LIABILITY

Statutes of Limitation:

1. The following statutes of limitation are pertinent:

1. Injury to person or property: Two years from the accrual of the injury (Ohio Rev. Code § 2305.10);
2. Contract in writing: Eight years from the accrual of the cause of action (Ohio Rev. Code § 2305.06, effective 9/28/2012);
3. Contract not in writing: Six years from the accrual of the cause of action (Ohio Rev. Code § 2305.07).
       
2. Tolling:

These periods can be extended through one of Ohio’s tolling provisions. Ohio Rev. Code § 2305.15 provides that the limitations period is tolled during the time the defendant is absent from Ohio or imprisoned, and Ohio Rev. Code § 2305.16 also provides a tolling period for any time in which the plaintiff is a minor or of unsound mind at the time of the accrual of the cause of action.

3. Savings Statute (Ohio Rev. Code § 2305.19):

If a cause of action fails “other than on the merits” (usually a voluntary dismissal pursuant to Ohio Civ. R. 41(A)(1)), the action may be re-filed within one year from the date of such failure or within the original statute of limitations, whichever is later.

4. Borrowing Statute (Ohio Rev. Code § 2305.03):

This statute applies when the cause of action accrues in another state. Ohio law is first applied to determine where the cause of action accrued. If it accrued in another state, the cause of action will be barred if the limitations period has already expired under that state’s laws.

Negligent Entrustment, Hiring, Retention, Supervision:

1. Ohio law recognizes a separate and distinct tort claim of negligent entrustment.

The owner of a motor vehicle may be held liable for injury to a third person resulting from the operation of the vehicle by an inexperienced or incompetent driver if the owner knowingly entrusts the operation of the vehicle to such a driver. Gulla v. Strauss, 154 Ohio St. 193, 93 N.E.2d 662 (1950). In order to recover under a theory of negligent entrustment, the plaintiff must demonstrate that (1) the vehicle was driven with the owner’s permission, (2) the driver was incompetent or unqualified, (3) the owner knew at the time he or she entrusted the vehicle to the driver that the driver was incompetent or unqualified. Id.

Permission to use a vehicle may be express or implied. Keeley v. Hough, 2005-Ohio-3771. Mere access to a vehicle, however, is insufficient to establish permissive use of the vehicle. Shapiro v. Barden, 8th Dist. No. 79267, 2001 Ohio App. LEXIS 5535 (Dec. 13, 2001).

Incompetence is ordinarily a fact-specific inquiry. Possession of a driver’s license, prior accidents and prior violations are all relevant to determining whether a driver is incompetent or unqualified. Additionally, Ohio has enacted a statute that addresses wrongful entrustment. See, Ohio Rev. Code § 4511.203. Under the statute, wrongful entrustment of a commercial motor vehicle occurs when the owner of the vehicle knows or reasonably should know that:

1. The driver does not have a valid license;
2. The driver’s driving privileges have been suspended;
3. Allowing the driver to drive would violate financial responsibility requirements;
4. Allowing the driver to drive would violate prohibitions against operating a motor vehicle intoxicated; or
5. The vehicle is the subject of an immobilization order. Id.

The owner of the vehicle must know that he or she entrusted the vehicle to an incompetent or unqualified driver. In order to establish liability, a plaintiff must demonstrate an owner’s actual knowledge of incompetency, or knowledge of such facts and circumstances that would imply knowledge on the part of the owner. Curtis v. Schmid, 2008-Ohio-5239.

2. Ohio law recognizes a separate and distinct tort claim of negligent hiring and retention.

Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991). Thus, an admission of liability by the employer will not automatically result in the dismissal of a negligent hiring, entrustment, or retention claim.

To establish a negligent hiring claim, a plaintiff must establish (1) the existence of an employment relationship, (2) the employee’s incompetence, (3) the employer’s actual or constructive knowledge of the employee’s incompetence, (4) the employee’s act or omission as a proximate cause of the plaintiff’s injury or damage, and (5) the employer’s negligence in hiring or retaining the employee as a proximate cause of the plaintiff’s injury or damage. Evans v. Ohio State Univ., 112 Ohio App. 3d 724, 680 N.E.2d 161 (1996).

An employee’s incompetence may stem from a number of behaviors, including prior alcoholism, a history of mental illness, a history of assaults or combative behavior or a prior criminal record. Ruta v. Breckenridge-Remy Co., 6th Dist. No. E-80-39, 1980 Ohio App. LEXIS 12410 (Dec. 12, 1980). If the employer knew or could have discovered this incompetence through reasonable investigation, the employer may be liable for negligent hiring and retention. Abrams v. Worthington, 169 Ohio App. 3d 94, 2006-Ohio-5516, 861 N.E.2d 920.

3. What if Course and Scope is Admitted?

If course and scope is admitted, the cause of action still remains.

Course and Scope of Employment:

1. Respondeat Superior

An employer may be held liable for the acts and omissions of its employees committed in the course and scope of their employment. Byrd v. Faber, 57 Ohio St. 3d 56, 565 N.E.2d 584 (1991).

