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Wednesday, April 24, 2013

Jeremy Pauley, et al. v. City of Circleville, et al. Pickaway , Case no. 2012-1150
Fourth District Court of Appeals (Pickaway County)

State of Ohio v. Matthew Kareski, Case no. 2012-1242
Ninth District Court of Appeals (Summit County)

Mahoning Education Assoc. of Developmental Disabilities v. State Employment Relations Board et al., Case no. 2012-1378
Seventh District Court of Appeals (Mahoning County)

Lauren J. Mann v. Northgate Investors LLC, d.b.a. Northgate Apartments, Case no. 2012-1600
Tenth District Court of Appeals (Franklin County)


Does Law Bar Claim Against Property Owner For Recreational User’s Collision With Man-Made Hazard?

Where Hazard Was Not Introduced to Support Recreational Use of Land

Jeremy Pauley, et al. v. City of Circleville, et al. Pickaway, Case no. 2012-1150
Fourth District Court of Appeals (Pickaway County)

ISSUE: Does a state law that exempts property owners from any duty to keep their premises safe for entry or use by a “recreational user,” bar any possibility of civil liability by a property owner for injuries suffered by a recreational user that resulted from a man-made hazard introduced by the owner that does not further or contribute to the property’s recreational use?

BACKGROUND: R.C. 1533.181 provides that the owner of real property does not “owe any duty to a recreational user (of that property) to keep the premises safe for entry or use,” and further provides that a property owner does not “extend any assurance to a recreational user, through the act of giving permission (to come on to the property) that the premises are safe for entry or use.” 

Because an injured party (the plaintiff) seeking to impose civil liability on another (the defendant) for the plaintiff’s injuries or loss must generally establish that the defendant “owed a duty” to protect the plaintiff from a dangerous condition and failed to do so, the effect of R.C. 1533.181 is to generally immunize property owners from civil liability for injuries suffered by persons while they are engaged in recreational activities on the owner’s property.

In this case, 18-year-old Jeremy Pauley suffered spinal injuries that  rendered him quadriplegic in a sledding accident that took place in a public park owned and maintained by the City of Circleville.  Pauley was injured while he and a friend were sliding down two large piles of topsoil that the city had transported from a private construction site and was temporarily storing on the grounds of the park after all available space at a municipal maintenance facility had been filled.  Because the piles were covered with snow and it was near dark, Pauley and his friend were not aware that the piles included not only dirt but also debris from the construction site.  Pauley’s injuries were incurred when he  slid head-first into a large wooden object similar to a railroad tie that was concealed by the snow at the base of one of the dirt piles.

Pauley and his family filed a civil lawsuit against the city in the Pickaway County Court of Common Pleas, asserting that city officials had breached their duty to maintain the park in a safe and sanitary condition by depositing piles of soil that included hazardous construction debris in a location that the officials knew was used by local children and families for recreational activities including sledding.

The city moved for summary judgment dismissing Pauley’s claims based on the “recreational user” immunity from civil liability conferred on property owners by R.C. 1533.181. The trial court granted summary judgment in favor of the city, holding that once it was established that Pauley was a recreational user of the property pursuant  to R.C. 1533.181 at the time he was injured, there remained no material question of fact regarding whether the  city had a duty to protect him from potentially unsafe conditions on the property. On review, the Fourth District Court of Appeals voted 2-1 to affirm the trial court’s award of summary judgment. The dissenting judge entered a separate opinion indicating that he would reverse the trial court and allow Pauley’s claims to proceed to trial.

Pauley sought and was granted Supreme Court review of the Fourth District’s decision.

Attorneys for Pauley assert that there are two divergent lines of decisions from the state’s appellate courts interpreting the “recreational user” statute. They urge the court to follow the appellate districts that have disagreed with the Fourth District’s holding that a plaintiff’s engagement in a recreational activity at the time of injury is an absolute bar to property owner liability under any circumstances.

