Posts

MRR Continues Growth in Columbus with Addition of Former Ohio Supreme Court Justice Andy Douglas

Former Ohio Supreme Court Justice Assumes Of Counsel Role in Firm’s Columbus Office

Mazanec, Raskin & Ryder Co., LPA is pleased to announce that Former Ohio Supreme Court Justice Andy Douglas has joined the firm’s Columbus office as Of Counsel in the Public Sector & Business Law Groups. Douglas joins MRR to lend his extensive knowledge of the public and private sector landscape in Ohio, along with his depth and breadth of experience as an Ohio Supreme Court Justice, having served three terms on the high court from 1985 to 2002.

Joseph F. Nicholas, Jr., MRR President and Managing Partner said of Justice Douglas’ addition to the team, “Andy is very well known and highly respected for his deep and far-reaching understanding of the many types of issues faced by our public sector and business clients. We are honored to have him on board and look forward to be able to call on his knowledge and experience that will surely benefit our clients.”

His many accomplishments include serving as special counsel to the Attorney General of Ohio, nine-time elected Toledo City Councilman, as well as working as an adjunct assistant professor at Ohio Dominican College and the University of Toledo Community and Technical Colleges. Justice Douglas served in the U.S. Army Infantry and Signal Corps, from 1954-1956, where he obtained the rank of first lieutenant. He also was a partner with the law firm of Winchester & Douglas in 1960 where he practiced law in Toledo and Lucas County for 20 years, before being elected to the 6th District Court of Appeals in 1980.

Since 2009, Douglas has focused his practice on Complex Litigation, Business Law, and Public Sector Law.

He is a member of the Ohio State, Columbus, Lucas County, and Toledo Bar Associations, in addition to the American Judicature Society, National Political Honor Society, The North Toledo Oldtimers’ Football Association (Trustee), and The Old Newsboys Goodfellow Association. Douglas earned his law degree from The University of Toledo – College of Law.

Over the course of his three terms on the Ohio Supreme Court, Justice Douglas published more than 900 judicial opinions, and he was regarded by many of his colleagues in the legal profession as one of the most intelligent and best-prepared members of the high court during his service.

“His unique understanding of federal government and judiciary procedures along with his reputation within the State and Columbus area are strong assets for our firm,” said Doug Holthus, MRR’s Columbus Office Administrative Partner. “We are thrilled to have him on our team.”

“Person” Means Person In Ohio’s Dram Shop Act

Mary Beth Klemencic
E: mbk@mrrlaw.com

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[1] 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…”

[1] 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.

 

“Confidential Law Enforcement Investigatory Records” No Longer a Valid Exception to Public Records Requests for Police Dash-Cam Videos

On December 6, 2016, the Ohio Supreme Court held that police dash-cam video footage is a public record.  The “confidential law enforcement investigatory records” is not a valid blanket exception for dash-cam videos.

State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, Slip Opinion No. 2016-Ohio-7987, involved a 2015 high speed pursuit.  Following the pursuit and arrest of the suspect, The Cincinnati Enquirer made a public records request for footage from the chasing police cruisers’ dash-mounted cameras (“dash-cams”).  The State of Ohio denied the request, arguing that all of the footage was exempt from release under public record law because it was a “confidential law enforcement investigatory record” pursuant to R.C. 149.43(A)(1)(h) and 149.43(A)(2).

The Ohio Supreme Court rejected the State’s arguments, holding that while some of the footage could be shielded as a confidential law enforcement investigatory record, the State may not assert that privilege over all dash-cam footage.  To that end, the Court held that dash-cam footage is not a confidential law-enforcement investigatory record unless the release of the footage would create a high probability of disclosure of “specific investigatory work product.”

A decision about what constitutes “specific investigatory work product” requires a case-by-case review.  However, it generally includes any notes, working papers, memoranda or similar materials, prepared by law enforcement officials in anticipation of actually pending or highly probable criminal prosecution.  In this case, the protected video only included the police officer reading the suspect his Miranda rights and subsequent questioning (a total of about 90 seconds) because the officer did so with the intention of securing admissible statements for the prosecution’s later use at trial.  The remainder of the footage, which included audio/video that was of little investigative value and/or contained information that was disclosed in incident reports that were disclosed to the Enquirer, was required to be disclosed.

Ultimately, the Court’s decision is an important ruling for police departments because it prohibits police departments from making blanket denials of dash-cam footage requests.  Whenever a request is made for footage, counsel should be contacted immediately to help determine what portions are exempt from disclosure and what portions must be disclosed. MRR has attorneys who work specifically for public entities in addressing public records requests and can assist in implementing the Supreme Court’s new decision.

