Liability for Cruel and Unusual…Driving? The Sixth Circuit Court of Appeals Weighs In…

By: Ami Imbrogno & Tami Hannon

Deputies and corrections officers are faced with many situations and decisions which potentially expose them to liability.  They are required to make split second decisions on whether and how much force to use.  They are required to evaluate whether there is a good basis to arrest someone.  Based on new law from the Sixth Circuit Court of Appeals, they are also now potentially liable to those in their custody for allegations of reckless driving.

In Scott v. Becher, a prisoner brought various constitutional claims surrounding injuries he allegedly sustained during a transfer to another facility.  Specifically, Scott alleged that the transportation officer drove over the speed limit, swerved, and “laughed and accelerated” in response to inmates’ pleas to him to slow down.  Scott plead in his complaint that, as a result of Becher’s reckless driving, the bus hit a bump, became airborne, and threw Scott into the air, allegedly causing him injury to his head, neck, and back.  He alleged that the reckless driving constituted a violation of his Eighth Amendment rights to be free from cruel and unusual punishment, and was deliberately indifferent to his safety.

The officer defended on the basis that he was entitled to qualified immunity – that is, he may only be held liable in civil suits for civil rights violations if they violate a plaintiff’s clearly established Constitutional right.  While courts in other circuits have considered whether reckless driving states a viable claim, the Sixth Circuit Court of Appeals had not weighed in on this issue. First, the Court found that a claim of reckless driving would constitute cruel and unusual punishment under the Eighth Amendment as “a ‘rough ride’ is a particularly cruel means of punishment.”  The Court then went on to find that the officer had “fair warning” from other courts that his actions may be improper such that he was not entitled to qualified immunity despite the Court never before addressing this question.  Specifically, the Court found that “in light of the obviousness of the constitutional violation, Becher could not reasonably have believed that driving recklessly while Scott and the other prisoners were not wearing seatbelts was lawful.”

Scott also claimed that the officer violated his Constitutional rights after he sustained the injury by taking him to the destination prison instead of directly to a hospital, despite Scott’s requests for immediate medical attention.  However, the Court of Appeals agreed that Becher was entitled to qualified immunity on the deliberate indifference to medical needs claim.  It stated “we cannot say that any reasonable officer would have known that the Constitution required Becher to drive the prison bus immediately to the hospital.”

In light of this, law enforcement officials should ensure that they are properly training their officers on vehicle operations, and safely securing inmates or passengers during transport.  Discipline should be issued for improper driving or violations of the policy.


For more information or questions regarding this article, contact Ami Imbrogno at aimbrogno@mrrlaw.com or Tami Hannon at thannon@mrrlaw.com.

Ami Imbrogno

Tami Hannon

Two MRR Attorneys Admitted into Indiana

Mazanec, Raskin & Ryder (MRR) is proud to announce that Curtis M. Graham and Tia J. Combs, associates in the firm’s Lexington, Kentucky office, were admitted to the practice of law in Indiana by the Indiana State Supreme Court on May 15, 2018. Their admission to the Indiana Bar adds to MRR’s depth and ability to provide quality legal services to its clients on a regional basis.

“Curt and Tia are the perfect choices to help drive our firm’s growth into Indiana,” said Joseph F. Nicholas, MRR’s Managing Partner and President.  “Most importantly, being admitted into Indiana will open doors for their own professional development as Next Generation lawyers at the firm.”

In order to practice law in Indiana, one must be a graduate of an ABA approved law school, a person of good moral character, and have taken and passed the two day Indiana Bar Examination, consisting of the Multistate Performance Test (“MPT”), the Indiana Essay Examination, and the Multistate Bar Examination (“MBE”).”

Curt focuses his practice on civil rights and governmental liability issues, including the representation of police officers, municipalities, correctional institutions, and city officials. In addition to his representation of governments and government officials, Curt is experienced in all aspects of insurance litigation, ranging from coverage and bad faith disputes to insurance defense litigation. Further, he has handled matters for both large and small business owners in the areas of commercial law, subrogation, collections, data security, and cyber security law.

Tia’s primary areas of practice are school law and insurance defense litigation. She has considerable experience representing school boards throughout the Commonwealth of Kentucky in matters ranging from employment and personnel conflicts to student disciplinary matters and civil rights to contract negotiation and drafting.

In the course of representing her clients, Tia has litigated cases in the defense of school boards, administrators, and teachers, and has also served as counsel defending individuals and companies, large and small, against civil claims.

