STATE OF OHIO RETAIL COMPENDIUM OF LAW

Prepared by Bradley A. Wright Tiffany M. Sovik

Roetzel & Andress, LPA 222 South Main Street

Akron, OH 44308 Tel: (330) 376-2700 Email: ralaw.com

2014 USLAW Retail Compendium of Law

INTRODUCTION____________________________________________________________1

A. The Ohio State Court System 1

B. Ohio Federal Courts 1

C. Statutes of Limitation 2

NEGLIGENCE______________________________________________________________ 3

A. General Negligence Principles & Elements of Cause of Action for Negligence 3

B. Legal Status of the Plaintiff 3

C. General Defenses to Personal Injury Claims 4

1. Open and Obvious 4

2. Lack of Notice 7

3. “Two-Inch” Rule 7

4. Comparative Fault/Contributory Negligence 8

OTHER COMMON TORT CLAIMS AGAINST RETAILERS___________________ 10

A. Liability for Violent Crime 10

B. Claims Arising From the Wrongful Prevention of Thefts 11

INDEMNIFICATION AND CONTRIBUTION _________________________________ 13

A. Indemnification 13

B. Contribution 14

DAMAGES _______________________________________________________________ 16

A. Caps of Damages Under The Ohio Tort Reform Act 16

B. Calculation of Damages 16

C. Types of Damages in a Personal Injury Action 16

D. Punitive Damages 20

E. Recovery of Pre- and Post-Judgment Interest 20

F. Joint and Several Liability 21

G. Attorney’s Fees 21

H. Other Common Issues Involving Damages: 22

1. Settlement of Minor’s Claim 22

2. Taxation of Costs 22

3. Unique Damages Issues 23

ALTERNATIVE DISPUTE RESOLUTION_____________________________________24

A. Alternative Dispute Resolution 24

B. Mediation 25

1

INTRODUCTION

A. Organization of the State Court System

Structure. The Ohio state court system consists of three levels of courts: the Supreme

Court, the Court of Appeals, and the Court of Common Pleas. The Court of Appeals is

divided into twelve (12) judicial districts. There is one Court of Common Pleas in each of

88 state counties. Each Court of Common Pleas consists of four divisions: the general

division, the domestic relations division, the juvenile division and the probate division. In

addition, there are 47 county courts, 118 municipal courts, and 440 mayor's courts in the

state. The Mayor's Courts refer cases “up” to the local county Municipal Court.

Generally, appeals from the court and municipal courts go directly to the Court of

Appeals, bypassing the local Common Pleas Court. There is one Court of Claims, located

in Columbus, that hears and determines all civil actions filed against the State of Ohio.1

Judicial selection. Ohio state judges are elected by the voters for a term of six years in

nonpartisan elections after partisan primaries. In order to qualify for the election, a person

must have practiced law, served as a judge of a court, or both, for at least 6 years and

“shall be a qualified elector and a resident of the territory of the court to which the judge

is elected or appointed.” The Ohio Constitution provides for an obligatory termination of

office at the age of 70. A candidate who turns 70 before the first day of the elected term

would be ineligible.2

Relationship to the Federal Rules of Civil Procedure. The Ohio Supreme Court has

adopted its own Ohio Rules of Civil Procedure. Provisions of the Ohio Rules of Civil

Procedure differ from the Federal Rules, but are in large part the same.

B. Federal Courts in Ohio

In Ohio, the federal district courts are made up of the Northern District of Ohio and the

Southern District of Ohio. Cases in the Northern District of Ohio are heard by fifteen (15)

federal district court judges and eight (8) magistrates.3 There are currently fifteen (15)

federal district court judges, including seven (7) with senior status, and nine (9)

magistrate judges in the U.S. District Court for the Southern District of Ohio.4

1 See generally the Supreme Court of Ohio, Ohio Courts, available at:

http://www.sconet.state.oh.us/JudSystem/default.asp (last visited March 10, 2014).

2 See, e.g., Ohio Rev. Code § 1901.06 .

3 See generally the U.S. District Court for the Northern District of Ohio, available at:

http://www.ohnd.uscourts.gov/home/judges/ (last visited March 10, 2014).

4 See generally the U.S. District Court for the Southern District of Ohio, available at:

http://www.ohsd.uscourts.gov/judges.htm (last visited March 10, 2014).

2

C. Statute of Limitations:

In general, time limitations for civil actions that can be brought in Ohio courts are

contained in § 2305.03 – 2305.22 of the Ohio Revised Code.

1. Personal injury. The statute of limitations for a personal injury is governed by

OHIO REV. CODE § 2305.10. An action for damages for an injury to a person shall

be brought within two years after the cause of action accrued.

2. Assault and Battery. The statute of limitations for assault and battery claims are

governed by OHIO REV. CODE § 2305.111(B) . Actions for assault and battery

must be brought within one (1) year after the tort took place or after the plaintiff

learned the identity of the defendant, if unknown before.

3. Libel, Slander, Malicious Prosecution and False Imprisonment. An action for

libel, slander, malicious prosecution or false imprisonment is governed by OHIO

REV. CODE § 2305.11(A) . Any such action must be brought within one (1) year

after the tort took place or after the plaintiff learned the identity of the defendant,

if unknown before.

4. Property damage. The statute of limitations for a property damage action is

governed by OHIO REV. CODE §§ 2305.09-2305.10. Actions to recover

damages for an injury to real property, to recover the possession of personal

property or to recover damages based on physical or regulatory taking of real

property must be commenced within four (4) years after the cause of action

accrued. Actions for injuries to personal property must be brought within two (2)

years after the cause of action accrued.

5. Wrongful death. A wrongful death action must be commenced within two (2)

years after the decedent's death.5

5 OHIO REV. CODE § 2125.02(D)(1) .

3

NEGLIGENCE

A. General Negligence Principles & Elements of Cause of Action for Negligence

“Negligence cannot be established by the mere fact that a person slipped and fell.”6 To

establish a negligence claim, a plaintiff must prove: (1) the existence of a duty; (2) a

breach of that duty; and (3) injuries proximately resulting therefrom.7

B. Legal Status of the Plaintiff

The extent of the duty owed to a Plaintiff depends on the legal status of the Plaintiff.

Generally, customers and prospective customers in a store are invitees, and a property

owner owes such persons a common-law duty to exercise ordinary care for their safety.8

Additionally, independent contractors, and their employees, are “frequenters” under Ohio

law. The duties owed to frequenters are codified in the OHIO REV. CODE R.C.

