Court Rulings

EFH, a corporate employer, established a profit-sharing plan with the majority of its participants being corporate officers, shareholders, supervisors, and highly compensated personnel. Its union employees were covered by pension plans established under collective bargaining agreements. The union employees independently determined the percentage of their compensation contributed by EFH to their pension plans and chose a percentage less than that which the employer contributed to its profit-sharing plan. The profit-sharing plan provided benefits for its participants superior to those provided under the union pension plans. Held: The Commissioner has no discretionary authority under sec. 401(a)(4), I.R.C. 1954, to determine discrimination in contributions or benefits. The usual burden of proof by a preponderance of the evidence applies, and the petitioner is not required to prove that the determination of the Commissioner was arbitrary or an abuse of discretion. Loevsky v. Commissioner, 55 T.C. 1144 (1971), affd. per curiam 471 F.2d 1178 (3d Cir. 1973), explained and modified on this issue. Held, further, the profit-sharing plan fails to qualify under sec. 401(a)(4) because its contributions and benefits discriminate in favor of the prohibited group when compared to contributions and benefits under the pension plans.

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by D. R. B. Winniford and R. H. Mays, doing business under tbe firm name and style of Winniford & Mays, against A. L. MacLeod and tbe Lewis-Wiley Hydraulic Company, a corporation, and owner of what is known as Westover Terrace, in Portland, Oregon.</p> <p>Tbe complaint recites an ordinance of tbe City of Portland forbidding tbe explosion of gunpowder or other like material in tbe city limits without first having received a permit from tbe city engineer. It says also that prior to tbe explosion complained of MacLeod bad obtained from tbe proper officer a permit to use powder for blasting in an amount not to exceed five pounds upon tbe tract mentioned. At tbe time of tbe grievance complained of tbe plaintiffs were engaged in tbe erection of a dwelling-house for another near the scene of the blasting operations they describe, .but had not yet completed their contract. The complaint contains these allegations:</p> <p>303</p> <p>“That for more than a year prior to October 29, 1911, the defendant A. L. MacLeod had been carrying on blasting operations in a careless, negligent, malicious and wanton manner for the defendant Lewis-Wiley Hydraulic Company upon the land owned by the defendant company, and the defendant company well knew and appreciated that the defendant A. L. MacLeod was carrying on these blasting operations in a careless, negligent, malicious and wanton manner, and in such a manner as to endanger the property in the surrounding neighborhood; that on October 29, 1911, at about the hour of 3:30 P. M., the defendants, A. L. MacLeod and Lewis-Wiley Hydraulic Company, negligently, carelessly, maliciously and wantonly, through their servants, set off and exploded at one time 50 pounds of powder at a point about 150 feet west of the said house hereinabove described; that the said explosion threw a great number of rocks at terrific speed against and into the s

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Julius S. Grinnell, Judge, presiding.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY.</p> <p>No. 256 October Term 1887, Sup. Ct.; court below, No. 584 December Term 1886, C. P. No. 1.</p> <p>On December 4, 1886, a summons in debt was issued in an action by John W. Cook, for use of A. Cook, against tbe Pennsylvania Natural Gas Company, the United Gas Fuel Company and B. F. Rafferty. On December 14th, the defendants pleaded, nil debet.</p> <p>At the trial on May 11, 1887, the defendants filed the additional plea of non est factum. It then appeared that in May, 1886, J. W. Cook, the plaintiff, under a lease from the Pittsb. & W. R. Co., was in possession of a landing on the Allegheny river, at the foot of School street, Allegheny city, the landing extending some distance above and below said street. School street, at right angles with the river, had never been actually opened, although it was upon the city plan. In an eddy adjacent to the shore, the plaintiff had a floating saw mill, a floating planing mill, and a floating dock for building and repairing barges. Access from the shore to the mills was over a float which lay at the foot of School street, and a bridge connected the float with the mills. By permission of the city, the plaintiff had made a plank road on School street, to reach the landing.</p> <p>The Penn. N. Gas Co. was a corporation, organized under the act of May 29, 1885, P. L. 29, and on May 19, 1886, was constructing aline or lines for the conveyance of natural gas from the foot of School street across the river to the foot of Third street, in Pittsburgh, B. F. Rafferty being in charge of the work. The plaintiff’s float and mills were in the way. Mr. Rafferty proposed to move them and Mr. Cook objected. After some controversy, the company gave to the plaintiff the bond on which suit was brought, and were thereupon permitted to enter and move his float and mills so as to enable them to dig the trench and lay their lines.</p> <p>B. F. Rafferty, one of the defendants, called

