Notable Cases

Ochall v. McNamer, Franklin C.P. No. 14 CV 005498 (July 31, 2015)

Plaintiff allegedly suffered a severe spinal cord injury after an eleven-year old child struck her with a go-kart during a race with other children on a private backyard go-kart track.  Plaintiff was standing near the edge of the track taking pictures of the children when this one child driver lost control.  Plaintiff filed suit against the couple who invited plaintiff to the event, the child, the child’s parents, the track owners, and several companies which were alleged to have been involved in the track design or construction.

Adam E. Carr successfully argued that this go-kart race was a recreational activity and thus, the plaintiff’s claim was barred by the doctrine of primary assumption of risk under Gentry v. Craycraft, 101 Ohio St. 3d 141, 2004-Ohio-379, 802 N.E.2d 1116.  At common law, a plaintiff’s assumption of the risk stood as an absolute bar to his recovery.  Anderson v. Ceccardi, 6 Ohio St. 3d 110, 451 N.E.2d 780 (1983).  With the enactment of former R.C. 2315.19, Ohio’s original comparative negligence statute, the defense of implied assumption of risk merged with the defense of contributory negligence.  Anderson at syllabus.  However, primary assumption of risk did not merge with contributory negligence.  Gallagher v. Cleveland Browns Football Co., 74 Ohio St. 3d 427, 431, 659 N.E.2d 1232 (1996).  Primary assumption of risk arises where the defendant owes no duty to the plaintiff.  It is a defense of extraordinary strength and it acts as a complete bar to a plaintiff’s recovery.  Gallagher at 431.

Barker v. Emergency Professional Serv., Inc., 11th Dist. No. 2012-T-0096, 2013-Ohio-5817

Plaintiff had been transported to a local hospital following a near-drowning diving accident.  He alleged that substandard medical care rendered him a quadriplegic/tetraplegic.  Some of the medical defendants asserted a third-party complaint for contribution and indemnity against the property owners for the original injury, based on an alleged defect in the condition of the property.

Adam E. Carr successfully moved for a Civ. R. 12(B)(6) dismissal in the trial court and successfully defended the appeal.  No case has been found in American legal history in which a medical malpractice defendant was permitted to assert such a claim against the original tortfeasor.  The treating doctor “takes his victim as he finds him,” and is responsible for the consequences of his or her own malpractice, if any.  The treating doctor is not responsible for the original injury, but only to the extent, if any, that his substandard care made the injury worse.  This fundamental principle of tort law was affirmed.

D.G. v. Boardman Local Schools, N.D.Ohio No. 4:11-cv-01174

Adam E. Carr successfully defended a pre-teen girl and her parents in federal court. Our clients had been accused of bullying at school and cyberbullying on the internet. The plaintiff filed suit against our clients, plus ten other children, their parents, and the school district. The allegations against our clients were dismissed with prejudice during discovery, with no payment by our clients or their insurer.

The plaintiff and her mother appeared on the Dr. Phil show (aired twice) and 48 Hours. None of the defendants were interviewed on either program. Despite this, our client prevailed in court.

In re Uninsured & Underinsured Motorist Coverage Cases, 100 Ohio St. 3d 302, 2003-Ohio-5888, 798 N.E.2d 1077

Adam E. Carr represented the successful insurers in two of the companion cases to Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 799 N.E. 2d 179.  The Supreme Court of Ohio adopted one of Adam E. Carr’s arguments on insurance policy interpretation.  It was Galatis that ended the Scott-Pontzer phenomenon, which had driven some leading insurers our of the Ohio insurance market.

 

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