Attorney Blog

Liability of Bars For Acts of Drunken Patrons Broadened

dave@mirbar.com (Blog Author)35702 — Fri, 23 Jul 2010 08:00:00 EST

Dram Shop acts or laws are designed to make business establishments liable for injuries or damages caused by persons to whom they have sold alcohol. Most dram shop laws require bars and taverns to stop selling alcohol to persons who are obviously intoxicated, and prohibit sales to minors. If an intoxicated person leaves the bar, drives an automobile, and injures someone, the bar can be held liable by the injured person.

In the recent case of Studer v. Vets of Foreign Wars Post 3767 which originated from an incident that happened in 2003, the Supreme Court held that a bar that served alcohol to a patron who was a habitual drinker of beer to excess was not liable for negligent conduct of the intoxicated patron under provisions of the Dram Shop Act which provides a civil remedy to persons damaged as a result of intoxicated patron who habitually drinks intoxicating liquor to excess.

The question: Why are we not equally protected from a habitual drinker of beer as well as a habitual drinker of liquor?

At the time of the incident in 2003, Ohio’s Dram Shop Laws only prohibited the sale of intoxicating liquor to one who habitually drinks intoxicating liquor. Because the legislature used the term “intoxicating liquor” and did not reference “beer”, the Ohio Supreme Court ruled that there were potential justifiable reasons for the distinction and did not re-write the statute to include beer.

Fortunately for Ohio consumers, the Ohio Legislature has since corrected this loophole. Ohio’s Dram Shop Laws now states that…”no permit holder and no agent or employee of a permit holder shall sell or furnish beer or intoxicating liquor to an intoxicated person . . . .”

Violations of dram shop ordinances by businesses in Ohio are considered minor offenses and offenders are usually subjected to administrative fees of less than $100.00. However, businesses that violate dram shop laws can be subjected to other penalties including punitive damages in a civil court of law. Punitive damages are intended to deter unlawful conduct and can involve large monetary amounts.

Violations of dram shop laws are serious and can often involve multiple parties, including the business owner(s), the patron, witnesses and injured third parties. Issues of liability for acts of an intoxicated person are often complex and working with a lawyer can be essential in order to ensure that your rights are represented against the many competing interests.

Injured Persons Will Be Denied Full Reimbursement for Medical Bills

dave@mirbar.com (Blog Author)31838 — Wed, 19 May 2010 08:00:00 EST

In the recent case of Jaques v. Manton, the Ohio Supreme Court held that a negligent defendant should be allowed to introduce evidence that the injured person's medical bills were reduced by contractual adjustments that resulted from write-offs obtained by the injured person's health insurer. At first blush, this would seem to be fair. Why should a negligent driver, for example, have to pay the face amount of a bill when the insurance carrier satisfied it for less and obtained an agreed write-off? It seems only fair that if a $1,000 bill is satisfied by a $300 payment and a $700 write-off, that the negligent party should only be responsible for $300.

The controversy in this situation involves the question: who should get the benefit of the $700 write-off, the injured person or the negligent driver? The injured person paid a premium for the health insurance, either directly or as a benefit from work. In either case, the injured person earned the write-off through a payment that he was responsible for producing. The write-off was not free. The injured person paid for it. On the other hand, the negligent driver did not pay the premiums for the injured person's health insurance, and, is, in effect, receiving a windfall.

If the negligent driver is to get the benefit of these write-offs, then the Ohio Supreme Court or Ohio's General Assumbley should require the negligent driver to also reimburse the injured person for the cost of his or health insurance for a period of time. In an earlier bill, the legislature had determined that the negligent driver should be responsible for reimbursing the plaintiff for three years of health insurance premiums. This law has since been repealed for other reasons, but it makes sense to require this additional recovery to the injured person to balance the playing field.