Save

Save

Save

Save

Save

Save

Save

MRR Article: The Supreme Court of Ohio Confirms the Open Meetings Act Extends to Electronic Communications

Recently the Supreme Court of Ohio was tasked with determining whether a series of emails between and among a majority of the members of a public body qualifies as a meeting for the purposes of Ohio’s Open Meetings Act (R.C. § 121.22 ). The issue came before the Court when a Board of Education Member from the Olentangy Local School District sued his own board.

In White v. King, 2016 -Ohio- 2770, plaintiff Adam White was a former member of the BOE and had conducted an independent investigation into alleged improper expenditures. Thereafter, the four other members of the Board voted to amend a policy, which effectively prevented future independent investigations. The Columbus Dispatch wrote an editorial criticizing the restrictive policy and the board members (excluding White) sought to respond to the article to defend their decision. The four board members collaborated in drafting a response via a series of emails. White filed suit alleging that the other board members had violated the Open Meetings Act because the private emails sought to ratify a prior action of the Board, which he believed constituted a prearranged discussion of public business.

The Supreme Court of Ohio explained that under the Open Meetings Act, all meetings of any public body are declared to be public meetings open to the public at all times. A meeting, according to the Act, is any prearranged discussion of the public business of the public body by a majority of its members. The Court opined that nothing in the language of the statute mandated that a meeting occur face to face, and the distinction between in-person communications and email communications is irrelevant for the purposes of the statute. The Court reasoned that allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via electronic communications subverts the purpose of the Act.

Ultimately, the Court agreed with White’s contention and accepted that “[u]nder the Ohio Open Meetings Statute…liberally construed, private deliberations concerning official business are prohibited, whether such deliberations are conducted in person at an actual face-to-face meeting or by way of virtual meeting using any other form of electronic communications such as telephone, email, voicemail, or text messages.”

This decision has the effect of curtailing email conversations between and amongst members of a public body, insofar as those conversations relate to public business. Members of any public body should be advised that if their emails contain discussions regarding what would normally be considered public business, they risk violating the Act. Instead, members should limit their conversations regarding public business to open meetings only.


For any questions concerning the subject matter of this article, please do not hesitate to contact Stacy Pollock at spollock@ralaw.com.

MRR Article: Ohio Supreme Court Decides ‘What Constitutes a Medical Record in Personal Injury Suits’ in Griffith v. Aultman Hospital

Griffith v. Aultman Hospital, 2016-Ohio-1138

On March 23, 2016, the Ohio Supreme Court published its Slip Opinion in Griffith v. Aultman Hospital, a Decision which will have significance relative to the production of medical records in personal injury suits. Specifically, the case rules on what constitutes a medical record under Ohio law, which impacts how hospitals and other health care providers will respond to requests for medical records in the future.

The Plaintiff was Gena’a Griffith, whose father, Howard, was admitted to defendant Aultman Hospital on May 2, 2012 for surgery. Following surgery, Mr. Griffith was transferred from intensive care to a step-down unit to continue his recovery. In the step-down unit, Mr. Howard somehow became disconnected from his cardiac monitor, central line, and chest tube. He suffered severe brain damage and ultimately passed away on May 8, 2012.

On July 24, 2012, Plaintiff requested a copy of Mr. Griffith’s complete medical record. The hospital provided only some documents in response. Plaintiff filed two other requests for medical records, but alleged that the records she received were not complete and she subsequently filed suit. Specifically, Plaintiff claimed that the hospital had failed to produce any monitoring strips or nurse records from Mr. Griffith’s hospital stay. The hospital contended the rhythm strips did not meet the legal definition of medical records because the records were housed in a different location and the hospital was therefore not required to print them. Further, the hospital argued that the data produced from electronic monitoring equipment is not part of a patient’s medical record.

Before the Supreme Court of Ohio was the issue of what constitutes a “medical record” as the term is used in Ohio Revised Code Section 3701.74(A)(8). The Court reasoned that because the legislature did not specifically define “maintain” in R.C. 3701.74, the normal, common meaning would apply. The Court defined maintain as “to continue in possession of.”  The Court then held that contrary to the hospital’s assertion, the definition of “maintain does not depend on a managerial decision to keep or preserve the data in a discrete location or file.” The Court found that the physical location of patient data is not relevant in determining whether the data qualifies as a medical record. Instead the Court opined that the inquiry should focus on whether a healthcare provider made a decision to keep data that was generated in the process of the patient’s treatment and pertains to the patient’s medical history, diagnosis, prognosis, or medical condition.