Internal Investigation Notes May Now Be Public Record

By Tami Hannon

Most public agencies understand that their records are public. But what about those records created by private individuals hired by a public agency?  Specifically, what about notes taken by a private individual while conducting an investigation on behalf of the agency?  A recent decision issued by the Ohio Court of Claims indicates that yes, those records are also public record.

In Hurt v. Liberty Township, the Board of Township Trustees hired an outside private attorney to investigate possible wrongdoing by the fire chief. The attorney conducted numerous interviews during which he took notes. He later used those notes to prepare a report to the trustees, though the notes themselves were never given to the township. The investigation revealed potential wrongdoing and the attorney was instructed to prepare the statutorily required charges against the fire chief. Prior to the removal hearing, the fire chief’s attorney subpoenaed the investigator’s notes. A copy of those notes were provided at the hearing for his review.

Later, two individuals made a public records request for several items, including the attorney’s notes. The township and the attorney refused to provide the notes on the basis that they were not township records as they had been created and maintained by the private attorney. The requestors used a new provision in R.C. §2743.75 to file a claim with the Ohio Court of Claims alleging an improper denial of public records. That court recently ruled that the notes are, in fact, public records subject to disclosure.

The court relied on several factors in reaching that conclusion. First, the court found that the private attorney had been retained to perform a function statutorily delegated to the township, specifically investigating potential wrongdoing by the fire chief. The notes documented the performance of that function. Second, the notes were used to prepare the report (a public record) but did not appear to have been substantially duplicated in the report. As information was contained in the notes that was not contained in the report, the court found that the notes were a separate record and not a duplicate of the report or a transient record used to assist in preparing the report. Finally, the court found that the fact that the township did not have possession of the records was immaterial as the attorney had carried out an official function, the township had monitored his performance and the investigation and the township could have access to those records.

Historically, personal notes have always been a grey area. Some courts have found that the notes are not public record if they are merely kept to help the individual recall something and are not shared with others. Notes taken that are later incorporated into a report and discarded have also historically not been public record. The issue was less clear when notes were shared with others and relied upon by them, or when the notes had some value apart from the report itself, such as when the entirety of the notes were not incorporated into the report.

In Hurt, the court held that the notes from the interviews during the internal investigation were not merely kept for personal convenience or discarded once the report had been written. Rather, the court found that the notes had a separate value given that they were retained and provided to the other attorney during the pre-disciplinary process which indicated that they contained information not otherwise incorporated into the written report. As such, the court held the notes left the realm of personal records and became public records.

In Hurt, a specific statute required the township to conduct an investigation and authorized the hiring of a private individual to conduct that investigation. The obligations in that statute built the foundation for several of the court’s findings. While the issue before the court was limited to that specific statute, it opens the door for notes made during any statutory investigation to be public records. The issue is less clear in cases of general workplace misconduct or harassment, as best practices and risk management require an investigation but the statutes do not. The lack of a statutory obligation may offer some protection to those investigations. Until the law becomes more developed, investigatory notes and interviews may be public record, even when the investigation is performed by an outside third party.

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MRR Ohio Legislation Updates: February 24 – March 9, 2017

Notes from the House of Representatives

  • HB No. 91 was introduced to develop and conduct a chief of police training course for newly appointed village, city, and township chiefs of police.
  • HB No. 102 was introduced to replace locally levied school district property taxes with a statewide property tax and require recipients of certain tax exemptions to reimburse the state for such levy revenue lost due to those exemptions; to increase the state sales and use tax rates and allocate additional revenue to state education purposes; to repeal school district income taxes; to require the Treasurer of State to issue general obligation bonds to refund certain school district debt obligations; to create a new system of funding schools where the state pays a specified amount per student that each student may use to attend the public or chartered nonpublic school of the student’s choice, without the requirement of a local contribution; to eliminate the School Facilities Commission; to eliminate the Educational Choice Scholarship Pilot Program, Pilot Project Scholarship Program, Autism Scholarship Program, and Jon Peterson Special Needs Scholarship Program; to eliminate interdistrict open enrollment; to require educational service centers to transport students on a countywide basis; and to permit school districts to enter into a memoranda of understanding for one district to manage another.
  • HB No. 5 was passed on third consideration to create a statutory definition of microbusiness.
  • HB No. 113 was introduced to prohibit any requirement that employees of private employers join or pay dues to any employee organization and to establish civil and criminal penalties against employers who violate that prohibition.

