Kentucky’s Court of Appeals Says Jail Surveillance Video Should be Made Part of Administrative Record

The Kentucky Court of Appeals recently issued a decision addressing the type of evidence that should be presented in a jail disciplinary proceeding. In Lawless v. Conover, 2015-CA-000039-MR, 2016 WL 2981580 (Ky. Ct. App. May 20, 2016), an inmate disputed an Adjustment Officer’s (AO) finding that she was guilty of inflicting an injury on a correctional officer. The inmate had requested the AO to view the surveillance camera footage of the incident, because she believed the video supported her version of the events.  Despite finding the inmate guilty of the charge, the AO made no mention of the surveillance footage in her written determination. The inmate subsequently filed suit, challenging the validity of the disciplinary proceeding.

The defendants filed a motion to dismiss the plaintiff’s complaint. In support of that motion, they submitted an affidavit from the AO which stated that, although she had reviewed the video, her finding was not based on it. The case was dismissed by the trial court, as the Court found the plaintiff had “received due process and there is some evidence in the record to support the findings of the AO.”

The Court of Appeals would ultimately reverse the trial court’s dismissal, noting that “specific holdings of the U.S. Supreme Court necessitate particular treatment of an inmate’s request that the prison tribunal consider exculpatory evidence.” Citing Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014), the Court noted that an adjustment officer conducting a hearing must, if requested by an inmate, review security footage and consider its weight in making a finding of guilt or innocence. Additionally, the hearing officer must indicate in his or her written statement that they undertook a review of the video evidence and state whether it confirms or contradicts the inmate’s version of events. The Court also noted the inmate should have been provided access to the surveillance footage or be given a legitimate explanation as to why she was not. Moreover, the surveillance footage should have been reviewed by the circuit court.

Perhaps most importantly, the Court declared “it is the responsibility of the state agency (here, the Department of Corrections) to prepare a record for filing with the circuit court before that court declares the prisoner’s rights.” In other words, the Department of Corrections was required to submit the surveillance footage to the Court. For these reasons, the lower court’s dismissal of the inmate’s lawsuit was reversed, and the Department of Corrections was required to make the surveillance video available for the circuit court’s consideration.

Officials in Kentucky responsible for inmate discipline would be well served to take note of this important opinion. For any questions about the implications of the Lawless or Ramirez decisions or evidentiary issues related to jail discipline in general, please contact the attorneys at Mazanec, Raskin & Ryder Co., L.P.A.


Curtis M. Graham

 

 

Curtis M. Graham
859.899.8516
cgraham@mrrlaw.com

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MRR Ohio Legislative Updates: August 12 – August 25, 2016

Notes from the House of Representatives

  • HB No. 588 was introduced to enact the Consumer Protection Call Center Act of 2016 to require the Department of Job and Family Services to compile a list of all employers that relocate a call center to a foreign country and to disqualify employers on that list from state grants, loans, and other benefits.

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

 

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Case Law Updates – Statutory Immunity and Damages Caps for Ohio Political Subdivisions

Subject to statutory exception, political subdivisions in Ohio are immune from tort liability.  In the recent case of Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 7th Dist. Mahoning No. 14 MA 0174, 2016-Ohio-4815, MRR attorneys Todd Raskin, Carl Cormany, and Frank Scialdone successfully argued on appeal that our political subdivision clients were not subject to any statutory exceptions, and therefore were immune from liability under R.C. 2744.02(A)(1).

The case stemmed from a drowning at the swimming pool of one of our clients.  Plaintiff, the estate of decedent, argued that the decedent’s injuries were caused by our client’s negligence and a physical defect on our client’s property, as R.C. 2744.02(B)(4) requires a plaintiff to prove that the injury was caused by both negligence and an on-site physical defect in order to extinguish the immunity granted under R.C. 2744.02(A)(1).  Plaintiff alleged two defects – that the pool cover was not covering the pool and that a door leading to the pool was faulty.  However, case law is clear that the failure to use an available safety device (pool cover) does not constitute a physical defect.  As such, plaintiff had to rely on the allegation that the faulty door caused the decedent’s death.

The Court in Kinderdine ruled that while there was evidence the door was faulty, the door itself did not cause decedent’s death, as the decedent was not hit or trapped by the door, and thus, the exception in R.C. 2744.02(B)(4) did not lift the grant of immunity set forth in R.C. 2744.02(A)(1).  The court’s ruling is an important decision for our political subdivision clients, as it makes clear that in order to overcome the immunity granted by R.C. 2744.02(A)(1), a plaintiff must prove that the physical defect on a political subdivision’s property actually caused the plaintiff’s injury, not simply that the defect somehow contributed to the injury.

