OHIO TORTS DISTINCTIONS PROFESSOR RIC SIMMONS THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW

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1 A. Intentinal Trts - Defenses 1. Self-Defense OHIO TORTS DISTINCTIONS PROFESSOR RIC SIMMONS THE OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW INTENTIONAL TORTS, NEGLIGENCE, DEFENSES General law frce used in self-defense must be reasnably t the anticipated harm Ohi t establish self-defense a defendant must shw: He was nt at in creating the cnflict; He had a reasnable and bna fide belief that he was in imminent danger f r great bdily harm and his nly means f escape frm danger was the use f frce; and He did nt vilate any duty t r avid the danger. Duty t Retreat General law ld majrity rule was that there is n duty t retreat at all, but ther jurisdictins are evlving Ohi fllws the Restatement Secnd rule: Befre a persn may use defensive frce utside the hme, she has a duty t retreat as lng as she may d s. There is n duty t retreat if the attack is in the, and there is n duty t retreat if nn-deadly frce is used t defend neself. Example 1: Wendy's husband cmes hme late ne night, drunk, and starts yelling at her. He picks up a knife and threatens t thrw it at her. Wendy culd escape but instead thrws a knife back at him, striking him in the chest. The husband sues Wendy fr battery. Wendy has a valid self-defense claim because (i) she was nt at fault, (ii) she had a reasnable and hnest belief that she was in imminent danger f death r great bdily harm, and (iii) she had n duty t retreat because she was in her wn hme. Example 2: Tm is jealus f Phil's success, and rams Phil's parked car repeatedly with his wn. Phil cmes ut f ffice, sees Tm, and pulls Tm ut f the car. Phil begins chking Tm and Tm smashes a cffee cup ver Phil's head. Phil sues Tm fr battery. Tm's self-defense claim will fail because he was at fault fr creating the cnflict.

2 2. Defense f Others In Ohi, a persn may nt claim defense f thers if the defended party was the aggressr. 3. Citizen's Arrest General law a private persn can make a citizen's arrest if a has in fact been cmmitted, AND the arresting citizen has reasnable grunds t suspect that the persn being arrested cmmitted it. Ohi a private persn can make a citizen's arrest if a has in fact been cmmitted OR the arresting citizen has reasn t believe that the persn being arrested cmmitted it. B. Negligence 1. Duty t Act Assumptin f Duty General law a persn wh vluntarily aids r rescues anther is liable fr injury caused by a failure t act with in the perfrmance f that aid r rescue. Ohi if a persn gives emergency care utside a medical facility and des nt expect cmpensatin fr his actins, that persn will nt be held liable fr damages fr administering emergency care unless he acts and wantnly. Example 3: Frank is walking alng the beach, and sees a child drwning. He runs int the water and pulls the child ut f the water. He ntices the child is nt breathing. He administers CPR t the child, saving the child's life. In ding s, he negligently breaks three f the child's ribs. The child's parents sue Frank. Under the general law, Frank wuld be liable because he failed t act with reasnable care. Under Ohi law, Frank wuld nt be liable because he did nt cause the injuries willfully and wantnly. Example 4: Same set f facts, but Frank turns t the child's parents and says "I'll save yur child fr $100." The parents agree. Frank administers CPR, saves the child's life, but negligently breaks the child's ribs. Under Ohi law, Frank will be liable because he expected cmpensatin. 2. Standard f Care a. Children General law children under years f age are cnsidered incapable f negligence Ohi children under years f age are nt capable f acting negligently Themis Bar Review, LLC OH Trts Distinctins

