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Wednesday, Dec. 16, 2009

Christine Banford, et al. v. Aldrich Chemical, Inc., et al., Case no. 2009-0305
2nd District Court of Appeals (Montgomery County)

State of Ohio v. Thomas Dunlap, Case no. 2009-0477
8th District Court of Appeals (Cuyahoga County)

State of Ohio v. Douglas Prade, Case no. 2009-0605
9th District Court of Appeals (Summit County)


In Nuisance Lawsuit, May Plaintiff Recover for Fear, Other Emotional Harm Without Physical Injury?

Christine Banford, et al. v. Aldrich Chemical, Inc., et al., Case no. 2009-0305
2nd District Court of Appeals (Montgomery County)

ISSUE:  In a civil lawsuit in which property owners seek recovery for “annoyance and discomfort” caused by a nuisance on another person’s property, may the plaintiffs assert damage claims for fear and other emotional harm allegedly caused by the defendant’s acts or omissions, or are annoyance and discomfort damages recoverable in a nuisance action only for “tangible injuries” resulting in “actual physical discomfort?”

BACKGROUND: This case involves the aftermath of an April 2007 explosion at a manufacturing facility in Miamisburg owned by the Aldrich Chemical Company.  The explosion did not cause physical injury or significant property damage to adjoining properties, but as a precaution individuals living within a one-mile radius of the facility were evacuated and were not able to return to their homes for approximately 24 hours.

Some of the adjoining property owners subsequently filed a class action lawsuit against Aldrich seeking recovery for their out-of-pocket costs related to the forced evacuation, for the loss of use of their property, and for the annoyance and discomfort they experienced as a result the explosion and its aftermath. The trial of the class action was separated into several distinct phases.  During the phase devoted to causation and the amount of compensatory damages Aldrich owed each plaintiff, the trial judge instructed jurors that they should not consider the plaintiffs’ “internal fears or subjective concerns” in calculating annoyance and discomfort damages, but said the jury could award damages for annoyance and discomfort that were supported by a showing of “an appreciable, substantial, tangible harm resulting in actual, material physical discomfort.”  The jury made awards to each of 31 plaintiffs.

One of those plaintiffs, Taylor Ferguson, appealed the trial court’s judgment.  On review, the 2nd District Court of Appeals held that the trial judge erred in instructing the jury that it could not award annoyance and discomfort damages based on the plaintiffs’ fear and emotional upset, and should only calculate such damages based on a showing of tangible injury resulting in actual, material physical discomfort. Based on those rulings, the court of appeals remanded the case to the trial court for further proceedings. Aldrich sought and was granted Supreme Court review of the 2nd District’s decision.

Attorneys for Aldrich point out that the plaintiffs’ complaint in this case originally included claims for infliction of emotional distress, but the trial court granted summary judgment dismissing those claims based on its finding that none of the plaintiffs had shown that they suffered “severe or debilitating” emotional distress, which is the standard established by Ohio case law for such claims to be actionable. They assert that, at trial, the plaintiffs attempted to reassert their dismissed emotional injury claims by couching them as claims for “annoyance and discomfort,” but the trial court properly instructed the jury not to consider the plaintiffs’ testimony about their fears and other negative emotions in calculating the amount of annoyance and discomfort damages to which they were entitled.

In holding that the trial court’s jury instruction was improper, they assert, the 2nd District’s ruling was contrary to a line of court decisions dating back to the 19th century in which annoyance and discomfort damages in nuisance cases have been limited to situations where a nuisance caused tangible physical discomfort affecting one or more of a plaintiff’s five senses.  As examples, they cite cases in which such damages have been  allowed where a nuisance on a neighbor’s property produced extremely loud noises, excessively bright lights or visual eyesores, blowing smoke or soot or unpleasant smells that interfered with nearby property owners’ ability to enjoy the use of their property. In this case, they say, the trial court followed established precedent in excluding the plaintiffs’ subjective fears from the range of compensable injuries under a nuisance claim, and the 2nd District’s decision, if affirmed, would erroneously allow future nuisance case plaintiffs to recover for emotional distress without meeting the established standard for compensability of emotional distress claims set forth in this Court’s 1983 decision in Paugh v. Hanks.

Attorneys for Taylor Ferguson and other plaintiffs in the case urge the Court to affirm the 2nd District’s ruling.  They argue that Ohio case law has moved away from earlier requirements that emotional injuries were only compensable if they were accompanied by physical injury. They assert that the court of appeals decision in this case properly allows a jury assessing the damages a plaintiff  has suffered to consider not only physical harm but also the psychological impact of being driven from one’s home without warning by a violent explosion and potential venting of toxic gases, and the residual fear that the same facility could be the cause of a similar or even more traumatic event in the future.

Contacts
Martin A. Foos, 937.227.3700, for Aldrich Chemical Company Inc.