Notes from the Senate

  • SB No. 72 was introduced to allow political subdivisions, special districts, and state institutions of higher education to elect to apply the Prevailing Wage Law to public improvement projects.
  • SB No. 83 was introduced to establish the duties and authority of the Attorney General to investigate and prosecute cases relating to the death of a person caused by a peace officer.
  • SB No. 84 was introduced to require the Ohio Peace Officer Training Commission to develop a course to train peace officers in performing their duties without biased policing or status based profiling; to prohibit law enforcement officers and officials from engaging in biased policing or status-based profiling; to require each law enforcement agency to develop and provide annually to its officers an educational training program on how to perform law enforcement duties without engaging in biased policing or status-based profiling; to create the racial and identity profiling advisory board; to provide a civil cause of action for an individual who is a victim of biased policing or status-based profiling; and to permit the Attorney General to seek injunctive relief against a law enforcement agency served by an officer who commits biased policing or status-based profiling.
  • SB No. 88 was introduced to modify the composition and powers of the financial planning and supervision commission of a political subdivision that is in a state of fiscal emergency and to clarify the duties of that political subdivision.
  • SB No. 91 was introduced to establish and operate the Ohio Health Care Plan to provide universal health care coverage to all Ohio residents.
  • SB No. 94 was introduced to abolish the death penalty.
  • SB No. 95 was introduced to require a public authority to consider all piping materials that meet the engineering specifications for a state-funded water or waste water project.

For further information, please contact:

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

 

 

 

 

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MRR Ohio Legislation Updates: February 10 – February 23, 2017

Notes from the House of Representatives

  • HB No. 52 was introduced to regulate the solicitation of certain deeds.
  • HB No. 53 was introduced to remove any requirement under the Public Employees Collective Bargaining Law that public employees join or pay dues to any employee organization, to prohibit public employers from requiring public employees to join or pay dues to any employee organization, and to prohibit an employee organization from being required to represent public employees who are not members of the employee organization.
  • HB No. 79 was introduced to provide for firearms training for tactical medical professionals; to permit such a professional who has received that training and has been authorized by the law enforcement agency to carry firearms while on duty; and to grant such a professional the same right to carry a concealed handgun in this state as a concealed handgun licensee.
  • HB No. 82 was introduced to adjust the fees allowed to county treasurers for collecting property taxes.
  • HB No. 85 was introduced to enter into the Health Care Compact.
  • HB No. 86 was introduced to increase the state minimum wage to ten dollars and ten cents per hour beginning January 1, 2019.

Notes from the Senate

  • SB No. 43 was introduced to enable limited home rule townships to adopt building codes regardless of any similar codes adopted by the county in which the township resides.
  • SB No. 47 was introduced to prohibit the use of non-compete provisions in employment contracts in the broadcasting industry.
  • SB No. 49 was introduced to prohibit private employers from including on an employment application any question concerning whether an applicant has been convicted of or pleaded guilty to a felony.
  • SB No. 52 was introduced to allow any person or entity that registers with the secretary of state to solemnize marriages.
  • SB No. 59 was introduced to require bicycle operators and passengers under 18 years of age to wear protective helmets when the bicycle is operated on a roadway and to establish the Bicycle Safety Fund to be used by the Department of Public Safety to assist low-income families in the purchase of bicycle helmets.
  • SB No. 68 was introduced to prohibit the installation of unsafe used tires on certain motor vehicles.

For further information, please contact:

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

 

 

 

 

 

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Ohio’s Dram Shop Act Not the Exclusive Remedy

Tom MazanecMary Beth KlemencicBy Tom Mazanec and Mary Beth Klemencic

Ohio’s Dram Shop Act was found not to be the exclusive remedy for a third party to hold liquor permit holders liable for the actions of an intoxicated patron in a recent ruling in Sharon Snyder, et al. v. Julio Vargas, et al., Case No. CV-15-839575 in the Court of Common Pleas, Cuyahoga County, Ohio. The judge ordered Secrets Gentlemen’s Club to pay $8 million to the family of a woman killed in a motor vehicle accident when an intoxicated patron of the club drove the wrong way on the highway. The court held in a notable decision that the Plaintiffs’ common law negligence claims were sufficiently distinct, separate, and independent from the statutory cause of action premised on the sale of alcohol. The court did clarify that its decision was based on case specific facts and attendant circumstances, particularly that the liquor permit holder admitted that it had an obligation or duty to prevent known intoxicated patrons from driving and an obligation or duty to call or involve police to prevent known intoxicated patrons from driving or, at the minimum, provide them with alternate transportation.

In Ohio, there is no common law duty to prevent a known intoxicated patron from driving a motor vehicle, no duty to call the police on a known intoxicated patron who is going to drive, and no duty to find alternate transportation for a known intoxicated patron.

In Snyder, the intoxicated patron pled “no contest” to aggravated vehicular homicide and assault charges, was found guilty, and sentenced to 15 years in prison. The driver’s insurance agreed to settle with the family paying $37,000 and Gigi’s lounge, a strip club he had been to earlier in the evening, also agreed to settle with the family for $1 million.