Ohio Supreme Court Sides with Big Business Against Injured Workers

dave@mirbar.com (Blog Author)28844 — Wed, 24 Mar 2010 08:00:00 EST

Once again the Ohio Supreme Court has ignored prior court decisions and has re-shaped the landscape by finding that the recently-enacted Employer Intentional Tort Statute is constitutional. Prior to this decision, Ohio workers were entitled to bring an action directly against their employers when the employers required the workers to do work tasks that involve great risk and the employers knew that injuries were substantially certain to occur. In those situations, the employee was required to prove that the employer's actions constituted wanton misconduct, the most egregious form of negligence -- i.e. a complete absence of due care. This right of the employee was developed in a series of cases decided by the Ohio Supreme Court.

The Ohio legislature has three times tried to restrict this right. On two prior occasions, the Ohio Supreme Court found that the legislation violated the Ohio Constitution and struck down the law. The third attempt used language similar to the two prior attempts. This time, however, the Ohio Supreme Court decided that the legislature did have the right to change the law. Without overruling the two prior decisions, the Ohio Supreme Court in a 6-1 decision, so severely limited those decisions that they were de facto overruled.

The effect of the decision is that injured workers' sole remedy will be Worker's Compensation unless they can show that the employer acted both deliberately and intentionally to cause them injury. As the one dissenting justice wrote, injured workers must now prove at a minimum that the employer's actions amounted to a criminal assault. From a practical standpoint, an employee no longer has a remedy in the state courts when the employer acts wantonly in creating significant dangers for the employee in the workplace.

For a full length copy of the Ohio Supreme Court decision in Kaminski v. Metal & Wire Products Co., please click here.

Ohio Supreme Court Sides With Insurance Industry Again

dave@mirbar.com (Blog Author)19432 — Fri, 02 Oct 2009 08:00:00 EST

Once again, the Ohio Supreme Court has not protected the rights of the individual injured due the wrongful acts of others. In Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, the supreme court found that caps in non-economic damages did not violate the Ohio constitution's guarantee of a trial by jury and equal protection. The plaintiffs, Donald Krieger and Clifton Oliver, successfully prosecuted a case against the City of Cleveland for malicious prosecution, false arrest, and imprisonment, and intentional inflection of emotional distress. The two men had been arrested and accused of dropping an explosive device from the upper deck of the stadium during a Cleveland Indians game. All charges were later dismissed, however, the men spent four days in jail where they were subject to poor conditions and harsh treatment by corrections officers.

The jury awarded the men each $400,000 for their actual harms and losses, most of which were noneconomic. An Ohio statute limited the noneconomic damages to $250,000. The trial court and 8th District Court of Appeals found that this limitation was unconstitutional and violated the plaintiff's right to a jury trial. Five Ohio Supreme Court justices found that the statute was constitutional and reduced the award to $250,000 each.

Two justices dissented and found that the court's decision ignored earlier court opinions that found that the right to a trial by jury cannot be invaded or violated by either legislative act or judicial order or decree. The dissenting justices found that when the legislature passes a law that modifies a jury's determination of damages, it unconstitutionally infringes on the jury's absolute right to determine the award.

The more fundamental issue remains about the fairness of a statute that with a broad brush treats all injured persons the same. When the jury determines harms and losses in a case, it tailors its decision on the specific facts particular to that case. Until just recently, the courts held that not only was this the fairer way to decide cases such as these, but it was protected by the constitution. Again, the citizens of Ohio now need to go back to the legislature and have these statutes providing caps repealed.

Uninsured Motorist Coverage No Help When Injured By A Person With an Immunity

dave@mirbar.com (Blog Author)16044 — Wed, 29 Jul 2009 08:00:00 EST

What happens if an emergency vehicle like a police cruiser, ambulance, or fire truck broadsides you in an intersection when the emergency vehicle is responding to a call? Under the law, drivers of emergency vehicles are not liable for causing injuries and are granted an "immunity" unless they were acting recklessly or wantonly at the time of the collision. A reckless or wanton act is much greater than simple negligence. When a driver has an immunity, you cannot recover anything from that individual or his insurance policy.