3 Children under seven als cannt be held liable fr any. b. Prfessinals General law prfessinals must use the same skill, knwledge, and care as anther practitiner in the same cmmunity Ohi prfessinals must use the same care and skill that is reasnable in light f their superir and (cnduct must cnstitute "gd practice") c. Negligence Per Se General law if a criminal r regulatry statute impses a duty n smene in rder t prtect thers, and the defendant fails t perfrm that duty, the defendant's vilatin f that statute means he is either autmatically negligent r there is a f negligence if he causes injury as a result f that vilatin (in sme jurisdictins, this rule applies t lcal rdinances as well as state statutes). Ohi a persn is negligent (negligent per se) if a statute r rdinance impses a duty r missin t act; as lng as the defendant's failure t perfrm such a duty r missin prximately results in the injury f anther, the defendant will be liable. Example 5: Irene is a bus driver, maneuvering the bus in a bus dept. She puts the bus in reverse in rder t back the bus int a parking spt. A city rdinance states that all bus drivers must hnk the hrn r therwise make a nise befre mving the bus in reverse. Irene failed t give an audible warning befre backing up the bus. As she was backing up, a pedestrian darted behind the bus. The bus struck the pedestrian. The pedestrian sued Irene. Irene claims that she was nt negligent because she acted reasnably. She lked t make sure the area was clear, she backed up the bus slwly, and she was in an area in which pedestrians are nt permitted t walk. Hwever, the curt will rule that nne f these facts matter. Because she vilated an rdinance that was designed t prtect pedestrians and ther vehicles, she is negligent per se fr her actins. All the plaintiff must shw is that Irene's cnduct was a prximate cause f the injuries Landlrd/Tenant: Ohi a landlrd wes a statutry duty t keep the premises safe and sanitary fr tenants' guests; a breach f this duty is negligence per se OH Trts Distinctins 2016 Themis Bar Review, LLC 3

4 d. Attractive Nuisance General law a land pssessr is liable fr injuries t children wh trespass n the land, if an artificial cnditin n the land where children are likely t trespass pses an unreasnable risk t a child's safety Ohi attractive nuisance rule is expanded t cver any adult wh attempts t rescue a child frm an attractive nuisance (i.e., the adult assumes the status f the child fr purpses f the attractive nuisance dctrine) e. Land wners General law verview Invitees (highest duty) landlrd must inspect the land, make it safe, warn invitees f danger, and rescue invitees in truble Licensees (medium duty) landlrd must warn f knwn dangerus cnditins, and refrain frm wantnly injuring the licensees Trespassers (weakest duty) landlrd must refrain frm wantnly injuring trespassers General law invitees Public invitee land is pen t public fr certain purpses Business visitr persn is invited t cnduct business dealings with the wner If the invitee exceeds the scpe f the invitatin, the persn is treated like a Ohi invitees If an invitee exceeds the scpe f the invitatin, he becmes a ; The land wner must warn the licensee f knwn, dangerus cnditins that the licensee wuld nt discver, and refrain frm wantnly injuring the licensee f. Scial Guests Ohi scial guests are nt classified as either invitees r licensees; they are their wn categry (cnsistent with the Third Restatement) Scial guest: smene wh enters anther's land under an actual invitatin but NOT fr business purpses r fr the benefit f the land wner A landwner must: Exercise nt t cause injury by any act carried n by the hst; and Themis Bar Review, LLC OH Trts Distinctins

5 Warn the guest f any dangerus cnditins that the hst shuld cnsider dangerus if the hst has reasn t believe that the guest desn't knw and wn't discver the dangerus cnditins There is n warranty, express r implied, that the premises are in a cnditin, and n duty t the premises and make it safe prir t the guest's arrival. Example 6: Andy wns a ranch and a farm, and has a farmer's market n the frnt part f the farm that is pen t the public. During the winter, Andy built tw large bnfires, ne near the farmer's market, the ther in the backyard t keep livestck warm. Als in the backyard is a large hle cvered by trees and branches, which is almst impssible t ntice. One day, a custmer cmes t the farmers market and falls int bnfire, burning herself. The custmer is an invitee, s Andy wed her the highest duty f care. Andy has a duty t rescue her frm the fire, and may be liable if fire is unreasnably dangerus. The same day, anther custmer wanders arund t the backyard (where custmers are nt permitted t g) and falls int the large hle in the yard. Under the multistate (general) rules, Andy had n duty t warn the custmer the custmer became a trespasser when he exceeded the scpe f the invitatin. Andy nly had a duty t refrain frm wantnly injuring the custmer. But under Ohi law, Andy had a duty t the custmer althugh the custmer exceeded the scpe f the invitatin, he is still a licensee under Ohi law, and s Andy had a duty t warn him abut all hidden dangers. Finally, Andy invites tw friends t his hme fr scial purpses. In the backyard, ne friend falls int bnfire, the ther falls int the cvered hle. Under Ohi law, the friends are "scial guests" s Andy has duty t warn them f the hidden hle (hidden, dangerus cnditin), but Andy had n duty t warn them f the bnfire r t make bnfire safe, because the friends are nt invitees. 1. Actual Damages DAMAGES, SPECIAL LIABILITY RULES, DEFENSES Nn-ecnmic damages: In Ohi, in cases that dn't invlve catastrphic injury, damages are capped at $, r three times the Plaintiff's damages up t a maximum amunt f $350,000 per plaintiff, and $500,000 per ccurrence. N cap fr catastrphic injuries: Permanent and physical defrmity; OH Trts Distinctins 2016 Themis Bar Review, LLC 5