Julio Vargas starting drinking at home around 5:00-5:30 p.m. He then bought beer and a pint of Hennessy at the liquor store and drank and snorted cocaine in the store’s parking lot, after which he drove to an adult entertainment bar known as Fox’s Den, where he drank more. Vargas next drove to Gigi’s Lounge around 7:20 p.m., where he admits to being impaired and noticeably intoxicated by the time he got there. He drank more and admittedly was so intoxicated he blacked out and has no memory of the rest of the night.

Gigi’s owner, staff, and a customer testified at depositions that Vargas was acting weird, non-responsive, aggressive, hard to understand, and irrational. Gigi’s bartender testified she was so concerned about his behavior she armed herself with a gun. According to Gigi’s owner, Vargas inappropriately shoved her, leaving a bruise, and was behaving aggressively. She threw him out around 8:30 p.m. and followed him into the parking lot to make sure he got in his vehicle and left.

After his ejection from Gigi’s, Vargas drove to Secrets Gentlemen’s Club where it is disputed as to how many drinks Vargas consumed while at Secrets. Secrets claims they only served him one beer in the two hours and forty-five minutes he was there. Credit card receipts show he purchased two drinks. Evidence shows he withdrew $200 in cash from an on premises ATM. The club took no steps to preserve any other receipts or documents to reflect other sales and Cleveland police testified Secrets was not cooperative with their investigation.

At deposition, Secrets’ general manager/minority owner (“GM”) acknowledged Vargas inappropriately touched one of the dancers, assaulting her, thus violating Ohio law and committing a crime. The GM further stated that around 11:30 p.m., he spent 15-20 minutes having direct face-to-face contact with Vargas. Three separate experts opined that Vargas would have been noticeably intoxicated throughout his time at Secrets.

Vargas was escorted out twice and video depicts him confused and initially unable to locate his vehicle before finding it and driving away. Minutes later he entered the highway going the wrong way and the fatal crash occurred around 11:45 p.m.

In deposition the GM acknowledged that Secrets has an obligation or duty to prevent known intoxicated patrons from driving and a duty to call police to make sure extremely intoxicated patrons do not drive, or else arrange for transportation to take them home. However, he did not call the police to intervene with Vargas, “because they take forever.”  But, Secrets’ bouncer testified that there was a uniformed, off-duty officer on site, yet no one asked the officer for assistance handling Vargas.

The court awarded total damages in an amount in excess of $24 million, apportioning liability as one-third to Vargas, one-third to Gigi’s Lounge, and one-third to Secrets. Each liable for a little more than $8 million.

The trial court found that plaintiffs’ common law negligence claims, (1) failing to prevent a known intoxicated patron from driving and, (2) failing to inform the on-site police officer of Vargas’ extremely intoxicated condition, along with his assault of a club dancer and his unauthorized use of a credit card, were sufficiently distinct, separate, and independent from Ohio’s dram shop statute and that plaintiffs’ common law negligence claims were based on  case-specific facts and attendant circumstances relating to Secrets’ negligence in failing to fulfill its admitted duties of preventing a known intoxicated patron from driving, or notifying police, or providing alternate transportation.

To establish actionable negligence one must show the existence of a duty, a breach of that duty, and injury resulting proximately from that breach. In general, the existence of a duty depends largely on the foreseeability of the injury. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury would likely result from the performance or nonperformance of an act.

The court concluded that Secrets admitted it had an obligation or duty to prevent known intoxicated patrons from driving, a duty to call or involve police when a known intoxicated patron is driving or provide the intoxicated person with other transportation. Based on these unique and case specific facts and attendant circumstances, the trial court held that Secrets breached its admitted duty to prevent a known intoxicated patron from driving, as well as breaching its duty to use reasonable care to prevent foreseeable harm to others under the “attendant circumstances as those involved in this unique case.”  Secrets not only did nothing to fulfill its duties, it ensured that Vargas would drive away in his intoxicated state. Thus, it was foreseeable to Secrets, or anyone under these circumstances, that serious injury was likely to occur. Secrets actions and omissions had nothing to do with selling or serving alcohol, but were based on the unique and case-specific facts and circumstances involved, i.e. the admission to a duty not legally imposed by law.

The court took notice of the few other Ohio courts that have permitted common law negligence actions to be maintained against liquor permit holders for the actions of intoxicated patrons and noted that the facts and circumstance in this matter were even more egregious than those involved in the other cases. However, in the other cases the injured party was a patron/business invitee of the liquor permit holder and the liability was found to arise essentially under a premises liability claim. In the matter herein, the injured party was not a business invitee, but an innocent third party whose remedies against a liquor permit holder are laid out under Ohio’s dram shop statute.