Ohio law recognizes a number of exceptions to vicarious liability. Acts committed outside the course and scope of employment do not subject employers to vicarious liability. Posin v. ABC Motor Court Hotel, Inc., 45 Ohio St. 2d 271, 344 N.E.2d 334 (1976). An employee who departs from his employment to engage in his own affairs relieves his employer from liability. Not every deviation eliminates liability however. Incidental tasks are insufficient. Instead, the action must be so divergent from employment duties such that it would sever the employment relationship. Id. Whether conduct is undertaken in the course and scope of employment is ordinarily a question of fact. Moreover, intentional misconduct does not give rise to vicarious liability unless the intentional conduct is calculated to facilitate or promote the business of the employer. Byrd v. Faber, 57 Ohio St. 3d 56, 565 N.E.2d 584 (1991).

2. Liability for Acts of Independent Contractors

Generally, an employer is not liable for the conduct of an independent contractor.

Whether an actor is an employee or an independent contractor depends upon the employer’s right to control the manner of the actor’s work. Bobik v. Indus. Comm’n, 146 Ohio St. 187, 64 N.E.2d 829 (1946). If the employer retains the right to control the work, the relationship is one of employer-employee. If the right to control the work rests with the actor, the relationship is one of principal-independent contractor.

The nondelegable duty rule creates an exception to rule against vicarious liability for the acts of an independent contractor. An employer subject to a nondelegable duty may be held vicariously liable for the conduct of an independent contractor. An employer may be subject to a nondelegable duty affirmatively imposed by statute, contract or common law, or because the work involved is inherently dangerous. Pusey v. Bator, 94 Ohio St. 3d 275, 762 N.E.2d 968 (2002). In such situations, an employer may delegate the work to an independent contractor, but must retain liability for the conduct of the independent contractor.

An issue separate from vicarious liability, an employer may nevertheless be held primarily liable for the negligent selection, hiring and retention of an independent contractor.

Comparative or Contributory Negligence:

1. Common Law Negligence

The elements of negligence are that (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty of care, and (3) the breach of duty proximately caused the plaintiff’s injury or damages. Chambers v. St. Mary’s School, 82 Ohio St. 3d 563, 697 N.E.2d 198 (1998). Whether a defendant owes a duty of care to a plaintiff “depends upon the relationship between the parties and the foreseeability of injury to someone in the plaintiff’s position.” Simmers v. Bentley Constr. Co., 64 Ohio St. 3d 642, 597 N.E.2d 504 (1992). An injury is foreseeable if a defendant knows or should know that its act was likely to result in harm. Huston v. Konieczny, 52 Ohio St. 3d 214, 556 N.E.2d 505 (1990).

A defendant breaches its duty of care to a plaintiff when the defendant fails to exercise the degree of care that an ordinarily reasonable and prudent person would exercise under the same or similar circumstances. Mussivand v. David, 45 Ohio St. 3d 314, 544 N.E.2d 265 (1989).

A defendant’s negligence is the proximate cause of injury if the injury is the natural and probable consequence of the defendant’s negligent act, and if the defendant should have foreseen the injury in light of attending circumstances. Id.

2. Comparative Negligence

Ohio Rev. Code § 2315.32 to Ohio Rev. Code § 2315.36 govern comparative negligence. The plaintiff’s comparative fault is an affirmative defense to any tort claim, except a claim involving intentional torts. Ohio Rev. Code § 2315.32(B).

If the plaintiff’s comparative fault is greater than the combined negligence of all defendants, the plaintiff’s comparative fault bars the plaintiff from recovery. Ohio Rev. Code § 2315.33. If the plaintiff’s comparative fault is equal to or less than the combined negligence of all defendants, the plaintiff’s comparative fault is not a bar to recovery. Id. In such circumstances, however, the court will reduce the plaintiff’s recovery by the percentage of fault attributable to the plaintiff. Ohio Rev. Code § 2315.35.

3. Assumption of Risk

Ohio law recognizes three types of assumption of risk – express (e.g., contractual), primary and secondary assumption of risk.

Express assumption of risk occurs when the parties expressly agree to release liability. Crace v. Kent State Univ., 185 Ohio App. 3d 534, 924 N.E.2d 906 (2009).

Primary assumption of risk is an absolute defense to a negligence claim. A plaintiff’s primary assumption of risk eliminates any duty of care that a defendant owed that plaintiff. As a result, a plaintiff is unable to establish the required elements of a negligence claim. Gallagher v. Cleveland Browns Football Co., 74 Ohio St. 3d 427, 659 N.E.2d 1232 (1996). A plaintiff who voluntarily engages in an activity assumes the risks inherent with that activity. A plaintiff cannot recover for injuries resulting from such risks, unless the defendant acted recklessly or intentionally. Gentry v. Craycraft, 101 Ohio St. 3d 141, 2004-Ohio-379, 802 N.E.2d 1116. Primary assumption of risk applies to those situations in which the danger at issue is ordinary to the activity, it is common knowledge that the danger exists, and the injury occurs as a result of the danger during the course of the activity. Santho v. Boy Scouts of Amer., 168 Ohio App. 3d 27, 2006-Ohio-3656, 857 N.E.2d 1255. If the activity involves dangers that cannot be eliminated, primary assumption of risk applies. Main v. Gym X-Treme, 2012-Ohio-1315.