The plaintiffs, who were allegedly victims of sexual contact with and exploi- tation by the defendant while they were minors, sought to recover damages from the defendant for, inter alia, assault and battery. Prior to trial, the parties entered into confidential settlement agreements, which included waiver provisions that provided that, in the event of a default by the defendant, the parties consented to the reinstatement of the action to the docket to enforce the agreements and waived any objection to the trial court's continuing jurisdiction beyond four months otherwise proscribed by statute (§ 52-212a). In accordance with the settlement agreements, the plaintiffs withdrew the action in November, 2019. In April, 2020, the defendant failed to make a payment pursuant to the agreements, and the plaintiffs filed a motion to restore the action to the docket. The defendant objected, claiming that his performance was excused due to breaches of the settlement agreements by the plain- tiffs and their counsel. The court denied the plaintiffs' motion to restore and, thereafter, denied the plaintiffs' motions for reargument/reconsider- ation, and the plaintiffs appealed to this court. The trial court thereafter marked off the plaintiffs' motion to enforce the settlement agreements, stayed the proceedings, and denied their motion to reconsider, and the plaintiffs filed an amended appeal. Held: 1. The trial court did not abuse its discretion in denying the plaintiffs' motion to restore the case to the docket: although the basis for the court's ruling was ambiguous, as it was not clear whether the court found that it did not have the power to grant the plaintiffs' untimely motion to restore because the plaintiffs failed to demonstrate fraud or whether it exercised its discretion in denying the motion because it determined the matter was not amenable to summary disposition and should be adjudicated in a breach of contract action, the plaintiffs did not seek an articulation of the

Workers' compensation—Nothing in R.C. 4123.56(A) or Ohio Adm.Code 4121 3 32(A)(6) permits an injured worker to receive temporary-total-disability compensation after refusing a good-faith offer of suitable alternative employment, even if the injured worker exercised good faith in refusing the offer—Orders of the Industrial Commission's hearing officers exhibit confusion about the correct standard under which employer's good faith is to be determined—Court of appeals' judgment vacated and limited writ issued ordering the commission to reconsider this case under the proper standard.

Motion overruled and judgment reversed. Appellees' motion to dismiss for lack of jurisdiction is overruled. The trial court's denial of a preliminary injunction is "provisional remedy" that qualifies as a final appealable order under R.C. 2505.02(B). Delaying review of appellants' claim for injunctive relief would result in the lack of a "meaningful or effective remedy" because future monetary damages would not rectify the harm or undo the damage caused by the deprivation of unemployment benefits today. The mandate of R.C. 4141.43(I) that the Director of the Ohio Department of Jobs and Family Services shall "secure to this state and its citizens all advantages available" under the enumerated federal unemployment compensation statutes applies to Federal Pandemic Unemployment Compensation under 15 U.S.C. 9023. When terminating those benefits, the Governor encroached upon the legislative power exclusively reserved to the General Assembly under Article II, Section 1 of the Ohio Constitution to determine matters of public policy, as well as the specific reservation of power under Article II, Section 34 to provide "for the comfort, health, safety and general welfare of all employe[e]s," which may not be limited by any "other provision of the constitution." The trial court therefore abused its discretion when it ruled that appellees were unlikely to succeed on the merits of the claim, and the case is remanded for the trial court to complete the preliminary injunction analysis.