John A. Smalley, 937.223.8888, for Christine Banford and other plaintiffs.

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Is Gross Sexual Imposition Against Child Under Age 13 a ‘Strict Liability’ Offense?

State of Ohio v. Thomas Dunlap, Case no. 2009-0477
8th District Court of Appeals (Cuyahoga County)

ISSUE:  When a criminal defendant is charged with gross sexual imposition involving a child under the age of 13 in violation of R.C. 2907.05(A)(4), must the state show that the defendant acted with at least the guilty mental state of “recklessly” in having sexual contact with the victim, or is the crime a “strict liability” offense for which the state is not required to prove a guilty mental state?

BACKGROUND: In order to convict a defendant of a criminal charge, the state must prove to a judge or jury that: 1) the defendant engaged in conduct that is prohibited by law (in Latin, the actus reus); and 2) in committing the prohibited conduct, the defendant acted with a specified guilty mental state (in Latin, mens rea) that is set forth in the law he is charged with violating. In ascending order of severity, those mental states are “negligently,” “recklessly,” “knowingly,” and “purposely.” The only exception to the requirement of proving both a guilty act and a guilty mental state occurs when the legislature has clearly indicated in the text of a statute its intention to impose “strict liability” for the commission of certain conduct. When a statute imposes strict liability, any person found to have committed the conduct prohibited by that statute is guilty of the charged offense regardless of his or her mental state at the time the conduct took place. When a criminal statute does not set forth a required guilty mental state, but also does not include language indicating clear legislative intent to impose strict liability, a “catch-all” provision of state law requires the state to show that the prohibited act was committed with the guilty mental state of “recklessly.”

Thomas Dunlap of Cleveland was indicted and convicted on two counts of gross sexual imposition involving a minor under the age of 13. Neither the state’s charge to the grand jury nor the judge’s instructions to the jury at trial required a finding that Dunlap acted with any specified guilty mental state when he engaged in sexual contact with the victim. The statute under which he was charged, R.C. 2907.05(A)(4), defines sexual contact as touching an erogenous zone of a child under 13 with “the purpose of sexual arousal or gratification” of either party. The statute does not include any other language addressing whether the prohibited touching must be negligent, reckless, knowing or purposeful.

Dunlap appealed his convictions, arguing that his indictment was defective because the grand jury did not make a required finding that that he acted with a specific guilty mental state in committing the prohibited conduct. The 8th District Court of Appeals upheld his conviction, ruling that R.C. 2907.05(A)(4) imposes strict liability on persons who engage in sexual contact with a child under 13 regardless of their mental state, and therefore Dunlap’s indictment and trial were not defective.

Dunlap’s attorneys now ask the Supreme Court to overrule the trial and appellate court decisions and grant him a new trial. They argue that, because R.C. 2907.05(A)(4) contains neither a specified guilty mental state nor a clear indication of legislative intent to impose strict liability, the lower courts should have applied the catch-all provision of R.C. 2901.21(B) and required the state to show that Dunlap acted with at least the guilty mental state of recklessly in touching the victims.  Because failing to require proof of a required guilty mental state in obtaining a criminal indictment or conviction is a structural error that violates the defendant’s fundamental right to a fair trial, they assert, the Court must vacate Dunlap’s indictment and conviction and grant him a new trial. 

Dunlap’s attorneys also urge the Court to reject the state’s alternative argument that the inclusion of a “purpose of sexual gratification” in the definition of “sexual contact” sets forth a guilty mental state of “purposely” for the entire statute.  Even if the Court were to accept the latter argument, they say,

the record shows that neither the grand jury nor the trial court made a finding that Dunlap acted “purposely” (as opposed to negligently, recklessly or knowingly) in touching the victims.

Attorneys for the state respond that the grand jury and trial court both made specific findings that Dunlap engaged in “sexual contact” with the victims. By definition, they assert, a finding that sexual contact took place required a determination that the defendant 1) touched a prohibited area of the victim’s body and 2) did so “for the purpose of sexually arousing or gratifying either person.”  They argue that this language establishes a guilty mental state of “purposely” to prove a violation of R.C.2907.05(A)(4), and because the language of the indictment closely followed the language of the statute, the indictment sufficiently informed Dunlap of both the guilty act with which he was charged and the guilty mental state that must be shown in order to convict him of that offense.

Contacts
John T. Martin, 216.443.7583, for Thomas Dunlap.

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.

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Is 1998 DNA Test That Provided No Information About Killer a ‘Definitive’ Result That Bars New Testing?