With regard to whether the hospital met its burden in producing the entirety of Mr. Griffith’s medical records, the Court reasoned that if the rhythm strips were saved at the discretion of a physician before Mr. Griffith’s passing, the information would fall under the definition of “medical record” and would need to be produced. The Court ultimately remanded to the trial court on the factual issue of whether Mr. Griffith’s physicians recommended that the rhythm strips be saved in the course of treating Mr. Griffith.

Finally, the Court held that “the plain language of R.C. 3701.74 does not require a patient seeking a medical record [to] state a reason for doing so.” This holding overrules language from the lower court which limited the scope of R.C. 3701.74 to simply enabling a patient to obtain his file to find a second opinion or transfer to another medical provider. Rather, all that is required of a patient or patient’s representative is to submit a written request.

Overall, the Court’s conclusions in Griffith will place a greater burden on hospitals to maintain all medical records and be able to produce all such records upon request of a patient or patient’s representative. The practical effect of this decision from a defense attorney’s perspective is that it will become somewhat easier to obtain a full medical record in a personal injury case. Griffith dictates that hospitals provide all “data that was generated in the process of the patient’s treatment and pertains to the patient’s medical history, diagnosis, prognosis, or medical condition.” Defense attorneys, and their clients, will be able to not only obtain a full medical record, but will be able to do so without having to state a reason for their request.


 

Ohio Supreme Court – High Speed Pursuits and Police Officer Liability

When can a law enforcement officer be held responsible for an innocent person’s injuries sustained in an accident involving the high speed pursuit of a fleeing suspect? Given the dangerous nature of their jobs, officers have extra freedom in how they operate their vehicles when in pursuit of a suspect. Officers have a duty to apprehend suspects, and if fleeing suspects are not apprehended, they create danger for the public. Conversely, high speed pursuits pose a danger to motorists on the road at the time of the pursuit. Ohio law currently gives deference to officers in this situation. Under the law, an officer’s conduct only causes an innocent bystander’s injuries sustained in an accident involving a fleeing suspect when that officer’s conduct is “extreme or outrageous.”

That said, the Ohio Supreme Court has accepted jurisdiction over a case, Argabrite v. Neer, 2015-Ohio-125, 26 N.E.3d 879 (2nd Dist.), calling the current law into question. The innocent bystander plaintiff has argued that an officer involved in a high speed pursuit should be able to be considered the cause of an accident, and subsequently held liable for a bystander’s injuries, even when an officer’s conduct is not “extreme or outrageous”. The plaintiff argued that protection from liability should come solely from R.C. 2744.03(A)(6)(b), which provides immunity to an officer for a bystander’s injuries so long as the officer does not act willfully, wantonly, maliciously, in bad faith, or recklessly.

Argabrite involves the high speed pursuit of a burglary suspect, who, while being pursued by officers, swerved into traffic and crashed headfirst into the plaintiff. The plaintiff sued the officers involved for personal injuries resulting from the crash. The trial court dismissed the claim, finding that while the officers’ conduct was reckless, it did not cause the accident because the officers’ conduct was not “extreme or outrageous”. The Court of Appeals affirmed the trial court’s decision.

Having accepted the injured driver’s appeal, the Ohio Supreme Court is now tasked with deciding whether the extreme or outrageous standard for causation is still appropriate. Plaintiff has argued that the law, by requiring extreme or outrageous conduct of officers to establish causation, has essentially abrogated the Ohio legislature’s determination in R.C. 2744.03 that the conduct required for liability is wanton and reckless conduct. Plaintiff argued that if the legislature wanted a different standard for officers pursuing suspects in high speed pursuits, it would have expressly created the exception. Plaintiff has also argued that if the extreme or outrageous standard remains, officers will essentially have free rein when pursuing fleeing suspects in their vehicles.

Conversely, the officers argued that they are not the insurers of fleeing suspects’ behavior, and as such, should not be responsible for a suspect’s actions absent extreme or outrageous conduct. The officers argued that it is the reckless conduct of a fleeing suspect, and not the conduct of an officer, that causes a plaintiff’s injuries. As such, an officer’s conduct should not be considered the cause of the injuries unless the officer did something extreme or outrageous. The officers also argued that removal of the extreme or outrageous standard will all but guarantee a suspect’s freedom so long as the suspect operates his/her vehicle in a manner so reckless that an officer will not be able pursue without risking personal liability.

As of right now, a decision is tentatively expected around late 2016 to early 2017. Argabrite is a case that should be monitored by all police departments throughout Ohio. If the Ohio Supreme Court rules in plaintiff’s favor, it will necessitate a thorough review of each department’s policy regarding the high speed pursuit of suspects, as it could result in more officers being held responsible for the reckless conduct of fleeing suspects.

Save