Secondary assumption of risk may also be a defense to a negligence claim. Like primary assumption of risk, secondary (or implied) assumption of risk occurs when a plaintiff voluntarily consents to or acquiesces to an appreciated, known or obvious risk to his or her safety. Reeves v. Healy, 192 Ohio App. 3d 769, 2011-Ohio-1487, 950 N.E.2d 605. Secondary assumption of risk differs from primary assumption of risk because secondary assumption of risk merges with comparative negligence. Secondary assumption of risk is not an absolute bar to a negligence claim, but is a measure of comparative fault. Gallagher v. Cleveland Browns Football Co., 74 Ohio St. 3d 427, 659 N.E.2d 1232 (1996). It may become an absolute bar, if the measure of the plaintiff’s comparative fault, through his or her assumption of risk, is greater than the fault attributed to the defendant.

4. Sudden Emergency

Ohio recognizes two types of sudden emergency defenses: sudden emergencies generally and sudden medical emergencies specifically.

When a driver of a motor vehicle is suddenly stricken by a period of unconsciousness, which renders it impossible for the driver to control the car, and which the driver had no reason to anticipate or foresee, the driver is not liable for negligence. Lehman v. Heyman, 164 Ohio St. 595, 133 N.E.2d 97 (1956). To establish the defense, the defendant bears the burden to prove that (1) he actually lost consciousness, (2) the loss of consciousness made it impossible for him to control the vehicle, and (3) the loss of consciousness was unforeseeable. Once the defendant establishes the elements of the defense, the burden shifts to the plaintiff to produce independent and substantial evidence to the contrary.

Other situations may present sudden emergencies which excuse liability. A person’s negligence is excused when that person, in an emergency situation, acts without ordinary care but does so because of a lack of time to form a reasoned judgment. To establish the defense, the defendant bears the burden to prove that (1) compliance with a specific safety statute was impossible, (2) because of a sudden emergency, (3) that arose without fault of the defendant, (4) under circumstances over which the defendant had no control, and (5) the defendant nevertheless exercised such care as an ordinary person would. Zehe v. Falkner, 26 Ohio St. 2d 258, 271 N.E.2d 276 (1971).

A sudden emergency is a sudden and unexpected occurrence which demands prompt action without time for reflection or deliberation. Miller v. McAllister, 169 Ohio St. 487 (1959).

5. Last Clear Chance Doctrine
       

Under the last clear chance doctrine, a plaintiff who has placed himself or herself in a perilous situation may still recover, despite his or her own negligence. The last clear chance doctrine allows a plaintiff to recover in these circumstances if a defendant, after becoming aware of the plaintiff’s peril, failed to exercise ordinary care to avoid injuring the plaintiff. The last clear chance doctrine applies only if the plaintiff can demonstrate that the defendant became aware of the perilous situation at a time and distance when, in the exercise of ordinary care, the defendant could have avoided injury to the plaintiff. Sech v. Rogers, 6 Ohio St. 3d 462, 453 N.E.2d 705 (1983).

Contribution or Implied Indemnity from Third-Parties:

1. Contribution

A tortfeasor who has paid more than his or her share of damages may have a right of contribution against others who are responsible for the damages. Ohio Rev. Code § 2307.25.

A tortfeasor may enforce contribution rights against a co-defendant by way of post-trial motion. Ohio Rev. Code § 2307.26. A tortfeasor may also enforce contribution rights by separate action within one year after the judgment becomes final. Id.

A tortfeasor who has committed an intentional tort cannot seek contribution.

A tortfeasor who has entered into a settlement is not entitled to contribution from other tortfeasors unless the settlement agreement specifically extinguishes the liability of the other tortfeasors against whom contribution is sought.

A release and covenant not to sue does not discharge other tortfeasors from liability, but reduces the claim against other tortfeasors to the greater of any amount stipulated or the amount paid in consideration for the release. Ohio Rev. Code § 2307.28. The reduction does not apply if the plaintiff recovers less than the amount of compensatory damages found by the jury.

A release and covenant not to sue discharges the person to whom it is given from all liability for contribution.

2. Placard Liability

The Supreme Court of Ohio holds that, in tort actions involving leased vehicles of interstate motor carriers, federal regulations determine liability, rather than the common-law doctrine of vicarious liability. Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc., 58 Ohio St. 3d 261, 569 N.E.2d 1049 (1991). Under federal regulations, liability exists if a lease is in effect and the leased vehicle displays the motor carrier’s placard listing ICC numbers. Additionally, federal regulations create an irrebutable presumption that the driver of a leased vehicle is an employee of the motor carrier if the driver displays the motor carrier’s placard. 49 C.F.R. § 1057.12.

Under Ohio Rev. Code § 2307.34, no motor carrier is liable in a civil action for any injury, death or damage caused by a motor vehicle not owned by the motor carrier, or caused by an operator not employed by the motor carrier, unless the motor vehicle is being operated in service of the motor carrier pursuant to a valid lease agreement. The only court to address the interaction between Ohio Rev. Code § 2307.34 and the Wyckoff decision holds that the statute essentially does not change the Wyckoff holding so long as (1) a motor carrier placard is displayed and (2) a valid lease is in effect. Cincinnati Ins. Co. v. Haack, 125 Ohio App. 3d 183, 708 N.E.2d 214 (1997).

Exclusivity of Workers Compensation:

The Ohio worker’s compensation system generally provides the exclusive remedy against employers for injuries sustained in the course and scope of employment.

An employer who complies with the requirements of the worker’s compensation system is not liable for damages caused by any injury, occupational disease or bodily condition received or contracted by an employee in the course and scope of employment. Ohio Rev. Code § 4123.74. Workers’ compensation immunity also shields fellow employees from suit, provided that the injury, occupational disease or bodily condition at issue is found to be compensable under the worker’s compensation system. Ohio Rev. Code § 4123.741.