The plaintiff attorney appealed to the trial court, challenging the reprimand imposed on her by the defendant, the Statewide Grievance Committee, for having violated rules 3.3 (a) (1) and 8.4 (3) of the Rules of Professional Conduct. The plaintiff, who was a court-appointed trustee of an estate, had filed an amended final accounting with the Probate Court that sought fiduciary fees for her work after she previously had represented to that court that she would waive the fees and remove them from the final accounting. The defendant upheld the determination of its reviewing committee that the amended final accounting constituted a knowingly false statement in violation of rule 3.3 (a) (1) and that the false statement also was dishonest in violation of rule 8.4 (3). The trial court dismissed the plaintiff's appeal, concluding, inter alia, that the reviewing committee's decision was not clearly erroneous and that the record supported the reviewing committee's findings of fact. The plaintiff thereafter appealed to the Appellate Court, claiming that the trial court improperly expanded the application of rule 3.3 to include attorneys functioning in a fiduciary role and improperly upheld the reviewing committee's determinations that she violated rules 3.3 (a) (1) and 8.4 (3). The Appellate Court affirmed the trial court's judgment, and the plaintiff, on the granting of certification, appealed to this court. Held: 1. The plaintiff could not prevail on her claim that rule 3.3 (a) (1) did not apply to her because the Probate Court had appointed her to act as a fiduciary for an estate and the commentary to that rule indicates that it governs the conduct of a lawyer representing a client in the proceed- ings of a tribunal: although the commentary illustrates the most common context in which the rule would apply, that is, lawyers appearing before a tribunal in the course of client representation, there are many other contexts in which a lawyer might appear before a tribunal, and a

The plaintiff, an automobile dealership, sought to vacate an arbitration award that was issued in favor of the defendants in connection with their purchase of a vehicle from the plaintiff. The parties had entered into a financing agreement that contained an arbitration clause providing, inter alia, that any arbitration between the parties would be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and not by any state law concerning arbitration. After the arbitrator ruled in favor of the defen- dants, the plaintiff filed an application to vacate the arbitration award in the trial court. The defendants opposed the plaintiff's application to vacate, claiming that the court lacked subject matter jurisdiction because the plaintiff's application was untimely under the state statute (§ 52-420 (b)) that imposed a thirty day limitation period for applications to vacate an arbitration award. The court agreed and rendered judgment dismiss- ing the plaintiff's application to vacate as untimely. The plaintiff appealed to the Appellate Court from the trial court's judgment, contending that its application to vacate was not untimely because the arbitration agree- ment specified that the Federal Arbitration Act would govern any arbitra- tion between the parties and the limitation period for a motion to vacate an arbitration award under the applicable provision of that act (9 U.S.C. § 12) was three months. The Appellate Court affirmed the trial court's judgment, and the plaintiff, on the granting of certification, appealed to this court. Held: 1. The trial court properly dismissed the plaintiff's application to vacate an arbitration award as untimely under § 52-420 (b), and, accordingly, the Appellate Court properly affirmed the trial court's judgment: this court had repeatedly held that § 52-420 (b) unambiguously implicates a trial court's subject matter jurisdiction, and, therefore, the expiration of the limitation period in § 52-420 (b) deprives a trial court of subj

A party seeking termination of parental rights must prove all the elements by clear and convincing evidence. If a petitioner proves his or her case under the clear and convincing standard of proof, then a district court has discretion to decide whether to terminate parental rights.

The plaintiff sought to recover damages from the defendants for employment discrimination pursuant to the Connecticut Fair Employment Practices Act (§ 46a-51 et seq.) following the termination of her employment. The plaintiff, who was employed by the defendants as a certified nursing assistant (CNA), alleged that she was approved for unpaid leave by the defendants in order to undergo knee surgery but, while she was recovering from that surgery, she was terminated for failing to report to work and for failing to report her absences on two dates that occurred approximately one week before her surgery. The plaintiff alleged that prior to these absences, she received a phone call from one of the defendants' employees, who told her not to report to work on those two dates, as the defendants were overbooked with CNAs. Since her surgery, the plaintiff has not sought work as a CNA, because she believed she has not yet recovered sufficiently to perform the essential functions required of that position. The defendants filed a motion for summary judgment and in support thereof, submitted various documents including the defendants' attendance policy, portions of the plaintiff's sworn depo- sition, disciplinary reports warning the plaintiff about her absenteeism and the certified letter sent to the plaintiff, which terminated her employ- ment. The trial court granted the defendants' motion for summary judg- ment and rendered judgment thereon, from which the plaintiff appealed to this court. Held: 1. The trial court erred in rendering summary judgment in favor of the defendants as to the plaintiff's discrimination claims, as there was a genuine issue of material fact as to whether the termination of the plaintiff's employment was pretextual and as to whether, at the time her employment was terminated, the plaintiff was qualified to perform the essential functions of her job, with a reasonable accommodation of a leave of absence: the record was devoid of any evidence regarding how

Insurance—No allocation of liability across multiple insurers and policy periods when injury or damage for which liability coverage is sought occurred at a discernible time.