State of Ohio v. Douglas Prade, Case no. 2009-0605
9th District Court of Appeals (Summit County)

ISSUE:  R.C. 2953.74 authorizes Ohio trial courts to grant requests for new DNA testing of evidence  from decided cases if such testing was not available at the time a defendant was convicted, or if earlier DNA testing was done but the results were “inconclusive” and  new test results excluding the defendant could conclusively prove his innocence. When prior DNA testing failed to detect the DNA of anyone except a murder victim on the victim’s bloody clothing, but enhanced testing methods now available might allow detection and analysis of DNA from her killer, is a prisoner convicted of the victim’s murder entitled to new DNA testing under R.C. 2953.74?

BACKGROUND: In November 1997, Dr. Margo Prade was shot and killed while sitting in a van parked outside her Akron medical office. The murder weapon was never found, and there were no eyewitnesses to the crime.  When police investigated the crime scene, they concluded that Dr. Prade had tried to push her assailant away but the killer had bitten her arm through the sleeve of her lab coat and blouse so hard that a bite mark impression was left on her skin.  However, the portion of the lab coat sleeve that covered the bite mark, and therefore may have retained traces of the killer’s DNA, had been covered in Dr. Prade’s blood.

In February 1998, Dr. Prade’s ex-husband, former Akron police captain Douglas Prade, was arrested and charged with her murder. Laboratory experts conducted DNA tests on crime scene evidence including the lab coat, using polymerase chain reaction (PCR) testing methods. However when a large amount of one person’s DNA is present in a test sample, PCR testing can not detect trace amounts of another person’s DNA that may also be present. The lab returned a report stating that it had not identified DNA from Douglas Prade or from any other person except Dr. Prade on the lab coat.

Based on other evidence, Douglas Prade was convicted of the aggravated murder of his wife and sentenced to life in prison.  In 2003, the General Assembly enacted R.C. 2953.71 through 2953.78, which authorize trial courts to grant prisoner requests for new DNA testing in their cases if their crimes were committed before DNA testing was available, or if DNA testing was performed on evidence in their cases but the results were “inconclusive.”

In February 2008, Prade filed an application with the Summit County Court of Common Pleas seeking approval for new DNA testing of his wife’s lab coat using new and more effective “short tandem repeat” (STR) and Y-Chromosome STR (Y-STR) testing methods developed since his conviction. The Summit County prosecutor opposed the application. Prade argued that new testing methods developed since 1998 are much more sensitive than the PCR method employed at the time of his trial, and that Y-STR testing in particular is capable of detecting extremely small quantities of male DNA that are mingled with large quantities of female DNA. If the new tests were able to detect and analyze the killer’s DNA from the arm of the lab coat covering the bite mark, and the DNA was not his, Prade argued, the results would conclusively establish that he was not his wife’s killer.

The trial court denied the request for new testing, holding that R.C. 2953.74 required courts to deny new testing in cases where there had been “a prior definitive DNA test.” In Prade’s case, the court ruled, the 1998 lab tests had yielded a definitive finding that no DNA from Douglas Prade was present on his wife’s lab coat.  Therefore the court found that any new test showing that Prade’s DNA was not present would merely confirm the former test results and would not require reversal of his conviction, which was based on other, non-DNA evidence. Prade appealed.  On review, the 9th District Court of Appeals affirmed the trial court’s ruling. 

Attorneys for Prade now ask the Supreme Court to overrule the trial and appellate courts and find that he is entitled to new DNA testing.  They argue that the lower court rulings mistakenly interpret the results of the 1998 DNA testing as “definitive” when in fact those tests provided absolutely no information about the identity of the killer. They assert that the legislative intent underlying the 2003 DNA testing legislation and subsequent amendments was to allow prisoners who were unable to prove their innocence by means of DNA test results at the time of trial to take advantage of new testing methods that are now available that could conclusively confirm their claims of innocence.

In this case, they say, under a proper reading of R.C. 2953.74, the 1998 DNA test results were “inconclusive” because they provided no information regarding the identity of the killer, and Prade is entitled to new testing because, if more sensitive testing methods yield a sample of the killer’s DNA and the DNA is not his, those results would conclusively establish Prade’s innocence.

Attorneys for the state argue that the language of the 2003 statute does not entitle convicted offenders to have the evidence in their cases re-tested every time a new DNA testing method is developed, but limits that authorization to instances in which 1) testing at the time of trial did not yield definitive results; and 2) a new test excluding the convicted person as the source of crime scene DNA would conclusively prove his innocence.  In this case, they say, the 1998 DNA test definitively found no DNA from Prade or anyone other than the victim on his wife’s lab coat, and the trial and appellate courts correctly held that new test results again excluding Prade as a source of DNA on the coat would not require reversal of his conviction, because that conviction was based on other, non-DNA evidence that would not be rebutted by a negative test result.

Contacts
David B. Alden, 216.586.7121, for Douglas Prade.

Richard S. Kasay, 330.643.2800, for the state and Summit County prosecutor’s office.

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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.