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Personal Injury Law in Ohio
Personal injury law, also known as “Tort Law” is comprised of a number of state and federal laws governing when, where and who you are permitted to file suit against. Well personal injury law is notoriously complicated, at its most basic, it involves proving the basic elements of your case. These four elements are 1) duty; 2) breach; 3) causation and 4) damage. Well this might seem straightforward, the process of actually proving these elements involves experience and knowledge. Here are some basic tips for proving and winning your personal injury case.
How Much Does a Personal Injury Lawyer Cost?
To speak to personal injury lawyer at Sawan & Sawan – nothing. We offer free consultations. Even better, we give every personal injury client the Sawan & Sawan “no-fee guarantee.” If we don’t recover compensation for your personal injury case, we don’t take a penny. NOT A PENNY. We understand that most people don’t expect to be involved in a personal injury. Many of our serious injured clients have an inability to work to make matters worse. Because of this, we go to great lengths to ensure our clients do not have to needlessly pay lawyers. To learn more, give our family of lawyers a call today at 419-900-0955.
Who is At Fault For an Injury?
Ohio is an “at fault” State – which is a state that assessing the cost of a personal injury accident on the responsible party – called the tortfeasor. However, Ohio employs a contributory fault statute found in Ohio Revised Code 2315.33. This statute is often used to reduce the responsibility of one party, while apportioning it to about party. Sometimes, the Plaintiff themselves will be apportioned responsibility. Therefore, it is vital to understand this theory anytime a personal injury case arises. Contributory fault is defined as “any want of ordinary care on the part of the person injured, which combined and concurred with the defendant’s negligence and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred.” Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 226 (1975).
Contributory fault of the plaintiff may be asserted as an affirmative defense to negligence tort claims. R.C. § 2315.32. However, “Ohio’s comparative negligence statute, does not apply to claims involving an intentional tort. Labadie v. Semler, 66 Ohio App.3d 540, 545 (1990). To meet the burden of the contributory fault affirmative defense, the defendant has to prove basic negligence elements against the plaintiff (duty, breach, actual and proximate cause, and damages). The most litigated of which requires that plaintiff’s actions “must contribute as a proximate cause of the plaintiff’s injury.” 8 Ohio Jur. 3d Automobiles and Other Vehicles § 545.
Contributory Fault for Ohio Injury Cases
Determining whether the plaintiff was contributorily at fault is for the fact finder to determine. “Generally, issues of comparative negligence are for the jury to determine . . ..” Westfall v. Lemon, 2015-Ohio-384, ¶ 26. Under R.C. § 2315.34, the jury or the judge will make a factual finding specifying the following: (1) The total amount of compensatory damages that could have been recovered but for the fault of the plaintiff, (2) the portion of the total damages that represent economic loss, (3) the portion of the total damages that represent noneconomic loss, and (4) the percentage of fault that is attributed to each party.
Under this framework above, the calculation of damages is very straightforward once these questions are answered by the finder of fact. R.C. § 2315.34 requires the splitting of economic and noneconomic damages to provide easier calculation for statutory caps on noneconomic damages. See R.C. § 2315.18.
A contributory fault calculation occurs after the determination of damages, not after the statutory cap is applied. For example, in Guiliani v. Shehata, the jury found the plaintiff sustained $1,000,000 in compensatory noneconomic damages and was 30% contributorily at fault. 2014-Ohio-4240. The statutory cap was set at $250K in noneconomic damages. The 30% was taken before the cap ($1M to $700K), and not after the cap ($250K). Thus, noneconomic damages remained at $250K.
However, the question of contributory fault can be taken from the fact finder through a summary judgment motion. “Summary judgment may be appropriate under the comparative negligence statute where, after construing the evidence most strongly in plaintiff’s favor, a reasonable person could only conclude that plaintiff’s negligence was greater than the negligence of defendant.” Collier v. Northland Swim Club, 35 Ohio App.3d 35, 39 (1987).
Contributory fault should apply normally, as mandated by statute, to automobile accidents. See 8 Ohio Jur. 3d Automobiles and Other Vehicles § 544. After reading a substantial amount of case law, I see nothing to the contrary that makes it so that it does not apply to automobile accidents. The only additional piece to factor in with automobile accidents is the prevalence of negligence per se. Due to the substantial amount of traffic codes, there are a number of circumstances where the defendant will be negligent, but the plaintiff will also be found negligent per se under a traffic statute. “Where a legislative enactment imposes upon any person a specific duty for the protection of others’, and his neglect to perform that duty proximately results in injury to such another, he is negligent per se or as a matter of law.” Crosby v. Radenko, 2011-Ohio-4662, ¶ 8 (quoting Eisenhuth v. Moneyhon, 161 Ohio St. 367 (1954)).
For example, violating the assured clear distance statute, not yielding the right-of-way to all traffic approaching the highway, not stopping before entering a road from a private driveway, etc., will all result in the plaintiff being held guilty of contributory negligence as a matter of law. However, “[t]he fact that one person is negligent per se does not mean that such negligence was the proximate cause or sole proximate cause of the injury. Guthrie v. Jamison, 1995 WL 238425 (Ohio App. 10th). Thus, the fact that the plaintiff is negligent per se, is only part of the equation. “[T]he totality of the causal negligence must be examined and is a question to be submitted to the jury whose duty it is to apportion negligence. Negligence per se is not necessarily liability per se.” Case v. Norfolk and Western Ry. Co., 59 Ohio App.3d 11, 14 (1988). Ultimately, even if the plaintiff is negligent as a matter of law under a negligence per se theory, it is still a question for the fact finder to apportion liability between the parties.
Common Causes of Injury in Ohio
The State of Ohio regularly compiles and releases the data for personal injuries that occur in the State. In a recent report, it was found that there are approximately 2.7 fatal injuries per 100 reported occupational injuries in Ohio. Since private individuals are not subject to reported requirements, this number is not likely to be all encompassing. However, a review of the data shows some interesting and useful information. For example, of all the injuries recorded, the breakdown of diagnosis is as follows:
Collateral Source Rule For Ohio Personal Injury Cases
In Ohio, the Collateral Source rule is contained in Ohio Revised Code §2315.20. It states, “In any tort action, the defendant may introduce evidence of any amount payable as a benefit to the plaintiff as a result of the damages that result from an injury, death, or loss to person or property that is the subject of the claim upon which the action is based, except if the source of collateral benefits has a mandatory self-effectuating federal right of subrogation, a contractual right of subrogation, or a statutory right of subrogation or if the source pays the plaintiff a benefit that is in the form of a life insurance payment or a disability payment. However, evidence of the life insurance payment or disability payment may be introduced if the plaintiff’s employer paid for the life insurance or disability policy, and the employer is a defendant in the tort action.” However, “If the defendant elects to introduce evidence described in division (A) of this section, the plaintiff may introduce evidence of any amount that the plaintiff has paid or contributed to secure the plaintiff’s right to receive the benefits of which the defendant has introduced evidence.” Note that there are exceptions to this rule. For example one such exception is if the source of collateral benefits has a federal, contractual or statutory right of subrogation. In sum, this rule is created to avoid “double payment” of benefits. Where a Plaintiff has received some benefits from a separate source that does not need to be paid back, it will act to reduce an award from the tortfeasor.
Dennis P. Sawan
Licensed in Ohio and Georgia
Christopher A. Sawan
Licensed in Ohio and Michigan