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Tuesday, Sept. 18, 2007

John Marich v. Bob Bennett Construction Co. et al., Case no. 2006-1827
9th District Court of Appeals (Summit County)

Taylor Building Corporation of America v. Marvin Benfield et al., Case nos. 2006-1890 and 2006-2043
12th District Court of Appeals (Clermont County)

Joseph Talik v. Federal Marine Terminals, Inc., Case no. 2006-1808
8th District Court of Appeals (Cuyahoga County)

Kelly Mendenhall et al. v. The City of Akron et al., Case no. 2006-2265
U.S. District Court for the Northern District of Ohio


May Municipality Exempt Certain Streets from Vehicle Size Limits Set By State Law?

John Marich v. Bob Bennett Construction Co. et al., Case no. 2006-1827
9th District Court of Appeals (Summit County)

ISSUES:

BACKGROUND: In November 2002, a vehicle operated by John Marich crashed into a trailer being operated by an employee of the Bob Bennett Construction Company while the trailer was parked on Clark Mill Road in the city of Norton. At the time of the crash, the Bennett employee was off-loading from the trailer a bulldozer that was 124 inches wide. A state law, R.C. 5577.05, limits the width of vehicles that may be operated on any public road in the state to 102 inches, with the exception (set forth in a separate state statute, R.C. 4513.34) that larger vehicles may be operated on a state highway or local road if the operator obtains a special permit from the appropriate state or local authorities to do so.

Marich sued Bennett for damages arising from the accident and entered a motion seeking a summary judgment holding that Marich was negligent “as a matter of law” because the bulldozer being unloaded on the street was wider than the 102-inch limit set by R.C. 5577.05 and Bennett had not obtained a special permit pursuant to R.C. 4513.34 to operate it on a public roadway. Bennett cross-filed seeking summary judgment in its favor. The company pointed out that Norton has a city ordinance that imposes the same size limits for vehicles as those set by R.C. 5577.05. They noted, however, that the Norton ordinance does not provide for the issuance of special permits, but instead exempts certain streets within the city limits from its vehicle width restrictions. Because the list of exempted roadways specifically included Clark Mill Road, they said, Bennett's employee was in compliance with the applicable local ordinance.

The trial court granted summary judgment in favor of Bennett, holding that because the crash took place within the Norton city limits, the city ordinance allowing on-road operation of an oversized vehicle at that location without a permit was applicable and Bennett's conduct was not negligent as a matter of law.

Marich appealed the trial court's ruling. The 9th District Court of Appeals reversed, holding that the Norton ordinance was void and unenforceable because it was in conflict with R.C. 5577.05 and 4513.34, which the court of appeals held are “general laws” that preempt any conflicting local ordinance. The 9th District went on to hold that, because Bennett's operation of an oversized vehicle without a special permit was contrary to state law, Marich was entitled to summary judgment holding that Bennett's conduct was negligent as a matter of law.

In appealing the 9th District's rulings to the Supreme Court, Bennett argues that, under its “home rule” powers granted by the Ohio Constitution, Norton has full authority to regulate vehicle traffic on streets within its municipal limits, and that local ordinances exercising that power take precedence over state law. They assert further that R.C. 5577.05 and 4513.34 are not “general laws” of the state because they allow for localized exceptions to the regulation of oversized vehicles, and therefore do not apply uniformly to all Ohioans. Even if the Court should hold that these state statutes are “general laws” that conflict with the Norton ordinance, Bennett contends that the 9th District's ruling still must be reversed because that court improperly applied its ruling invalidating the local ordinance retroactively to impose liability on Bennett for actions that were permitted under the Norton ordinance at a time when it was still in force and therefore presumptively valid.

Contacts
Ralph F. Dublikar, 330.499.6000, for Bob Bennett Construction Co.

Jack Morrison, Jr., 330.762.2411, for John Marich.

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What Is Standard for Appellate Review of Grant/ Denial of a Motion to Compel Arbitration?

Taylor Building Corporation of America v. Marvin Benfield et al., Case nos. 2006-1890 and 2006-2043
12th District Court of Appeals (Clermont County)

ISSUE: In reviewing a trial court ruling compelling a litigant to submit a dispute to arbitration pursuant to an arbitration clause in a contract, when the appellant seeks reversal based on a claim that the arbitration clause is “unconscionable,” should the court of appeals apply a “ de novo ” standard of review or an “abuse of discretion” standard of review?