In closing, the trial court remarked that Secrets’ negligence was separate, distinct, and independent from any statutory claims involving or arising from its sale or service of alcohol. Unlike a situation where a drunk patron slips out undetected, Secrets’ management failed not only to take any action to fulfill its admitted duty to prevent a known intoxicated patron from driving so as to prevent foreseeable injuries to other motorists, but its actions ensured that Vargas would drive away.

Coverage Ramifications – General Liability Carriers Beware

To the extent that the duties admitted to are outside of the dram shop law, then the argument will be made that the general liability carrier will have a duty to defend and indemnify on these allegations. Thus, rather than simply denying coverage, a reasonably prudent general liability carrier will first make sure that the dram shop carrier is defending the entire case. Defense counsel has an obligation to defend all counts of the complaint and not just those allegations that may be covered by the carrier that hired him. However, a finding by a court or jury that the common law negligence duties have been violated might well trigger coverage and payment by the general liability carrier. Thus, general liability carriers must closely examine claims and lawsuits that may have common law negligence components to them as opposed to simply assuming the dram shop carrier will take care of everything.

Experience Counts

We are experienced dram shop attorneys and are well prepared for these types of allegations. Our witness and client preparation includes educating them regarding Ohio law, explaining exactly what their duties are under the dram shop law, and making sure that they do not admit to any duties they are not legally obligated to perform. In over 30 years of handling these types of cases, a plaintiff attorney has never been successful in getting these admissions from our properly prepared clients and witnesses.

Thomas S. Mazanec and the firm of Mazanec, Raskin & Ryder Co., L.P.A. (MRR) have handled liquor liability cases for more than 30 years and have tried numerous matters to verdict. MRR attorneys have defended more businesses and event organizers in liquor liability cases than any other firm in Ohio. Our representation of the liquor permit holder before the Ohio Supreme Court in Smith v. The 100th Inning, Inc., radically changed the course of the dram shop statute in Ohio by denying an intoxicated patron the right to sue the permit holder based on the commonsense argument that responsibility for one’s voluntary liquor consumption should be one’s own.

Our attorneys work across the state with bars, restaurants, taverns, individuals, and temporary liquor permit holders as well as the insurance carriers providing coverage for those clients. When litigation is pursued, we engage in tenacious investigations and put on an aggressive defense for our clients.

For additional information or questions about the ruling in Snyder, please contact Thomas S. Mazanec at
440.287.8297 / tmazanec@mrrlaw.com or Mary Beth Klemencic at 440.424.0018 / mbk@mrrlaw.com.

MRR Ohio Legislation Updates: December 2 – December 15, 2016

Notes from the House of Representatives

  • HB No. 598 was passed on third consideration to create the Ohio Consumer Installment Loan Act.
  • Sub SB No. 227 was passed on third consideration to make various changes to the laws governing the duties and functions of the Attorney General and to modify judgment dormancy law.
  • HB No. 627 was introduced to specify that certain products, services, and supplies, to be purchased by the state through competitive selection, are eligible to be set aside for competition by only minority business enterprises and to clarify that plans prepared by an architect or engineer are not required for such purchases.
  • Sub. SB No. 331 was passed on third consideration to, among other items, prohibit political subdivisions from establishing minimum wage rates different from the rate required by state law, and to generally grant private employers exclusive authority to establish policies concerning hours, and location of work, scheduling, and fringe benefits, unless an exception applies.
  • Sub. SB No. 27 was passed on third consideration to enact the “Michael Louis Palumbo, Jr. Act” to provide that a firefighter who is disabled as a result of cancer under certain circumstances is presumed for purposes of the laws governing workers’ compensation and the Ohio Police and Fire Pension Fund to have incurred the cancer while performing official duties as a firefighter.
  • SB No. 273 was passed on third consideration to enact the Corporate Governance Annual Disclosure Act.
  • Sub. SB No. 235 passed on third consideration to authorize political subdivisions to exempt from property taxation the increased value of property on which industrial or commercial development is planned for up to six years, to make changes to Ohio’s unemployment compensation law, and to modify laws governing other state and local government authority and operations.
  • Sub. SB No. 463 was passed on third consideration relative to the Ohio Uniform Commercial Code, real property foreclosure and escrow transactions, certain partial property tax exemptions, and local ballot initiatives; to require the coverage of autism services; to reimburse child abuse and child neglect regional prevention council members for expenses and prohibit conflicts of interest; and to amend the statutory procedure for recalling certain municipal officials to include a deadline for filing a petition for recall.
  • Sub. SB No. 505 was passed on third consideration to regulate biological products and the substitution of interchangeable biological products, to revise certain deadlines related to prior authorization requirements, to establish an exemption from the laws governing health insuring corporations, and to delay the expiration of certain supervision agreements between physicians and physician assistants.
  • HB No. 628 was introduced to replace locally levied school district property taxes with a statewide property tax and require recipients of certain tax exemptions to reimburse the state for such levy revenue lost due to those exemptions; to repeal school district income taxes; to require the Treasurer of State to issue general obligation bonds to refund certain school district debt obligations; to create a new system of funding schools where the state pays a specified amount per student that each student may use to attend the public or chartered nonpublic school of the student’s choice, without the requirement of a local contribution; to eliminate the School Facilities Commission; to eliminate the Educational Choice Scholarship Pilot Program, Pilot Project Scholarship Program, Autism Scholarship Program, and Jon Peterson Special Needs Scholarship Program; to eliminate interdistrict open enrollment; to require educational service centers to transport students on a countywide basis; and to permit school districts to enter into a memoranda of understanding for one district to manage another.

