Court Rulings

The trial court dismissed appellant's complaint without prejudice because it concluded that the complaint contained a "medical claim" and that appellant had failed to satisfy Civ.R. 10(D)(2), governing the pleading of such claims. The court correctly concluded that the complaint contained a "medical claim." But the dismissal order was not final and appealable, because appellant failed to show that the complaint could not be refiled. Appeal dismissed. (Froelich, J., dissenting.)

The plaintiff sought to recover damages from the defendant property owners for injuries she sustained when she tripped on a public sidewalk that abutted the defendants' property. The plaintiff alleged that an approxi- mately one and one-half inch lip between two segments of the sidewalk constituted a defective condition in the sidewalk. Under the common law, a landowner whose property abuts a public sidewalk is under no duty to keep the sidewalk in front of the property in a reasonably safe condition, except when a municipality confers liability on the abutting landowner through a statute or ordinance, or where the defect was created by a positive act of the landowner. The defendants filed a motion for summary judgment, claiming, inter alia, that under the facts alleged by the plaintiff, they owed no duty to the plaintiff to maintain the sidewalk. The defendants claimed that the applicable city ordinance (§ 21-37) shifted only the duty of repairing an abutting sidewalk from the municipality to an abutting landowner but did not shift liability for injuries resulting from an unsafe condition on the sidewalk. The defendants further asserted that the positive act exception to the general rule absolving landowners of liability for defective sidewalks did not apply because they did not create the unsafe condition on the public sidewalk. The trial court granted the defendants' motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Held: 1. The trial court properly rendered summary judgment for the defendants as to counts one and two of the plaintiff's complaint, which alleged that the defendants violated § 21-37, the plaintiff's appellate counsel having conceded to this court that § 21-37 did not shift liability to the defendants and did not play any role in her appeal. 2. The trial court properly rendered summary judgment in favor of the defendants as to counts four and five of the complaint, which alleged that the defe

The plaintiff sought to recover damages from the defendant in connection with the alleged wrongful termination of her employment by the defen- dant, alleging claims for wrongful discharge in violation of an implied contract, negligent infliction of emotional distress, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.). After the trial court granted the defendant's motion to strike all three counts, the plaintiff filed a substitute complaint, recasting the first count as one sounding in racial discrimination in her discharge from employ- ment. Thereafter, the plaintiff filed an amended substitute complaint, amending the allegations in the second and third counts. The defendant filed another motion to strike all three counts, and a motion to dismiss the first count. The trial court granted the motion to strike and rendered a judgment of dismissal as to the entire complaint, from which the plaintiff appealed to this court, which affirmed the dismissal of count one but reversed the judgment of dismissal as to counts two and three because the defendant did not seek a dismissal of those counts. On remand, the plaintiff filed another substitute complaint setting forth four counts, which alleged claims for wrongful discharge in breach of an implied employment contract, defamation, negligent infliction of emotional distress, and a violation of CUTPA. After the trial court granted the defendant's motion to strike each count, the plaintiff filed another substitute complaint incorporating counts one, two, and four from her previously stricken complaint and repleading count three. The trial court, again, granted the defendant's motion to strike the complaint and also granted a motion for judgment filed by the defendant. From the judgment rendered thereon, the plaintiff appealed to this court, claiming that the trial court improperly struck each count of her operative complaint. Held: 1. The trial court properly struck the first count of the

CIVIL-EMPLOYEE INTENTIONAL TORT. R.C. 2745.01 - Trial court did not err when it concluded that forklift backup alarm at issue is not an "equipment safety guard" within the meaning of R.C. 2745.01.

R.C. 2953.321/sealed criminal records subject-matter jurisdiction termination of employment 42 U.S.C. 1983 and R.C. 2744.02(a)(1)/ immunity implied contract breach summary judgment. A party cannot raise for the first time on appeal arguments that were not presented in the trial court. Appellant failed to plead in her complaint allegations that appellee violated her rights in violation of public policy and that appellee violated her rights by using privileged and sealed records in violation of 42 U.S.C. 1983 and the Ohio Constitution to terminate her employment. Those two issues are not properly before this court. The trial court did not err in granting appellee's motion for summary judgment. Appellant failed to exhaust her administrative remedies and further failed to allege any statutory claims. The trial court lacked subject-matter jurisdiction where appellant's claims were subject to a collective bargaining agreement. Appellant failed to plead a violation of 42 U.S.C. 1983. Nonetheless, under R.C. Chapter 2744, appellee is a political subdivision, and appellant failed to establish any exceptions that would apply here and summary judgment was properly granted on this issue. Appellant provided no evidence that the detective acted with malicious purpose, in bad faith, or in a wanton or reckless manner. The trial court did not err in granting summary judgment on this issue.t