The statutory immunity under the worker’s compensation system does not apply in cases involving intentional torts. Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St. 2d 603, 433 N.E.2d 572 (1982). Instead, Ohio statute provides a separate remedy for claims of employer intentional torts. Ohio Rev. Code § 2745.01(A). To establish an employer intentional tort, an injured employee must establish that the employer acted with the deliberate intent to injure the employee, or with the belief that injury was substantially certain to occur. Id.

The statute defines “substantial certainty” as deliberate intent to injure. Ohio Rev. Code § 2745.01(B). The statute does set forth certain conduct that the law rebuttably presumes rises to the level of deliberate intent to injure. Deliberate removal of a safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the employer acted with the deliberate intent to injure. Ohio Rev. Code § 2745.01(C).

Seat Belt and Helmet Use:

1. It is statutory law in Ohio that all drivers and front seat passengers of automobiles wear occupant restraining devices; However, by statute, evidence that a driver failed to wear a seatbelt is not admissible as evidence of contributory negligence.

Pursuant to Ohio Rev. Code § 4513.263, the failure to wear a restraining device shall not:

1. Be considered as evidence of negligence or contributory negligence; Except: Where an injury claim has been made against the manufacturer or seller of the car, where the injury or death was allegedly enhanced or aggravated by some design defect in the car or that the car was not crash worthy. Gable v. Gates Mills, 103 Ohio St 3d 449, 2004-Ohio-5719.
2. Be used as basis for criminal prosecution (unless for violation of this section);

1. Failure to wear a device is admissible to establish that the failure contributed to the harm alleged in the complaint.
2. Failure to wear a seatbelt can diminish recovery of non-economic compensatory damages.

The trier of fact may determine that the failure contributed to the harm alleged in the tort action and may diminish a recovery of compensatory damages that represents noneconomic loss that could have been recovered but for the plaintiff’s failure to wear all of the available elements of a properly adjusted occupant restraining device.

Ohio Rev. Code § 4513.263(F)(1).

2. Ohio law does not require persons over 18 who do not bear the designation “novice” on their motorcycle operator’s license to wear helmets.

Ohio Rev. Code § 4511.53(C).

Ohio courts have denied requests for jury instructions regarding plaintiff’s failure to wear a helmet where there was no evidence presented that the use of a helmet would have reduced plaintiff’s injuries. See Kiefer v. Emery, 3rd Dist. No. 17-94-19, 1995 Ohio App. LEXIS 1517 (Apr. 5, 1995); Smiley v. Leonard, 2nd Dist. No. 14071, 1994 Ohio App. LEXIS 572 (Feb. 16, 1994).

However, Ohio’s comparative negligence statute, Ohio Rev. Code § 2315.32, permits defendants to assert the negligence of the plaintiff as an affirmative defense

Spoliation:

1. Intentional Spoliation

1. Ohio recognizes an independent cause of action for intentional spoliation or interference with or destruction of evidence.
2. The elements of a claim for interference with or destruction of evidence are (1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff’s case, (4) disruption of the plaintiff’s case, and (5) damages proximately caused by the defendant’s acts. Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 615 N.E.2d 1037 (1993). See also Davis v. Wal-Mart Stores, 93 Ohio St.3d 488 (2001).
2. Negligent Spoliation

1. Ohio does not recognize an independent cause of action for negligent spoliation of evidence; however, negligent spoliation can be the basis for sanctions in ongoing litigation. See Simeone v. Girard City Bd. of Educ., 171 Ohio App.3d 633, 2007-Ohio-1775.
2. Sanctions for spoliation may be awarded upon proof that: (1) the evidence was relevant; (2) a party or its expert has had an opportunity to examine the unaltered evidence; and (3) even though that party was contemplating litigation, the evidence was intentionally or negligently destroyed or altered without providing an opportunity for inspection by the opposing party. See Watson v. Ford Motor Co., 6th Dist. No. E-06-074, 2007-Ohio-6374, ¶51; Cincinnati Ins. Co. v. GM Corp., 6th Dist. No. 94OT017, 1994 Ohio App. LEXIS 4960 (Oct. 28, 1994) (Prejudice will be found to exist if there is “a reasonable possibility, based on concrete evidence, that access to the evidence which was destroyed or altered . . . would produce evidence favorable to the objecting party.”)
3. If these elements are established, the moving party is entitled to a rebuttable presumption that it was prejudiced by the destruction of evidence, meaning that the burden of persuasion shifts to the other party to show that no prejudice exists. Bright v. Ford Motor Co., 63 Ohio App.3d 256, 578 N.E.2d 547 (1990).

DAMAGES

Damage Caps:

1. Caps on Non-Economic Damages
       
1. Applies to all “tort actions”

1. Defined as “a civil action for damages for injury or loss to person or property”.
2. Includes product liability and asbestos claims.
3. Specifically excludes any civil action based upon a medical, dental, optometric or chiropractic claim, or for breach of contract.
       
