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Case Update

Perhaps the most interesting decision out of the Supreme Court this past week, Ahmad v. AK Steel Corp., was one it didn't make.  Eighteen months after the appeal had been filed, fifteen months after the court had accepted it, ten month after the briefs had been completed, and seven months after oral argument, the Court decided that it had been wrong to accept the case in the first place, and dismissed it as "improvidently allowed." 

Ahmad involved the question of  what effect the violation of an administrative regulation -- here, an Ohio Building Code requirement of stair handrails -- had on the open and obvious doctrine.  The dismissal provoked an eight-page dissent from Justice O'Donnell and Justice Lundberg Stratton, who concluded that the open and obvious doctrine should apply to building code violations which are themselves open and obvious, such as the lack of a handrail.  The dissent in turn provoked a blistering five-page concurrence by four of the other justices, noting that there was no evidence that the lack of a handrail here did violate any codes, concluding pointedly that "there is no wisdom or common sense" in deciding the case when "there is not a scintilla of evidence that a code violation occurred."  Hey, guys, where's the love?

This isn't the first time the court's confronted a question about the effect of administrative regs on the open and obvious doctrine; last year, it had another case on that exact issue, involving the death of a 10-year-old girl in a hotel swimming pool.  (You can find a fairly extensive discussion of the issues in my post here.)  So what happened?  The court dismissed that one as improvidently allowed, too. 

In the only other case (besides a tax appeal), the court held in State v. Bartholomew that a trial court can order a defendant to pay restitution to the victim's reparations fund. 

Courts of appeals don't have the luxury of being able to dodge cases, so let's see what happened there....

Civil.  1st District joins 5th and 10th Districts in holding that employer's allegation that employee fraudulently obtained workers comp benefits is appealable under RC 4123.512; 2nd and 11th Districts have held to the contrary... The 6th District tells us all, for the 486th time, that (a) there is no such thing as a motion for reconsideration in the trial court, and (b) a motion to vacate cannot be used as a substitute for appeal... 8th District says that doctor not entitled to set-off from plaintiff's settlement with hospital, set-off allowed only where settling co-defendant is found to be "liable in tort"... Good discussion in this 6th District case of factors to be considered in granting change of name of child... 12th District upholds arbitration provision in contract for nursing home care...

Criminal.  8th District, in post-Colon decision, says that aggravated robbery with a gun doesn't require a mens rea... 4th District looks at post-Foster sentencing law on standard of review and concludes that appellate must review sentence to determine whether court considered statutory sentencing factors; if it did, then sentence is reviewed for abuse of discretion... 9th District reverses rape conviction because of impermissible use of pre-arrest, post-Miranda silence, on plain error analysis, no less...

Beavis and Butthead would have a field day with this one.  In State v. Lang, the 8th District reviewed a conviction for disseminating matter harmful to juveniles, which provides that "no person *** shall recklessly exhibit, or present to a juvenile *** any material or performance that is obscene or harmful to juveniles."  The court determined that evidence was sufficient to convict the defendant based upon its previous holding that "masturbating in front of juveniles constitutes a 'performance.'"

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