Tort Law Journal

The ABA Journal recently ran an interesting article about the power of video and the potential Achilles heel of Wal-Mart.

It’s generally recognized that Wal-Mart approaches personal injury litigation with zealous earnestness. Obtaining discovery from Wal-Mart can be a difficult endeavor.

According to the article, Wal-Mart had a practice of videotaping its internal meetings. Some 15,000 videos exist. The third-party company that did the videotaping, however, almost collapsed after Wal-Mart terminated the relationship between the two companies. It survived, in part, due to making its library of Wal-Mart videos available to researchers for a fee.

Plaintiff’s lawyers are lining up to review the videos.

The article reports that Wal-Mart attempted to buy the entire library, but its offer was rejected for being too low. The lack of a written contract between the companies is allowing the videographer to claim ownership.

Given the size and economic power of Wal-Mart, will a discovery twist like this change the personal injury landscape?

A recent New York Times article provides an interesting look at punitive damage awards. Noting that punitive damages are a peculiar aspect of American law, many courts around the world have refused to allow plaintiffs to collect on American court judgments awarding punitive damages.

But international criticism seems to be waning due to both changes in the United States and punitive damages gaining wider acceptance on an international level.

In part, this is due to many states having moved to limit punitive awards and alter the distribution of such large awards. Ohio’s tort reform legislation passed in 2004 limits punitive damages to the lesser of twice the amount of compensatory damages or, where the defendant is a small employer or individual, ten percent of the defendant’s net worth, up to $350,000. See R.C. 2315.21.

Criticisms that punitive damages represent a windfall for plaintiffs have been allayed by “alternative distribution” – requiring part of the punitive award to be turned over to the state. Some states, including Ohio, allow for such “alternative distribution.” See Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 781 N.E.2d 121, 2002-Ohio-7113 (2002).

The United States Supreme Court has also moved over the past decade to impose stricter limits on punitive damage awards. For instance in State Farm v. Campbell, 538 U.S. 408 (2003), the U.S. Supreme Court, applying its earlier pronouncement on punitive damages, the BMW “guideposts,” said the ratio of compensatory damages to punitives must generally be in the single digits to be constitutional. See BMW v. Gore, 517 U.S. 559 (1996).

Additionally, punitive damages seem to be catching on in some countries. Courts in Spain, Canada, and Australia have enforced punitive damage awards from American judgments. This is a dramatic departure from prevailing attitudes toward such damage awards. Additionally, in Germany, where an attempt to collect a punitive damages award in the 1990’s was flatly denied, change is underway. A few recent damage awards have seemingly been steep enough to be meant as punishment and not just compensation.

Read the full article here.

in a recent opinion by the 9th District Appellate Court, it was ruled that there is no fiduciary relationship created between a company and its customers when that company hires an employee.

In the case Zanni v. Winfred Stelzer, 2007-Ohio-6215, the employer (a mortgage company) was sued by one of its customers (the homeowners), alleging that the employer’s sales representative illegally induced the homeowners into entering into an improper mortgage agreement, home-equity loan agreement and an “investment scheme”.

While the thrust of the case involved violations of the Ohio Consumer Sales Practices Act, one of the allegations lodged against the employer was that there was a fiduciary relationship between the homeowner and employer which required the employer to maintain duties of good faith, honest and fair dealing as to the customer when it hired its employee.

The Court definitively stated that a fiduciary relationship is not an element of negligent hiring and retention.  All that is necessary to maintain a negligent hiring and retention claim is (1) the existence of an employment relationship, (2) an incompetent employee, (3) knowledge by the employer of the incompetence, (4) the employee’s improper conduct and (5) the causal relationship between the negligent hiring and retention and the injuries alleged.

To the surprise of very few, the Ohio Supreme Court announced last week that it was affirming several sections of the 2004 Tort Reform Act.

The Court ruled that legislation capping the amount of noneconomic damages that may be awarded to personal injury plaintiffs and placing limits on the amount of punitive damages that may be awarded in Ohio tort actions does not violate the constitutional rights of injured parties to trial by jury, to a remedy at law for their injuries, or to due process and equal protection of the laws. The Court also held that the challenged statutes do not violate provisions of the Ohio Constitution that guarantee open courts and the separation of powers between the legislative and judicial branches of government.

What’s most interesting about this decision (which was issued December 27th) is the resounding yawn it received from both the legal community as well as the public at large.

Perhaps everyone is growing tired of the tort reform topic ….

In the great push for tort reform, one of the most often cited reasons is the need to rein in run-away juries in medical malpractice cases.

But is this fear real?