2. Ohio Rev. Code § 2315.18(B): Non-economic damages are limited:

1. To the greater of $250,000 or 3 times economic loss;
2. To a maximum of $350,000 per person, or $500,000 per occurrence.
3. Caps only apply to “tort actions” for non-catastrophic claims; caps do not apply to

1. Wrongful death actions;
2. Actions involving permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or permanent physical function injury;
3. Tort actions against the state in the Court of Claims; or
4. Tort actions against political subdivisions.
4. Determination of Caps

1. Caps on non-economic damages can be determined by court prior to trial if any party files a motion for summary judgment.
2. Jury is not to be informed of caps or limits on awards of non-economic damages.
5. Review of Awards of Non-Economic Compensatory Damages Challenged as Excessive (Ohio Rev. Code § 2315.19).

1. Trial court must set forth in writing its reasons for upholding an award challenged as excessive
2. Appellate court employs a de novo standard of review
       
2. Evidence that the Trier of Fact is Not to Consider when Awarding Compensatory Damages for Non-Economic Loss in a Tort Action (Ohio Rev. Code § 2315.18(C))
              
1. Evidence for a defendant’s alleged wrongdoing, misconduct or guilt;
       
2. Evidence of the defendant’s wealth or financial resources;
              
3. All other evidence that is offered for the purpose of punishing the defendant.
3. Jury Consideration
       
1. Jury Interrogatories (Ohio Rev. Code § 2315.18(D))
       
1. Requires the use of jury interrogatories in addition to a general verdict form to support an award of compensatory damages in a “tort action”.
2. Jury’s answers to interrogatories must specify:

1. Total compensatory damages;
2. Portion of total compensatory damages that represent economic loss and non-economic loss; and
3. Portion of total compensatory damages that represents non-economic loss.
2. Jury Instructions (Ohio Rev. Code § 2315.01(B))

• Requires that the court instruct the jury on the tax consequences of compensatory and punitive damage awards for purposes of federal and state income taxes.

Joint & Several Liability:

Ohio law imposes joint and several liability upon two or more tortfeasors whose conduct was the proximate cause of injury or damage. Ohio Rev. Code § 2307.22.

If a jury determines that two or more tortfeasors are jointly and severally liable, the jury must apportion a degree of fault between all such persons. Ohio Rev. Code § 2307.23. The jury may apportion fault between all persons whose conduct was the proximate cause of injury, including the plaintiff and persons not parties to the case.

With respect to economic loss, a defendant’s joint and several liability depends on each defendants’ respective share of comparative fault. Defendants whose share of comparative fault is greater than 50% are jointly and severally liable for all economic damages. Defendants whose share of comparative fault is equal to or less than 50% are liable for their proportionate share of economic damages. Economic damages include past wage loss, future wage loss, medical expenses and property damage expenditures.

With respect to non-economic loss, including pain and suffering, loss of consortium, and mental anguish, each defendant owes only his or her proportionate share of non-economic damages, regardless of the degree of comparative fault.

Standard of Proof Required for Compensatory Damages:

1. Differentiated from other types of damages in that compensatory damages are intended to make the plaintiff whole for the damages/suffering incurred through the defendant[s] actions.
2. Compensatory damages can take the form of direct monetary losses incurred by the plaintiff for medical expenses, lost wages due to injury, and physical/mental pain and suffering, including those losses already sustained as well as those which are reasonably certain to occur in the future.
3. Jury Instructions regarding compensatory damages (OJI 315.01):

1. Plaintiff is to be compensated for both “economic loss” and “non-economic loss” proximately caused by the defendants.
2. “Economic Loss” means any of the following types of financial harm:

1. all wages, salaries, or other compensation lost as a result of the plaintiff’s injury;
2. all expenditures for medical care or treatment, rehabilitation services, or other care, treatment, services, products, or accommodations incurred as a result of the plaintiff’s injury; and
3. any other expenditure incurred as a result of the injury, other than attorney’s fees incurred in the action.
3. “Non-Economic Loss” means harm other than the economic loss that results from the plaintiff’s injury, including, but not limited to, pain and suffering, loss of society, loss of consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education; disfigurement, mental anguish, and any other intangible loss.
4. Collateral Source (meds billed v. paid)

• Can be admissible in any “tort action.” (Ohio Rev. Code § 2315.20).

1. Not admissible if the collateral source that was introduced into evidence has a mandatory federal, contractual or statutory right of subrogation.
2. If defendant introduces collateral source evidence, Plaintiff may introduce evidence of amounts paid to secure benefits from collateral source that was introduced into evidence.
3. The collateral-source rule does not bar evidence of the amount accepted by a medical care provider from an insurer as full payment. Both the amount originally billed and the amount accepted as payment in full are admissible to prove the reasonable value of the medical treatment in a personal injury action. Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362.
       
1. In Jaques v. Manton, 125 Ohio St.3d 342, 2010-Ohio-1838, the Court determined that the defendant in a personal injury lawsuit is not barred by Ohio's Collateral Source Statute, Ohio Rev. Code § 2315.20, from introducing evidence at trial of "write offs" accepted by medical service providers that reduce the actual cost of the plaintiff’s medical treatments to a lower amount than those providers originally billed for their services. The Court determined that the statute does not address evidence of such "write-offs" by medical providers, and, therefore, the Court's holding in the 2006 opinion in Robinson v. Bates still applies and controls.
       