4101.11, which provides the duty of an employer to protect “frequenters” such as

independent contractors and their employees, stating:

Every employer shall furnish employment which is safe for the employees

engaged therein, shall furnish a place of employment which shall be safe

for the employees therein and for frequenters thereof, shall furnish and use

safety devices and safeguards, shall adopt and use methods and processes,

follow and obey orders, and prescribe hours of labor reasonably adequate

to render such employment and places of employment safe, and shall do

every other thing reasonably necessary to protect the life, health, safety,

and welfare of such employees and frequenters.9

“As used in R.C. 4101.11, a frequenter includes an employee of an independent

contractor.”10

However, the statute “is no more than a codification of the common law

duty owed by an owner or occupier of premises to invitees.”11

Thus, the premises owner

is required to keep the premises in a reasonably safe condition and warn of dangers of

which the owner has knowledge.12

6 Hess v. One Americana Ltd. Partnership, 10th Dist. No. 01AP-1200, 2002-Ohio-1076.

7 Strother v. Hutchinson (1981), 67 Ohio St.2d 282.

8 Smith v. United Properties, Inc. (1965), 2 Ohio St.2d 310.

9 (Emphasis added) R.C. 4101.11.

10 McCumbers v. Yusa Corp., 12th Dist. No. CA2006-05-018, 2006- Ohio-5847, ¶6 citing Eicher v. U.S. Steel Corp.

(1987), 32 Ohio St.3d 248, 249.

11 Id. (citation omitted).

12 Id.

4

However, not all persons who enter upon the property are invitees. Those who enter upon

the premises for their own pleasure with the permission of the property owner are

licensees.13

The property owner does not owe a duty of ordinary care. Instead, the owner

must “refrain from wantonly or willfully causing injury.”14

Further, a customer can lose his or her invitee status by going into areas of a store that are

not open to the public. “If the invitee goes outside the area of his invitation, he becomes a

trespasser or a licensee, depending upon whether he goes there without the consent of the

possessor, or with such consent.”15

C. General Defenses to Personal Injury Claims

This next section provides an overview of the common defenses to a personal injury

claim brought against a retailer by a patron.

1. Open and Obvious Hazards

Property owners are not the insurers of their invitees' safety.16

The open-and-obvious

doctrine provides that owners do not owe a duty to persons entering their premises

regarding dangers that are open and obvious.17

The rationale underlying this doctrine is

“that the open and obvious nature of the hazard itself serves as a warning.18

Thus, the

owner or occupier may reasonably expect that persons entering the premises will discover

those dangers and take appropriate measures to protect themselves.”19

By focusing on the

duty prong of negligence, “the court’s analysis focuses on the nature of the dangerous

condition itself, as opposed to the nature of the plaintiff’s conduct in encountering it.” 20

13

Roesch v. Warren Distrib./Fleet Eng. Research, 146 Ohio App.3d 648767 N.E.2d 11872000 -Ohio- 2694 at ¶13.

14 Id. (Plaintiff who merely stopped at service station to utilize free air to fill tires was not an invitee of the business

owner.).

15 Gladon v. Greater Cleveland Regional Transit, 75 Ohio St.3d 312, 316, 662 N.E.2d 287 (1996). See Jeffers v.

Olexo (1989), 43 Ohio St. 3d 140, 539 N.E.2d 614 (Holding that student who purchased ticket to attend football

game was a licensee of fairground property where the student strayed from the walkway and died after inhaling

fumes from helium tanks.). See also Bennett v. Kroger Co. (1996), 109 Ohio App. 3d 727, 672 N.E.2d 1111

(Holding that Plaintiff was a licensee where Plaintiff was attacked by assailants during a time when the store was

closed, which was beyond that to which the store’s invitation extended to the Plaintiff.).

16 Carter v. Miles Supermarket, 2010-Ohio-6365 at ¶ 14 (8th App. Dist.) (citing Jackson v. Kings Island, 58 Ohio

St.2d 357, 358 (1979)).

17 Id. (citing Sidle v. Humphrey, 13 Ohio St.2d 45, paragraph one of the syllabus (1968)).

18 Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 5.

19 Carter, 2010-Ohio-6365 at ¶14 (quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 644 (1992)).

20 Washington v. Speedway Superamerica, L.L.C., 2012 Ohio 3260 at ¶ 7 (8th App. Dist. Jul. 19, 2012).

5

Customers in retail stores “are under a duty to use ordinary care so as to provide for their

own safety, which includes a duty to look where they are walking.”21

Even when an

invitee does not actually see the object or danger until after he or she falls, “no duty exists

when the invitee could have seen the object or danger if he or she had looked.”22

Courts

must consider whether the object or danger itself was observable.23

When the record

supports a determination that the open-and-obvious doctrine applies, thereby obviating a

property owner’s duty to warn of the hazard and acting as a complete bar to any

negligence claim, then a defendant is entitled to summary judgment.24

However, the existence of an attendant circumstance makes the open-and-obvious

doctrine inapplicable. Although there is no precise definition of “attendant

circumstances,” they would include “any distraction that would come to the attention of a

pedestrian in the same circumstances and reduce the degree of care an ordinary person

would exercise at the time.” And attendant circumstances must, taken together, (1) divert

the attention of the pedestrian, (2) significantly enhance the danger of the defect, and (3)

contribute to the fall.25

The term “refers to all facts relating to the event, and includes

such circumstances as time of day, lack of familiarity with the route taken, and lighting

conditions.”26

Ohio case law presents numerous factual scenarios where the open-and-obvious doctrine

is applied. A few common examples are summarized in the following sections.

(a) Objects & Obstructions in Store Aisles

Ohio courts “have consistently held that objects and obstructions in store aisles are open

and obvious hazards, regardless of whether a customer actually notices the hazard.”27

21

Howard v. Wal-Mart Stores, Inc., 1996 WL 613664 (8th App. Dist. Oct. 24, 1996) (citing Parsons v. Lawson, 57

Ohio App.3d 49, 51 (5th App. Dist. 1989) (summary judgment for store affirmed where plaintiff tripped over empty

boxes in aisle while looking into coolers to select items) (Emphasis added).