BACKGROUND: In this case, Marvin and Mary Ruth Benfield of Clermont County filed a civil lawsuit seeking to revoke a contract they entered into with Taylor Building Company for the construction of a home on their land. The trial court granted a motion by Taylor to stay its proceedings in the Benfields' case until the dispute had been subjected to arbitration pursuant to a compulsory arbitration clause included in the contract.

The Benfields appealed the trial court ruling, alleging that the arbitration clause included in their contract with Taylor was “unconscionable” and thus not enforceable under the Ohio Arbitration Act (Chapter 2711 of the Revised Code). Applying a de novo standard of review in which it reconsidered and re-weighed the evidence considered by the trial court, the 12th District Court of Appeals ruled in favor of the Benfields, vacated the trial court order requiring them to accept arbitration, and reactivated their lawsuit against Taylor.

Taylor now asks the Supreme Court to reverse the 12th District and reinstate the trial court order compelling the Benfields to submit the dispute to arbitration pursuant to the terms of the contract. They argue that the court of appeals erred by applying a de novo standard of review in the case when the proper standard for appellate review of a trial court decision on the enforceability of an arbitration clause is “abuse of discretion.” Under this less-demanding standard, they note, a court of appeals must defer to the trial court's analysis of factual evidence and testimony and may reverse a trial court's holding on the arbitrability of a dispute only if it finds that the trial court decision was clearly unreasonable, arbitrary or contrary to law. Because the 12th District's ruling was based on an improper de novo reevaluation and re-weighing of evidence from the trial court proceedings, they contend, the court of appeals should be reversed and the trial court order compelling arbitration should be reinstated.

Attorneys for the Benfields, supported by an amicus curiae (friend of the court) brief field by the Ohio Attorney General's Office, argue that the 12th District did not err in applying a de novo standard of review in this case because the issue in dispute (whether the arbitration clause in a contract was unconscionable and therefore unenforceable) involves the interpretation of the terms of a contract, an issue they say Ohio courts have generally held is a question of law subject to de novo review rather than a question of fact subject to review on an abuse of discretion basis.

Contacts
J. Robert Linneman, 513.721.4450, for Taylor Building Corporation.

David W. White, 513.732.1420, for Marvin and Mary Ruth Benfield.

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Is Ohio ‘Intentional Tort’ Action Preempted By Federal Law That Covers Dock Worker Injuries?

Joseph Talik v. Federal Marine Terminals, Inc., Case no. 2006-1808
8th District Court of Appeals (Cuyahoga County)

ISSUE: Does the federal Longshore Harbor Workers' Compensation Act (LHWCA) conflict with and preempt Ohio case law that allows an injured worker to file an “intentional tort” claim against his employer in cases where a workplace condition was so unsafe that it presented a “substantial certainty” of worker injury?

BACKGROUND: While he was working as a longshoreman at the Port of Cleveland, Joseph Talik suffered injuries that required amputation of one leg when an irregular pile of heavy pipes he was helping to move collapsed and fell on him. Talik filed an “intentional tort” lawsuit against his employer, Federal Marine Terminal, Inc. in state court, alleging that his supervisors knew the pipe was piled in an unsafe manner but had refused to allow Talik and a co-worker time to rearrange the pile in a safe manner before ordering them to load the pipe onto a truck.

Attorneys for Federal Marine filed a motion for summary judgment in the trial court, arguing that Talik's state law claim was barred because his injury was covered by federal workers' compensation benefits under the LHWCA, which provides exclusive rights of recovery for workplace injuries to longshore workers. The Cuyahoga County Court of Common Pleas granted summary judgment to the employer, holding that the federal statute preempted Ohio laws granting other forms of recovery for Talik's injuries. Talik appealed. The 8th District Court of Appeals reversed the trial court's grant of summary judgment and remanded the case for further proceedings on his intentional tort action.

Federal Marine sought and was granted Supreme Court review of the case. They argue that the 8th District erred in holding that Talik could pursue tort damages from his employer in state court when his workplace accident was covered by the LHWCA. They point to amendments to the federal statute enacted by Congress in 1972 that they say specifically increased benefits and extended coverage to longshoremen working on docks and piers as well as aboard ships while specifying that benefits payable to injured workers under the LHWCA would be their exclusive form of recovery.