According to Professor Philip Peters, Jr. of the University of Missouri-Columbia School of Law, juries are more likely to favor defendant doctors over plaintiff victims.

He found that only 27 to 30 percent of all medical malpractice lawsuits result in a plaintiff’s verdict.

Reviewing a fifteen year study conducted in New Jersey, he determined that less than half of the lawsuits which were deemed “indefensible” by the doctors themselves resulted in a plaintiff’s verdict.

If this study were to be believed, then one must wonder why doctors complain so much about the drastic increase in their malpractice premiums.  Or, why their malpractice premiums are increasing as such a rapid pace….

In the grand scheme of blaming lawyers, judges, juries and even the American public for the problems with our litigious society, one must wonder why there has never been public discourse about the profitability of insurance companies.

The Ohio Supreme Court issued a decision yesterday that appears to recognize the False Light tort claim. Not previously recognized in Ohio, False Light claims are a type of invasion of privacy claim.

This case involved a dispute between private homeowners in Stark County and the owner of a neighboring party center In an escalating series of clashes, the center’s owner distributed a series of handbills at the neighbors’ place of work and children’s schools implying that the homeowners had thrown a rock through one of the center’s windows.

The Court determined that the actions of the center’s owners comprised false-light invasion of privacy by meeting two essential elements: the matter being publicized was highly offensive to a reasonable person and the person disseminating the information had knowledge or acted in reckless disregard as to its falsity.

For the Akron Beacon Journal article on this, click here.

For the opinion, click here.

The Ohio Supreme Court on May 2, 2007 dismissed as improvidently accepted an appeal addressing the “Open and Obvious” Doctrine: Uddin v. Embassy Suites Hotel, 113 Ohio St.3d 1249, 2007-Ohio-1791. I reported on the Uddin oral argument in the lead article of the March/April 2007 issue of the Tort Law Journal of Ohio.

Justices Stratton, O’Donnell, Lanzinger, and Cupp voted to dismiss the appeal. Justice O’Connor, joined by Chief Justice Moyer and Justice Pfeifer, dissented, writing a lengthy opinion addressing the merits of the case. It was an odd turn of events, because three of the justices voting to dismiss (Stratton, O’Donnell, and Lanzinger) had voted (along with Justice O’Connor) to accept the appeal, while two of the three dissenters (Moyer and Pfeifer) had voted (along with former Justice Resnick) against accepting the appeal. See 5/10/2006 Case Announcements, 2006-Ohio-2226.

In Uddin, a ten-year-old hotel guest drowned in the hotel’s swimming pool. The water in the five-foot pool was so white and murky that the bottom was not visible. The water’s lack of clarity violated former section 3701-31-07(C) of the Ohio Administrative Code. The trial court granted summary judgment to the hoteliers on the ground that swimming pools are, as a matter of law, open and obvious hazards. The Tenth District Court of Appeals reversed, but each of the three judges authored an opinion in which no other judge joined.

The dissenters fell one vote short of the expected affirmance. The dissenters would have ruled that the “Open and Obvious” Doctrine did not apply in this case, due mostly to the victim’s youth.

The dissenters also would have expressed a second basis for affirming: that there were genuine issues of material fact arising from the administrative rule violation. The dissenters sought to bring clarity to Ohio law: “Given the apparent uncertainty in courts, and the important public policy issues that underlie both the open-and-obvious doctrine and the promulgation of public-health administrative rules, I believe we should address how a possible violation of the Ohio Administrative Code affects the analysis governing the open-and-obvious doctrine.” Uddin, 113 Ohio St.3d 1249, 2007-Ohio-1791, ¶15 (O’Connor, dissenting). But the dissent’s attempt to bring clarity falls short. The dissent’s proposed holding is: “Like the court of appeals, I would hold that if there is evidence that could support a finding that a defendant violated an administrative rule, and if that violation raises a genuine issue of material fact as to whether there was a duty, a breach, and proximate cause, summary judgment is inappropriate.” Id. at ¶15.

That proposed holding falls short in two regards. First, what that sentence really means is that there is a genuine issue of fact regarding whether the quality of the water was an independent hazard not obvious to the ten-year-old victim – regardless of any administrative-rule violation. The dissent’s discourse on the value of administrative rules is unnecessary and confusing. Second, referring to the court of appeals decision in such general fashion only confuses, because each of the three court of appeals judges analyzed the case differently.

The majority did not provide a reason for the dismissal. With the dissent so focused on the age of the victim, my guess is that the majority was uncomfortable with the state of the factual record and the development of Ohio law on the general question of the extent to which the “Open and Obvious” Doctrine should distinguish between children and adults. Uddin may stoke that debate.

