has a completely different claim. She claims that Adams was exposed to asbestos in Adams’s own home, not on Goodyear’s property. She claims that the asbestos Adams was exposed to was brought to the home by Adams’s husband, who worked at Goodyear. Boley is not seeking relief pursuant to R.C 2307.941. She cannot because she never entered upon Goodyear's property. It seems mean-spirited to deny her claim while so obviously misconstruing it.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Thomas W. Bevan, 330.467.8571, for Clayton Adams and Cheryl Boley, Administratrix of Estate of Mary Adams.
Richard D. Schuster, 614.464.5475, for Goodyear Tire and Rubber Company.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Boley v. Goodyear Tire & Rubber Co., Slip Opinion No. 2010-Ohio-2550.
Cuyahoga App. No. 91404, 2009-Ohio-491. Judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2550.pdf
(June 10, 2010) The Supreme Court of Ohio ruled today that a premises owner is not liable for tort claims arising from exposure to asbestos located on the owner’s property, unless the exposure occurred at the owner’s property. The Court’s 5-1 decision, which affirmed a judgment of the 8th District Court of Appeals, was authored by Justice Terrence O’Donnell.
Clayton Adams of Cleveland was exposed to workplace asbestos while he was employed by the Goodyear Tire & Rubber company between 1973 and 1983. During that period Clayton’s wife, Mary Adams, routinely shook asbestos-bearing dust from his work clothes in the course of doing her husband’s laundry. In March 2007, Mary was diagnosed with malignant mesothelioma, a lung disease linked to inhalation of asbestos fibers. She died of the disease four months later.
Clayton Adams and the administratrix of Mary’s estate, Cheryl Boley, filed a lawsuit against multiple defendants including Goodyear in the Cuyahoga County Court of Common Pleas, asserting among other claims that Goodyear had been negligent in exposing its workers’ family members to the risk of asbestos-related illness arising from asbestos dust the workers brought home on their persons and clothing.
Goodyear moved for summary judgment dismissing Boley and Adams’ claims against the company. They cited R.C. 2307.941(A)(1), a “tort reform” provision enacted by the General Assembly in 2005, which exempts property owners from liability “for any injury to any individual resulting from asbestos exposure unless that individual’s alleged exposure occurred while the individual was at the premises owner’s property.” The trial court granted summary judgment in favor of Goodyear, ruling that claims based on “second-hand” exposure of workers’ family members to asbestos the employee brought home from the workplace were explicitly barred by R.C. 2307.941(A)(1). On review, the 8th District Court of Appeals affirmed the trial court’s judgment. Clayton Adams and Boley sought and were granted Supreme Court review of the 8th District’s decision.
In today’s lead opinion, Justice O’Donnell wrote: “Clayton and Boley contend that R.C. 2307.941(A), which provides that subdivisions (A)(1), (2), and (3) are applicable only to tort actions for asbestos claims against a premises owner for ‘exposure to asbestos on the premises owner’s property’ (emphasis added), does not apply to their claims because Mary’s ‘exposure to asbestos’ occurred at her home rather than on Goodyear’s property. Therefore, they assert that R.C. 2307.941(A)(1) does not bar Goodyear’s liability, and they urge that a contrary interpretation would violate their rights to due process.”
“When the statute is read in its entirety, the legislative intent behind R.C. 2307.941(A) is apparent – R.C. 2307.941(A)(1) bars tort liability for asbestos claims stemming from exposure that does not occur at the premises owner’s property. ... Were we to apply the interpretation offered by Clayton and Boley, which is to read the phrase ‘exposure to asbestos’ in R.C. 2307.941(A) as modifying ‘on the premises owner’s property,’ we would be giving no meaning to subdivision (A)(1). Specifically, the event that would prohibit liability pursuant to subdivision (A)(1) – asbestos exposure away from the premises owner’s property – would also preclude R.C. 2307.941(A)(1) from barring such claims.”