In another recent case, Jones v. MetroHealth Med. Ctr., 8th Dist. Cuyahoga No. 102916, 2016-Ohio-4858, the Eighth District Court of Appeals upheld the trial court’s reduction of a jury award against a political subdivision by almost $9 million pursuant to R.C. 2744.05(B)(1), which deducts the amount of benefits a plaintiff receives from a collateral source from any damages awarded against the political subdivision, and R.C. 2744.05(C)(1), which caps non-economic damages at $250,000 per plaintiff in all tort actions other than wrongful death.

In Jones, a public hospital was sued for medical malpractice after plaintiff’s son was born with cerebral palsy and other developmental disorders.  A jury awarded $6 million total in non-economic damages, but pursuant to R.C. 2744.05(C)(1), the trial court lowered the damages to $500,000 ($250,000 for plaintiff and $250,000 for her son, also a plaintiff) and the Court of Appeals affirmed, rejecting plaintiffs’ argument that R.C. 2744.05 violated her constitutional rights and re-affirming the constitutionality of R.C. 2744.05.

The Jones case also affirmed the lowering of plaintiffs’ economic damages from $8.5 million to just over $5 million, affirming the trial court’s ruling that because all of the son’s past medical bills were paid by Medicaid and Social Security (collateral sources), the hospital was entitled to a complete setoff under R.C. 2744.05(B)(1).  As for future economic damages for ongoing medical care, plaintiffs’ damages were lowered by nearly $3 million, as it was undisputed that the son would qualify for medical insurance under the Affordable Care Act until he became eligible for Medicare and that Medicare would pay all future medical expenses from that point forward.  While the attorneys at MRR did not act as legal counsel for the defendants in Jones, the court’s ruling is nonetheless an important reminder of the financial protections our firm is able to employ on behalf of our political subdivision clients.  For any questions about other implications of R.C. 2744 or political subdivision tort liability and immunity in general, please contact the attorneys at Mazanec, Raskin & Ryder Co., L.P.A.

Todd R. Raskin
440.424.0023
traskin@mrrlaw.com

Carl E. Cormany
440.287.8291
ccormany@mrrlaw.com

Frank H. Scialdone
440.424.0021
fscialdone@mrrlaw.com

Mazanec, Raskin & Ryder Founding Partner Todd Raskin Named “Lawyer of the Year” for Civil Rights Law

Todd RaskinMazanec, Raskin & Ryder Co., LPA (MRR) is proud to announce that attorney Todd M. Raskin has been cited as Cleveland’s 2017 “Lawyer of the Year” in Civil Rights Law by Best Lawyers. Only one lawyer in each practice area from each of the major metropolitan areas in Ohio is honored as “Lawyer of the Year.” Mr. Raskin is a two-time recipient of the “Lawyer of the Year” designation, having previously been named Civil Rights Lawyer of the Year for Cleveland in 2013.  Best Lawyers compiles its lists of outstanding attorneys by conducting thousands of confidential peer-review surveys. Lawyers honored as “Lawyers of the Year” have received particularly high ratings by earning the respect of their peers for their abilities, professionalism, and integrity.

Mr. Raskin is a founding partner of MRR, which has offices in Cleveland and Columbus, Ohio, and Lexington, Kentucky. He has a diverse legal practice with an emphasis on civil rights and government liability defense, as well as the defense of employers, both public and private. He also has considerable experience in the defense of professionals including physicians, lawyers, architects, engineers, and behavioral health professionals. Mr. Raskin has successfully represented his clients in state and federal courts throughout Ohio and surrounding states including the U.S. Court of Appeals for the Sixth and Third Circuits and U.S. District Courts in Colorado, Nevada, Michigan, and Ohio, as well as the Ohio Supreme Court.  He has tried more than 100 cases to conclusion in 35 years of private practice. Mr. Raskin has also earned an AV Preeminent rating from Martindale-Hubbell Law Directory and is an Ohio Super Lawyer in Municipal Law (2012-2016), as designated by Ohio Super Lawyers magazine.

Active in a number of professional organizations, Mr. Raskin is a member of the American Bar Association; the Ohio State Bar Association; the Cleveland Association of Civil Trial Attorneys; the Ohio Association of Civil Trial Attorneys; the American Board of Trial Advocates (ABOTA); the Association of Defense Trial Attorneys; the Defense Research Institute (DRI), the Professional Liability Defense Federation; the Federation of Defense and Corporate counsel, in which he serves on the Admissions Committee and where he is also an ex officio member of the Civil Rights & Public Entity Committee; the Litigation Counsel of America (Fellow); and the Judicial Conference, United States Court of Appeals, Sixth Circuit (Life Member).

