Sunday, February 26, 2012

ISSUE 2 - Ohio Recognizes The Attractive Nuisance Doctrine


            If a person trespasses upon another’s land and is injured, that injured person, generally speaking, cannot assert a claim against the landowner unless the injury occurred because the landowner acted in willful, wanton or reckless fashion.  Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312.  However, if that injured trespasser is a child, the landowner will be held to a higher standard in Ohio, as the Ohio Supreme Court has now adopted the Attractive Nuisance Doctrine set forth in the Restatement of the Law, 2d. Torts.  While most states have followed the Attractive Nuisance Doctrine for many years, Ohio did not, until Bennett v. Stanley (2001), 92 Ohio St.3d 35.  In Bennett, a 5 year old drowned after wandering into a neighbor’s back yard pool that had basically been abandoned and was full of moss, algae and stagnate rain water.  (Exacerbating this tragedy, the boy’s mother drowned as well, trying to rescue the boy.)  The Bennett court held that the landowner could be liable for the death of the son (and the mother) under the Attractive Nuisance Doctrine.

            In order to establish an Attractive Nuisance case, the practitioner must establish:

(1)       the injury occurred at a place known to be frequented by children;
(2)       the situs contains a condition reasonably known to be dangerous to children;
(3)       the child, because of youth, could not be expected to appreciate the risk;
(4)       the cost of rectifying the dangerous condition is slight as compared to the utility of the existence of the dangerous condition; and
(5)       the landowner fails to exercise reasonable care in eliminating the danger.

            We recently used the Attractive Nuisance Doctrine successfully in Butler County to assert a claim on behalf of a young boy, at the time age 10, who had been seriously injured by playing on stacked lumber in a lumber yard that abutted the mobile home park where the boy lived.  The boy sustained a serious injury to his lower leg when the unsecured lumber he was climbing on gave way and landed upon him.  The case had all the elements of Attractive Nuisance.  (1) Children frequently wandered from the adjacent mobile home park into the lumber yard; (2) children loved to jump from lumber stack to lumber stack; (3) the injured child had no appreciation for the terrible danger lurking in the stacked lumbar weighing over one ton; (4) the danger could have been rectified by fixing a few holes in the lumber yard fence.


At Thomas J. Diehl & Co., LLC, we have been handling personal injury claims in Southwest Ohio since 1988.  We regularly work with counsel in ethical fee sharing arrangements.  Thomas J. Diehl is a Fellow of the Litigation Counsel of America and a member of the Million Dollar Advocates Forum.

To view more Co-Council Reports and more information on how Tomas J. Diehl - Ohio Personal Injurt Arrorney - can help you visit www.ThomasJDiehl.com

ISSUE 1 - Is the Collateral Source Rule Dead?


            Representing the injured party in a personal injury claim is a difficult juggling act for the practitioner.  The experienced litigator is well aware of the traps involved in even the simplest personal injury case, including issues like subrogation, medical liens and tort reform.  The practice is fraught with land mines.

            It just got a lot tougher.  On December 20, 2006, the Ohio Supreme Court rendered a decision dealing with the collateral source rule.  Robinson v. Bates (2006), 112 Ohio St. 3d 17.  This decision is being used by insurance companies to try to decrease jury awards and settlements.

            Pryor v. Webber (1970), 23 Ohio State 2d 104 was the leading case invoking the collateral source rule.  The rule provides, basically, that evidence of a plaintiff’s receipt of benefits from a source other than the wrongdoer cannot be presented to a jury.  Thus, if the plaintiff had his medical bills paid by health insurance, or med pay, or even by his kind uncle, the fact that those payments occurred could not be presented to a jury.

            Robinson v. Bates affects the collateral source rule.  In Robinson, one of Plaintiff’s medical bills was paid in part by Plaintiff’s health insurance and the balance was “written off” by the provider, leaving the balance as fully paid.  The Plaintiff tried to introduce the full bill.  The Defendant argued that only the “paid amount” should be presented to the jury.  The Ohio Supreme Court, breaking with years of contra authority, declared that the original bill and the evidence of the write off could be presented to the jury.  Expect insurance companies to seize upon this decision to try to further whittle settlements and jury awards.

            But all is not lost.  The practitioner is not without options and argument to counterattack Robinson.  We intend to raise several arguments and use different tactics in these cases, including:

1.  Making the defense prove the existence of the write off.  This will be more difficult for the defense than might be expected as it will require testimony from the medical practitioners and, potentially, the health insurance carriers.

2.  Reminding the trial court via Motions in Limine that the write off amount does not represent full payments as many health insurance plans utilize “hold backs” and “bonus payments.”

3.  Reminding the Court that Robinson does not modify the collateral source rule.  It merely changes what is and is not a collateral source.

At Thomas J. Diehl & Co., LLC, we have been handling personal injury claims in Southwest Ohio since 1988.  We regularly work with counsel in ethical fee sharing arrangements.  Thomas J. Diehl is a Fellow of the Litigation Counsel of America and a member of the Million Dollar Advocates Forum.

To view more Co-Council Reports and more information on how Tomas J. Diehl - Ohio Personal Injurt Arrorney - can help you visit www.ThomasJDiehl.com