The plaintiff employee sought to recover damages from the defendant employer, alleging that he was constructively discharged in violation of public policy. The plaintiff had been employed as a licensed optician manager in the defendant's optical department in a JCPenney store and alleged that the defendant improperly required him to provide optomet- ric assistance services to the doctor of optometry in the store. The plaintiff claimed that, under a declaratory ruling issued by the Board of Examiners for Optometrists and a cease and desist consent order issued by the Board of Examiners for Opticians, employees, including opticians, under the control of unlicensed third parties were prohibited from performing services for licensed optometrists. The plaintiff also alleged that his duties violated the public policy embodied in the statute (§ 31-130 (i)) requiring JCPenney and the defendant to have a staffing permit before providing staffing services to the optometrist. The plaintiff further alleged that he was forced to resign when the defendant refused his requests to be excused from these duties. The defendant moved to strike the plaintiff's complaint on the ground that its allegations could not satisfy the requirements of a constructive discharge claim. The defendant asserted that the declaratory ruling and the cease and desist order were not binding and did not create a private right of action for optometric assistants. The defendant also alleged that the plaintiff's reliance on § 31-130 (i) was misplaced because the plaintiff did not allege that optometrists employed by the defendant charged the defendant for hiring opticians. The trial court, relying on Brittell v. Dept. of Correction (247 Conn. 148), determined that, to prevail on his constructive discharge claim, the plaintiff was required to demonstrate that the defendant intended to force him to resign. The trial court granted the defendant's motion to strike the plaintiff's complaint and rendered judgment for

Appellant's premises liability claim was subject to dismissal on summary judgment where the hazards that allegedly caused appellant's injuries were open and obvious.

Where a utility worker was injured by an out-of-control vehicle driven by an impaired driver in a utility construction zone, the trial court did not err in granting summary judgment in favor of the defendant, an independent contractor hired to create a work zone and provide traffic control services, as the traffic-control provider did not control or actively participate in the critical acts that led to the utility worker's injuries and no duty was owed to the utility worker as he had been engaged in work in an inherently dangerous work environment – a utility construction zone. Furthermore, no duty of care was owed to the injured utility worker pursuant to Section 6E.07 of the Ohio Manual on Uniform Traffic Control Devices (OMUTCD) as the section of the OMUTCD relied on by the plaintiffs set forth mere guidance for flagging operations and a duty of care exists only where the standards contained in the state-adopted manual are mandatory or "standard statements," not "guidance statements." Finally, the manner in which the traffic-control providers stood inside the work zone for a meeting called by the utility worker's foreman did not create a duty under the 2 Restatement of the Law 2d, Torts, Section 323 (1965), as the manner in which the traffic-control providers stood did not put the injured utility worker in a worse position than he would have been in had the traffic-control providers chosen to stand elsewhere and there was no suggestion that the injured utility worker forwent some other method of protecting himself in reliance on where the traffic-control providers stood.

The plaintiff registered nurse sought to recover damages from the defendant for negligence in connection with injuries she sustained while providing medical care to the defendant, who was a patient in the radiation oncol- ogy department at the hospital where she worked. In her complaint, the plaintiff alleged that as she was assisting the defendant during the diagnostic procedure or medical treatment he was undergoing, he grabbed hold of her while he attempted to transition from a supine to a seated position on the examining table, and, as a result, she suffered several physical injuries. She claimed that her injuries were proximately caused by the defendant's negligence. The defendant filed a motion for summary judgment, asserting that the plaintiff's action was not viable because allowing a medical care provider to recover damages from her patient was contrary to public policy. The trial court granted the defendant's motion for summary judgment, concluding that the plaintiff failed to demonstrate that there was a genuine issue of material fact that the defendant, as a patient at the hospital, owed a duty of care to the plaintiff, who was providing him medical care as a registered nurse. On the plaintiff's appeal to this court, held: 1. The plaintiff could not prevail on her claim that the trial court improperly rendered summary judgment because the defendant's motion for sum- mary judgment effectively challenged the legal sufficiency of her cause of action, and, therefore, that court should have treated the motion as a motion to strike to provide her with the opportunity to replead; because the plaintiff failed to object to the trial court's deciding the case through summary judgment or, in the alternative, to offer to amend her complaint if the court determined that the allegations were legally insufficient, she waived any claim that the trial court improperly failed to treat the motion for summary judgement as a motion to strike. 2. The plaintiff could not preva