22 Carter, 2010-Ohio-6365 at ¶ 15 (citing Haymond v. BP Am., 2006-Ohio-2732, ¶ 16 (8th App. Dist.)).

23 Id.

24 Id. at ¶ 16.

25 McGuire v. Sears Roebuck & Co. (1996), 118 Ohio App.3d 494, 499, 693 N.E.2d 807 (citations omitted).

26 Williamson v. Greeting, 12th Dist. No. CA2011-09-011, 2012-Ohio-2849 at ¶22 (citation omitted).

27 Silbernagel v. Meijer Stores Ltd. Partnership, 2006 Ohio 5658 (12th App. Dist.) (citing, e.g., Brooks v. Jo Ann

Stores (Nov. 13, 2001), Butler App. No. CA2001-05-107, 2001 WL 1402982, *3 (“mess” of magazine insert cards

scattered on store floor was open and obvious hazard); Benton v. Cracker Barrel Old Country Store, Inc., Franklin

App. No. 02AP-1211, 2003-Ohio-2890, ¶ 22 (boxes comprising part of store display that protruded into aisle

constituted open and obvious hazard); Prince v. Hills Dept. Store (July 25, 1997), Wood App. No. WD-96-069,

1997 WL 430852, *1 (pile of packing peanuts in store aisle was open and obvious hazard); Austin v. Woolworth

Dept. Stores (May 6, 1997), Franklin App. No. 96APE10-1430, 1997 WL 242891, *3 (partially emptied pallet in

6

(b) Liquids

In addition to the presence of objects, hazards such as water and other liquids have also

been found to be open and obvious hazards. In Colville v. Meijer Stores Ltd., the court

held that a puddle of water, which Plaintiff estimated was three (3) feet long and two (2)

inches wide, was an open and obvious hazard that barred liability against the store

owner.28

In that case, the Plaintiff testified that she had no problem seeing the puddle or

identifying the content as water following her slip and fall.29

(c) Accumulations of Snow & Ice

In some instances, a store patron is injured while entering or exiting a building during or

shortly after inclement weather. In Ohio, the courts have consistently held that water or

snow that is tracked in and exists near a store or building entrance is an open and obvious

condition.30

store aisle was open and obvious hazard); Carter v. Miles Supermarket, 2010-Ohio-6365 at ¶ 14 (8th App. Dist.)

(closed box that was 18-inches high and sitting on the floor in an aisle at the store for stocking was open and

obvious hazard.) See also Sheline v. Denman, 2010 Ohio 2041 at ¶ 24-44 (summary judgment for property owner

where plaintiff testified at deposition that there was nothing preventing her from seeing the item she tripped over);

Carter v. Miles Supermarket, 2010 Ohio 6365 at ¶ 5, 29 (8th App. Dist. Dec. 23, 2010) (summary judgment for

property owner where plaintiff “agreed that she would have seen the box if she had just looked down at it”).

28 2nd Dist. No. 2011–CA–011,2012 -Ohio- 2413 at ¶¶ 7-8.

29 Id. See also Smith v. Kroger Co., 12th Dist. No. CA2010–09–233, 2011-Ohio-1871, at ¶4, ¶19 (Circular puddle

of water was open and obvious hazard where puddle measured approximately three feet in diameter and was

observable by Plaintiff from distance of ten feet away after the fall.); Hughes v. Forsyth-Moto, Inc., 4th Dist. No.,

2010-Ohio-1078 at ¶17 (Oil spill measuring approximately two feet in diameter near gas pump was open and

obvious hazard.); Leake v. Valley Sports, Ltd., 7th Dist. No. 02CA159, 2003-Ohio-4741 at ¶9 (brown liquid spilled

on bleachers was an open and obvious hazard where Plaintiff testified that she encountered the liquid while

ascending the stairs.); Robinson v. Kroger, 10th Dist. No. 00AP-100, 2000 WL 1125731 at *1-2 (orange juice

spilled by store patron was an open and obvious defect that precluded liability against store.).

30 See Blair v. Vandalia United Methodist Church, 2nd Dist. No. 24082, 2011-Ohio-873, ¶43 (area just inside church

entrance, which was naturally wet from rain tracked in by members of the voting public, was not a latent or hidden

defect, and defendant did not have a duty to post a warning for the open and obvious condition; by her own

admission, plaintiff “was aware that the floor in and around the church entrance might be slippery because it was

raining outside.”); Towns v. WEA Midway, LLC, 9th Dist. No. 06CA009013, 2007–Ohio–5121, ¶ 14 (“appellant

knew it had been raining when she entered the mall and presumptively knew as a result of the rain that the floor

might be wet and slippery. Therefore * * * appellee met its burden * * * to show the absence of a genuine issue of

material fact as to whether the dampness on the floor where appellant slipped and fell was an open and obvious

danger”); Johnson v. Serv. Ctr. Invest. Trust (Dec. 2, 1999), 8th Dist. No. 75256 (in light of weather conditions,

plaintiff “should have been aware or anticipated the presence of water on the floor inside the mall because on a rainy

day, one can expect to find water on the floor in such heavily trafficked areas”); Lupica v. Kroger Co. (May 29,

1992), 3d Dist. No. 9–91–48 (the fact that water during a rainstorm has blown into the front of a store on account of

the opening of the door, and incoming shoppers carry in moisture on their feet, causing the floor inside the door to

become more slippery than is the dry floor in other parts of the store, “will not give rise to a cause of action against

the owner or lessee of the store in favor of a later incoming patron who slips or falls on such damp floor and is

injured by such fall”).

7

2. Lack of Notice

The exercise of ordinary care generally means that the premises owner (1) must not

create a dangerous condition on its premises, and (2) must warn its invitees of latent or

concealed dangers, if the premises owner has actual or constructive knowledge of those

dangers.31

The premises owner also must “inspect the premises to discover possible dangerous

conditions of which [the premises owner] does not know.”32

A premises owner or

occupier has constructive notice of a defective condition if the condition existed for such

a time that it would have been revealed by a reasonable inspection.”33

The courts have not definitively established a set length of time for which a hazardous

condition must exist before constructive notice is imputed on the premises owner or

occupier. However, some parameters have been established by the Courts. Ohio courts

have consistently held that where a customer seeks to recover on a premises liability

claim, the customer must present evidence of how long the hazardous condition existed

before any jury question is created on the issue of whether the hazard existed for an

unreasonably long period of time. “When a plaintiff attempts to establish a negligence

claim by showing that the substance was on the floor long enough to justify an inference

of negligence, evidence of how long the hazard existed is mandatory.”34

3. “Two-Inch” Rule

An injury may occur in areas where there is a raise or dip in the walking surface.

However, an insubstantial defect or minor imperfection does create liability against a

property owner. The Ohio Supreme Court has stated that:

The owners or occupiers of private premises are not insurers of the safety

of pedestrians traversing those premises, and minor or trivial

imperfections therein, which are not unreasonably dangerous and which

are commonly encountered and to be expected, as a matter of law do not

create liability on the part of such owners or occupiers toward a pedestrian

who, on account of such minor imperfection, falls and is injured.35

31

Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 358; Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51;

Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 589.