Plaintiff dentist entered into non-compete agreement with another dentist appeals jury verdict on claim of tortious interference with contract against defendant dental practice that hired competing dentist. Dental practice cross-appealed. Plaintiff not entitled to prejudgment interest, claim was tortious not contractual, plaintiff did not demonstrate that the dental practice failed to engage in good faith settlement efforts prior to trial. Court did not abuse discretion denying plaintiff's motion to compel discovery concerning net worth of dental practice, plaintiff's discovery attempts occurred after case tried to a jury and was on remand. If information critical to case the plaintiff would have requested it in discovery prior to first trial. Court did not abuse discretion disallowing testimony concerning net worth of dental practice, plaintiff failed to proffer evidence, forcing appeals court to speculate and where jury's decision not to award punitive damages was based on lack of malice rather than the net worth of dental practice. Judgment against dental practice not void where entered against the dental practice's trade name, rather than legal entity behind trade name. R.C. 1329.10(C) permits action to be "maintained" against trade name. No abuse of discretion in court declining to correct judgment entry to reflect the legal entity where the plaintiff indicated that it was his intention to sue the trade name.

CIVIL-DISMISSAL-FAILURE TO STATE A CLAIM-FAIR HOUSING ACT OF 1968/TITLE VIII-OHIO CIVIL RIGHTS ACT-SEXUAL HARASSMENT-INTENTIONAL TORT-AGENCY-AIDED BY AGENCY-VICARIOUS LIABILITY-DIRECT LIABILITY-NEGLIGENCE-NEGLIGENT HIRING AND/OR SUPERVISION - Appellant's counterclaim failed to sufficiently plead claims for quid pro quo sexual harassment and hostile environment harassment under the Fair Housing Act under traditional principles of vicarious liability based upon the doctrine of respondeat superior involving the aided-by-agency theory of vicarious liability. Appellee was not liable for the intentional torts of its employee under a scope-of-employment analysis. Appellant's counterclaim also failed to sufficiently plead direct liability claims for negligent hiring and/or supervision.

Under State ex rel. Klein v. Precision Excavating & Grading, Co., 155 Ohio St.3d 78, 2018-Ohio-3890 and on the record of the case, the magistrate correctly reasoned that relator failed to demonstrate the Industrial Commission abused its discretion in denying his request for temporary total disability (TTD) compensation based on the finding that relator had retired from his employer for reasons unrelated to the allowed conditions in his claim. Objection overruled and writ of mandamus denied.

CIVIL MISCELLANEOUS — ATTORNEY FEES: The trial court did not err in awarding attorney fees to plaintiff landlord against defendant tenant's attorney under R.C. 2323.51(A)(2)(a)(i) in an eviction action, where the court's finding that the attorney had engaged in frivolous conduct by protracting the proceedings for the obvious purpose of unnecessarily delaying defendant's eviction was supported by the facts and the law, as the record demonstrated that the objections the attorney had filed to a magistrate's order setting a bond amount lacked any basis in law and were not filed in accordance with the local rules, and the disability-based discrimination claim the attorney filed against plaintiff lacked an evidentiary basis, and that this conduct was undertaken for the stated purpose of delaying the eviction.

The petitioner, who had been convicted of felony murder in connection with the stabbing death of the victim inside the victim's home during what appeared to be a botched burglary, sought a writ of habeas corpus, claiming, inter alia, that the state deprived him of his due process right to a fair trial insofar as it failed to correct the trial testimony of L, a former director of the state police forensic laboratory, that a red substance on a towel found in the victim's home after the murder tested positive for blood when no such test had been conducted and when subsequent testing conducted in connection with the present habeas action revealed that the red substance was not in fact blood. The habeas court rendered judgment denying the habeas petition. With respect to the petitioner's due process claim, the court concluded that, because L mistakenly but honestly believed that the towel tested positive for blood and, thus, did not give perjured testimony, the burden was on the petitioner to demonstrate that there was a reasonable probability of a different verdict if the correct evidence had been disclosed. Applying this standard, the habeas court determined that L's testimony was immaterial because, among other things, the state's criminal case against the petitioner did not rely on forensic evidence. Rather, the state proved its case primarily on the basis of testimony from witnesses who testified as to certain incriminating statements that the petitioner had made to them, testimony from neighbors of the victim that they heard a loud vehicle in the vicinity around the time of the murder, when the petitioner and his alleged accomplice, B, had stolen and were driving a vehicle without a muffler, and the testimony of the petitioner's girlfriend, who contradicted the petitioner's statements to the police regarding his whereabouts on the night of the murder. On the granting of certification, the petitioner appealed, claiming that the habeas court applied the incorrect sta