When this happens, people naturally look to their own auto policies and the possibility that there may be coverage under one's own uninsured motorist coverage. Even though your own uninsured motorist coverage may define an uninsured driver is a person having an immunity, the policies usually also require that you must be legally entitled to recover from that individual in order to qualify for a recovery under your uninsured motorists coverage. The Ohio Supreme Court has ruled that because you are not legally entitled to recover against a person who enjoys an immunity, you are also not entitled to recover under your own uninsured motorist coverage.

This issue needs to be addressed by the Ohio legislature.

License Revocation Proceedings Lag Against Doctor

dave@mirbar.com (Blog Author)14931 — Tue, 07 Jul 2009 08:00:00 EST

Unfortunately, some doctors are subject to many lawsuits claiming medical malpractice. Even when disciplinary proceedings are commenced against them to revoke their licenses, the process can take years. In the meantime, the physicians continue to practice medicine.

Although the medical profession is quick to blame lawyers and litigious people for the medical malpractice "crisis", the medical profession inability to quickly revoke the licenses of sub-standard physicians is a significant problem.

To read more about one Illinois doctor who has been sued almost fifty times and is still practicing, click here.

Cookie Dough May Be Infested With E. Coli Bacteria

dave@mirbar.com (Blog Author)14128 — Mon, 22 Jun 2009 08:00:00 EST

Once again, consumers are on the alert for another contaminated food product. The Food and Drug Administration and the Centers for Disease Control and Prevention report that 65 people in 29 states have been sickened after eating raw cookie dough. The suspected culprit is Nestle's Toll House cookie and brownie dough, which may be infected with deadly E. coli bacteria. The product is a refrigerated cookie dough. Consumers are being instructed to return the product to stores for a full refund.

To learn more about this, click here.

Arizona Legislature Considers Law To Increase Proof in a Medical Malpractice Case

dave@mirbar.com (Blog Author)13914 — Thu, 18 Jun 2009 08:00:00 EST

Legislatures around the country are constantly trying to erode the rights of people injured by doctors. In Arizona, the legislature is considering a bill that would require the injured person to prove that the doctor was negligent based on clear and convincing evidence. The current law requires a lesser standard known as the preponderance of the evidence – which means what is more likely true. The proposed law would force the injured person to present even more evidence about the doctor's negligence. Even if it is more likely than not that the doctor was negligent, this will not be enough to establish responsibility.

Ohio’s legislature is not considering a similar bill but has passed several medical malpractice bills over the last several decades. Each time, the legislature makes it more difficult for an injured person to recover. One recent bill placed caps or limitations on the amount of money that can be recovered for non-economic damages.

To read more about the Arizona bill, click here.

Nursing Home Arbitration Provisions

dave@mirbar.com (Blog Author)13494 — Wed, 10 Jun 2009 08:00:00 EST

At admission, many nursing homes are requiring patients or their family members to sign admission agreements that include a provision for binding aribtration for all disputes arising between the resident and the nursing home. Many people do not read these admission agreements carefully and are unaware that by signing the agreement that they may be losing their right to bring a lawsuit through the court system. If a lawsuit is brought because the resident was injured due the negligence of a nursing home employee, the nursing home will often ask that the case be dismissed because the resident must pursue arbitration instead.

These provisions are usually unfair because the residents are unaware that they are giving up their rights to a jury trial by signing the agreement. It is also more difficult to get information from the nursing home prior to an arbitration hearing. This is because records cannot be obtained through a subpoena.

Legislation was introduced in Congress in 2008 that would prohibit these clauses in nursing home admission agreements, but was not passed into law. A new version of the law will probably be introduced this year. Until then, the residents and their family members will have to rely upon attorneys in this field to have the courts strike down this provision on a case by case basis.

To learn more about this, click here.

Social Host Not Responsible For Death of Intoxicated Social Guest

blog@www.mirbar.com (News Author)15016 — Wed, 19 May 2010 08:00:00 EST

The defendants furnished alcoholic drinks to twenty-year old Marcos Gonzalez at their home. He became intoxicated, boisterous, and was ordered to leave. Upon leaving, Mr. Gonzalez got into his own car to drive home. Due to his intoxicated state, he lost control of his car and was killed in an automobile collision. His mother filed a wrongful death claim against the defendants, claiming that they were responsible for his death because they provided him with alcohol and forced him to leave by car.