32 Perry, 53 Ohio St.2d at 52, 372 N.E.2d 335 (citations omitted).

33 Presley v. City of Norwood (1973), 36 Ohio St.2d 29.

34

(Emphasis added.) O’Hail v. JG Mansfield, 5th Dist. App. No. 01 CA 78, 2002-Ohio-2893 (citation omitted).

35 Helms v. American Legion, Inc. (1966), 5 Ohio St.2d 69, at syllabus.

8

In Helms, the court held that a hole measuring one and one-quarter inches in diameter and

one half inch deep was a minor imperfection that was not actionable as a matter of law.

Moreover, there is a line of cases in Ohio that stands for the proposition that a change of

elevation of two inches or less is an insubstantial or trivial imperfection as a matter of

law.36

This “two inch” rule creates a rebuttable presumption that a defect of two inches or

less in height is insubstantial for purposes of a negligence claim.37

If the claimed defect is

two inches or less in height, then a plaintiff cannot establish a genuine issue of material

fact absent a demonstration that attendant circumstances surrounding the incident created

a greater than usual risk of injury. In other words, only if the attendant circumstances

surrounding the incident establish a greater than usual risk of injury does an otherwise

insubstantial defect become actionable.38

4. Comparative Fault/Contributory Negligence

In Ohio, a finding that the plaintiff is contributorily negligent does not automatically bar

him or her from recovering damages. Ohio is a modified comparative fault state. Under

the comparative negligence statute, so long as plaintiff’s contributory negligence is equal

to or less than the combined negligence of all the defendants, the plaintiff is entitled to a

recovery.39

Conversely, if a jury determines that a plaintiff’s negligence is greater than

the combined negligence it attributes to the other defendants, then the plaintiff is barred

from any recovery. 40

Contributory fault must be asserted as an affirmative defense on which the defendant

bears the burden of proof.41

A defendant must prove this by a preponderance of the

evidence and the burden of proof will not shift to the plaintiff.42

i) Reckless or intentional torts. Comparative negligence cannot be asserted

as a defense in cases involving reckless or intentional torts.43

36

See Cash v. Cincinnatti (1981), 66 Ohio St.2d 319, 321.

37 Stockhauser v. Archdiocese of Cincinnati (1994), 97 Ohio App. 3d. 29, 33, 646 N.E.2d 198, 200-201.

38 Cash, 66 Ohio St. 2d. at 324.

39 R.C. 2315.19.

40 Id.

41 Dixon v. Penn Central Co., 481 F.2d 833, 837 (6th. Cir. 1973).

42 Hawkins v. Graber, 176 N.E.2d 600, 603 (Ohio Ct. App. 1960).

43 See OHIO REV. CODE § 2315.32 ; Schellhouse v. Norfolk & W. Ry. Co. (1991), 61 Ohio St. 3d 520, 525.

9

ii) Minors. Comparative negligence defense does not apply in cases

involving minors under seven years of age because they are incapable of

negligence as a matter of law.44

Regardless of the duties imposed on property owners, a person on the premises of another

must still act in a reasonable manner. A property owner will not be liable for the harm

caused to an invitee due to his or her own negligent acts. 45

The apportionment for negligence is usually a task for the trier of fact.46

However, a

finding of contributory negligence can reduce or extinguish a plaintiff’s recovery. Under

OHIO REV. CODE §2315.35, a plaintiff is barred from recovery damages if found by the

trier of fact to be more than fifty-percent (50%) at fault for the alleged injuries. If this

occurs, the court must enter judgment in favor of the defendants barring any recovery to

the plaintiff.47

If the trier of fact determines that the Plaintiff is fifty-percent or less at

fault for the alleged injuries, the court must reduce the Plaintiff’s award by his or her

percentage of fault.

44

Stinespring v. Natorp Garden Stores, Inc., 711 N.E.2d 1104, 1107-08 (Ohio Ct. App. 1998).

45 See e.g. Doekler v. Ohio State Univ., 61 Misc. 2d 69, 573 N.E.2d 809 (Ct. Cl. 1990).

46 Bobbitt v. Ruymann, 1992 WL 142372 (Ohio App. 10 Dist.).

47 OHIO REV. CODE §2315.35 .

10

OTHER COMMON TORT CLAIMS AGAINST RETAILERS

A. Liability for Violent Crime of a Third Party.

A premises owner and/or retailer may be found liable for the criminal acts of third parties

under a limited set of conditions. Generally, there is no duty to control the conduct of a

third person and prevent him or her from causing harm to another; however, a duty may

arise when a special relationship exists between the defendant and the third person.48

“Relationships that may give rise to a duty to control a third person's conduct include the

following: (1) parent and child; (2) master and servant; and (3) custodian and person with

dangerous propensities.”49

While the relationship between a premises owner and invitee is considered be a “special

relationship,” the duty of a business owner or occupier to warn or protect an invitee from

the criminal acts of third parties extends only where “the business owner knows or should

know that there is a substantial risk of harm to invitees.”50

A premises owner or occupier

is not liable when the owner or occupier did not or could not, in the exercise of ordinary

care, know of the danger that causes injury to the business invitee.51

The test becomes

one of foreseeability, which is determined utilizing one of two tests.

Prior Similar Acts Test. This test looks at the defendant’s knowledge of past

similar criminal acts.52

Totality of the Circumstances Test. This test is broader as to the type of crime

and location. The court will review the occurrence of similar criminal activity at

or near the area where the injury occurred. The court will review the occurrence

of previous similar crimes and the specifics of the incident itself.53

Additionally, there are limited circumstances when a premises owner or occupier may be

liable for intentional torts committed by its employees under the doctrine of vicarious

liability. Generally, an intentional tort by an employee constitutes an act outside the

scope of employment. However, an employer may be found liable for an intentional tort

committed by one of its employees if the behavior that gave rise to the tort was

48

Gelbman v. Second Natl. Bank of Warren, 9 Ohio St.3d 77, 79, 458 N.E.2d 1262 (1984); Commerce & Industry

Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188, 1192 (1989).

49 March v. Steed Ents., Inc., 5

th Dist. No. CT2012–0058, 2013-Ohio-4448, at ¶27 (citation omitted).

50 Id. at ¶28 (internal quotations and citations omitted).

51 Id.

52 Id. at ¶30.

53 Williams v. Prospect Mini Mart, 11th Dist. No.2002–L–084, 2003–Ohio–2232, at ¶ 23 (citations omitted).

11

“calculated to facilitate or promote the business for which the servant was employed.”54

“An intentional and willful attack committed by an agent or employee, to vent his own

spleen or malevolence against the injured person, is a clear departure from his

employment and his principal or employer is not responsible therefore.”55

The burden is

on the plaintiff to establish that the employee’s intentionally tortious act(s) facilitated or

promoted the employer’s business.