6 Lss f use f limb r rgan; r Permanent physical functinal injury that prevents the plaintiff frm being able t. Cmpensatry damages: In Ohi, failure t wear a is admissible t diminish recvery fr nn-ecnmic cmpensatry damages. Cllateral Surce Rule Traditinal (general) rule a benefit r payment t the plaintiff frm an utside surce (e.g., insurance cmpany), is inadmissible at trial, and nt credited against liability f defendant. Ohi defendant may intrduce evidence f cllateral surce benefits, unless the third party wh paid the benefits has rights (e.g., insurance cmpany has a right t subrgate the claim). 2. Punitive Damages General rule plaintiffs may be entitled t punitive damages if it is established by evidence that the defendant acted willfully, wantnly, recklessly, r with malice. Ohi plaintiffs are nly entitled t punitive damages if: The defendant's actins r missins demnstrate r aggravated r egregius fraud; r The defendant acting as a principal authrized, participated in, r ratified the actins r missins f an agent that demnstrated malice r aggravated r egregius fraud; AND The trier f fact has returned a verdict r has made a determinatin f the cmpensatry damages recverable by the plaintiff frm that defendant. Ohi caps n punitive damages: If the defendant is small emplyer (i.e., nt mre than emplyees fr manufacturer, r nt mre than emplyees fr nn-manufacturer), then the cap n punitive damages is the lesser f duble cmpensatry damages, r 10 percent f the emplyer's net wrth, capped at $350,000. If the defendant is a large emplyer, the cap is tw times cmpensatry damages. 3. Special Rules f Liability Negligent Inflictin f Emtinal Distress (NIED) Themis Bar Review, LLC OH Trts Distinctins

7 General rule a persn almst never recver damages fr NIED withut an accmpanying. Ohi there is n requirement fr a physical injury, s lng as the emtinal injuries are: Severe and ; and A result f experiencing, witnessing, r perceiving a dangerus Example 7: Luis is helicpter pilt wh negligently crashes his helicpter with tw passengers abard (Victr and Debra). Victr's head is cut ff by a rtr blade, and Debra sees it happen. Debra is nt physically injured. Under the multistate (general) rules, Debra culd nt recver fr NIED but under Ohi law, she can. Nte 1: In Ohi, emtinal distress resulting frm a physical injury des nt create an independent cause f actin fr negligent inflictin f emtinal distress. Wrngful Death: Under general law and Ohi law, wrngful death suits may nly be brught by a f the decedent fr the benefit f the surviving spuse, children, r parents f the deceased Ohi the surviving spuse, children, r parents are t have suffered damage as a result f the wrngful death damages are nt available in wrngful death actins, but may be maintained in survival actins 4. Vicarius Liability a. Family Use Negligent Entrustment All jurisdictins have a negligent entrustment dctrine, in which the wner f a vehicle r ther ptentially dangerus item may be liable fr the negligent acts f smene wh uses that vehicle r item, if the wner knew r shuld have knwn f the user's negligent prpensities. Sme jurisdictins have family use statutes, which state that the wner f an autmbile may be held liable fr the trtius acts f any family member driving the autmbile with permissin (i.e., strict liability fr entrustment t family members) Ohi des nt have a statute b. Parent-Child Liability General law parents are nt vicariusly liable fr their minr child's actins unless the child is the parent's agent r a state statute creates liability OH Trts Distinctins 2016 Themis Bar Review, LLC 7