The court dismissed the case, finding that the defendants owed no duty to a voluntarily intoxicated individual. Although Mr. Gonzalez was not of lawful age (21) for consuming alcohol, he was an adult. The court noted that the law holds that "an adult who is permitted to drink alcohol must be the one who is primarily responsible for his or her own behavior and resulting voluntary actions." This rule applies even to an underaged drinker who has attained the age of majority.

Under Ohio law, a person’s decision to drink and drive is called "a primary assumption of the risk." Under this doctrine, the person’s voluntary decision to expose himself or herself to an obvious danger, relieves any other person from any duty to protect that individual. The court rejected the claim that the defendants forced Mr. Gonzalez to drive his car while he was drunk. The court reasoned that the defendants did not put a gun to Mr. Gonzalez's head nor strong-arm him into his car. As a result, the court reasoned that his decision to leave by "car" was voluntary and of his own choice.

For a full account of this recent case, please click here.

COURT RULES THAT STUDENTS' ACTS DID NOT CONSTITUTE HAZING

blog@www.mirbar.com (News Author)13875 — Mon, 05 Apr 2010 08:00:00 EST

In a recent case involving a student in Lorain County, the Ninth District Court of Appeals was called upon to decide whether the local school board (Oberlin City School District) could be held liable for the sexual assualt of a student with Downs Syndrome by other students. The court decided that the boy's family could not bring a claim under the state hazing statute, but that the family could proceed against the teachers were had the duty to supervise the students when the complaint alleged that they acted recklessly in failing to keep tabs on the students.

The legislature has enacted a law involving hazing. R.C. 2903.31. This statute defines hazing as doing any act or coercing another, including the victim, to do any act of initiation that causes or creates a substantial risk of causing mental or physical harm to any person. If someone is a victim of hazing, then that person is entitled to bring a civil action aginst school administrators, faculty members, or other employees, who knew or reasonably should have known about the hazing and failed to make reasonable attempts to prevent it.

The court of appeals ruled that this statute does not apply unless the student is being initiated into some voluntary student group. It does not apply to general assaults against members of the student body by other members of the student body. There must be some voluntary club or organization to which the student was attempting to become a member before the statute applies. The students would be liable for assault, but a hazing claim would not be established against the administrators, faculty, and other employees of the school.

However, the court ruled that the family could proceed with a claim against individual school employees who were alleged to have acted recklessly in not properly supervising the students.

Claim aganst ambulance driver allowed despite emergency status

blog@www.mirbar.com (News Author)13578 — Mon, 22 Mar 2010 08:00:00 EST

The Court of Appeals for Summit County found that an action against a village's ambulance team could proceed to trial. In the case of Zivich v. Village of Northfield, an 81 year old woman was killed when her car was struck by an ambulance that had gone through a red light while transporting a patient to the hospital. The Village of Northfield, who employed the driver and his medic partner, claimed that no suit could be maintained because Northfield was immune for this incident. The Village claimed that the driver had activated the siren and lights and exercised proper care on the highway before the collision.

As a political subdivision, the Northfield was covered by a statute that states that political subdivisions are immune when their employees are engaged in a governmental function which includes providing medical, ambulance, and rescue services. However, the court noted that this statute is not absolute. A village like Northfiled can be liable in certain situations where the employee responding in an emergency acts wantonly and has not complied with the statute that requires emergency personnel to slow down as necessary for the safety of other traffic. This statute states that those driving an emergency vehicle must proceed cautiously past red lights or through stop signs and must show due regard for the safety of all persons using the streets.

In this case, there was evidence that the emergency vehicle may have been traveling 30 to 35 mph as it entered the intersection. Witnesses also stated that there were many wide, tall pine trees that obstructed vision for drivers on both streets and that the trees also obstructed the sound of the siren from vehicles approaching the intersection from a 90 degree angle.