 

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“The Changing Face of Gender Discrimination” – A New Article by Tami Hannon Published by DRI

In her second article on Transgender Law published this month, Mazanec, Raskin & Ryder’s Tami Hannon provides an in-depth study of the unique concerns that transgender discrimination presents in a correctional or prison setting, in the workplace, and in public housing. “The Changing Face of Gender Discrimination” can be read in full HERE.

Raskin, McLandrich, and Pollock Named to 2017 “The Best Lawyers in America”© List

Mazanec, Raskin & Ryder Co., L.P.A. (MRR) is pleased to announce that three attorneys have been named to the 2017 Edition of Best Lawyers®, the oldest and most respected peer-reviewed publication in the legal profession. Lawyers on The Best Lawyers in America© list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise.

MRR would like to congratulate Todd M. Raskin (Civil Rights Law), John T. McLandrich (Civil Rights Law) and Stacy V. Pollock (Education Law) for being named among The Best Lawyers in America© for 2017.

 

Todd Raskin is a founding partner of MRR and has tried more than 100 cases to conclusion in 35 years of private practice. His diverse practice focuses on civil rights and government liability defense, as well as the defense of both public and private employers. He has defended clients in state and federal courts throughout Ohio and surrounding states, including in the U.S. Court of Appeals for the Sixth Circuit and the Ohio Supreme Court.

 

 

 

John McLandrich

 

John McLandrich, MRR’s Chairman of the Board, has defended civil claims in federal and state courts throughout Ohio for more than 25 years. He has also served as lead counsel on over 100 public entity appeals before the U.S. Court of Appeals for the Sixth Circuit and the Ohio Supreme Court.

Both Todd and John have consistently been named Best Lawyers® for Civil Rights law, in addition to each being selected as “Lawyer of The Year” by Best Lawyers® for Civil Rights Law in Cleveland, Ohio—John in 2014 and Todd in both 2013 and 2017.

 

 

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Stacy Pollock, is named a Best Lawyer® for her work in Education Law. She is a Certified Professional in Human Resources who represents and advises public and private employers in labor and workers’ compensation matters, including schools and school administrators.

 

 

 

About Best Lawyers®

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 79,000 leading attorneys globally are eligible to vote, and we have received more than 12 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.” For more information, visit bestlawyers.com.

 

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MRR Ohio Legislative Updates: July 29 – August 11, 2016

Notes from the House of Representatives

  • HB No. 587 was introduced to require law enforcement officers to use dashboard cameras and body cameras during any time that they are interacting with any member of the public while in the performance of their duties, to provide for state financial assistance to local law enforcement agencies for the purchase of such cameras and related equipment.

Notes from the Senate

  • SB No. 342 was introduced to grant municipal corporations the authority to impose a ban or restriction on the open carry or concealed carry of any firearm in a publicly secured area established by the municipal corporation during an event of regional or national significance being held in the municipal corporation.
  • SB No. 344 was introduced to enact the Consumer Protection Call Center Act of 2016 to require the Department of Job and Family Services to compile a list of all employers that relocate a call center to a foreign country and to disqualify employers on that list from state grants, loans, and other benefits.

For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

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Tami Hannon Published in Cleveland Metropolitan Bar Journal

Mazanec, Raskin & Ryder’s attorneys are at the forefront of the evolving area of Transgender law in Ohio.

MRR Cleveland’s Tami Hannon recently published “Changing Roles: Transgender Law in Ohio” in the July issue of the Cleveland Metropolitan Bar Journal.

MRR Ohio Legislative Updates: July 15 – July 28, 2016

Notes from the Senate

  • SB No. 340 was introduced to regulate the use of indemnity provisions in contracts related to public improvements.
  • SB No. 341 was introduced to allow a person who has a concealed handgun license to carry concealed all firearms other than dangerous ordnance or firearms that state or federal law prohibits the person from possessing and to provide that a person 21 years of age or older and not legally prohibited from possessing or receiving a firearm by federal law does not need a concealed handgun license in order to carry or have concealed on the person’s person or ready at hand a firearm and is subject to the same laws regarding carrying a concealed firearm as a person who has a concealed handgun license.

 


For questions or more information on MRR’s Ohio Legislation Updates, contact:

Stacy V. Pollock  – MRR Columbus
Phone: 614.324.0163
Email: spollock@mrrlaw.com

 

 

 

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