8 Ohi a parent is liable fr a child's actins if the child: Willfully damages prperty r cmmits theft a prperty wner may recver directly frm the parents, up t $ plus curt csts; the prperty wner may als sue t recver stlen prperty regardless f value; Willfully and maliciusly assaults anther by means likely t prduce great bdily harm the victim may recver directly frm the parents, up t $ plus curt csts; Cmmits vandalism, desecratin, r ethnic intimidatin a persn wh suffers injury r lss t themselves r their prperty may recver directly frm the parents, up t $, plus curt csts and attrney's fees. The minr and his/her parents are and liable. 5. "Dram Shp" Acts Such laws impse n sellers f intxicating beverages if a third party suffers injury, prperty damage, r lss f supprt due t intxicatin f anther. Ohi tw ptential ways t have "dram shp" liability: If the injury ccurs n the liqur permit hlder's premises, the vendr is liable if the injury is prximately caused by the vendr's negligence in making the sale f alchl; OR If the injury ccurred ff f the prperty f the seller f alchl, then the injured party must shw by a prepnderance f the evidence that: The permit hlder sld alchl t a intxicated persn r an underage persn; and The intxicatin prximately caused the injury at issue. Example 8: Barry runs a bar. Tw wmen, Vicky and Genevieve, cme t the bar and Barry serves each f them 10 drinks ver the curse f tw hurs. As Barry serves them their last drinks, bth are clearly drunk. Hwever, Barry des nt ntice that they are drunk, althugh reasnably, he shuld have. Vicky and Genevieve leave the bar and get int their cars. Vicky runs ver anther custmer in the parking lt, breaking his leg. Genevieve drives tw blcks and then runs a stp sign, killing a pedestrian. Bth accidents ccurred because the drivers were t drunk t drive safely. Barry is liable t the custmer with the brken leg because Barry negligently did nt realize that Vicky was drunk and the accident ccurred n his prperty. Barry is nt liable fr the pedestrian's death because he did nt knw Genevieve was drunk when he served her alchl and the accident tk place ff his premises Themis Bar Review, LLC OH Trts Distinctins

9 6. Jint and Several Liability General rule when tw r mre persns cmbine t prduce a single indivisible harm, each is liable fr the amunt f damage caused. The plaintiff may sue any ne f them, r sme r all, jintly r separately. Ohi the fllwing rules apply: If f injury is attributable t ne defendant, that defendant is jintly and severally liable fr cmpensatry damages that represent ecnmic lss; Each defendant wh is legally respnsible fr the injury and is at fault is liable fr that defendant's share f the cmpensatry damages that represent ecnmic lss; and Each defendant fund t have cmmitted an trt wh is at fault is jintly and severally liable fr ALL cmpensatry damages that represent ecnmic lss. Cntributin General rule there is a right f cntributin amng trtfeasrs when there are multiple defendants, even if a has nt been recvered against any r all f them; a defendant is entitled t cntributin frm the ther defendants fr any amunt that he paid ver his percentage f fault Ohi there is n right f cntributin if an has been established against the defendant Example 9: A building cllapses, causing $5 millin in damages due t ecnmic lss. The plaintiff sues the cntractr, architect and cement supplier. Only the cntractr can be served, s suit ges frward against the cntractr alne. The jury finds the cntractr was 80 percent at fault, the architect and cement supplier were each 10 percent at fault. The cntractr must pay the plaintiffs the entire $5 millin in damages, but the cntractr can sue the architect and cement supplier fr cntributin and recver $500,000 frm each. Example 10: Phillip, Lyle, and Greg beat up Rnald utside a bar. Rnald sues all three fr $100,000 in damages fr ecnmic lss, but can nly serve Phillip. The jury finds Phillip 33 percent at fault. Because this is an intentinal trt, Phillip must pay the entire $100,000, and has n right t seek cntributin frm the ther individuals. 7. Defenses t Negligence a. Cntributry Negligence General rule a plaintiff's cntributry negligence is a cmplete bar t recvery OH Trts Distinctins 2016 Themis Bar Review, LLC 9

10 Ohi des nt have a cntributry negligence rule b. Cmparative Negligence 1) Pure Cmparative Negligence The amunt f damages that the plaintiff can recver is by the percentage that the plaintiff is at fault 2) Mdified Cmparative Negligence Operates like pure cmparative negligence until the plaintiff's ttal share f the fault reaches a certain percentage, then the rule perates like a cntributry negligence rule, and the plaintiff cannt recver any damages Sub-type 1: Recvery is barred if plaintiff is negligent as defendant. Plaintiff can be 49% at fault and still recver, but nt 50% at fault. Sub-type 2: "partial" mdified cmparative negligence; recvery is barred if plaintiff is negligent than the defendant. Plaintiff can be 50% at fault and still recver, but nt 51% at fault. Ohi fllw the negligence rule If the plaintiff's fault is 50% r less than the cmbined liability f the defendants, the curt will reduce the defendants' liability prprtinately. Hwever, if the plaintiff is ver 50% at fault, the plaintiff's liability is a The plaintiff's cntributry fault may be raised as an affirmative defense in all trt claims except fr trt claims c. Last Clear Chance Dctrine: Nt recgnized in Ohi A. Strict Liability 1. Dmestic Animals STRICT LIABILITY, PRODUCTS LIABILITY Cmmn law an animal's wner is liable fr injuries caused by a dmestic animal if he knws r has reasn t knw f the animal's dangerus prpensities. ("first bite" rule) Ohi dg wners are strictly liable fr injuries, death, r lss t anther persn r prperty caused by the dg, UNLESS the injury was a result f the injured party cmmitting a r ther criminal ffense n the dg wner's prperty, r if Themis Bar Review, LLC OH Trts Distinctins