“The better view is to read the statute to give effect to all of its parts. ... The only interpretation of R.C. 2307.941 that gives effect to the language employed by the General Assembly in subdivision (A)(1) is that which interprets the phrase ‘on the premises owner’s property’ to modify the word ‘asbestos.’ Moreover, when read together, R.C. 2307.941(A)(1), (2), and (3) further reveal the General Assembly’s intent to limit the liability of a premises owner to instances where the exposure occurred at its property. Specifically, subdivisions (A)(1), (2), and (3) each restrict the owner’s liability to exposure that occurred at the premises owner’s property. Subdivision (A)(1) provides a general exception from liability for a premises owner when the asbestos exposure does not occur at the owner’s property; subdivisions (2) and (3) further limit that liability by precluding liability in certain circumstances where exposure occurred at the owner’s property.”
“Thus, the General Assembly has manifested its intent to preclude liability for premises owners from claims for asbestos exposure that occurs away from the owner’s premises. ... Because Mary’s exposure did not occur at Goodyear’s property, R.C. 2307.941(A)(1) precludes Goodyear’s liability as to this claim.”
Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice O’Connor also entered a separate opinion, joined by Justice Lanzinger, in which she responded to the appellants’ argument that the statute’s preclusion of employer liability for “take home” asbestos exposure of employees’ family members left them without legal recourse for Mary Adams’ asbestos-related illness and death.
Justice O’Connor observed that a different provision in the 2005 asbestos litigation reform bill, R.C. 2307.92(D)(2), provides a legal basis for asserting wrongful death claims against defendants other than the premises owner for take-home exposure of family members to occupational asbestos. She also noted that Clayton Adams and Boley had named more than 200 defendants other than Goodyear in their complaint, and that their attorneys had indicated during oral argument that they had proceeded to trial against at least one other defendant and had resolved and/or settled claims against others. While acknowledging the plaintiffs’ dissatisfaction with a statutory scheme that bars any recovery from Goodyear for Mary’s asbestos-related illness and death, Justice O’Connor wrote that the Ohio Constitution precludes courts and judges from usurping the power of the legislative branch to adopt or amend statutes that set the public policy of the state.
Justice Paul E. Pfeifer entered a dissent noting that the plain language of R.C. 2307.941 limits the application of that statute to claims brought against a premises owner “for exposure to asbestos on the premises owner’s property.” He wrote: “Boley does not claim that Adams was exposed to asbestos on Goodyear's property, and yet she is being told by this court that she can’t bring a claim for ‘exposure to asbestos on [Goodyear's] property.’ ... Boley has a completely different claim. She claims that Adams was exposed to asbestos in Adams’s own home, not on Goodyear’s property. She claims that the asbestos Adams was exposed to was brought to the home by Adams’s husband, who worked at Goodyear. Boley is not seeking relief pursuant to R.C 2307.941. She cannot because she never entered upon Goodyear's property. It seems mean-spirited to deny her claim while so obviously misconstruing it.”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in this case.
Contacts
Thomas W. Bevan, 330.467.8571, for Clayton Adams and Cheryl Boley, Administratrix of Estate of Mary Adams.
Richard D. Schuster, 614.464.5475, for Goodyear Tire and Rubber Company.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Thursday, May 06, 2010
Non-Asbestos Claims May Be Severed and Go to Trial Even Though Asbestos Claims in Same Suit Dismissed
When Plaintiff Asserts Asbestos and Non-Asbestos Related Claims in Same Tort Action
2009-1070. Riedel v. Consol. Rail Corp., Slip Opinion No. 2010-Ohio-1926.
Cuyahoga App. Nos. 91237, 91238, and 91239, 2009-Ohio-1242. Judgment of the court of appeals affirmed.
Pfeifer, O'Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1926.pdf
(May 6, 2010) The Supreme Court of Ohio ruled today that when the plaintiff in a civil lawsuit asserts both asbestos-related and non-asbestos-related claims in the same tort action, the non-asbestos claims may be severed and proceed to trial immediately even though the asbestos-related claims are administratively dismissed under R.C. 2307.93.
