Some Remand Updates.

Friebel v. Visiting Nurse Assn. of Mid-Ohio

On October 21, 2014, the Supreme Court of Ohio handed down a merit decision in Friebel v. Visiting Nurse Assn. of Mid-Ohio, 2014-Ohio-4531. The issue in the case was whether an Ohio worker’s compensation claimant can have “dual intent,” simultaneously being on a personal errand and acting “in the course of” and “arising out of” his or her employment. In a 5-2 decision written by Chief Justice Maureen O’Connor, the court determined that there were factual questions on whether Friebel was a fixed-situs employee, whether she was on a personal errand at the time of the injury, and whether she was travelling her normal route to the patient’s home. So the case was sent back for trial.

A jury trial was set to begin August 11, 2015 before Richland County Common Pleas Court Judge James DeWeese. On July 27, the plaintiff voluntarily dismissed the case without prejudice. This case can still be re-filed.

Read an analysis of the merit decision in the case here.

M.H. v. Cuyahoga Falls

Michael Hawsman was 13 years old when he broke his knee in a diving board accident at the Cuyahoga Falls natatorium. A lengthy battle over sovereign immunity ensued. Michael and his parents sued the City, claiming the diving board was negligently maintained, and that Michael was injured because of a physical defect on the premises. The City argued it was entitled to political subdivision immunity provided by R.C. 2744.02(A)(1). The trial court granted summary judgment to the City, holding that Cuyahoga Falls was entitled to political subdivision immunity. The Ninth District Court of Appeals reversed, finding the exception to immunity in R.C. 2744.02(B)(4) applied.

In  M.H. v. Cuyahoga Falls, 2012-Ohio-5336, (Michael’s initials were used because he was then a minor; he’s now in his young 20’s,) a unanimous decision issued in November of 2012, the court held the city was not entitled to immunity, and sent the case back to the trial court. Read a complete analysis of the merit decision here.

On remand, the city again moved for summary judgment. The trial court found there were disputed issues of fact over the questions of employee negligence, whether there was a defect in the diving board, and whether the City created the hazardous condition, but accepted the City’s argument that slippery diving boards are an open and obvious hazard, and granted summary judgment to the City on that no-duty basis. So the case went to the Ninth District Court of Appeals again, with appeals from both sides.

On September 30th, 2014, the Ninth District unanimously reversed the trial court’s decision, with one judge concurring in judgment only. The appeals court held that the trial court erred in granting summary judgment to the City based on the open and obvious doctrine, noting that Michael’s claim was not that the accident was caused by the naturally slippery condition of the diving board, but by negligent maintenance by City employees in failing to perform proper inspection and maintenance of the diving board, which caused the board to become defective.

The appeals court also denied the City’s cross-appeal, holding that the trial court properly addressed the issues of sovereign immunity and notice. The court of appeals found that the trial court had correctly concluded that there were genuine issues of material fact on the issues of employee negligence in cleaning and maintaining the diving board and on the existence of a defect in the board, and this was enough to prevent summary judgment on the basis of sovereign immunity. Further, the court held that the trial court did not err in denying summary judgment on the issue of notice, finding that a reasonable trier of fact could conclude that the City created the hazardous condition by failing to comply with the daily maintenance recommended by the manufacturer.

The case was set for trial August 17, 2015, and settled on August 15. Terms of the settlement are confidential. Given the history of this case, settlement seemed like a wise choice all around.

Doss v. State

This remand is shameful for lack of resolution. In 2006, Iran Doss was convicted of rape and kidnapping for an incident that took place on New Year’s Eve in 2004. J.P., who had never met Doss before, ended up in his apartment after a night of drinking.  The two had sex, which he claimed was consensual.  She claimed that, although she could not remember what happened that night, given her condition she would not have been able to consent. A substantially impaired individual cannot legally give consent.

Doss appealed the conviction.  The Eighth District vacated the kidnapping charge and initially upheld the rape conviction, concluding that there was sufficient evidence to support the jury’s finding that J.P.’s capacity to consent was substantially impaired and that Doss knew it, or should have.  Doss moved for reconsideration, which was granted. The new majority held that there was insufficient evidence to support the finding that Doss knew or had reason to know of J.P.’s condition. The appeals court ordered Doss released from prison. The Supreme Court of Ohio denied the State’s request for review.

Doss’ Wrongful Imprisonment Lawsuit

After his release, on July 25, 2008, Doss filed a civil action in the Cuyahoga County Court of Common Pleas, seeking a declaration that he was a wrongfully-imprisoned person, and moved for summary judgment, relying on the court of appeals finding.  The trial court granted Doss’ motion, finding that the Eighth District’s decision to vacate Doss’ conviction could only be interpreted to mean that Doss was innocent of the charges or that no crime was committed by Doss.

The State appealed and the Eighth District affirmed the trial court, in a split decision. Relying on its prior opinion, the majority found that the State’s failure to produce evidence that Doss knew of J.P.’s condition supported a finding of actual innocence.  The State appealed this decision to the Supreme Court of Ohio, which accepted jurisdiction.

Merit Decision

On December 6, 2012, the Supreme Court handed down a merit decision in Doss v. State, 2012-Ohio-5678. In a unanimous opinion written by Justice Lanzinger, the court held that a wrongfully imprisoned person must prove actual innocence in order to receive compensation from the state, and Doss did not.  In finding that he did, the trial court improperly relied solely on the appellate court judgment vacating his conviction for insufficient evidence. “When a court vacates or reverses a criminal conviction based on insufficiency of the evidence, the court is saying that the state has not proven the elements of the offense beyond a reasonable doubt; it is not saying that innocence has been proven. Thus, reversal on insufficiency of the evidence does not automatically mean that the defendant was wrongfully imprisoned,” Lanzinger wrote. The case was reversed and remanded for another hearing. Read a complete analysis of the merit decision here.

The Hearing, on Remand

On remand, a day and a half bench trial was held beginning August 26, 2013 before Cuyahoga County Court of Common Pleas Judge Jose Villeneuva. The judge ordered post-trial briefing, and took the case under submission September 4, 2013.  But Judge Villeneuva still has not made a decision about whether Doss is or isn’t entitled to compensation as a wrongfully imprisoned person.

On two occasions recently, May 27 and June 3 of 2015, the state has filed supplemental authority to support its position that Doss should not be found to be a wrongfully imprisoned individual, entitled to compensation. I suspect this is to remind the judge this case exists. No action has been taken by the court since November 26, 2013, when a court reporter was paid for a copy of the hearing transcript ordered by the judge. And it isn’t even up to this judge to determine the amount, should Doss prevail.  That’s up to the court of claims.






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