They point to cases from the Fifth, Seventh and Ninth appellate districts decided since 2006, which have held that property owners were not entitled to summary judgment under R.C. 1533.181 despite the fact that a plaintiff’s injuries were incurred while engaging in recreational activity.  In each of those cases, they assert, the courts of appeals followed the Ohio Supreme Court’s reasoning in Miller v. Dayton (1989) that the introduction of man-made hazards can change the natural character of a premises and place it outside the protection of the recreational-user statute if those changes do not further recreational use of the property and potentially expose invitees to dangers that are not a customary or foreseeable part of the recreational activity in which they are engaged.

In this case, they argue, the city effectively converted the portion of the park in which Pauley was injured from a facility routinely used by the public for recreation, including sledding, to a dumping ground for potentially hazardous construction debris. By doing so, they say, the city exposed Pauley to a man-made hazard that was not a customary or foreseeable risk of sledding in a public park, and therefore placed itself outside of the general immunity from liability conferred by the recreational user statute.

Attorneys for the city respond that nothing in the recreational use statute creates an exception to immunity based on a property owner’s introduction of man-made changes or “hazards” to its premises, and argue that the interpretation of the law urged by Pauley in this case would require the court to improperly create such an exception by judicial decree.

They assert that the plain language of the statute, and the majority of court decisions applying it, supports the holding of the Fourth District in this case that when a defendant property owner establishes that a plaintiff was engaged in recreational activity on the owner’s property, R.C. 1533.181 unconditionally absolves the property owner of any duty to protect the recreational user from potential hazards on the property, and therefore eliminates any question that the owner can be held liable for that person’s injuries.

Contacts
Representing Jeremy and Christine Pauley: Paul W. Flowers, 216.344.9393

Representing the City of Circleville: John T. McLandrich, 440.248.7906

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Does ‘Judicial Notice’ Error Trigger Double Jeopardy, Bar State From Re-Trying Defendant?

State of Ohio v. Matthew Kareski, Case no. 2012-1242
Ninth District Court of Appeals (Summit County)

ISSUE: When the conviction of a criminal defendant is overturned on appeal based on a finding that the trial court improperly “took judicial notice” of an essential element of the charged offense rather than requiring the state to present admissible evidence proving that element, may the case be remanded for a new trial, or is the state barred by double jeopardy from any future prosecution of the defendant for that offense?

BACKGROUND:  A provision of Ohio’s Rules of Evidence, Evid. R. 201, authorizes a trial court to “take judicial notice” of a fact related to a case (i.e., accept as accurate information that is offered by a party without the support of  witness testimony or documentary evidence) so long as the “noticed” fact is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”  

In this case, Akron bartender Matthew Kareski was charged with a misdemeanor count of selling alcohol to an underage person after Kareski accepted payment from a 19-year-old bar patron for a bottle of Bud Lite beer without checking his ID, opened and placed the bottle on the bar in front of the patron, and gave him change. The patron, who was a confidential informant employed by the Ohio Department of Public Safety, left the beer untouched on the bar and confirmed to a liquor agent who was present in the bar and had observed the transaction that he had been served alcohol and Kareski had accepted payment for it. The agent then cited Kareski, took the beer into custody, and submitted a sample of the contents to the state crime laboratory for analysis.  A lab technician tested the sample and issued a signed report certifying that the tested sample had an alcohol content of 3.35 percent, and therefore qualified as an alcoholic beverage under the state’s liquor laws.

Kareski entered a plea of not guilty to the underage sale charge, and the case was tried to a jury in the Akron Municipal Court.  At trial, in order to establish the required element that the substance sold by Kareski was an alcoholic beverage, the state attempted to have the agent who made the arrest testify about the results of the laboratory test and enter the lab report into evidence.  Kareski objected, citing recent U.S. Supreme Court decisions that barred as hearsay testimony regarding scientific test results by anyone other than the technician who actually performed the test. The trial judge excluded the lab report from evidence on the basis that the person who actually performed the test was not available to be cross-examined about it. However, the court granted a request by the state that it take judicial notice of the fact that “Bud Lite is beer,” thereby effectively advising the jury it should accept as a fact that the Bud Lite sold by Kareski fell within the legal definition of an alcoholic beverage.

The jury found Kareski guilty of selling beer to an underage person. He was sentenced to a suspended 60-day jail term and fined $150. Kareski appealed.