The trial court refused to throw the case out of court when the defendant filed a motion for summary judgment. The court ruled that the case could proceed to trial because there were material facts in dispute as to the ambulance speed, the obstructing trees, and the color of the light. The court of appeals agreed with the trial court and found that a jury might conclude that the ambulance driver's conduct was actually wanton or willful misconduct.

Benjamin Barrett Sr. and David Miraldi Named Ohio Super Lawyers

blog@www.mirbar.com (News Author)13505 — Fri, 19 Mar 2010 08:00:00 EST

Both Benjamin F. Barrett Sr. and David Miraldi have been named Ohio Super Lawyers in 2010. For David, this was the first time he has been so recognized, while Ben has earned this honor for many years.

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Super Lawyers is published as a special supplement in leading newspapers and city and regional magazines across the country. Super Lawyers magazine, featuring articles about attorneys named to the Super Lawyers list, is distributed to all attorneys in the state or region, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries.

Super Lawyers selects attorneys using a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The Super Lawyers selection process involves three basic steps: creation of the candidate pool; evaluation of candidates by the research department; and peer evaluation by practice area.

The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in the selection of a lawyer, the organization limits the list to attorneys who can be hired and retained by the public, i.e., lawyers in private practice and Legal Aid attorneys.

Mandatory Arbitration Provisions Are Coming Under Attack

blog@www.mirbar.com (News Author)10799 — Mon, 12 Oct 2009 08:00:00 EST

Many nursing homes require residents to submit all disputes to arbitration. When the resident seeks admission to the facility, the nursing home has the individual sign a paper in which the would-be resident must give up the right to file a lawsuit and is required to submit any claim to an arbitration proceeding. The same is also true of many credit card companies. Because the credit card companies pay and hire the arbitrators, decisions have overwhelmingly favored the credit card and finance companies. One arbitration company, The National Arbitration Form, was found to have ruled in favor of the debt-collection agencies that hired it in 94% of the arbitration decisions. As a result, state officials in Minnesota accused it of deceptive business practices and serving as a pawn for the business interests.

These abuses have led Congress to consider The Arbitration Fairness Act of 2009, laws that would prohibit companies from forcing prospetive customers to waive their legal rights and agree to arbitration. This bill is under consideration and there is heavy pressure to get it passed this year.

Arbitration works best in commercial settings where both parties voluntarily agree to arbitration and both concur on the choice of the arbitrator. This is not the case in credit card applications or nursing home admissions documents where the individual has no choice but to agree to mandatory arbitration or not enter into the contract and be admitted into the facility.

Most Traffic Fatalities Occur on Rural Roads

blog@www.mirbar.com (News Author)10743 — Wed, 07 Oct 2009 08:00:00 EST

In 2008, 56% of the country's 37,261 traffic deaths occurred on rural roads even though there are more crashes in urban areas. Traffic deaths decreased last year in both urban and rural settings. High gasoline prices kept more people at home and reduced the number of accidents.

The reasons for more rural traffic deaths seems to be threefold. People drive faster on rural roads. The roads themselves are not as well-engineered, and medical response time is much slower outside of cities.

Some states are taking action to make their country roads safer. These improvements include the addition of rumble strips on both the shoulders and centerline of some roads. Montana has even engineered "over crosses" and "undercrosses" for deer, elk and bear on one highway. Many states continue to campaign for seat belt usage, particularly in rural areas.

Damage Caps in Medical Malpractice Laws Challenged

blog@www.mirbar.com (News Author)10591 — Tue, 29 Sep 2009 08:00:00 EST

Maryland and Georgia, like many states, have enacted laws that restrict a person's right to recover non-economic losses in medical malpractice claims. Supreme court judges in these two states will decide whether limits on non-economic damages will be struck down. In Georgia, the court will decide whether the $350,000 cap violates the state constitution. In Maryland, the court will decide whether the caps will only apply in cases resolved through arbitration.