The Court’s 6-0 decision, authored by Justice Paul E. Pfeifer, affirmed a ruling by the 8th District Court of Appeals.
Since the enactment of R.C. 2307.91 through 2307.98, which took effect in September 2004, all plaintiffs bringing asbestos-related lawsuits in Ohio trial courts are required to produce a preliminary medical report making a prima facie (sufficient on its face) showing that the claimant suffers from a current medical impairment that is attributable to asbestos exposure. In cases where the plaintiff does not make such a showing, the court is required to administratively dismiss his case “without prejudice,” meaning that the plaintiff’s claim is not extinguished and may be refiled at a later date if and when the plaintiff makes a showing of actual asbestos-related medical impairment.
In this case, two former railroad workers, Jack Riedel and Danny Six, and the widow of a third, Josephine Weldy, filed suits in the Cuyahoga County Court of Common Pleas alleging various occupational-disease claims under the Federal Employers’ Liability Act and the Locomotive Inspection Act arising out of their employment with Consolidated Rail Corporation. Because the complaints included claims for asbestosis based on occupational exposure to asbestos, they were assigned to the court’s separate asbestos docket, a special docket established to manage Cuyahoga County’s heavy caseload of asbestos claims.
Consolidated Rail moved for an administrative dismissal under R.C. 2307.93(A)(1), alleging that Riedel and the other plaintiffs had failed to make the required prima facie showing of current asbestos-related medical impairment. Finding that the evidence submitted by Riedel was insufficient to establish a prima facie case, the court granted Consolidated Rail’s motion for administrative dismissal as to the asbestos-related claims, but severed the remaining claims and ordered them to be scheduled for trial.
Consolidated Rail appealed, arguing that the trial court erred in (1) ruling that the administrative-dismissal provisions of R.C. 2307.93 did not apply to the non-asbestos claims asserted by the plaintiffs, and (2) severing the non-asbestos claims for trial. The 8th District Court of Appeals affirmed the judgment of the trial court, stating, “The administrative dismissal provision is limited to the asbestos-related claims that are specified in R.C. 2307.92.” Consolidated Rail sought and was granted Supreme Court review of the 8th District’s decision.
In today’s unanimous decision, Justice Pfeifer wrote: “R. C. 2307.93(A)(1) provides that a ‘plaintiff in any tort action who alleges an asbestos claim shall file … prima-facie evidence of the exposed person’s physical impairment that meets the minimum requirements specified in [R.C. 2307.92(B), (C), or (D)].’ R.C. 2307.92(B), (C), and (D) set forth the minimum requirements of a prima facie showing in claims alleging injury related to exposure to asbestos. This provision plainly indicates that the General Assembly intended to require all asbestos-claim plaintiffs, irrespective of the action in which the claims are filed, to provide prima-facie evidence of physical impairment related to asbestos in order to avoid dismissal. This provision clearly cannot apply to claims of injury due to exposure to other toxic substances, such as the claims by Riedel of injury due to diesel exhaust.”
“R.C. 2307.93(C) provides that a ‘court shall administratively dismiss the plaintiff’s claim without prejudice’ when the plaintiff fails to make the prima-facie showing required by R.C. 2307.93(A)(1). Consolidated Rail argues that the General Assembly's use of ‘claim’ in R.C. 2307.93(C) is broad enough to refer to the more comprehensive ‘tort action,’ as used in R.C. 2907.93(A)(1). We disagree.
… A claim that has been administratively dismissed may be reinstated only when the plaintiff is able to make a prima-facie showing as to the asbestos claim. R.C. 2907.93(C). Based on Consolidated Rail’s interpretation of ‘claim’ as encompassing the entire ‘tort action,’ non-asbestos claims paired with an asbestos claim would remain unresolved, possibly forever, unless the plaintiff could make a prima-facie showing as to the asbestos claim. We consider that result unreasonable or absurd. Accordingly, it is our duty to construe the statute to avoid this result.”
