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

MRR Sponsors 2018 WELD Leadership Conference

MRR  is proud to sponsor the Women For Economic and Leadership Development’s (WELD) 2018 Leadership Conference “Acceleration of Change” at Otterbein College in Columbus on Thursday, June 7.

Partners Tami Hannon and Lisa Gentile will attend this sold out conference where MRR is the featured sponsor of the breakout session, ” Connect on Purpose: Building Meaningful Relationships.” Nearly 600 attendees are expected to attend this blockbuster event.

Visit www.weldoh.org for more information.

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.

Mazanec, Raskin & Ryder Welcomes Steven Kelley to Cleveland Office

Mazanec, Raskin & Ryder (MRR) is pleased to announce that Steven K. Kelley has joined the firm’s Cleveland office as a Partner in its Professional Liability Practice Group.

Prior to joining MRR, Steve worked at CNA Insurance Company for over 12 years, initially as a Managing Trial Attorney and then an Assistant Vice President in the company’s litigation department.

At MRR, his practice will focus on the defense of architects and engineers as well as other professional liability matters and product liability claims.

“With Steve’s experience and leadership in the insurance industry, his addition highlights our commitment to enhancing both the breadth and quality of services that we can provide to our clients,” said MRR President and Managing Partner Joseph F. Nicholas, Jr. said. “We are thrilled to welcome him to the firm.”

Mr. Kelley earned his Juris Doctorate from Case Western Reserve University School of Law and he received his Bachelor of Arts degree from Ohio Northern University. He is active professionally as a member of the Ohio Bar Association, Claims and Litigation Management Alliance, Cleveland Association of Civil Trial Attorneys (Former President), Defense Research Institute, and is a Life Member of the Eighth Judicial District Conference.

MRR Article: Can Europe’s New Privacy Rule Cost My Business Money?

By: Barry M. Miller & Curtis M. Graham

If your business offers goods or services to consumers in the European Union (or tracks information on EU consumers), you must become familiar with the acronym “GDPR.” The “General Data Protection Regulation” goes into effect May 25, 2018. And even if you are confident that your business complies with state or U.S. data-protection principles, that confidence may not be warranted as you face the GDPR.

Your business may already take care to protect information such as a customer’s Social Security number, credit card number, health data, and other personally identifiable information. But the GDPR broadens the definition of personal data that holders must protect. Article 4 of the GDPR defines “personal data” to include “any information relating to an identified or identifiable natural person (‘data subject’)” relating to the “physiological, genetic, mental, economic, cultural or social identity of that natural person.” Information about a person’s race or ethnicity, religious affiliation (or non-affiliation), political leanings, or sexual orientation would fall within this definition.

How does the GDPR impose obligations on American businesses in the first place? Its drafters intend the regulation to apply to anyone who processes the personal data of an EU resident—even if the processing is not done in the EU. Whether that intended reach can be enforced against an American business will be the subject of litigation, both here and in the EU. But as of now, the EU intends to subject data processors to fines of the greater of 20 million euros, or up to four percent of the processor’s annual global revenue. Even if your company is one of the forward-thinking ones, with cyber liability insurance in place, whether such policies cover fines imposed for a breach of the GDPR is something else to be litigated in coming years.

Rita Heimes, who holds the Certified Information Privacy Professional (CIPP) designation under both European and U.S. law (as well as the CIPM credential, for those who manage privacy programs), describes a “core value” of the GDPR: “Natural persons should have control over their own personal data.” She contrasts this with the U.S.-centric view that data, once collected, belongs to the collector. “This means when customers share their data with us it is not ours, but rather theirs, at least as the European Union sees it and as reflected in the GDPR.”

Mike Mandato, of Calyx IT in Cleveland, points out that businesses must carry this mindset through the entire life cycle of data, including data that may not pertain to active transactions—data businesses that businesses might think of as “on file,” but what information technology professionals call “at rest” data. The GDPR gives EU consumers the right to request that their data be removed from a data controller’s systems. This may require businesses to rethink their backup strategy, email and record retention policies, and any other in-house systems that hold “at rest” data. Mandato views this as a mixed blessing: “It is a good opportunity to fine tune security measures and data integrity within a business. But it may present added expense deploying processes and policies to examine data on a periodic basis to maintain compliance.”

What all this means is that companies of all sizes must make a conscious decision whether they want to do business (or continue to do business) with EU residents. They must weigh the potential costs of GDPR-compliance against the amount of business they hope to get from EU consumers. If the potential return is small or non-existent, it may be prudent to forgo that business. If, after weighing the benefits, you decide to retain or pursue business from EU residents, consult your technology vendor, your attorney, and your insurance agent to help you mitigate the potential costs that could follow non-compliance.