The commission's determination that the employee is "precluded from engaging in all sustained remunerative employment, and thus permanently and totally disabled, is supported by some evidence in the record. And despite the commission's "concession," there was no requirement for it to address explicitly passages from one expert's opinion that were contrary in part to the expert opinion with which the commission "concur[red]." Having denied reconsideration of its grant of permanent total disability compensation, and not having identified a true legal error in its proceedings, the commission is not authorized on this record to revisit its decision. The magistrate's decision is not adopted, and the requested writ of mandamus is denied.

FMLA interference, FMLA retaliation, admission of evidence, Evid.R. 408, reviewing court, jury demand, jury waiver

Jury Instructions—Self-Defense—Burden of Proof—Testimonial Evidence—Jury Deliberations—Abuse of Discretion—Harmless Error. Ray petitioned for review of the Court of Appeals' judgment affirming his convictions for attempted first degree murder, first degree assault, and accessory to first degree murder. The Supreme Court held that the district court did not err in instructing the jury regarding defendant's assertion that he acted in defense of himself and a third person because (1) the language of a self-defense-related instruction did not permit the jury to reconsider the court's determination, based on the evidence at trial, that the affirmative defense of person was available to defendant and (2) the jury was properly instructed concerning the People's burden to disprove that, and any, affirmative defense. Although error resulted from the district court's reliance on later-overruled case law permitting the jury to have unrestricted access to a witness recorded interview admitted as an exhibit at trial, when comparing the content of that exhibit with the other evidence admitted at trial, the error was harmless. The Court of Appeals' judgment was affirmed.

Motion to compel arbitration contract contractual capacity ratification R.C. 2711.02. The trial court did not err in granting appellees' motion to stay proceedings and compel arbitration. The record reflects that a valid and enforceable arbitration agreement existed because it had been ratified by appellant's guardian.

Judgment affirmed. The trial court did not err when it determined that defendants-appellants were not the prevailing parties because both parties were in breach of contract. Competent and credible evidence supported the trial court's determination of damages in favor of plaintiffs-cross appellants. The trial court's determination that defendants-appellants did not prove that they were entitled to advertising costs was not against the manifest weight of the evidence. The trial court did not err in dismissing or failing that plaintiffs-cross appellants failed to prove their claims of unjust enrichment, intentional misrepresentation, and negligent misrepresentation. The damages calculation in favor of the independent contractor work was not in error. Plaintiffs-cross appellants' assertion of error in the trial court's damages award for independent contractor services was not presented to the trial court and may not be heard for the first time on appeal. All assignments of error and cross assignments of error are overruled and the trial court's judgment is affirmed.

Summary judgment opportunity to arbitrate grievance collective bargaining agreement agreement to arbitrate statutory age discrimination claim statute of limitations R.C. 4112.02 180 days grievance procedure tolling R.C. 4112.14 alternative pleading Civ.R. 56(F) motion. Trial court properly granted summary judgment to defendant-employer where plaintiff-employee's age discrimination claim under R.C. 4112.02 was barred by the 180-day statute of limitations the allegation in plaintiff's complaint that he was a member of a protected class under R.C. 4112.14 did not alternatively plead a cause of action under R.C. 4112.14 plaintiff's use of the grievance procedure set forth in the collective bargaining agreement did not toll the statute of limitations.

In appeal from a decision finding employer liable for contributions under Ohio unemployment compensation law, court of common pleas did not apply incorrect standard of review or abuse its discretion in finding that the decision of the commission was supported by reliable, probative, and substantial evidence and was in accordance with law.

Workers' compensation—To establish impossibility as an affirmative defense to an application for an additional award for a violation of a specific safety requirement, an employer must show (1) that it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work and (2) that no alternative means of employee protection existed or were available.

Upon remand from the federal district court, trial court did not err in granting summary judgment to defendants on plaintiff's claims of common law sexual harassment, intentional infliction of emotional distress, and negligent hiring and/or retention. Judgment affirmed.

Appellant's request for service of the complaint, by operation of law, was a dismissal and refiling of the complaint and was a failure otherwise than on the merits. The trial court, therefore, erred in failing to apply the savings statute. Based on this error, the trial court also erred in dismissing the vicarious liability claims against Appellees (a medical practice and hospital). In light of these errors, whether the trial court erred in its conclusion about a physician's status as an employee of the medical practice is moot. Reversed and remanded for further proceedings.