Notes from the Senate

  • Sub. HB No. 463 was passed upon third consideration relative to the Ohio Uniform Commercial Code, real property foreclosure and escrow transactions, certain partial property tax exemptions, and local ballot initiatives; to require the coverage of autism services; to reimburse child abuse and child neglect regional prevention council members for expenses and prohibit conflicts of interest; and to amend the statutory procedure for recalling certain municipal officials to include a deadline for filing a petition for recall.

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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HR Departments and Records Retention Policies

Doug HolthusBy Doug Holthus / dholthus@mrrlaw.com / 614.324.1040

Various state and federal statutes, rules and regulations, as well as particular industry standards, govern the retention periods for certain types of employment records [e.g.: Employment Applications (3 years), Safety Records (6 years), Time Cards and Daily Reports (7 years), Training Manuals (permanently), Union Agreements (permanently), Insurance Records (permanently), Legal Correspondence (permanently) and Employee Payroll Records (permanently)].

Given the myriad records retention obligations, every prudent employer will have in place a solid Records Retention Policy (and Program) which will be (a) written, (b) disseminated to all department leads, (c) routinely revisited by members of an internal Records Retention Committee, and most importantly … (d) followed!

Particularly in the event of litigation—or threatened litigation—it is very important that the employer be able to establish compliance with its own Documents Retention (and “litigation hold”) Policy. This, then, dictates the necessity of a corresponding “Purge Policy.” Like the Retention Policy, the Purge Policy will be written, disseminated, revisited (from time-to-time) … and followed. Confronted with the prospect or reality of suit, every employer should be able to demonstrate not only how and when records were purged, but also show that all purging of documents was consistent with the organization’s Purge Policy.

These considerations need to be balanced against another reality; sometimes, records are kept, even unintentionally, for excessive periods of time. This also needs to be avoided, as non-compliance with a Purge Policy can be possibly inferred if records are kept too long. Keeping excessive amounts of records—or keeping records for inordinate amounts of time—can create difficulties and raise the possibility of further error. Among other issues, these situations often confound the retrieval of correct information and increase the likelihood that employment (or other corporate) records may slip into some third-person’s (or unintended recipient’s) hands.

Why are these things important? Consider that in the context of litigation, the state and federal courts in Ohio have held as follows:

  • “An adverse inference may arise where a party who has control of a piece of evidence fails to provide the evidence without satisfactory explanation. Under those circumstances, the jury may draw an inference that would be unfavorable to the party who has failed to produce the evidence in question. Ohio courts normally would require a strong showing of malfeasance — or at least gross neglect — before approving such a charge.”

Schwaller v. Maguire, M.D., 2003-Ohio-6917 at ¶ 24. See also Brokamp v. Mercy Hosp. Anderson (1999), 132 Ohio App.3d 850, 870, 726 N.E.2d 594.

  • “To establish entitlement to an adverse inference, plaintiff must show that: (1) defendant had an obligation to preserve evidence at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to Plaintiff’s claims such that a reasonable trier of fact could find that it would support that claim. (Citation omitted.) Nevertheless, courts generally will not impose an adverse inference unless the party destroyed the evidence in bad faith. (Citation omitted.)

Henry v. Abbott Labs., No. 2:12-cv-841 (E.D. Ohio September 30, 2015).

