Congratulations to Tia J. Combs for being named “Young Lawyer of the Year” by the Kentucky Defense Counsel. Tia received her award at the Kentucky Defense Counsel’s fall meeting and awards lunch on November 10, 2017.
Ms. Combs is an Associate in MRR’s Lexington office. She focuses her practice on 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. Tia has also been named a “Kentucky Super Lawyers Rising Star” since 2015.
Earlier this year the Sixth Circuit had occasion to address what standard applies to use of force claims in the context of a medical emergency. In Estate of Hill by Hill v. Miracle, 853 F.3d 306 (6th Cir. 2017) a diabetic person filed a 42 U.S.C. § 1983 claim against a law enforcement officer after a taser was used against the plaintiff while he was experiencing a hypoglycemic episode. The plaintiff was agitated toward the responding officer and medical personnel for attempting to treat him and was acting combative and confused. The officer eventually deployed his taser when the plaintiff continued to kick and swing at the paramedics.
The plaintiff alleged that the officer’s decision to use the taser constituted excessive force in violation of his Fourth Amendment rights. He also asserted state law claims of assault, battery and infliction of emotional distress. The officer moved for summary judgment on qualified immunity grounds. This motion was denied by the District Court and the officer then appealed to the Sixth Circuit.
The importance of Miracle is that the Court moved away from the use of force test provided for in Graham v. Connor, 490 U.S. 386 (1989). In Graham, the Supreme Court used a three-factor test to assess the objective reasonableness of an officer’s use of force. Those factors were: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.
The Miracle Court stated that applying the Graham factors to a medical emergency situation “is equivalent to a baseball player entering the batter’s box with two strikes already against him.” Specifically, because the plaintiff in Miracle had not committed a crime and was not resisting arrest, two of the three Graham factors automatically weighed against the officer. Instead, the Court announced that when the person in question has not committed a crime, is not resisting arrest and is not directly threatening the officer, the court should ask:
(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?
(2) Was some degree of force reasonably necessary to minimize the immediate threat?
(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?
If the answers to the first two questions are “yes,” and the answer to the third question is “no,” then the officer is entitled to qualified immunity. Turning to the facts of the case at hand, the Court found the plaintiff was experiencing a medical emergency and was not able to make rational decisions due to his condition. Additionally, the officer and paramedics were put in immediate physical danger by the plaintiff’s combative actions and the plaintiff himself would have been in grave danger had the officer done nothing. Finally, the Court found the force used was reasonably necessary due to the fact that four paramedics had been unable to restrain the plaintiff.
The new factors announced in Miracle allow courts to more appropriately evaluate the reasonableness of officers’ actions in light of the (often unpredictable) circumstances they find themselves in. Law enforcement officers should take note of this important decision involving qualified immunity and keep these principles in mind when they are confronted with situations involving medical emergencies. Additionally, departments would be well served to educate their officers on these factors and possibly revise their policies and procedures in light of this notable decision (particularly those relating to officers’ response to aggression). This may require additional training on recognizing medical emergencies. When it comes to minimizing liability exposure, understanding how a court will assess similar cases in the future is a key to success.
Tami Hannon (email@example.com) is a Partner in MRR’s Cleveland Office and Curt Graham (firstname.lastname@example.org) is an Associate in MRR’s Lexington Office. For more info, please contact MRR via email or call 440.248.7906.
Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.
Mazanec, Raskin & Ryder Co. L.P.A. received the following rankings in the 2018 U.S. News – Best Lawyers “Best Law Firms”:
- Metropolitan Tier 1
- Civil Rights Law
- Metropolitan Tier 3
- Education Law
Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.
The Kentucky League of Cities (KLC) has announced its annual awards for Elected City Official of the Year, the City Employee of the Year and Enterprise Cities Awards for innovative city programs and projects. The winners were recognized on October 4 at the KLC Conference & Expo in Covington, Kentucky.
The City Employee of the Year Award, sponsored by Mazanec, Raskin & Ryder (MRR), brings recognition to an exceptional city employee who performs at a distinguished level to improve his or her local government and community. This year there was a tie resulting in two winners, Simpsonville City Administrator David Eaton and Georgetown City Attorney/Chief of Staff Andrew Hartley.
MRR provides a $500 donation to the charitable choice of each winner. To view the short awards video, click here.
It seems the Ohio Supreme Court agrees with Dr. Seuss’s Horton Hears a Who!
“A person’s a person”
The Supreme Court recently affirmed that Ohio’s Dram Shop Act is the exclusive remedy against liquor permit holders for third parties injured off-premises by an intoxicated person and excludes all other common law negligence claims against the liquor permit holder. In Nichole Johnson v. Mary E. Montgomery, et al., Slip Opinion No. 2017-Ohio-7445, the plaintiff was seriously injured in a motor vehicle accident caused by an intoxicated dancer on her way home from work after leaving the strip club where she danced and was allowed to drink while she worked.
The question before the Court was whether the strip club dancer qualified as an ‘intoxicated person’ under the statute or whether the term included only club patrons. The plaintiff argued that the Dram Shop Act did not apply to intoxicated workers or independent contractors, but that the term “intoxicated person” in the Act really means “intoxicated patron.” Plaintiff claimed that since she was injured by an intoxicated worker, and workers and patrons are different, the club was responsible under the common law theory of negligence for failing to act as carefully as a reasonable person would in the same circumstances.
The twist to the plaintiff’s argument was that the club encouraged the dancers to drink on the job and accept drinks from patrons, thereby the club took on additional responsibility. However, the Justices noted that the dancers were not required to drink. The club argued the Act applies to “person(s)” no matter whether that “person” is a patron or a worker; there is no difference.
The Court concluded that the phrase “intoxicated person” in Ohio’s Dram Shop Act includes any person, including intoxicated workers or independent contractors, not just a permit holder’s patrons, whose intoxication causes an injury. “The statute is straightforward” and “does not limit the definition of “person” based on the individual’s relationship to the permit holder.” As Horton Hears A Who has told us, “A person’s a person…”
 The dancer paid the club $30 a night to lease space to dance and only wages received were tips from patrons. No paychecks or W-2s were provided.