“We conclude that the administrative-dismissal provision of R.C. 2307.93(C) applies only to asbestos claims, even when the tort action in which the claim is brought includes non-asbestos claims. We also conclude that when a tort action includes an asbestos claim that is administratively dismissed, non-asbestos claims can be severed from the asbestos claim and proceed to trial. Furthermore, we conclude that the trial court in this case properly severed the non-asbestos claims from the asbestos claims. We affirm the judgment of the court of appeals.”
Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Justice Stratton also entered a separate concurring opinion, joined by Justices O’Connor, O’Donnell and Lanzinger, to address Consolidated Rail’s argument that litigating non-asbestos claims on the already overloaded Cuyahoga County asbestos docket would thwart the purpose of H.B. 292, which was intended to expedite asbestos cases. She wrote: “The adjudication of the non-asbestos claims is a matter best decided at the local level. Once the non-asbestos claims have been severed from the asbestos claims, the local court should determine whether the non-asbestos claims may be adjudicated on the asbestos docket or should be transferred to the court’s general docket. I believe that this is a matter of docket control that is best left to court administration at the local level.”
Contacts
David A. Damico, 412.995.3000, for Consolidated Rail Corporation et al.
Christopher M. Murphy, 716.884.2000, for Riedel, Danny Six and Josephine Weldy.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
2009-1070. Riedel v. Consol. Rail Corp., Slip Opinion No. 2010-Ohio-1926.
Cuyahoga App. Nos. 91237, 91238, and 91239, 2009-Ohio-1242. Judgment of the court of appeals affirmed.
Pfeifer, O'Connor, O’Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., concurs separately.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1926.pdf
(May 6, 2010) The Supreme Court of Ohio ruled today that when the plaintiff in a civil lawsuit asserts both asbestos-related and non-asbestos-related claims in the same tort action, the non-asbestos claims may be severed and proceed to trial immediately even though the asbestos-related claims are administratively dismissed under R.C. 2307.93.
The Court’s 6-0 decision, authored by Justice Paul E. Pfeifer, affirmed a ruling by the 8th District Court of Appeals.
Since the enactment of R.C. 2307.91 through 2307.98, which took effect in September 2004, all plaintiffs bringing asbestos-related lawsuits in Ohio trial courts are required to produce a preliminary medical report making a prima facie (sufficient on its face) showing that the claimant suffers from a current medical impairment that is attributable to asbestos exposure. In cases where the plaintiff does not make such a showing, the court is required to administratively dismiss his case “without prejudice,” meaning that the plaintiff’s claim is not extinguished and may be refiled at a later date if and when the plaintiff makes a showing of actual asbestos-related medical impairment.
In this case, two former railroad workers, Jack Riedel and Danny Six, and the widow of a third, Josephine Weldy, filed suits in the Cuyahoga County Court of Common Pleas alleging various occupational-disease claims under the Federal Employers’ Liability Act and the Locomotive Inspection Act arising out of their employment with Consolidated Rail Corporation. Because the complaints included claims for asbestosis based on occupational exposure to asbestos, they were assigned to the court’s separate asbestos docket, a special docket established to manage Cuyahoga County’s heavy caseload of asbestos claims.
Consolidated Rail moved for an administrative dismissal under R.C. 2307.93(A)(1), alleging that Riedel and the other plaintiffs had failed to make the required prima facie showing of current asbestos-related medical impairment. Finding that the evidence submitted by Riedel was insufficient to establish a prima facie case, the court granted Consolidated Rail’s motion for administrative dismissal as to the asbestos-related claims, but severed the remaining claims and ordered them to be scheduled for trial.
Consolidated Rail appealed, arguing that the trial court erred in (1) ruling that the administrative-dismissal provisions of R.C. 2307.93 did not apply to the non-asbestos claims asserted by the plaintiffs, and (2) severing the non-asbestos claims for trial. The 8th District Court of Appeals affirmed the judgment of the trial court, stating, “The administrative dismissal provision is limited to the asbestos-related claims that are specified in R.C. 2307.92.” Consolidated Rail sought and was granted Supreme Court review of the 8th District’s decision.