Thus, a determination of whether an employee was acting within the course and scope of

employment may be decided as a matter of law when the act was intentional and there is

no evidence that the act furthered the employment.56

B. Claims Arising From the Wrongful Prevention of Thefts

A premises owner or occupier may face lawsuits related to the stop and detention of

customers who are suspected of committing crimes in the store, including theft.

False imprisonment is the unlawful restraint by one person of the physical liberty of

another.57

Under Ohio law, "false imprisonment" occurs when a person confines another

intentionally without lawful privilege and against his consent within a limited area for

any appreciable time, however short.58

Shopkeeper’s Privilege. The Ohio General Assembly provides a statutory right

for premises owners and occupiers to prevent thefts that can be used as a defense

to a false imprisonment claim.59

Under the statute, a retail establishment or its

employee who has probable cause to believe that a person has unlawfully taken

merchandise may: (1) detain the person in a reasonable manner; (2) for a

reasonable length of time; and (3) within the store or its immediate vicinity for the

purposes of one of the following:

54

Byrd v. Faber, 57 Ohio St.3d 56, 58 (1991) quoting Little Miami RR Co. v. Wetmore, 19 Ohio St. 110, 132 (1869).

55 Paugh v. P.J. Snappers, 2005 WL 407592, *4 (11th App. Dist. 2005) quoting Schulman v. Cleveland, 30 Ohio

St.2d 196, 198 (1972).

56 Reddick v. Said, 11th Dist. No. 2011-L-067, 2012-Ohio-1885, ¶55. See also Hester v. Church's Fried Chicken

(1986), 27 Ohio App.3d 74 (holding that “when the evidence shows that a supervisor had no authority from his

employer to assault a subordinate, and that the employer did not ratify the assault, it is proper for the trial court to

conclude as a matter of law that the employer is not liable under the doctrine of respondeat superior.”).

57 Brinkman v. Drolesbaugh, 97 Ohio St. 171, 119 N.E. 451 (1918).

58 Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007).

59 See OHIO REV. CODE §2935.041 .

12

To recover the property;

To cause an arrest to be made; or

To obtain an arrest warrant.60

Damages in a false imprisonment case are usually limited to compensatory damages to

reasonably compensate the Plaintiff for the harm done.61

Although damages may be

incapable of exact measurement, they must rest largely in the discretion of the jury.62

60

OHIO REV. CODE §2935.041(A) and (C) .

61 Rainey v. Lorain Correctional Facility, 121 Ohio App. 3d 428, 700 N.E.2d 90 (10th Dist. Franklin County 1997).

62 See Id.

13

INDEMNIFICATION AND CONTRIBUTION

A. Indemnification

Indemnity arises from contract, express or implied, and is the “right of a person, who has

been compelled to pay what another should have paid, to require complete

reimbursement.”63

A person has a right to indemnity only if his liability is secondary, i.e.

when he himself is passively negligent, but a relationship exists between him and a

tortfeasor because of which he may be held liable for tort.64

There is no right to

indemnification between two parties who actively participate in the commission of a tort,

and thus are joint tortfeasors.

Circumstances. A person, who can be held constructively liable in tort, is entitled to

indemnity regardless of whether the liability is imposed on him by a statute or common

law, and whether there was an express contract to indemnify between him and a

tortfeasor.65

Ohio law recognizes two types of indemnity.

1. Express indemnity.

The right of indemnity may result from an express agreement or contractual

provision in which one party, who has been compelled to pay what the other party

should have paid, reserves the right to require complete reimbursement.66

Contracts of indemnity purporting to relieve one from the results of his own

failure to exercise ordinary care will be strictly construed, and will not be held to

provide such indemnification unless so expressed in clear and unequivocal

terms.67

2. Implied indemnity.

“[A]n implied right to indemnification arises only within the context of a

relationship wherein one party is found to be vicariously liable for the acts of a

tortfeasor.”68

63

Travelers Indemn. Co. v. Trowbridge, 321 N.E.2d 787, 789 (Ohio 1975).

64 Whitney v. Horrigan, 679 N.E.2d 315, 317 (Ohio Ct. App. 1996).

65 Burns v. Pennsylvania Rubber & Supply Co., 189 N.E.2d 645, 649 (Ohio Ct. App. 1961).

66 Worth v. Aetna Cas. & Sur. Co., 513 N.E.2d 253, 256 (Ohio 1987) (citing Travelers Indemn. Co. v. Trowbridge,

321 N.E.2d 787 (Ohio 1975)).

67 George H. Dingledy Lumber Co. v. Erie R. Co., 102 Ohio St. 236, 239 (1921).

68 Indiana Ins. Co. v. Barnes, 846 N.E.2d 73, 77 (Ohio Ct. App. 2005).

14

Relationships. Classic situations when a right to indemnity arises are employee-

employer, retailer-manufacturer of a defective product, or lessor-lessee relationships.69

An insurer may also have a right to indemnity from the party against whom the insured

had a right to indemnity, providing that the insured himself was not negligent. As a

general rule, an insurer has no right to indemnity (subrogation) from the insured.70

Settlements. The right to indemnity also exists in situations when the claim was not

litigated, but was settled. Thus, the voluntary payment of the claim does not negate the

right to indemnity. In order to collect indemnity for sums paid in settlement of a claim,

the party seeking indemnity must prove that the party from whom indemnity is claimed

received proper and timely notice of the settlement, that legal liability required the

settlement, and that the settlement was fair and reasonable.71

Notice. As a condition precedent to an indemnification action, Ohio law requires a

written and prompt notice of an underlying action to be given to an indemnitor. “Prompt

notice is required so that an indemnitor has a meaningful opportunity to investigate the

claim, to determine the applicability of the indemnity provision, to join and control

potential litigation, and otherwise to protect its interests.”72

The notice must be not only

prompt, but also adequate, so that the indemnitor receives an opportunity to defend or

participate in the defense of the underlying action.73

B. Contribution.

Contribution is a separate and distinct right from indemnification. “Contribution is

defined as the ‘tortfeasor's right to collect from others responsible for the same tort after

the tortfeasor has paid more than his or her proportionate share, the shares being

determined as percentage of fault.74

OHIO REV. CODE § 2307.25(A) provides that a tortfeasor who was found jointly and

severally liable and who has paid more than his proportionate share of liability has a right

to recover the amount that he paid in excess of his proportionate share from other

tortfeasors. “No tortfeasor may be compelled to make contribution beyond that

69

See, e.g., Indiana Ins. Co. v. Barnes, 846 N.E.2d 73 (Ohio Ct. App. 2005) (employer-employee).