Attorneys for Talik respond that the 8th District was correct in finding that the intentional tort claim he has advanced against Federal Marine under Ohio law does not fall under the LHWCA. They argue that the federal statute covers only “accidental” injuries sustained in the workplace whereas Talik's injuries were the result of an egregious violation of workplace regulations by his employer that created a “substantial certainty” of injury. They point to state and federal cases that they say have excluded claims of intentional or deliberate infliction of injuries by an employer from coverage under the LHWCA, and assert that the federal statute does not conflict with or preempt state laws like Ohio's that allow injured workers to pursue recovery from their employers for “intentional torts” through civil lawsuits.

Contacts
Irene Keyse-Walker, 216.592.5000, for Federal Marine Terminals, Inc.

Jerome W. Cook, 216.348.5400, for Joseph Talik.

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May City Enact Civil Penalties for Violations That Are Criminal Offenses Under State Law?

Kelly Mendenhall et al. v. The City of Akron et al., Case no. 2006-2265
U.S. District Court for the Northern District of Ohio

ISSUE: Do the “home rule” powers conferred by the Ohio Constitution give a municipality authority to enact civil penalties for the offense of violating a traffic signal light or the offense of speeding, both of which are criminal offenses under the Ohio Revised Code?

BACKGROUND: Kelly Mendenhall and other Akron-area motorists who have been cited for “civil violations” of a new local speeding ordinance enforced through the use of unmanned traffic cameras have challenged the constitutionality of the ordinance under which those citations were issued. While Mendenhall and the other petitioners originally sued in state court, Akron and its Rhode Island-based traffic camera contractor, Nestor Traffic Systems, Inc., removed their cases to federal district court. After reviewing the pleadings submitted by the parties and a decision of Trumbull County Court of Common Pleas holding a similar Girard city ordinance unconstitutional, the federal judge assigned to the case has stayed his court's proceedings and asked the Supreme Court of Ohio to rule on a question of state law that is central to the dispute.

Specifically, the Court has been asked to determine whether Akron's camera-detected speeding ordinance and a similar Cleveland ordinance allowing the city to issue and enforce “civil citations” against vehicle owners whose vehicles are photographed in the act of “running” a red light are unenforceable because they conflict with the state laws that define speeding and traffic control device violations as criminal offenses.

Attorneys for Mendenhall and her fellow petitioners cite language in the “home rule” provision of the Ohio constitution that authorizes municipalities to enact local police regulations, but bars them from enacting or enforcing any ordinance that is “in conflict” with a general law of the state. They point to a specific provision in the state traffic code, R.C. 4511.06, in which the legislature indicated its intent to establish a uniform, statewide scheme of presumptive speed limits and traffic control regulations and to preempt local governments from enacting conflicting regulations. They also cite past Ohio court decisions that invalidated a local ordinance setting a lower speed limit for school zones than was set by state law, and that voided local ordinances because they changed the classification of a state-defined offense from a felony to a misdemeanor and vice versa.

In this case, they contend, the camera-enforced Akron speed ordinance and Cleveland red-light ordinance clearly conflict with state law because they re-define traffic offenses classified as misdemeanors by state statute as “civil offenses” for which the violator has no right to confront his accuser in court, no opportunity to challenge the accuracy of the speed-measuring technology or the reasonableness of the posted speed limit, and of which a vehicle owner is presumed guilty of the charged offense even if he can prove he was not driving or even in the vehicle at the time of the violation.

Attorneys for Akron, supported by amicus curiae (friend of the court) briefs filed by several other Ohio cities and the Ohio Municipal League, argue that the challenged Akron and Cleveland ordinances do not “conflict” with the state statutes that define the criminal offenses of speeding or violating a traffic control device, because the city-created violations are civil rather than criminal in nature. They note that the ordinances in question do not impose any type of license suspension or jail time against offenders, and do not require reporting of these violations to the Bureau of Motor Vehicles or the assessment of penalty “points” against an offender's license.

Akron's attorneys argue that its local ordinance is applicable only to enforcement of speed limits in and around local schools, and was enacted as a direct response to a local case in which a speeding hit-and-run driver struck and killed a child in a school crossing area. They assert that nothing in their ordinance contradicts or differs from the speed limits set by state statute, and urge the Court to affirm that using roadside cameras and civil citations to assure compliance with those limits is a lawful and necessary exercise of Akron's home rule powers to protect local citizens.

Contacts
Stephen Fallis, 330.375.2030, for the City of Akron.

Jacquenette S. Corgan, 330.535.9160, for Kelly Mendenhall.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.