The propriety of such Policies also applies to employers in Kentucky. The Kentucky Supreme Court has specifically rejected any enhanced requirement to show malfeasance where a party fails to produce a relevant document. See, e.g. University Medical Center v. Beglin, 375 S.W.3d 783, 789 (Ky. 2011) adopted Judge Breyer’s reasoning in a 1st Cir. case:

Under Kentucky law, the failure or refusal to produce a relevant document, or the destruction of it, is evidence from which alone its contents may be inferred to be unfavorable to the possessor, provided the opponent, when the identity of the document is disputed, first introduces some evidence tending to show that the document actually destroyed or withheld is the one as to whose contents it is desired to draw an inference.

Kentucky does require a showing that the party which/who fails to produce the document acted in bad faith, which means something more than mere negligence. The party seeking to impose the adverse inference must at least show that the party failing to produce was aware of the duty to preserve the evidence. But, the trial court my use inferences, suppositions, and circumstantial evidence in making the initial decision whether to give an adverse inference instruction.

One additional important document to retain is proof that the records retention policy was disseminated to all employees who have the potential for destroying documents.  Employees should sign an acknowledgment indicating that they received the policy and had an opportunity to have all questions regarding the policy addressed by management.  Ideally, employers should have employees sign new acknowledgments every year, regardless of whether the records retention policy is updated.  After all, a policy rarely exists unless those who are responsible for complying with it know about it, right?

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Mazanec, Raskin & Ryder’s Lexington Office Announces 2017 Super Lawyers

Mazanec, Raskin & Ryder Co., L.P.A. (MRR) today announced that five attorneys from the firm’s Lexington, Kentucky, office have been selected to the 2017 Kentucky Super Lawyers and Rising Stars lists. Barry M. Miller and Casey C. Stansbury are selected to the Super Lawyers list. Christina L. Vessels, Tia J. Combs, and Curtis M. Graham are all selected to the Rising Stars list. Each year, no more than five percent of lawyers in the state are named to the Super Lawyers list, and no more 2.5 percent are selected to the Rising Stars list.

Barry MillerBarry M. Miller is the administrative partner of the firm’s Lexington office. He has been selected to the Super Lawyers list every year since 2013. Mr. Miller focuses his practice on insurance coverage opinions and litigation, including coverage issues related to municipal liability, bad faith and extra-contractual damages, and data management and cyber security law. He has considerable experience handling technology issues involving data breach defense and electronic discovery as well. Barry regularly provides instruction and counsel to a variety of groups, including attorneys and business owners, regarding preservation of digital evidence and insurance aspects of cyber liability.

 

Casey StansburyCasey C. Stansbury is a firm partner, and has been named a Kentucky Super Lawyer since 2015, prior to which he had been a Rising Star (2013 and 2014). Mr. Stansbury focuses his practice on civil rights and governmental liability issues.  He regularly counsels and represents police officers, correctional officials, municipalities, and public officials in a variety of matters including employment concerns, contract disputes, and civil rights actions.  In addition to his representation of public entities and officials, Casey has experience in handling various other types of litigation matters including cases concerning construction disputes, commercial law, and motor vehicle accidents. Casey is a frequent presenter and has received numerous awards, including the Defense Research Institute’s 2014 Albert H. Parnell Outstanding Program Chair Award.  He also serves as the DRI Government Liability Committee Chair.

 

Christina VesselsPartner Christina L. Vessels has been named a Kentucky Rising Star for the fifth consecutive year. Ms. Vessels primarily focuses her civil litigation practice on insurance coverage, bad faith and extra contractual litigation, professional liability defense, and school law.  Chrissy has represented insurance companies and their insureds in complex litigation before both state and federal courts throughout Kentucky at both the trial and appellate levels, and she has successfully defended school boards, school administrators, teachers, and classified personnel against claims brought by parents and students.  She is also well versed in the interpretation of insurance contracts and has assisted insurance companies in drafting and revising policies to better meet the needs and expectations of their insureds.

 

Tia J. CombsTia J. Combs is an associate in the Lexington office and this is the third consecutive year she has been selected to the Rising Stars list. Ms. Combs’ primary areas of practice are school law and insurance litigation, including insurance defense, coverage disputes, fraud investigation, and bad faith litigation. She has considerable experience representing school boards throughout the Commonwealth of Kentucky in matters ranging from employment and personnel conflicts to student disciplinary matters and civil rights to contract negotiation and drafting.

 

Curtis M. GrahamCurtis M. Graham is also an associate in the firm’s Lexington office and this is his first appearance on the Rising Stars list. Mr. Graham focuses his practice on civil rights and governmental liability issues, including the representation of police officers, municipalities, correctional institutions, and city officials. In addition to his representation of government officials, Curt is experienced in all aspects of insurance litigation, ranging from coverage and bad faith disputes to insurance defense litigation. In addition, he has handled matters for both large and small business owners in the areas of commercial law, subrogation, and collections.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations. For more information about Super Lawyers, visit SuperLawyers.com.