70 Id.

71 Globe Indemn. Co. v. Schmitt, 53 N.E.2d 790, 794 (Ohio 1944).

72 Bank One, NA. v. Echo Acceptance Corp., 522 F.Supp.2d 959, 966 (S.D. Ohio, 2007).

73 Id. at 968.

74 US. v. Atlantic Research Corp., 127 S. Ct. 2331, 2337-338 (U.S. 2007) (quoting Black’s Law Dictionary 353 (8th

ed. 2004)). Ohio's contribution statute is set forth in Ohio Rev. Code § 2307.25 .

15

tortfeasor's own proportionate share of the common liability. There is no right of

contribution in favor of any tortfeasor against whom an intentional tort claim has been

alleged and established.”

Settlement. A tortfeasor who, in good faith settles the case with the claimant and pays

the damages is not entitled to contribution from another tortfeasor, whose liability is not

extinguished by the settlement.75

75

OHIO REV. CODE § 2307.25(B).

16

DAMAGES

A. Caps on Damages Under The Ohio Tort Reform Act.

Punitive damages may not be in excess of two times the amount of compensatory

damages, however, the jury may not be informed of this limitation.76

Compensatory

damages, however, are unlimited so long as they represent the economic loss of a

person.77

Compensatory damages for non-economic loss is limited in Ohio to

$250,000.00 or three times the economic loss.78

Damages for non-economic loss will not

be limited when awarded for a substantial physical deformity, loss of use of a limb, or

loss of a bodily organ system; or permanent functional injury that prevents the injured

person from being able to independently care for himself.79

B. Calculation of Damages

A reasonable basis of computation is all that a party must present the court in order for

the trier of fact to calculate damages.80

The results may be approximate if the case's

nature does not allow for a more precise accounting.81

The uncertainty of the existence of

damages precludes recovery, however, uncertainty as to a damage amount does not.82

C. Available Items of Personal Injury Damages

1. Past medical bills. Expenses incurred as a result of past medical treatment should

be included within a damage award to the extent such treatment was proximately

related to the injury.83

Admissibility of Write-offs- In Robinson v. Bates, the Ohio Supreme Court ruled that

medical bills are admissible to show the reasonableness of any damage claims.84

Thus,

bills may only be admissible in actions for damages arising from personal injury and

76

OHIO REV. CODE §2315.21 .

77 OHIO REV. CODE §2315.18(B)(1) .

78 OHIO REV. CODE §2315.18(B)(2) .

79 OHIO REV. CODE §2315.18(B)(3) .

80 Geygan v. Queen City Grain Co., 71 Ohio App. 3d 185 (12th Dist. 1991).

81 Cincinnati Bell, Inc. v. Hinterlong, 70 Ohio Misc. 38 (Mun. Ct. 1981).

82 Accurate Die Casting Co. v. City of Cleveland, 2 Ohio App. 3d 386 (8th Dist. 1981).

83 Buchman v. Board of Educ., 73 Ohio St. 3d 260 (1995).

84 OHIO REV. CODE §2317.421; Robinson v. Bates, 112 Ohio St. 3d 17 (2006).

17

wrongful death.85

Under Robinson, the common law collateral-source rule does not apply

to bar evidence of the amount accepted by a medical care provider from an insurer as full

payment for medical or hospital treatment.86

After Robinson, a minority of courts in Ohio misapplied or decided not to apply this rule

in Ohio. Some courts relied on OHIO REV. CODE §2315.20 in holding that evidence of

write-offs are inadmissible. That statute abrogates the common-law collateral-source

rule, but provides exceptions, such as when the source of collateral benefits has a

contractual right of subrogation.87

The Robinson Court did not apply OHIO REV. CODE §

2315.20 because the statute was enacted after the cause of action had accrued.

In 2010, the Ohio Supreme Court reaffirmed its holding in Robinson.88

The Ohio

Supreme Court held that “evidence of write-offs is admissible [at trial] to show the

reasonable value of medical expenses.”89

The Court explained that, because OHIO REV.

CODE § 2315.20 “is no different substantively from the common-law rule described in

Robinson . . . [o]ur common-law analysis from Robinson applies equally in the context of

the statute.”90

Since the decisions, several cases have permitted evidence of write-offs,

relying on the Jaques holding.91

However, some courts remain resistant and have

excluded such evidence.92

In October 2013, the Ohio Supreme Court addressed the admissibility of write-offs as

evidence of the Plaintiff’s reasonable medical expenses for the third time. In Moretz v.

Muakkassa, the Ohio Supreme Court reaffirmed its holdings in both Robinson and

Jacques that evidence of write-offs in medical bills are admissible.93

Such evidence is

prima facie evidence of the reasonable value of medical services.94

The court further held

85

Id.

86 Id.

87 OHIO REV. CODE §2315.20 .

88 Jaques v. Manton, 928 N.E.2d 434 (Ohio 2010).

89 Id. at 439.

90 Id. at 438.

91 See e.g. Posel v. Dayton Power & Light, 2012 WL 524475 (S.D. Ohio Feb. 16, 2012); Martin v. Am. Natl. Prop.

& Cas. Co., 2010-Ohio-3370 (12th App. Dist. Jul. 19, 2010)..

92 See e.g. Yeoman v. Clark, Case No. CV 11-751485 (Cuy. Cty. Com. Pleas Feb. 28, 2011) (Holding that evidence

of write-offs was inadmissible under Evid. R. 403 due to concerns that such admissibility would confuse the jurors);

Jenkins v. Disabato, Case No. 2011 CV 727 (Stark County Com. Pleas Dec. 21, 2011) (Holding that evidence of

write-offs was inadmissible under Evid. R. 403 due to danger of unfair prejudice and confusing the jury.).

93 137 Ohio St.3d 171, 2013-Ohio-4656 at ¶92 (remanded to trial court for retrial).

94 Id.

18

that a defendant was not required to introduce write-offs through expert testimony.95

The

court expressly stated that the defendant would be permitted to argue that the write-offs

reflected on the plaintiff’s medical bills were the reasonable value of medical treatment.96

This recent decision is demonstrative that the plaintiff’s write-offs are admissible and

may be used by the finder of fact when determining the reasonable value of medical

expenses.

