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Case Update

The only decision out of SCOTUS this week was one on student loans and bankruptcy, although it should at least double that output this week:  it's announced that decisions will be handed down on both Tuesday and Wednesday.  Their Ohio counterparts were much busier, handing down four major decisions.

The big one was Kaminski v. Wire Metal Products, concerning the constitutionality of RC 2745.01, which defines employer intentional torts so as to require a deliberate intent to injure on the part of the employer.  Third time's the charm:  although the court had rejected this language twice earlier, in 1991 and 1999, this time it approves.  The court insists that there's enough dissimilarity between the present statute and the previous ones that overruling the previous decisions isn't necessary, thus keeping intact its record of not have overruled a decision since it imposed the ridiculous test for overruling president five years ago in Westfield v. Galatis (discussed here).  Chalking the decision up to the expectation that an all-Republican Supreme Court will issue pro-business decisions does the opinion a disservice, but the gentle reader can look elsewhere for more extensive analysis; employer intentional tort jurisprudence was rather muddled before, and at least this has the virtue of achieving clarity.  It does so at the expense of creating a situtation where an employer could be punished for a criminal act in circumstances where the act would not classify as an intentional tort. 

In Elevators Mut. Ins. Co. v. Flaherty's, a bar burned down.  The insurance company claimed that the fire had been intentionally set, an argument enhanced by the fact that the owner had pled no contest to a charge of arson.  It can still make the argument, but it won't be aided by the plea; the court holds that pleas of no contest, and the convictions resulting from them, cannot be used in civil disputes over insurance coverage for loss or damage resulting from the criminal acts underlying the convictions. 

Hall v. Akron Gen. Med. Ctr. involves a bar exam question of the application of the doctrine of res ipsa loquitur.  The plaintiff's decedent had died during a procedure to insert a dialysis catheter; she presented two experts who said the doctor was negligent, the doctor presented two experts who said this was one of the risks of the procedure.  The court holds that where there are two probable causes of injury, one of which is not attributable to the negligence of the defendant, res ipsa doesn't apply.

The only criminal case of consequence was State v. Pepka, in which the State sought to amend an indictment for child endangering to include the element of serious physical harm, which elevates it from a first degree misdemeanor to a third degree felony.  The opinion makes a convincing case that Pepka had more than adequate notice that the State was arguing serious physical harm, and wasn't prejudiced by the amendment.  There's another issue here.  Following the decision in State v. Colon that the indictment must include the mens rea requirements for various crimes, some courts have held that the indictment can't be amended to include that, because the defendant is entitled to grand jury indictment, and if an element isn't included, there's no indication that the grand jury ever considered it.  In fact, there's a case out of the 2nd District pending before the Supreme Court on that very issue.  Pepka doesn't resolve this, since the indictment here specified that it was for a third degree felony.  But the argument isn't looking good.

Finally, under the heading of no good deed goes unpunished we have Disciplinary Counsel v. MamichA father, apparently a friend of Mamich's, came to him claiming that he'd obtained a credit card, put his daughter on the account, and she now was being sued for debts that he'd run up on it.  He persuaded Mamich to represent the daughter, telling him that she was traveling and couldn't be reached.  Disciplinary action was taken against Mamich for representing the daughter without her consent, at which point Mamich learned that the father had applied for and obtained the credit card solely in his daughter's name without her knowledge.  For his troubles -- he never received a dime on the case -- Mamich gets a six-month stayed suspension. 

On to the courts of appeals...

Criminal.  Resisting arrest not lesser included offense of assaulting peace officer, says 2nd District... Guilty plea waives any claim of ineffective assistance of counsel unless defendant shows that counsel's failure renders plea involuntary, 8th District holds... Trial court should have allowed testimony of prior threats made by victim against defendant, but error harmless because defendant not entitled to self-defense instruction since he violated duty to retreat, says 10th District... Children's service investigator not law enforcement officer, no need to advise defendant of Miranda rights, 12th District rules... Picky, picky:  2nd District finds that defendant's on-record jury waiver in court's chambers was not done in "open court," case reversed... 9th District holds that defendant not entitled to discovery or to funds for experts in post-conviction relief proceeding... Restraint of victim for 14 hours and use of zip ties as handcuffs supported finding of separate animus for rape and kidnapping convictions, 12th District finds...

Civil.  8th District reverses summary judgment, holds that Ameritemps could be held liable under respondeat superior for accident caused by one of its employees driving three other employees to job site... Motion to vacate can't be supported by claim that movant's counsel was incompetent, says 5th district; appropriate remedy is malpractice suit... Suit against housing authority for emotional distress arising from false criminal charges falls within exception to sovereign immunity statute for claims arising out of employment relationship, 8th District rules...

Uh, guys, that's why they print the laws.  In State v. Caplinger, the defendant pled to a charge of failure to register as a sex offender, with the State recommending probation if the defendant could find a place to live that was verifiable.  Alas, the only place he could find was one that was within 1000 feet of a school, so the judge gave him three years.  What neither the prosecutor, defense attorney, trial judge, or appellate attorney understood was that the crime Caplinger pled to was non-probationable.  The 2nd District reverses, finding that the State's promise to recommend probation was illusory, and rendered the plea involuntary.

Reason #43 I stopped doing domestic work.  In Matteo v. Principe, the 8th District affirms the dismissal of the plaintiff mother's motion to modify child support for failure to obtain service of the motion within one year.  The motion was filed in 2002.  The child became emancipated in 2007.  The case is still pending on other issues.

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