In Ohio, medical malpractice claims are subject to caps of $250,000 or three times the plaintiff's economic damages subject to a maximum of $350,000. The cap is increased to $500,000 for injuries involving substantial physical deformity, loss of use of a limb, or loss of a bodily injury system. The Ohio limits are found at Ohio Revised Code Section 2323.43.

Hospitals Still Not Reporting Serious Errors

blog@www.mirbar.com (News Author)9959 — Wed, 12 Aug 2009 08:00:00 EST

NATIONWIDE REPORTING SYSTEM OF SERIOUS MEDICAL ERRORS STILL NOT IN PLACE

In November of 1999, 22 leading medical experts wrote a report called "To Err Is Human" and called upon the medical world to develop a nationwide reporting system of serious medical errors. These experts agreed that procedures could be put in place at hospitals to minimize the chance for serious medical errors. They also agreed that it was advisable for the public to know about unsafe conditions at their hospitals.

Ten years later, these recommendations have largely been ignored. The American Medical Association and the American Hospital Association vigorously opposed an attempt by President Bill Clinto to require hospitals to make public serious errors that occurred in their institutions. These two groups launched a mult-million dollar campaign against this proposal.

Instead, nothing much has changed. It is estimated that death from preventable medical injuries and infections is close to 200,000 a year.

To find out more about deadly mistakes in our hospitals, click here.

Property Owner Escapes Liability From Building Code Violations When Condition Is Open And Obvious

blog@www.mirbar.com (News Author)9683 — Thu, 30 Jul 2009 08:00:00 EST

In another disturbing application of the "open and obvious" doctrine, the Ohio Supreme Court ruled recently that a business owner who did not comply with several provisions of the Ohio Basic Building Code can escape liability for injuries on its premises if the condition is "open and obvious". In Lang v. Holly Hill Motel, Mr. and Mrs. Lang checked into the Holly Hill Motel for the night. They requested a handicapped room because Mr. Lang (age 78) was dependent upon oxygen and carried a portable oxygen tank. The motel did not have one, but assigned him to one that it claimed would only require him to climb one step. When the Langs got to the room, it actually had two steps. With Mrs. Lang’s help, Mr. Lang climbed the first step, but when they attempted to negotiate the second step, he lost his balance, fell, and fractured his hip. Mr. Lang died about three months after the fall.

Mrs. Lang sued the motel for negligence, claiming that the steps were in violation of several provisions of the Ohio Basic Building Code. The second step exceeded the height limitations in the code and the lack of a handrail was also a violation. The motel claimed that the condition was "open and obvious" and that it owed no duty to Mr. and Mrs. Lang. The motel argued that if the condition is "open and obvious", patrons such as the Langs are obligated by law to protect themselves. Mrs. Lang argued that a building code violation should be an exception to the "open and obvious" doctrine. If the motel was not negligent in this situation, Mrs. Lang argued that the motel would not be held accountable for building code violations.

Four members of the Ohio Supreme Court agreed with the motel and found that because the condition was "open and obvious", the motel was not negligent and the Langs were required to look out for themselves in this situation. As a result the Ohio Supreme Court affirmed the trial court's judgment that the case should be dismissed. Two other justices concurred in the judgment, but only because Ohio recently re-affirmed the "open and obvious" doctrine and they felt bound to follow the prior case holding. These two justices did so reluctantly and believed that the better rule would be to allow a recovery despite an "open and obvious" condition if the landowner should anticipate that patrons would be harmed despite the obviousness of the condition. These two justices also hinted that Mrs. Lang should have disputed that the condition was "open and obvious" when the incident occurred at night and the steps were uniform in color.

One justice dissented from the decision. He believed that if the building owner violated building code provisions, these violations would be sufficient to allow the injured person to proceed with the case despite the "open and obvious" defense.

For now, the defense of "open and obvious" continues to be the law and a huge impediment for injured people to hold property owners accountable for injuries caused by defects in their premises.

