Practice Areas

• Auto, Truck & Motorcycle Accidents
• Medical Malpractice
• Nursing Home Neglect
• Employment Law
• Injuries from Dog Attacks

Unsafe Premises

• Property Owner Escapes Liability From Building Code Violations When Condition Is Open And Obvious
  Jul 30, 2009

  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.

   

   

  - 11 - 20

Unsafe Products

• Chinese manufacturers avoid liability for unsafe products
  Jul 01, 2009

  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.

  - 12 - 20

About Miraldi & Barrett

• Benjamin Barrett Sr. and David Miraldi Named Ohio Super Lawyers
  Mar 19, 2010

  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.

  - 13 - 20

• What's Different About Our Firm?
  Jun 17, 2009

   

  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.

  - 14 - 20

General

• Social Host Not Responsible For Death of Intoxicated Social Guest
  May 19, 2010

  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.

  - 15 - 20

Free Evaluation

Contact us today for a free, no obligation consultation about your personal injury legal needs.

Toll Free
800.589.3023

local
440.233.1100

fax
440.233.8527