For more information, or questions on the topic, please contact Barry Miller at bmiller@mrrlaw.com or Curt Graham at cgraham@mrrlaw.com. Both Barry and Curt focus their practices on Data Management & Cyber Security Law in MRR’s Lexington office.

Barry Miller

Curt Graham

MRR Article: Has the Supreme Court of Ohio Done Away with the Delayed Damages Rule?

By: Mike Byrne & Joe Nicholas

The Supreme Court of Ohio dealt a win for insurance agents and agencies with its January 31, 2018 decision in LGR Realty, Inc. v. Frank & London Ins. Agency, Slip Opinion No. 2018-Ohio-334.  In a 5-2 decision, the Court held that the delayed-damage rule does not apply to a cause of action alleging negligent procurement of a professional-liability insurance policy or negligent misrepresentation of the terms of the policy when the policy at issue contains provisions specifically excluding the type of claim that the insured alleges it believed was covered by the policy.  Instead, the cause of action accrues on the date the policy is issued.

By way of background, Frank & London Insurance Agency (“F&L”) procured a real estate agents’ errors and omissions liability policy for LGR Realty, Inc. (“LGR”) with effective dates of May 12, 2010 through May 12, 2011.  The policy included a specific endorsement excluding any claim against LGR by Plaza Properties.  During the policy period, a liability claim was made against LGR with regard to a lawsuit captioned Milligan Communications LLC v. Plaza Properties, Inc.  LGR’s carrier denied coverage on April 26, 2011, citing the Plaza Properties exclusion.

On April 17, 2015, LGR filed a Complaint against F&L, alleging negligent procurement and misrepresentation.  F&L moved to dismiss, arguing that the cause of action was barred by the statute of limitations as it had accrued on May 12, 2010 when the policy went into effect.  In opposition, LGR relied on the delayed damages rule previously articulated in Kunz v. Buckeye Union Insurance Co., 1 Ohio St.3d 79 (1982), to argue that the claim did not accrue until it had suffered an injury when coverage for the claim was denied on April 26, 2011, and as such, the complaint was not time-barred.  The trial court found for F&L, and LGR appealed.  On appeal, the Tenth District Court of Appeals reverse, finding that Kunz had not been overruled.  F&L appealed.

It is undisputed that the four year statute of limitations set forth in R.C. 2305.09(D) is applicable in insurance agent negligence cases.  However, the dispute over when that statute of limitation begins to run has been ongoing since the Supreme Court of Ohio’s decisions in Investors REIT One v. Jacobs, 46 Ohio St.3d 176 (1989) (holding that the legislature’s express inclusion og a discovery rule for certain torts arising under 2305.09 implies the exclusion of other torts arising under the statute, including professional negligence), and Flagstar Bank, F.S.B. v. Airline Union’s Mtge. Co., 2011-Ohio-1961 (holding that a cause of action for negligence exists from the time the wrongful act is committed).  While Justice DeWine’s concurring opinion in LGR Realty, Inc. makes it clear that he believes Kunz has now been eroded to the point of being overruled, the Court’s majority decision still does not go quite that far.

The majority provides an in-depth analysis of Kunz in an effort to distinguish it from the case at bar.  In Kunz, the insured previously owned several insurance policies that provided all-risk coverage.  These policies were then consolidated into a single policy, with the insured mistakenly continuing to believe that the all-risk coverage remained in place.  Therefore, the insured’s right to recovery would be barred before they are even aware that they have been injured.  In contrast, when LGR purchased its policy, it already contained the entity exclusion relied upon to deny the claim, and as such, the harm to LGR was complete and the claim accrued the day the policy was issued.  Given this minute, in not non-existent, distinction, it is not hard to understand Justice DeWine’s reasoning in concluding that “[t]he majority’s opinion today and the decision in Kunz cannot both be the law.”

However, the majority insisted that they need not reach the issue of Kunz in order to decide the case.  Moreover, the opinion uses very specific language to narrow the applicability of the holding; referring only to professional-liability insurance policies, and provisions creating specific exclusions.  Despite those efforts, it is not difficult to see how these could easily be expanded to apply in situations involving other types of policies, or instances where there is merely a lack of coverage, as opposed to excluded coverage.  While the confusion regarding the delayed-damages rule has not been officially put to rest, its applicability to insurance agent negligence matters is now hanging by a thread.


For more information on this decision and related topics, contact Mike Byrne at mbyrne@mrrlaw.com or Joe Nicholas at jfn@mrrlaw.com.

Mike Byrne

Joe Nicholas