2. On October 24, 2013, the Supreme Court of Ohio ruled that expert testimony is not required to substantiate the reasonableness of write-offs reflected on medical bills. The Court concluded that medical bills and statements showing write-offs and amounts accepted by medical providers as full payment can be admitted pursuant to Ohio Rev. Code §2317.421 as prima facie evidence of the reasonable value of medical services. Moretz v. Muakkassa, 137 Ohio St.3d 171, 2013-Ohio-4656.

Hedonic Damages:

1. Damages for Emotional Distress

1. Non-Physical Injury:
       
1. In Paugh v. Hanks, 6 Ohio St. 3d 72 (1983), the Supreme Court of Ohio held that a claim for negligent infliction of serious emotional distress may be maintained without proof of a contemporaneous physical injury where:

1. The plaintiff was a bystander;
2. The plaintiff reasonably appreciated the peril which took place, whether or not the victim suffered actual physical harm; and
3. The plaintiff suffered serious emotional distress as a result of this cognizance or fear of peril.
       
2. Emotional injury sustained must be found to be both serious and reasonably foreseeable in order to allow a recovery.
       
3. Serious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.

1. A plaintiff must present some “guarantee of genuineness” in support of his or her claim to avoid summary judgment.
2. Expert medical testimony will help establish the validity of the claim of serious emotional distress, though expert medical testimony concerning the plaintiff's mental distress is not always required. Foster v. McDevitt, 31 Ohio App.3d 237, 239 (1986).
3. As an alternative to expert testimony, a plaintiff may offer the testimony of lay witnesses acquainted with the plaintiff to show significant changes that they have observed in the emotional or habitual makeup of the plaintiff.
4. The facts to be considered in order to determine whether a negligently inflicted emotional distress injury was reasonably foreseeable include:

1. Whether the plaintiff was located near the scene of the accident, as contrast with one who was a distance away;
2. Whether the shock resulted from a direct emotional impact upon plaintiff from sensory and contemporaneous observance of the accident, as contrast with learning of the accident from others after its occurrence; and,
3. Whether the plaintiff and victim (if any) were closely related, is contrasted with an absence of any relationship on a presence of only a distance relationship.
       
5. Ohio does not recognize a claim for negligent infliction of serious emotional distress where the distress is caused by the plaintiff's fear of a nonexistent physical peril. Heiner v. Moretuzzo, 73 Ohio St.3d 80 (1995), at syllabus.
                                   
2. Physical Injury:

1. In Binns v. Fredendall, 32 Ohio St. 3d 244 (1987), the Supreme Court of Ohio held that negligently inflicted emotional and psychiatric injury sustained by a plaintiff who also suffers contemporaneous physical injury in a motor vehicle accident need not be severe and debilitating.
       
2. Recovery may include damages for mental anguish, emotional distress, anxiety, grief or loss of enjoyment of life caused by the death or injury of another, provided the plaintiff is directly involved and contemporaneously injured in the same motor vehicle accident with the deceased or other injured person.
              
3. Limited Recovery
       

Ohio courts have limited recovery for negligent infliction of emotional distress in such instances as where one was a bystander to an accident or was in fear of physical consequences to his own person. See High v. Howard, 64 Ohio St. 3d 82 (1992).

4. Statute of Limitations
       

Negligent infliction of emotional distress is governed by a two-year statute of limitations. Ohio Rev. Code § 2305.10; Lawyer's Cooperative Publishing Co. v. Muething, 65 Ohio St.3d 273 (1992).

2. Loss of Enjoyment of Life
       

As stated in Fantozzi v. Sandusky Cements Products Co., 64 Ohio St. 3d 601 (1992), where an individual suffers personal injuries, the question of damages for loss of ability to perform the plaintiff's usual function may be submitted to the jury in an instruction, and set forth in a special interrogatory and separate finding of damages, provided that the Court instructs the jury it shall not award additional damages for that same loss.

3. Loss of Consortium/Loss of Affection
       
1. In Gallimore v. Children’s Hospital Medical Center, 67 Ohio St. 3d 244 (1993), the Supreme Court of Ohio held that a parent may recover damages for loss of filial (child's) consortium.
       
2. Consortium includes services, society, companionship, comfort, love and solace.
       
3. An action for loss of consortium occasioned by a spouse's injury is a separate and distinct cause of action. Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84 (1992).
       
4. In Rolf v. Tri State Motor Transit Co., 91 Ohio St.3d 380 (2001), the court held that adult emancipated children of an injured parent could recover for loss of parental consortium under Ohio law.

Life Care Plans:

Not admissible, unless the plaintiff’s employer paid for the life or disability policy and the employer is a defendant in the tort action.

Wrongful Death Standing and Damages:

1. Who can Recover?

1. A civil action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the exclusive benefit of the other next of kin of the decedent.
2. Other next of kin, including siblings and other relatives are also properly considered next of kin. They may also recover damages, but do not enjoy the same rebuttable presumption as other kin. These next of kin must prove damages, and may only recover for loss of consortium and mental anguish. Ramage v. Central Ohio Emer. Servs., Inc., 64 Ohio St. 3d 97, 592 N.E.2d 828 (1992).
3. The date of the decedent's death fixes the status of all beneficiaries of the civil action for wrongful death for purposes of determining the damages suffered by them and the amount of damages to be awarded. A person who is conceived prior to the decedent's death and who is born alive after the decedent's death is a beneficiary of the action.
2. What can be Recovered?