2. Future medical bills. Juries are not permitted to speculate as to the amount of

future expenses.97

Thus only those future medical bills reasonably certain to

follow from an injury may be included within a damage award.98

3. Hedonic damages. The inability to do things a party once enjoyed should be

measured on a particularized basis.99

An award of hedonic damages may include

anything from the inability to play golf to the inability to dance. A party must be

able to show that these activities were usual and specific to the plaintiff.100

4. Increased risk of harm. An increased risk of harm may be included in

compensatory damage awards provided there is expert testimony to that effect.101

If the injury is permanent and objective in nature, however, then the jury may be

allowed to draw its own conclusion.102

5. Disfigurement. A plaintiff permanently disfigured or impaired should be

recompensed if such impairment is the proximate result of defendant's actions.103

Such compensatory damages must be applied beyond purely economic damages,

otherwise the trial court rightly sets the award aside.104

6. Loss of normal life. Loss of normal life damages are the foil of hedonic damages,

encompassing those normal day-to-day activities, not those which a party

95

Id. at ¶94.

96 Id. at ¶95.

97 Hammerschmidt v. Mignona, 115 Ohio App. 3d 276 (8th Dist. 1996).

98 Jordan v. Elex, Inc., 82 Ohio App. 3d 222 (1st Dist. 1992).

99 McGarry v. Horlacher, 149 Ohio App. 3d 33 (2d Dist. 2002).

100 Ramos v. Kuzas, 65 Ohio St. 3d 42 (1992).

101 Day v. Gulley, 175 Ohio St. 83 (1963).

102 Id.

103 Farley v. Ohio Dept. of Rehab & Corr., 128 Ohio App. 3d 137 (10th Dist. 1998).

104 Iames v. Murphy, 106 Ohio App. 3d 627 (1st Dist. 1995).

19

enjoys.105

In personal injury actions, such damages can be awarded separate of

general pain and suffering damages.106

7. Disability. A disability may result in loss of time and loss of earning damages.107

The jury may award a reasonable amount which is the direct and natural result of

defendant's actions.108

8. Past pain and suffering. Past pain and suffering damages are awarded in an

attempt to make the plaintiff whole for those costs already incurred.109

Damages

based on past pain and suffering are not to be set aside unless so excessive that

they are obviously the result of passion or prejudice, or manifestly against the

weight of the evidence.110

9. Future pain and suffering. Damages are not permitted under this element unless

supporting evidence is provided.111

If the injury is of an objective nature, then that

is all that need be shown and the jury may draw its own conclusions as to future

pain and suffering.112

If the injury is subjective in nature, though, an expert must

testify as to the future pain and suffering that a particular plaintiff may face.113

10. Loss of society. A parent, spouse or other family may present evidence showing

that it will suffer injury due to loss of society of companionship of the victim or

decedent.114

Such damages may take into account services, comfort, love, solace,

society, and companionship.115

11. Lost income, wages, earnings. A loss of earnings or time must be shown by the

weight of the evidence and must be capable of reasonable calculation.116

Damages

105

Ramos, 65 Ohio St. 3d 42 (1992).

106 Id.

107 Rutherford v. Ohio Finance Co., 1954 WL 8036 (Ohio C.P.).

108 Id.

109 Carter v. Simpson, 16 Ohio App. 3d 420 (10th Dist. 1984).

110 Id.

111 Hammerschmidt v. Mignogna, 115 Ohio App. 3d 276 (8th Dist. 1996).

112 Ramos v. Kuzas, 65 Ohio St. 3d 42 (1992).

113 Id.

114 Gallimore v. Children’s Hosp. Med. Ctr., 67 Ohio St. 3d 244 (1993).

115 Id.

116 Mikula v. Balogh, 9 Ohio App. 2d 250 (2d Dist. 1965).

20

may be awarded for the period from the time of the injury until plaintiff's death.117

A living defendant may also be able to recover for future lost earning capacity

provided an expert testifies as to potential earnings for the period of the average

life expectancy.118

D. Punitive Damages

In Ohio, punitive damages may only be given upon a finding of actual malice.119

Actual

malice exists if a defendant is shown to possess either a state of mind evincing hatred, ill

will or a spirit of revenge; or conscious disregard for the rights and safety of other

persons.120

Punitive damages may not be awarded in the absence of actual or

compensatory damages.121

In a tort action, punitive damages may not be in excess of two

times the amount of compensatory damages, however, the jury may not be informed of

this limitation.122

If permitted expressly by statute double and treble damages may be

permitted such as in anti-trust cases.123

E. Recovery and Pre- and Post-Judgment Interest

After money becomes due and payable, the creditor is entitled to an interest rate of ten

percent (10%) per annum unless otherwise provided for by contract or settlement.124

Post-judgment interest is recoverable according to statute whether or not noted by court

or requested by creditor.125

Prejudgment interest is within the discretion of the trial

court.126

The court must find that the party seeking the prejudgment interest sought, in

good faith, to settle and that the party against whom the interest is sought acted in bad

faith in settlement negotiations.127

117

Id.

118 Matthews v. Mumey, 15 Ohio App. 2d 5 (3d Dist. 1968).

119 Rice v. CertainTeed Corp., 84 Ohio St. 3d 417 (1999).

120 Ward v. Hengle, 124 Ohio App. 3d 396 (9th Dist. 1997).

121 Id.

122 OHIO REV. CODE § 2315.21 .

123 Id.

124 OHIO REV. CODE § 1343.03(A) .

125 Wilson v. Smith, 85 Ohio App. 3d 78 (9th Dist. 1993).

126 Carmo v. Frankel, 17 Ohio Misc. 2d 3(C.P. 1984).

127 Id.

21

F. Joint And Several Liability

The Ohio Tort Reform Act distinguishes between economic or non-economic damages as

to joint and several liability.128

Economic Loss. Under Ohio law, defendants that are found to be more than fifty percent

(50%) liable are jointly and severally liable with the other defendants for all economic

damages. Defendants whose fault is fifty percent (50%) or less are liable for only their

percentage of fault.129

Non-economic Loss. As for non-economic damages, defendants who are found liable for

the plaintiff’s injuries are liable for only their percentage of fault.130

G. Recovery of Attorney’s Fees

Ohio courts are given more discretion in awarding attorney fees than is common in either

federal or other state courts. An award of attorney fees by a trial court is judged by an

abuse of discretion standard.131

Yet a trial court is only afforded this level of discretion

when an exception to the American Rule has been found.132

Attorney fees may only be

awarded when (1) a statute creates a duty to pay such fees; (2) a contract term provides

for the fees; or (3) the losing party has acted in bad faith.133

Regardless of the exception,

trial courts are charged with awarding reasonable attorney fees even if an amount or

percentage has previously been contracted or stipulated to by the parties.134

The Ohio Supreme Court recently held that an award of attorney fees, awarded as a result

of a punitive damages claim, could fall under an insurance policy’s general coverage of

“damages which an insured person is legally obligated to pay” because of “bodily

injury.”135

The Court explained that “[a]lthough . . . attorney fees were awarded as a

result of an award of punitive damages, they also stem from the underlying bodily

injury.”136

Further, the language of the policy at issue did not limit coverage to damages

128

See OHIO REV. CODE §2307.22.