Ohio Supreme Court Dilutes Rights of Nursing Home Patients

blog@www.mirbar.com (News Author)9425 — Tue, 14 Jul 2009 08:00:00 EST

The Ohio Supreme Court ruled that an arbitration agreement between the nursing home and a resident that took away many of the resident’s rights was not invalid as a matter of public policy. By signing the arbitration agreement, the resident lost her right to a jury trial, the right to attorney fees, and punitive damages. The Ohio Supreme Court ruled that these provisions are enforceable if they are "voluntarily" entered into and were not pre-conditions to the nursing home’s admission process.

The 95 year old resident was brought by ambulance to the nursing home to be admitted. She was given 29 pages of documents to review and had to sign in 11 different places. The arbitration agreement itself stated that it was voluntary. It indicated that arbitration would save time and expense, but failed to point out the drawbacks of arbitration, i.e. difficulties in forcing the other party to turn over documents prior to arbitration, limited appellate review, and the expense of arbitrators.

However, a majority of the Ohio Supreme Court justices found the agreement to be valid because it was not both procedurally and substantively unconscionable. To be procedurally unconscionable, the residents would have to show that due to their age, education, intelligence, business knowledge, mental status, and emotional condition that they were disadvantaged in fully understanding the agreement or believing that they had no choice but to sign the agreement. To be substantively unconscionable, the agreement must be one-sided and favoring the nursing home over the resident.

The resident had died and could not testify regarding the factors surrounding her signing the document. The only fact on the record was that the resident was 95 years old when she signed. This was not enough to show that the agreement was procedurally unconscionable. As for substantive unconscionability, the court pointed out that both sides gave up their rights to a jury trial as well as the right to recover attorney fees or expenses from the other party.

Justice Pfeifer was the lone dissenting justice. Justice Pfeifer scoffed at the majority’s reasoning, and pointed out that this decision reduced to rubble, the Ohio Nursing Home Patients’ Bill of Rights (R.C. 3721.10, et. seq.) enacted by the Ohio General Assembly to protect nursing home residents from all types of abuses and unsafe conditions. This statute allowed nursing home residents to receive punitive damages and attorney fees when enforcing their rights. Justice Pfeifer pointed out how vulnerable the residents were and how the Ohio General Assembly recognized that they were in need of special protection. Although arbitration makes sense between two business entities, it should be outlawed in the nursing home environment where one side does not understand the implications of the agreement and would not have the abilities to negotiate another result.

Justice Pfeifer ended his dissenting opinion with these caustic remarks:

"[I]f you squint just so, you can make out what the majority identifies today: the right of the elderly to be "taken in" by nursing homes. This court’s corollary right for nursing homes is the right to say, "You signed it. Live with it! Ohio Nursing Home Patients’ Bill of Rights? You waived it! Your fundamental constitutional rights? You waived them too! And don’t forget to remind your son that we need next month’s check for $5,500 by the first."

To read the enter decision, click here.

Chinese manufacturers avoid liability for unsafe products

blog@www.mirbar.com (News Author)9268 — Wed, 01 Jul 2009 08:00:00 EST

Everywhere we look in stores, we find products made in China. What happens if one of those products is defective and someone is injured?

Lawyers all over the United States are finding out how difficult it is to hold a Chinese company accountable for defective products. Although more than half of the products found to be defective by the U.S. Consumer Product Safety Commission were manufactured in China, judgments against Chinese companies are few and far between.

There are several reasons for this. Before a Chinese company can be sued in a state court, the injured party must show that the Chinese company has sufficient contacts with the state to allow the court to hear the case.   If the court finds that there are not enough business ties between the state and the company, the court will say that the court is "without jurisdiction" to hear the case and will dismiss the Chinese company. Even if a Chinese company does have sufficient contacts so that the court retains jurisdiction over the Chinese company, and even if the plaintiff wins, it may be difficult to collect the judgment. If the Chinese company has no assets in the United States, the plaintiff would have to go to the courts of China to attempt to seize Chinese assets, a difficult and expensive process.