 

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Come Fly With Me: An Overhead View of Drone Requirements and Rules

By: Christina M. Nicholas, Esq.

“Come fly with me, let’s fly, let’s fly away . . .”

Unfortunately, I am not offering you a first-class ticket to some exotic locale where you can pass the days away languishing in the sun as the sweet melodies of Ole’ Blue Eyes drift overhead.  I am, however, offering you something even better—an overhead view of the new regulations affecting drones.  So, please, pull up a chair and prepare to be serenaded.

The Federal Aviation Administration (“FAA”) has different requirements and/or rules for Unmanned Aircraft Systems (“UAS”), i.e., drones.  The requirements and rules depend on the reason the UAS is being flown.  The FAA separates UAS flights into two categories, “Fly for Work, Business or Non-Recreation” and “Fly for Fun or Recreation.”

Fly for Work, Business or Non-Recreation

 The FAA has provided three (3) ways by which to fly a UAS for work, business or non-recreation:

  • The Small Unmanned Aircraft System (“sUAS”) Rule, also known as Part 107 (applicable to UAS that weigh less than 55 pounds at takeoff, and discussed in detail below);
  • A Section 333 Grant of Exemption (applicable to UAS that weigh 55 pounds or more); and
  • An Airworthiness Certificate.

On August 29, 2016, the Federal Aviation Administration’s (“FAA”) comprehensive regulations for sUAS went into effect.  These regulations are for the non-recreational use of sUAS.  Part 107 applies only to UAS that weigh less than 55 pounds at takeoff.  If the UAS weighs 55 pounds or more, a Section 333 Grant of Exemption will need to be obtained.  To fly under Part 107, a pilot must:  (1) be at least 16 years of age; (2) pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center; and (3) be vetted by the Transportation Safety Administration (“TSA”).  The aircraft is required to be:  (1) less than 55 pounds; and (2) registered.  A sUAS needs to be registered if it is between 0.55 pounds and 55 pounds.  If the sUAS is within these weight limitations, registration can be done online.  If the UAS is 55 pounds or more, paper registration is required.  Additionally, paper registration is required to qualify sUAS for flight outside the United States, if the title to the aircraft is held in trust, or if the owner of the sUAS utilizes a voting trust to meet U.S. Citizenship requirements.

To fly under Part 107, a pilot must adhere to a set of operating rules; however, these rules may be waived by applying for a certificate of waiver.  The general operating rules are as follows:

  • Fly the sUAS in Class G, or uncontrolled, airspace;
  • Keep the sUAS in sight (also called, “visual line-of sight”);
  • Fly the sUAS under 400 feet;
  • Fly the sUAS during the day;
  • Fly the sUAS at or below 100 mph;
  • Yield right of way to manned aircraft; and
  • Do not fly over people or from a moving vehicle.

Fly for Fun or Recreation

If an operator wants to fly a UAS for fun or recreation, they do not need to seek permission from the FAA to do so; however, they must fly the UAS in a safe manner.  Additionally, there are certain requirements to fly for fun or recreation.  To fly for fun or recreation, the operator of the UAS must be:  (1) at least 13 years of age; and (2) a U.S. citizen or legal permanent resident.  The UAS must also be registered.  If the UAS is less than 55 pounds and more than 0.55 pounds, registration can be done online.  If the UAS is more than 55 pounds, registration must be done by paper.  In order to register, an e-mail address, credit or debit card, and physical address and mailing address are required.  The cost of registration is $5.00, and it is valid for 3 years.

To fly a UAS for fun or recreation, certain safety guidelines must be followed.  The safety guidelines are as follows:

  • Fly the UAS at or below 400 feet;
  • Make sure to keep the UAS within sight;
  • Do not fly near other aircraft;
  • Do not fly over groups of people, over stadiums or sporting events, near emergency response efforts, or under the influence of drugs or alcohol, and
  • Make sure to be aware of airspace requirements.

Government Entities

It should be noted that a government entity, such as a law enforcement agency, public university, state government, or local municipality, may fly a UAS.  To operate a UAS, a government entity must either follow Part 107 (discussed above) or get a blanket public Certificate of Waiver or Authorization (“COA”).

With the above in mind, prepare to take flight!


For questions or more information on the topic of this blog post, please contact:

Christina M. Nicholas – MRR Cleveland
Phone: 440.287.8296
Fax: 440.248.8861
Email: cnicholas@mrrlaw.com

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