On review, the Ninth District Court of Appeals vacated his conviction and remanded the case for a new trial based on a finding that the trial court had erred in taking judicial notice of an essential element of the charged offense rather than requiring the state to prove that element by admissible evidence. Kareski asked the court of appeals to reconsider the part of its ruling that remanded the case for a new trial, arguing that the state’s evidence at his first trial was insufficient to prove all elements of the offense of underage liquor sales, and the state was therefore precluded by double jeopardy from trying Kareski again on that charge.

The Ninth District rejected the double jeopardy argument and affirmed its order remanding the case for a new trial.  Kareski sought and was granted Supreme Court review of the Ninth District’s ruling.

Attorneys for Kareski argue that when a criminal conviction is vacated on appeal, the defendant’s double jeopardy rights bar a new trial unless a review of all the evidence admitted at trial, including evidence later found to have been wrongly admitted, shows that evidence was sufficient to prove all of the elements of the charged offense.  In this case, they say, the trial court admitted  no evidence of any kind  showing that the content of the Bud Lite sold by Kareski was in fact  an alcoholic beverage as defined by the state’s liquor laws. They contend that in requiring a new trial, the Ninth District erred by considering the trial court’s improper judicial notice of that essential fact as “evidence” when in fact it was “the opposite of evidence,” i.e. a piece of information merely asserted by the state but unsupported by any witness testimony, documentation, or physical exhibits. 

Attorneys from the Akron city attorney’s office, arguing on behalf of the state, respond that the Ninth District’s ruling correctly followed the U.S. Supreme Court’s 1988 holding in Lockhart v. Nelson that a defendant whose conviction is overturned based on a trial error may be retried without offending double jeopardy so long as a review of all the evidence admitted at trial, including information that was wrongly admitted, shows that all of the elements of the charged offense were established.

They urge the court to reject what they characterize as Kareski’s attempt to artificially distinguish between facts that a trial court admitted into evidence through witness testimony, documents, or physical exhibits that were later found to have been inadmissible, and a fact that a trial court improperly instructed jurors to consider as having been established as true by taking judicial notice. In both circumstances, they argue, the state relied on a trial judge’s incorrect ruling that a fact necessary to prove its case had been properly placed before the court, and therefore did not go on to introduce additional, presumably duplicative evidence to establish the same fact.

They assert that the crux of the U.S. Supreme Court’s ruling in Lockhart was that criminal defendants should not be “rewarded,” and prosecutors should not be penalized, by barring retrials in cases where the state has rested its case after relying on an evidentiary ruling by the trial judge that is later overturned on appeal.

Contacts
Representing Matthew Kareski: Thomas R. Houlihan, 330.762.2411

Representing the Akron city attorney’s office: Michael J. Defibaugh, 330.375.2030

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Does Law Requiring Ten Days Advance Notice Before Public Employee Picketing Violate Workers’ Free Speech Rights?

Mahoning Education Assoc. of Developmental Disabilities v. State Employment Relations Board et al., Case no. 2012-1378
Seventh District Court of Appeals (Mahoning County)

ISSUE: Are the constitutional free speech rights of public employees violated by a provision of state law that prohibits public employee unions and their members from picketing a government agency by which union members are employed without first giving the agency ten days advance notice in writing?

BACKGROUND: The Mahoning County Board of Developmental Disabilities is a public agency that provides support services, including educational services, to individuals with developmental disabilities. Some of board’s employees are represented by a union, the Mahoning Education Association of Developmental Disabilities.

Following the expiration of a collective bargaining agreement between the board and the union in August 2007, the parties continued to negotiate terms of a successor agreement. On November 5, 2007, members of the union conducted informational picketing outside a county building at which the MRDD board was conducting a scheduled public meeting. The union did not provide the board with advance notice that the meeting would be picketed.

The board filed a grievance with the State Employment Relations Board (SERB), charging that the union had committed an unfair labor practice. SERB ruled that the union had committed an unfair labor practice by violating R.C. 4117.11(B)(8), a provision of the state’s Public Employee Collective Bargaining Act requiring that a labor organization must give ten days advance notice in writing before conducting picketing of a public agency that is an employer of the union’s members.

