Civil stuff: injunctions, open & obvious, and refiling
A few brief notes on civil cases today.
The 1st District took a recent look at cases that seem to pop up with some frequency anymore: the "valued employee" bails for a job with a competitor, and the former files a lawsuit, based either on a restrictive covenant or a general claim under the Ohio trade secrets act. In Aero Fulfillment v. Tartar, the employee had been a vice president of sales, and left for a similar position with a company in Massachusetts. In upholding the trial court's denial of injunctive relief, Judge Painter gives a comprehensive review of the law on that subject, noting that while one seeking an injunction doesn't have to prove actual harm, they do have to at least show the prospect of irreparable harm, which the plaintiff in this case simply couldn't do; their claim, for example, that the former employee knew their client's identity and was going to them was pretty much refuted by the fact that the company posted the names of their clients on their web site.
And Chapter 27 from the Volume "He Who Hesitates is Lost": the company waited ten months after the employee left to file a lawsuit, and another three months after that to file for an injunction. As the court's opinion succinctly puts it, "where injunctive relief is requested, actions speak louder than words, and motions speak loudest of all." It's tough to argue that you're looking irreparable harm in the face if you wait over a year to do anything about it.
In Lewis v. Ritondaro, the 11th District buttresses its reputation as the most plaintiff-friendly court in the state on the open and obvious doctrine. The plaintiff fell going down the steps of a funeral home, and the court reversed a grant of summary judgment, holding that the difference in height of the steps, combined with the "overlay of indoor/outdoor carpeting that changed the contour, appearance, and navigability of the steps" made whether it was an open and obvious danger a question for the jury. All this in the face of substantial case law which holds that if you fall going down steps that you've gone up just a short time before, it's your tough luck.
Last, I've done some posts, like this one, suggesting that the abuses of the voluntary dismissal rule will eventually lead Ohio to adopt something more akin to the Federal rule, allowing the judge to condition dismissal upon the payment of a defendant's attorney fees or costs. That day is not today, however. In Hanson v. Riccardi, the plaintiff had dismissed her case on the morning of trial with the jury waiting in the hallway, and the court had imposed the condition that the plaintiff pay the costs of the case before refiling. The 6th District reversed, holding that the trial court had lost jurisdiction to do anything as soon as the voluntary dismissal was filed, since that immediately terminated the case. Note, though, that the trial court's action was simply premature: Rule 41(D) gives the court the authority to order payment of costs of the previous action when the new action is filed.