1. Compensatory damages may be awarded in a civil action for wrongful death and may include damages for the following:

1. Loss of support from the reasonably expected earning capacity of the decedent;
2. Loss of services of the decedent;
3. Loss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving spouse, dependent children, parents, or next of kin of the decedent;
4. Loss of prospective inheritance to the decedent's heirs at law at the time of the decedent's death;
5. The mental anguish incurred by the surviving spouse, dependent children, parents, or next of kin of the decedent.
2. A party to a civil action for wrongful death may present evidence of the cost of an annuity in connection with an issue of recoverable future damages. If that evidence is presented, then the jury or court may consider that evidence in determining the future damages suffered by reason of the wrongful death. If that evidence is presented, the present value in dollars of an annuity is its cost.

Punitive Damages:

1. A claim for punitive damages gives rise to a right to a bifurcated trial. Liability for punitive damages in a tort action shall be, upon motion of any party, bifurcated. The trial then has two parts. The first establishes liability and compensatory damages only. If the jury or trier of fact determines that the plaintiff is entitled to recover compensatory damages, only then is evidence permitted on whether plaintiff is entitled to punitive damages. (Ohio Rev. Code § 2315.21(B))
       
2. Punitive damages are not recoverable unless both of the following apply, which are the plaintiff’s burden to prove by clear and convincing evidence:

1. The actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate.
       
2. The trier of fact has returned a verdict or has made a determination of the total compensatory damages recoverable by the plaintiff from that defendant.
       
3. Recent Case Law

1. Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-Ohio-552. In Havel, the Supreme Court of Ohio upheld the constitutionality of Ohio Rev. Code § 2315.21(B), a statute which makes bifurcation of tort actions involving both compensatory and punitive damage claims mandatory upon request. The Court held that Ohio Rev. Code § 2315.21(B) creates, defines, and regulates a substantive, enforceable right to separate stages of trial relating to the presentation of evidence for compensatory and punitive damages in tort actions. The Court explained that because it is a substantive statute, it takes precedence over Ohio Civ. R. 42(B) which gives a trial court discretion to bifurcate claims for trial purposes, as compared to Ohio Rev. Code § 2315.21(B) which requires bifurcation when a motion requesting it is filed. The Court determined that because Ohio Rev. Code § 2315.21(B) is a substantive law, it prevails over the procedural bifurcation rule promulgated by the Ohio Supreme Court in Ohio Civ. R. 42(B), and thus, does not violate the separation of powers required by Article IV, Section 5(B) of the Ohio Constitution.
       
2. Flynn v. Fairview Village Retirement Community, Ltd.¸ 132 Ohio St.3d 199, 2012-Ohio-2582. In Flynn, the Supreme Court of Ohio held that a trial court’s denial of a motion filed pursuant to Ohio Rev. Code § 2315.21(B) to bifurcate a jury trial of a tort case seeking an award of punitive damages is final and immediately appealable pursuant to Ohio Rev. Code § 2505.02(B)(6). The appellate court had dismissed a defendant’s appeal from the trial court’s denial of a pretrial motion to bifurcate the punitive damage claim in a nursing home tort case. In reversing the court of appeals, the Supreme Court stated that, by denying the motion to bifurcate under Ohio Rev. Code § 2315.21(B), the trial court “implicitly” determined that the amendment in 2004 to Ohio Rev. Code § 2315.21(B) making bifurcation mandatory was unconstitutional on the grounds that the statute conflicts with the bifurcation rule found in the Ohio Rules of Civil Procedure. While Ohio Civ. R. 42(B) gives trial court’s the discretion to bifurcate trials generally, the statutory provision makes bifurcation of a jury trial involving a punitive damage claim in a tort action mandatory upon the filing of a motion. The appellate court’s rationale for dismissing the appeal was rejected earlier this year in Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-Ohio-552, where the Supreme Court held that the bifurcation mandated by Ohio Rev. Code § 2315.21(B) is constitutional and does not conflict with Ohio Civ. R. 42(B).
       
3. Neal-Pettit v. Lahman, 125 Ohio St.3d 327, 2010-Ohio-1829. In Neal-Pettit, the Supreme Court of Ohio held that public policy does not prohibit an insurance policy from providing coverage for an award of attorney fees in a civil lawsuit when that award is incident to recovery of punitive damages. Although Ohio Rev. Code § 3937.182(B) prohibits insurance coverage of punitive damages, unless policy language clearly excludes coverage for an attorney fees award, an insurer is liable to pay for such an award. The Court noted that because an exclusion for "punitive or exemplary damages, fines or penalties" does not refer in any way to attorney fees or litigation expenses, coverage for attorney fees is not clearly and unambiguously excluded from coverage and that the drafter of the policy language is responsible for ensuring that the policy states clearly what it does and does not cover.
4. Lucarell v. Nationwide Mutual Insurance Company, N.E.3d, 2018-Ohio-15. Punitive damages may not be awarded for breach of contract, no matter how willful; however, when a breach of contract involves conduct that also constitutes a tort, punitive damages may be awarded only for the tort, not for the breach, and any punitive damages awarded are subject to statutory limitations on punitive damages.
       
4. Required Elements for a Punitive Damages Claim
       
1. The Supreme Court of Ohio held in Cabe v. Lunich, 70 Ohio St. 3d 598 (1994): “where liability is determined and compensatory damages are awarded, punitive damages may be awarded upon a showing of actual malice.”
       