The union appealed the SERB ruling to the Mahoning County Court of Common Pleas, asserting among other claims that R.C. 4117.11(8)(B) was unenforceable because it violated the constitutional free speech rights of union members. The common pleas court rejected the union’s argument, affirmed the constitutionality of the picketing-notice requirement,  and upheld the SERB finding of an unfair labor practice against the union.

The union appealed.  On review, the Seventh District Court of Appeals vacated SERB’s unfair labor practice ruling based on the court of appeals’ finding that the 10-day picketing notice requirement imposed by R.C. 4117.11(8)(B) was an unconstitutional prior restraint on the free speech rights of the union and its members.  SERB, represented by the Ohio Attorney General’s Office, sought and was granted Supreme Court review of the Seventh District’s ruling.

Attorneys for SERB point out that the picketing notice provision at issue in this case has been part of the State Employee Collective Bargaining Act since it was adopted in 1983, and has previously been found enforceable on the basis that it does not impose any prohibition or restriction on the content of “speech” by public employees, including the expressive activity of picketing, but merely requires unions and their members to give an employing agency advance notice before exercising their unrestricted free-speech rights.

They argue that the Seventh District should not have analyzed the statute under the “strict scrutiny” standard applicable to content-based restrictions on speech, but instead should have employed the less-rigorous “intermediate scrutiny” standard applicable to content-neutral rules that merely impose reasonable limitations on the time, place and manner in which speech may be conducted.  They urge the Supreme Court to analyze the picketing-notice requirement under the latter standard, and to affirm SERB’s finding that it is a reasonable regulation that serves a significant public interest by giving a public agency that is to be picketed sufficient lead time to anticipate and make necessary arrangements to deal with potential disruption of normal operations and maintain essential services to clients.

Attorneys for the union respond that the Seventh District correctly identified the picketing-notice statute as an unconstitutional  “disfavored speaker” regulation that restricts the exercise of free speech based solely on the identity of those who wish to speak. They point out that any other group of individuals, such as family members of MRDD clients, suppliers, or members of the general public upset about some action of the board, could have conducted a lawful picket of the November 5, 2007 meeting of the Mahoning County MRDD Board without any advance notice, while R.C. 4117.11(8)(B) rendered identical conduct by a group of board employees illegal and exposed their union to a SERB citation for an unfair labor practice.

They urge the court to affirm the Seventh District’s holding that, by imposing a limitation on the speech of public employees that is not applicable to any other citizens, R.C. 4117.11(8)(B) falls within the category of  content-based free speech restrictions that are presumptively unconstitutional absent a “strict scrutiny” showing that the restriction is necessary to protect a compelling governmental interest and is narrowly tailored to achieve that interest.  They assert that in this case SERB has not identified any compelling need for advance notice of non-strike related informational picketing by public employees, and argue that even if some of the speculative disruptions to agency operations posited by the state were to occur, SERB has presented no evidence showing how a 10-day waiting period between a union’s notice of planned picketing and the picketing itself constitutes a  “narrowly tailored” remedy for those potential problems.

NOTE: Numerous amicus curiae (friend of the court) briefs supporting the positions of the respective parties have been submitted by public employee labor organizations and organizations representing the interests of public employers. Those pleadings may be viewed by accessing the Supreme Court’s online docket.

Contacts
Representing the State Employment Relations Board: Alexandra T. Schimmer, 614.995.2273

Representing the Mahoning Education Association of Developmental Disabilities: Charles Oldfield, 330.743.5101

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Does Law Requiring Landlord to Maintain Safe Conditions Impose Duty to Protect Guest Using Common Area of Building?

Lauren J. Mann v. Northgate Investors LLC, d.b.a. Northgate Apartments, Case no. 2012-1600
Tenth District Court of Appeals (Franklin County)

ISSUE: Do the duties imposed on residential landlords by the Ohio Landlord and Tenant Act to maintain their premises in a safe condition apply not only to tenants of the landlord’s building, but also to a tenant’s guest when the guest is properly on the premises and using a common area stairway?