In Ohio, a person injured by a Chinese product may be able to recover from a United States supplier of the Chinese product. Ohio Revised Code Section 2307.78 . If the foreign manufacturer is not subject to "jursidiction" in the Ohio courts, the supplier stands in the shoes of the manufacturer and would have to pay a judgment if the injured party proved his case.

There are rumblings in Congress to make changes that would force Chinese companies to be sued in state courts. However, until Chinese companies are required to have liability insurance to cover judgments for defective products, little will change.

Study Finds That Doctors Do Not Always Report Significant Test Findings

blog@www.mirbar.com (News Author)9112 — Tue, 23 Jun 2009 08:00:00 EST

Many of us believe that if a medical test is abnormal that the doctor will notify us promptly once the results reach our doctor's office. Unfortunately, that is not always the case.

A recent study led by Dr. Lawrence Casalino of Weill Cornell Medical College found that abnormal lab or x-ray results were not always communicated to the patient. Approximately seven percent of the abnormal results were not. Practices that used electronic medical records were more likely to report adverse results than those that only had paper documents. Medical practices that used a combination of paper and computer records were the least likely to report significant abnormal results.

The study underscores how important it is for a primary care physician to have a definite protocol for this situation. The protocol should make sure that the results are directed to the responsible doctor, the doctor notes that he or she has reviewed the result, and the office staff documents that the results have been communicated to the patient. As a patient, if you do not hear back from the doctor about test results, do not assume that the test results were negative. If you have not heard within a week,
always call the office and find out for yourself.

Second Lorain County Resident Dies in Motorcycle Crash This Weekend

blog@www.mirbar.com (News Author)9080 — Mon, 22 Jun 2009 08:00:00 EST

Another Lorain County resident was killed on Sunday when his motorcycle was involved in a collision with another vehicle at State Route 58 and Walnut Drive in Amherst on Sunday, June 21, 2009. This is an occurrence that happens far too frequently. Without any sheet metal to protect them, motorcyclists are all too vulnerable when involved in a crash. All drivers need to be vigilant and be on the lookout for motorcyclists, bicyclists, and pedestrians.

U.S. Supreme Court Adds Barrier to Age Discrimination Cases

blog@www.mirbar.com (News Author)9049 — Fri, 19 Jun 2009 08:00:00 EST

Age discrimination cases now have a different standard than gender or race discrimination cases. The U.S. Supreme Court ruled in a 5-4 decision that in order to recover, an employee must show that absent the age bias, the employer would not have taken the adverse action against the employee. Before this, employees just needed to show that age along with other factors was responsible for the adverse employment situation.

In the case before the U.S. Supreme Court, the employee (age 54) claimed that because of age and other factors, he had been demoted from his post as a claims administration director to the position of a claims project coordinator. This change resulted in a decrease in his salary and stock options. Because the employee could not show that age was the overriding reason for the demotion, he could not recover.

What's Different About Our Firm?

blog@www.mirbar.com (News Author)9020 — Wed, 17 Jun 2009 08:00:00 EST

Service and response. So many attorneys forget that their number one job is to provide prompt service to their clients. If the client has a question, the attorney or a member of the staff should provide an answer quickly – that means the same day or at the latest the next day.

Do we succeed at giving our clients the service that they deserve? Just a quick scroll through the testimonial section of this website answers that question.

At Miraldi & Barrett, the client has both an attorney and a case manger handling the case. It is this same pair that responds to questions promptly and stays current about the client’s case. We respond to phone calls and e-mail messages immediately.

Knowledge. Miraldi & Barrett concentrates its practice on injuries to people caused by the negligence of others. We do not handle divorce, domestic relations, criminal, or probate cases. Both Benjamin F. Barrett Sr. and David Miraldi have been widely-recognized for their competence and knowledge in this field. Both have written and lectured on a variety of subjects dealing with negligence law.

Results. Over the years, Miraldi & Barrett has achieved outstanding results for their clients. A quick review of our case results in this website demonstrates this fact. These settlements and verdicts reflect that our firm does not give up and will persevere in some of the most daunting and difficult situations.