Contact this Author: Paul Giorgianni

The Plain Dealer reports, on April 15, 2007, that the cost of tort litigation is continuing to climb skywards. According to the article (using data produced by Towers Perrin), the tort system cost $2 billion dollars in 1950. In 10 years, that figured increased by 150%. In 10 more years, it increased by almost 200%. 10 more years and the number increased by almost 200% again. By 1990, the number had grown to $130 billion dollars. Fifteen years later, the number doubled again.

In 2005, the tort system cost every man, woman and child in the USA $880.

Interesting, with the growth of tort reform since the new Millennium, the costs still increased by almost $80 billion.

Is this exponential growth a result of people who are quick to blame others? Or is it indicative of a society that doesn’t take responsibility for its own actions?

Yet, somehow, most of America knows who is the father of Anna Nicole’s (irony of irony: no last name needed) baby.

The 9th District Court of Appeals believes the answer is no.

In the case Brody v. SCR-SCP, Inc., (2007 - Ohio - 1477, March 30, 2007), the 9th District ruled that a judge’s ex parte communications with a juror amounted to prejudicial error and overturned the defense verdict which was arrived at after a two week trial. This case was an intentional employment tort involving the death of one of the defendant’s employees.

According to the opinion, after the judgment was handed down, a newspaper article ran in which a juror admitted to have an ex parte conversation with judge while the jury was deliberating. The juror complained of being deadlocked and was told by the judge that it would be acceptable if the jury wanted to issue an admonishment to a party in its decision. The jury then issued a defense verdict and wrote that “We agree that the intent was not in place, but that negligence existed. We add this note to encourage the defendant to change or enhance their policy or training.”

Apparently, record of this conversation was never made by the Court.

Upon reading the article in the newspaper, the plaintiff filed a motion for new trial which was then set down for hearing. The day before the hearing was to have been had, the court cancelled it and denied the motion without explanation. An appeal was taken.

The 9th District overturned the judgment unanimously and has remanded it for a new trial.

To read the full opinion, click here.

More and more lawyers are morphing their practices on the Internet, in one fashion or another. Chubb Insurance has prepared a great handbook on e-lawyering that is well worth the read.

For a free download of the handbook, click here.

In an interesting twist of legal theory, clients sued a moving company on the basis that the moving company negligently hired and retained an employee who kidnapped, beat and stole from the clients.

Jeff and Joyce Abrams, the clients, hired “A Family Moving Company” to move them into a new home. The moving company employed two brothers, one who was described as a hard worker and well mannered, the other a past criminal. The good brother helped move the Abrams, the bad one did not.

After a while, the bad brother was fired due to poor job performance. Two months later, he (and several thug buddies) attacked Jeff Abrams, dragged him into his house where they tied him up and beat him. They also tied up Joyce. They then stole the Abrams’ possessions.

Since the bad brother worked for the moving company and since the moving company moved the Abrams, the Abrams sued the moving company, seeking recovery on the negligent hiring and retention theories.

The Tenth District Court of Appeals held that, while an employer normally has a duty to prevent foreseeable injury to others by exercising reasonable care to avoid employing an incompetent employee, it is also mandatory that the plaintiffs show a causal connection between the employee, the employer and the injury. The Court determined that the moving company did nothing to bring together the Abrams and the bad brother since the bad brother was not involved with the Abrams’ move. The Court noted a disconnect which prevent the Abrams’ injury from being foreseeable.

For a full text of the opinion, click here.

Is it necessary to mock attorneys in order to promote a product? Particularly, if the product being promoted belongs to one of the world’s biggest companies with — presumably — a substantial marketing budget?

According to Law.com, Coca-Cola has started a viral marketing program on YouTube that rests entirely on the backs of its own attorneys. The marketing mavens at Coke decided it would be cute to “pull a Borat” or “punk” their own in-house counsel, propositioning several of them with a request from some Coke employees to sue their own company for a perceived grievance that one Coke product tastes too much like another Coke product.

The “creativity” comes at the expense of the attorneys who are notably flumoxed by the idiocy of the requests.

Watch for yourself:

Video 1

Video 2

Video 3

Obviously, making fun of lawyers is what’s driving this program. Commentators question whether or not this is a bad thing since the reluctant stars of these videos all conduct themselves with professionalism and earnestness in the face of lunacy.

But does the mere fact that the powers-that-be in Atlanta approved a marketing program based upon such sophomoric humor indicate that those who drink Coke’s products are sophomoric?

Or does the fact that the bloggers are discussing this evidence the success of the campaign?