In today’s unanimous decision, Justice Pfeifer wrote: “R. C. 2307.93(A)(1) provides that a ‘plaintiff in any tort action who alleges an asbestos claim shall file … prima-facie evidence of the exposed person’s physical impairment that meets the minimum requirements specified in [R.C. 2307.92(B), (C), or (D)].’ R.C. 2307.92(B), (C), and (D) set forth the minimum requirements of a prima facie showing in claims alleging injury related to exposure to asbestos. This provision plainly indicates that the General Assembly intended to require all asbestos-claim plaintiffs, irrespective of the action in which the claims are filed, to provide prima-facie evidence of physical impairment related to asbestos in order to avoid dismissal. This provision clearly cannot apply to claims of injury due to exposure to other toxic substances, such as the claims by Riedel of injury due to diesel exhaust.”
“R.C. 2307.93(C) provides that a ‘court shall administratively dismiss the plaintiff’s claim without prejudice’ when the plaintiff fails to make the prima-facie showing required by R.C. 2307.93(A)(1). Consolidated Rail argues that the General Assembly's use of ‘claim’ in R.C. 2307.93(C) is broad enough to refer to the more comprehensive ‘tort action,’ as used in R.C. 2907.93(A)(1). We disagree.
… A claim that has been administratively dismissed may be reinstated only when the plaintiff is able to make a prima-facie showing as to the asbestos claim. R.C. 2907.93(C). Based on Consolidated Rail’s interpretation of ‘claim’ as encompassing the entire ‘tort action,’ non-asbestos claims paired with an asbestos claim would remain unresolved, possibly forever, unless the plaintiff could make a prima-facie showing as to the asbestos claim. We consider that result unreasonable or absurd. Accordingly, it is our duty to construe the statute to avoid this result.”
“We conclude that the administrative-dismissal provision of R.C. 2307.93(C) applies only to asbestos claims, even when the tort action in which the claim is brought includes non-asbestos claims. We also conclude that when a tort action includes an asbestos claim that is administratively dismissed, non-asbestos claims can be severed from the asbestos claim and proceed to trial. Furthermore, we conclude that the trial court in this case properly severed the non-asbestos claims from the asbestos claims. We affirm the judgment of the court of appeals.”
Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
Justice Stratton also entered a separate concurring opinion, joined by Justices O’Connor, O’Donnell and Lanzinger, to address Consolidated Rail’s argument that litigating non-asbestos claims on the already overloaded Cuyahoga County asbestos docket would thwart the purpose of H.B. 292, which was intended to expedite asbestos cases. She wrote: “The adjudication of the non-asbestos claims is a matter best decided at the local level. Once the non-asbestos claims have been severed from the asbestos claims, the local court should determine whether the non-asbestos claims may be adjudicated on the asbestos docket or should be transferred to the court’s general docket. I believe that this is a matter of docket control that is best left to court administration at the local level.”
Contacts
David A. Damico, 412.995.3000, for Consolidated Rail Corporation et al.
Christopher M. Murphy, 716.884.2000, for Riedel, Danny Six and Josephine Weldy.
Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."
Saturday, January 23, 2010
Open and Obvious Doctrine
By Ohio Supreme Court Justice Paul Pfeifer
When Albert and Dorothy Lang arrived at the Holly Hill Motel one evening in early April 1999, they had no idea of the tragic ending that awaited them, nor any inkling of the legal journey that would begin that night and end here – at the Supreme Court of Ohio.
Because Albert was 78 years old, suffered from emphysema, and carried a portable oxygen tank, Dorothy requested a handicapped-accessible room. The motel didn’t have any such rooms available, but the front desk clerk told Dorothy they could have a room that required them to climb only one step.
They took that room, but soon discovered they actually had to climb two steps, and there were no handrails. With Dorothy’s help Albert climbed the first step, but on the second he fell and broke his hip. Albert ultimately died a little over three months after his fall.
After Albert’s death Dorothy sued the motel for negligence. In her complaint she alleged – and an expert witness confirmed – that the step Albert tripped over exceeded the height limitations in the Ohio Basic Building Code and that this created a dangerous condition that was exacerbated by the absence of handrails, which were also required under the Building Code.