2. “Actual malice” has been defined as “that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge,” or “a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” (Preston v. Murty, 32 Ohio St. 3d 334 (1987), approved and followed).
              
5. Caps on Punitive Damages
       
1. Punitive damages are capped at:
              
1. two times compensatory damages, or
2. if the defendant is a “small employer” or an individual, either two times compensatory damages, or 10% of the employer’s or individual’s net worth when the tort was committed, whichever is less, up to a maximum of $350,000 (Ohio Rev. Code § 2315.21).
       
2. “Small employer” is defined as employing not more than 100 persons on a full time permanent basis, or if a manufacturer not employing more than 500 persons on a full-time permanent basis.
3. Any attorneys’ fees awarded as a result of a claim for punitive or exemplary damages shall not be considered for purposes of determining the cap on punitive damages.
       
4. Caps on punitive damages do not apply if the defendant has been convicted of or plead guilty to a felony involving intent or knowledge as an element of the criminal offense.
6. Insurance Coverage for Punitive Damages

“No policy of automobile or motor vehicle insurance that is covered by sections 3937.01 to 3937.17 of the Revised Code … and no other policy of casualty or liability insurance that is covered by sections 3937.01 to 3937.17 of the Revised Code and that is so issued, shall provide coverage for judgments or claims against an insured for punitive or exemplary damages.” Ohio Rev. Code § 3937.182.

Offers of Judgment

1. An Offer of Judgment is a settlement offer proposed by a defending party in which that party proposes a judgment on specified terms in lieu of trial.
2. Ohio has explicitly rejected the treatment given to Offers of Judgment under the federal rules of civil procedure.

1. Fed. R. Civ. P. 68(d): If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
2. Ohio R. Civ. P. 68: An offer of judgment by any party, if refuted by an opposing party, may not be filed with the court by the offering party for purposes of a proceeding to determine costs. In Ohio, an offer of judgment is essentially meaningless.

• “An offer of judgment by any party may not be filed with the court for use in a subsequent proceeding to determine costs. Offers of settlement and voluntary resolution of litigation are highly encouraged under the Civil Rules. However, it is felt that use of offers of judgment for assessment of costs against plaintiff is a one-sided proposition that unfairly restricts plaintiff's right to a jury trial. For this reason Federal Rule 68 has not been adopted in Ohio and previous Ohio Statutes which permitted offers of judgment for cost determination are no longer in effect. Obviously there is no longer any point in making an offer of judgment. Hereafter all offers will be for settlement purposes only.” Paoletti v. Travelers Indem. Co., 6th Dist. No. L-75-196, 1977 Ohio App. LEXIS 10181, 16-17 (May 6, 1977).

Biomechanics: Daubert Standard Allowed

1. In order for a witness to qualify as an expert, he must have some scientific, technical, or other specialized knowledge that assists the trier of fact to understand the evidence. Ohio Evid. R. 702.
2. The Daubert Standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

3. 1. The Supreme Court of the United States held in Daubert that Rule 702 vests the trial court with the role of gatekeeper. This gatekeeping function imposes an obligation upon a trial court to assess both the reliability of an expert's methodology and the relevance of any testimony offered before permitting the expert to testify. This standard was adopted by the Supreme Court of Ohio in Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998).
   2. Expert scientific testimony is admissible if it is reliable and relevant to the task at hand. To determine reliability a court must assess whether the reasoning or methodology underlying the testimony is scientifically valid. In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, (4) whether the methodology has gained general acceptance, and (5) whether the research was conducted independent of the particular litigation. Although these factors may aid in determining reliability, the inquiry is flexible. The focus is solely on principles and methodology, not on the conclusions that they generate.

4. The Daubert Standard is Incorporated Into Ohio Evid. R. 702
5. Expert Testimony as to Ultimate Facts
       
1. Ohio Evid R. 704: Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.
2. “The rule must be read in conjunction with Rule 704 and Rule 702, each of which requires that opinion testimony be helpful to, or assist, the trier of the fact in the determination of a factual issue. Opinion testimony on an ultimate issue is admissible if it assists the trier of the fact, otherwise it is not admissible. The competency of the trier of the fact to resolve the factual issue determines whether or not the opinion testimony is of assistance.” Staff Note to Ohio Evid. R. 704.
3. Generally, the question as to the point of impact or collision on the road in motor vehicle accident cases is not one calling for skilled or expert opinion. The point of impact on the road of two colliding automobiles is a subject within the experience, knowledge or comprehension of the jury. Where there is conflicting eyewitness testimony upon a precise or ultimate fact in issue that is to be determined by a jury, an expert witness may not, in response to a hypothetical question, express his opinion on such fact in issue. Where expert opinion evidence on the ultimate fact at issue does not serve to enlighten the jury with respect to a matter outside its competence, the evidence is a clear invasion of the jury's province to determine that ultimate fact. Smith v. Freeman, 4th Dist No. 962, 1983 Ohio App. LEXIS 14568 (Nov. 21, 1983).

Must policy limits be disclosed pre-suit?

Ohio law does not require an insurer to disclose the limits or layers of insurance coverage, except as required to comply with the provisions of the Unfair Claims Practices Act. Such information, however, may be subject to discovery in a civil action under the Ohio Rules of Civil Procedure.

May claimant recover general damages if the claimant does not have own auto-insurance? So called no pay no play rules:

In Ohio a claimant may recover general damages even if that claimant does not have their own auto insurance.