BACKGROUND: Sixteen year old Lauren Mann of Columbus was injured in a fall in an apartment building stairway. Mann, who had been visiting a friend who lived in the building, exited her friend’s second-floor apartment after nightfall to find that the light fixtures intended to illuminate the windowless interior hallway and stairwell she must use to exit the building were not working. Mann took a false step near the bottom of the unlighted stairway and fell through a glass panel next to the building’s exit door, suffering severe lacerations.

She filed a civil lawsuit against the landlord, Northgate Investors LLC, alleging that Northgate had caused her injuries by negligently failing to maintain adequate lighting for second-floor residents of its building and their guests to safely enter or leave the building after nightfall. 

Northgate entered a motion for summary judgment dismissing Mann’s complaint.  In that motion they argued that: 1) Their statutory duty under the state’s Landlord/Tenant law to maintain common areas of the building in a safe condition was owed only to tenants;  2) As a guest rather than a tenant, Mann could only assert a non-statutory (common law) negligence claim against Northgate; and 3) Mann could not establish a common law claim because the unlighted stairwell was an “open and obvious hazard” that she had recognized but entered anyway despite knowing that she was exposing herself to possible injury.

The trial court agreed with Northgate’s arguments and granted its motion for summary judgment.

Mann appealed.  On review, the Tenth District Court of Appeals vacated the trial court’s award of summary judgment and remanded the case for further proceedings on Mann’s negligence claims against Northgate.  In a 3-0 opinion, the court of appeals held that 1) The safe-premises duties set forth in R.C. 5321.04 (a section of the Landlord/Tenant Act) apply equally to tenants of a landlord’s building and their invited guests; 2) Proof that a landlord has violated the safety standards set forth in  R.C. 5321.04 establishes “negligence per se” (a legal presumption that the landlord acted negligently); and 3) Because Mann’s complaint was based on statutory violations, the common law defense of  “open and obvious hazard” did not apply to bar her claims against Northgate.

The Tenth District certified that its holding that the safe-premises duties imposed on landlords by R.C. 5321.04 extend to guests using common areas of an apartment building was in conflict with a decision of the Ninth District in a similar case. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Northgate contend that the Tenth District based its decision on an overly broad reading of the Ohio Supreme Court’s 1994 decision in Shump v. First Continental-Robinwood Assoc. In Shump, they assert, the court held that a landlord’s statutory duty to provide a safe premises under the Landlord/Tenant Act applied equally to a landlord’s tenant and the tenant’s guest while they were both in the tenant’s apartment, but did not address the separate situation of a guest who is injured while using a common area of a building such as the stairway at issue in this case.

They argue that the legislature’s declared purpose in enacting the Landlord/Tenant Act, including  R.C. 5321.04, was to codify the reciprocal rights and duties of residential landlords and persons who lease or rent property owned by a landlord, but that nothing in the statute  indicates an intent to extend the legal duties owed to a tenant to guests using common areas of an apartment building that are not part of the premises leased by or under the control of a tenant.  Northgate urges the court to reject the Tenth District’s reasoning in this case and instead adopt the legal analysis of the Ninth District in Shumaker v. Park Lane Manor of Akron (2011).  In that case, they say, the court denied a claim that a landlord was negligent per se for injuries suffered by a guest who fell in an unlighted parking lot, and held further that the guest could not establish a common law negligence claim against the landlord because the hazard posed by an unlighted common area of the property was open and obvious.

Attorneys for Mann respond that R.C. 5321.04 includes four separate paragraphs that contain safe-premises requirements that must be met by residential landlords, and makes no distinction between the sections applicable to space rented to tenants and those applicable to common areas of an apartment building. They also point out that, unlike the unlighted outdoor parking lot at issue in Shumaker, which was dark simply because the sun had set, the stairwell on which Mann fell was dark and dangerous because Northgate had breached a specific statutory duty to maintain the lights that illuminated the only available access to the second floor of its building in sound operating condition.

Contacts
Representing Northgate Investors LLC: Brian D. Sullivan, 216.687.1311

Representing Lauren Mann: Michael T. Irwin, 614.891.7112

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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.