The motel, and the builder who constructed the steps, moved for summary judgment – meaning they asked for judgment without a trial. They argued that even if the step was in violation of the code, it was nonetheless an open and obvious condition and that they therefore owed no duty of care to the Langs. The motion for summary judgment was granted.
Dorothy appealed the judgment. Her attorneys argued that the open-and-obvious doctrine is inapplicable and summary judgment is improper when the condition at issue is a violation of the Building Code.
What is the open-and-obvious doctrine? It’s a legal principle that says where a danger is open and obvious, a landowner owes no duty of care to individuals lawfully on the premises.
When the court of appeals reviewed the case, it determined that the step was an open and obvious condition, and that a Building Code violation does not negate the application of the open-and-obvious doctrine. The court of appeals therefore affirmed the judgment of the trial court.
After that, the case came before us for a final review. By a six-to-one vote our court affirmed the judgment of the court of appeals. How did the majority reach that conclusion?
Our court has previously held that exceptions to the open-and-obvious doctrine can be made when the landowner violated a statute – that is, a law passed by the General Assembly. But in this case, the majority drew a distinction between duties arising from statutes and duties arising from administrative rules, which “are created by administrative employees who act to implement the General Assembly’s public-policy decisions.”
Thus, the majority concluded that an exception to the doctrine does not apply to violations of the Building Code, which is an administrative rule. The majority also noted that there are innumerable administrative rules adopted each year and that it would be virtually impossible to comply with all of them.
I cast the dissenting vote because I disagreed with this conclusion. When Albert Lang was injured at the Holly Hill Motel, it was, at least in part, because of building code violations. But our court decided that his widow couldn’t proceed with a lawsuit because those violations that allegedly caused his injuries and hastened his death were open and obvious.
But in reaching that decision our court clings to the past and ignores a modern trend in the law. Many commentators and courts have recognized the unfairness of the open-and-obvious doctrine. One commentator has stated that “an undeniable legal error is committed every time a court bars recovery to an injured person based solely on the fact that the perilous nature of the alleged cause of harm was ‘apparent to all,’ without any consideration of the multitude of other factors which may justify or excuse the plaintiff’s conduct.”
I agree with the Supreme Court of New Mexico that “a risk is not made reasonable simply because it is made open and obvious to persons exercising ordinary care.” I also agree with that court’s holding that “it is for the jury to decide in virtually every case whether a dangerous condition on the premises involved ‘an unreasonable risk of danger to a business visitor.’”
In the Lang’s case, the dangers were open because they were not hidden, but they were not obvious. The presence or absence of a handrail is not obvious until one reaches for it and it is either there or not. The proper height of a step, as prescribed by building codes, is not obvious, especially to a nonprofessional, without taking measurements.
The building code violations that allegedly caused Albert’s injuries were open, but they were not obvious. This case presents an example of why the open-and-obvious doctrine should be abolished; it does not allow the consideration of all the factors that are relevant to determine negligence or fault.
Even so, it is not necessary to abolish the open-and-obvious doctrine to properly resolve this case. Building code violations are different from other open and obvious dangers because building codes are administrative rules and therefore “are to be given the force and effect of law.” In other words, “administrative agency rules are an administrative means for the accomplishment of a legislative end.”
But the majority opinion minimizes the standing of administrative rules, and clearly considers them not worthy of the force and effect of law. There is even a suggestion that because administrative rules are changed so frequently, compliance with them is virtually impossible and, therefore, apparently optional.
We should not have such a blasé attitude toward administrative rules. They are the law, unless unreasonable or contrary to statute, and compliance with them is mandatory; the failure to comply with them should have consequences.
Nevertheless, the majority ruled differently, and thus Albert’s widow was prevented from proceeding with her lawsuit.
EDITOR’S NOTE: The case referred to is: Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495. Case Nos. 2007-1222 and 2007-1370. Decided June 3, 2009. Majority opinion written by Chief Justice Thomas J. Moyer.
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