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Russ' Excellent Adventure

Normally, I do the weekly update on Mondays.  Normally, there's about 170 decisions handed down every week by the Ohio courts.  Last week wasn't normal; only 29 came down.  There's a couple that are interesting, but I'll save them for next week.  Instead, I'll discuss a few things that I've come across in cases that I've handled recently.

Actually, this post should be entitled "Russ' Bogus Journey," because we'll start with the slip and fall case that I tried and got punked on a couple of weeks back.  The case involved a slip and fall on a construction site, and the defense argued the open and obvious doctrine.  (An argument which was greatly aided by pictures of the site, in which the ground looked like it had recently undergone an artillery barrage.)  The defense also argued assumption of risk.

Here's the skinny on that.  There used to be three types of assumption of risk under Ohio law.  The first was express, where the plaintiff had entered into a contract expressly acknowledging the risk.  Another is primary, where the risk is so well-accepted that the plaintiff can be understood to have accepted it; the foul ball at the baseball game is typical of this.  Then there's implied assumption of risk, which Ohio Jury Instructions define as

The plaintiff impliedly assumed the risk of injury if he/she had knowledge of a condition that was obviously dangerous to him/her, and voluntarily exposed himself/herself to that risk of injury.

Except it doesn't exist anymore; OJI claims the definition is drawn from the 1983 Ohio Supreme Court case of Ceccardi v. Anderson, but if you read the case, you find that implied assumption of risk got folded into the concept of comparative negligence.  The defense attorney in my case wanted an instruction on both implied assumption and comparative neglience, but I convinced the judge to charge only on the latter, and I had a full 45 minutes to revel in the brilliance of my legal acumen and persuasive skills before the jury came back with a defense verdict.

And last week, I had a motion to suppress which will probably come to the same bad ending, but I came across some stuff that might be helpful.  In my case, the cops stopped my client for going through a red light and asked him for his drivers license.  When he told them he didn't have it on him, they arrested him, and found that he possessed certain items that the law frowns upon.

It turns out that the police can't arrest a person for not having a drivers license on him.  The statute, 4507.35, says

The operator of a motor vehicle shall display the operator's driver's license, or furnish satisfactory proof that the operator has a driver's license, upon demand of any peace officer...

In other words, it's not a crime not to have your driver's license on you; it's only a crime if you can't furnish satisfactory proof that you have one.  There are a number of cases, including this one last year from the 8th District, which have nullified arrests where the defendant provided information, such as name and social security number, from which the police could have determined whether he had a valid license.  (Virtually all police cruisers, at least in this area, now have LEADS units in them, and if not, they can always do it the old-fashioned way:  call the info in to the dispatcher.)  And, of course, once the arrest goes out the window, everything found as a result of the arrest goes with it.

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