129 Id.

130 Id.

131 Keal v. Day, 840 N.E.2d 1139 (Ohio Ct. App. 2005).

132 Id.

133 Nottingdale Homeowners' Assn., Inc. v. Darby, 33 Ohio St. 3d 32, 33-34 (1987); Hagans v. Habitat Condo.

Owners Assn., 166 Ohio App. 3d 508 (2d Dist., 2006).

134 Id.; Leal v. Holtvogt, 702 N.E.2d 1246 (Ohio Ct. App. 1998).

135 Neal-Pettit v. Lahman, 928 N.E.2d 421 (Ohio 2010).

136 Id. at 424.

22

solely because of bodily injury.137

Noting that both parties had offered their own separate

interpretations of the language of the policy, both of which were plausible, the Court

stated that it “must resolve any uncertainty in favor of the insured.”138

Therefore, the

Court held that attorney fees are distinct from punitive damages, and public policy does

not prevent an insurance company from covering attorney fees on behalf of an insured

when they are awarded solely as a result of an award for punitive damages.139

H. Other Issues Involving Damages:

1. Settlement Involving Minors

In order for a settlement to be binding on minors, a court must first appoint a guardian ad

litem to represent the minor’s interests, unless the proposed settlement is for an amount

less than $25,000.00.140

Once a court has determined that the minor's interests have been

adequately represented, it has a duty to enforce the settlement.141

Regardless of whether

or not a guardian is appointed, all settlements involving minors must obtain probate court

approval.142

2. Taxation of Costs

OHIO CIV. R. 54(d) makes costs available to the prevailing party. These costs can only

include those necessary at trial either due to local rules or necessity. Expert witness fees,

cost of depositions not used in trial, etc. are unnecessary costs and accordingly cannot be

taxed.143

137

Id.

138 Id.

139 Id. at 425.

140 OHIO REV. CODE §2111.05.

141 In re Layshock, 2001 WL 1667872 (7th Dist.).

142 OHIO REV. CODE § 2111.18.

143 Amerifirst Savings Bank of Xenia v. Krug, 136 Ohio App. 3d 468 (2d Dist. 1999).

23

3. Unique Damages Issues

Certain losses may damage some plaintiffs and not others, or in the alternative, may

damage different plaintiffs in different amounts.144

Thus, when a claimed type of damage

is so subjective, there need be testimony specifically establishing the value of the damage

to that particular plaintiff.145

Damages will not be awarded when they are too remote or

speculative.

144

Lookabaugh v. Spears, 2008 WL 867730 (2d Dist. 2008).

145 Id.

24

ALTERNATIVE DISPUTE RESOLUTION

A. Alternative dispute resolution.

There is no statute in Ohio requiring the parties to engage in dispute resolution before

they can turn to courts. However, various sections of the Ohio Revised Code provide that

the courts of different levels may establish procedures for the resolution of disputes

between parties to any civil action or proceeding that is within the jurisdiction of the

court. In addition, the Ohio Supreme Court Rules set general guidelines for mediation

procedures to be established in the lower courts.146

1) Commission on dispute resolution and conflict management. OHIO REV. CODE

§ 179.02 established the Ohio Commission on Dispute Resolution and Conflict

Management. The Commission consisted of twelve members and its primary

purpose is to provide and fund education in the field of dispute resolution and to

assist persons and entities that are engaged in activities related to dispute

resolution.

However, this section of the Ohio Revised Code was subsequently repealed and

on January 5, 2012, the Supreme Court of Ohio created a new Dispute Resolution

Commission.147

In voting to create this new Commission, the Supreme Court assumed two

programs that were “formerly operated by the disbanded Ohio Commission on

Dispute Resolution and Conflict Management . . . [which] include managing the

former commission’s truancy mediation program and the conflict resolution

services program for government officials. Additionally, the Court has been

identified as the repository for all original paperwork and other intellectual

property of the former commission.”148

The governing provisions for the Commission can be found in Rules 16.01

through 16.14 of the Rules of Superintendence for the Courts of Ohio.149

The new

Commission will consist of twenty-one (21) members that “will be nominated by

146

Ohio Sup. Ct. R. 16 .

147 See generally the Supreme Court of Ohio, Judicial System News, available at

http://www.supremecourt.ohio.gov/PIO/news/2012/disputeResComm_010512.asp (last visited June 1, 2012).

148 Id.

149 Id. See also Rules Establishing Commission, available at

http://www.sconet.state.oh.us/Boards/disputeResolution/rule.pdf (last visited June 1, 2012).

25

various judicial, legal, and Ohio government-related associations and

organizations and appointed by the Chief Justice and Justices of the Court.”150

B. Uniform Mediation Act.

Ohio has adopted the Uniform Mediation Act that has been codified in Chapter 2710 of

the Ohio Revised Code (2008). OHIO REV. CODE § 2710.01(A) defines mediation as “any

process in which a mediator facilitates communication and negotiation between parties to

assist them in reaching a voluntary agreement regarding their dispute.” Mediation is not

allowed in cases of domestic violence or violation of a protection order.

A number of Ohio courts utilize court-appointed mediators in cases involving personal

injury. Further, a number of courts that lack mediation departments encourage private

mediation and other forms of ADR as a means to resolving a legal dispute.

This Compendium contains a brief overview of certain laws concerning various litigation and legal

topics facing retailers. The compendium provides a simple synopsis of current law and is not

intended to explore lengthy analysis of legal issues. This compendium is provided for general

information and educational purposes only. It does not solicit, establish, or continue an attorney-

client relationship with any attorney or law firm identified as an author, editor or contributor.

The contents should not be construed as legal advice or opinion. While every effort has been made

to be accurate, the contents should not be relied upon in any specific factual situation. These

materials are not intended to provide legal advice or to cover all laws or regulations that may be

applicable to a specific factual situation. If you have matters or questions to be resolved for which

legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in

the state for which you are investigating and/or seeking legal advice.

150

Id.

26

Roetzel & Andress

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