11 smene was teasing r the dg wner's dg. (n "first bite" rule) 2. Prducts Liability a. Strict Prduct Liability Ohi strict liability autmatically attaches t a cmmercial manufacturer, but nt t a supplier A supplier is generally NOT liable fr a prduct liability claim unless the claimant establishes by a prepnderance f the evidence that either: The supplier was and the negligence prximately caused the harm; OR When the prduct left the supplier's cntrl, the prduct did nt cnfrm t the supplier's, and such failure was the prximate cause f the harm. A supplier will be treated as a manufacturer and therefre will be held strictly liable, if ne f the fllwing cnditins are met: The manufacturer is nt subject t judicial prcess in Ohi; The manufacturer is ; In the abve tw cases, plaintiffs just can't get t the manufacturer The supplier wns r wned part r all f the manufacturer; The manufacturer wns r wned part r all f the supplier; In the abve tw cases, the supplier and the manufacturer are mre r less the same party The supplier created the r frmulatin used t prduce the prduct; The supplier altered, r failed t maintain the prduct prperly; In the abve tw cases, the supplier is engaged in creating the defect The supplier the prduct under its wn label r name; The supplier failed t respnd t a client's written request fr identificatin f the manufacturer. OH Trts Distinctins 2016 Themis Bar Review, LLC 11

12 b. Defective Prduct Ohi a claim may be brught against a manufacturer r supplier t recver cmpensatry damages fr any death, injury, emtinal distress, r prperty damage that arse frm the fllwing:, frmulatin, prductin, cnstructin, creatin, assembly, rebuilding, testing, r marketing; Faulty ; r The failure f the prduct cnfrming t any relevant representatin r f the prduct. c. Design Defects Cnsumer Expectatin Test: a design defect exists if the prduct includes a cnditin nt by the rdinary cnsumer that is unreasnably dangerus t that cnsumer Risk-Utility (Risk-Benefit) Test: asks whether the risks f the prduct utweigh its benefits, then asks whether a reasnable alternative design was available Ohi primarily uses the "risk-utility" test, but cnsumer expectatins shuld be cnsidered as part f that test in evaluating the risks assciated with the prduct's design d. Failure t Warn Ohi a manufacturer may be liable fr a defective prduct if, when the prduct left the manufacturer's cntrl: The manufacturer knew r shuld have knwn f the assciated with the prduct; and The manufacturer failed t prvide a abut using reasnable care with the prduct. e. Assumptin f Risk Ohi in a lawsuit against a manufacturer, if the plaintiff expressly r impliedly assumed a risk that was the direct and prximate cause f the plaintiff's injuries, then there is a cmplete bar against recvery frm the manufacturer In a lawsuit against a supplier, if the supplier is nt classified as a manufacturer, the supplier is subject t Ohi's cmparative negligence statute. f. Statute f Limitatins Ohi Prduct liability claims must be brught within years f the date the prduct was delivered t the first purchaser Themis Bar Review, LLC OH Trts Distinctins

13 B. OTHER TORTS 1. Defamatin General rule ccurs when defamatry language is false, f r cncerning the plaintiff, published t a third party wh understands its defamatry nature, and damages the plaintiff's reputatin Public figure: must prve "actual malice" Matters f public cncern: must prve "fault" Private figure, nt f public cncern: n cnstitutinal restrictins Ohi even if the defamatry statement did nt invlve a matter f public cncern, the plaintiff still must prve fault; specifically, the plaintiff must prve that the statement was: ; Negligently published (fault requirement); Withut ; and Caused harm r was defamatry per se. 2. Invasin f Privacy: Apprpriatin Ohi des nt require that the apprpriatin be fr a cmmercial advantage. Additinally, a persn may nt use an individual's persna fr an unauthrized cmmercial purpse during the individual's lifetime r fr after the individual's death. [END OF HANDOUT] OH Trts Distinctins 2016 Themis Bar Review, LLC 13

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