Motion to Dismiss; Appeal Dismissed – Lack of Final Appealable Order
State Auto. Mut. Ins. Co. v. Titanium Metals Corp., (2006) 108 Ohio St.3d 540:
The Ohio Supreme Court restated, in a discretionary appeal, the standard associated with what can be the proper subject matter for appellate review. In paragraph 8 of its opinion, the Court stated the following:
“ ‘It is well-established that an order must be final before it can be reviewed by an appellate court. If an order is not final, then an appellate court has no jurisdiction.’ (citation omitted) ‘Generally, an order denying a motion to dismiss is not a final order.’ (citation omitted) The reason is that a motion to dismiss is a procedural mechanism that tests the sufficiency of the allegations in the complaint. (citation omitted) When considering a Civ.R. 12(B)(6) motion, ‘a trial court must examine the complaint to determine if the allegations provide for relief on any possible theory.’ (citation omitted) ‘[T]he movant may not rely on allegations or evidence outside the complaint; otherwise, the motion be treated, with reasonable notice, as a Civ.R. 56 motion for summary judgment.’”
“Charging Lien” – Unenforceable in Subsequent Unrelated Litigation
Petty v. Kroger Food & Pharmacy (2005) 165 Ohio App.3d 16:
The Tenth District Court of Appeals dealt with a situation wherein an attorney attempted to seek recoupment of his/her fee from a traffic violation case in a subsequent claim asserted by the same plaintiff/client for false arrest and malicious prosecution against a store. The Court of Appeals in its syllabus stated the following:
4. “A ‘charging lien’ is a lien upon a judgment or other monies awarded to a client, or former client, for work previously performed by the attorney.”
5. “The right of an attorney to payment of fees earned in the prosecution of litigation to judgment, though usually denominated a lien, rests on the equity of such attorney to be paid out of the judgment by him obtained, and is upheld on the theory that his services and skill created the fund.”
6. “Attorney who represented former client in a traffic case could not assert a charging lien for attorneys fees against any judgment recovered by former client in his unrelated action against food store for malicious prosecution and false arrest and thus attorney lacked an interest in the property or transaction that was the subject matter of the malicious prosecution action and could not intervene in the action as a matter of right in order to assert a charging lien.”
Primary Assumption of the Risk
Konesky v. Wood Cty. Agricultural Soc. (2005) 164 Ohio App.3d 839:
The Sixth District Court of Appeals rendered an interesting decision which carefully reviewed the subject matter of primary assumption of the risk. On that basis, this particular case is reproduced in this Newsletter. In a nutshell, an attendee at a county fair filed suit after the attendee was injured by a horse which ran through the opening of a fence and subsequently trampled the attendee. The court stated in its syllabus, the following:
“1. Risk of being trampled by runaway horse that came off of county fair racetrack through a gap in the surrounding fence was not an inherent risk of horse racing, and thus the doctrine of primary assumption of the risk did not apply to fair attendee’s action against county agricultural society for injuries suffered when horse left racetrack at county fair and trampled her.”
2. Primary assumption of the risk is an alternative expression for the concept that a defendant either owed no duty of care to the plaintiff or did not breach any duty owed; primary assumption of the risk has nothing to do with plaintiff’s conduct.
3. The types of risks that are covered under the doctrine of primary assumption of the risk are those that are the foreseeable and customary risks of the sport or recreational activity at issue.
4. Only those risks directly associated with the activity in question are within the scope of the doctrine of primary assumption of the risk.
5. To be covered under the doctrine of primary assumption of the risk, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.
6. A trial court must proceed with caution when contemplating whether the doctrine of primary assumption of the risk completely bars a plaintiff’s recovery.
7. Genuine issue of material fact as to whether county agricultural society breached its duty of ordinary care by allowing gate at county fair racetrack to remain open, thereby creating an unreasonable danger that someone located outside of the racetrack would be trampled by a runaway horse, precluded summary judgment in fair attendee’s negligence action against agricultural society for injuries suffered when she was trampled by horse.”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Motion to Dismiss; Appeal Dismissed – Lack of Final Appealable Order
State Auto. Mut. Ins. Co. v. Titanium Metals Corp., (2006) 108 Ohio St.3d 540:
The Ohio Supreme Court restated, in a discretionary appeal, the standard associated with what can be the proper subject matter for appellate review. In paragraph 8 of its opinion, the Court stated the following:
“ ‘It is well-established that an order must be final before it can be reviewed by an appellate court. If an order is not final, then an appellate court has no jurisdiction.’ (citation omitted) ‘Generally, an order denying a motion to dismiss is not a final order.’ (citation omitted) The reason is that a motion to dismiss is a procedural mechanism that tests the sufficiency of the allegations in the complaint. (citation omitted) When considering a Civ.R. 12(B)(6) motion, ‘a trial court must examine the complaint to determine if the allegations provide for relief on any possible theory.’ (citation omitted) ‘[T]he movant may not rely on allegations or evidence outside the complaint; otherwise, the motion be treated, with reasonable notice, as a Civ.R. 56 motion for summary judgment.’”
“Charging Lien” – Unenforceable in Subsequent Unrelated Litigation
Petty v. Kroger Food & Pharmacy (2005) 165 Ohio App.3d 16:
The Tenth District Court of Appeals dealt with a situation wherein an attorney attempted to seek recoupment of his/her fee from a traffic violation case in a subsequent claim asserted by the same plaintiff/client for false arrest and malicious prosecution against a store. The Court of Appeals in its syllabus stated the following:
4. “A ‘charging lien’ is a lien upon a judgment or other monies awarded to a client, or former client, for work previously performed by the attorney.”
5. “The right of an attorney to payment of fees earned in the prosecution of litigation to judgment, though usually denominated a lien, rests on the equity of such attorney to be paid out of the judgment by him obtained, and is upheld on the theory that his services and skill created the fund.”
6. “Attorney who represented former client in a traffic case could not assert a charging lien for attorneys fees against any judgment recovered by former client in his unrelated action against food store for malicious prosecution and false arrest and thus attorney lacked an interest in the property or transaction that was the subject matter of the malicious prosecution action and could not intervene in the action as a matter of right in order to assert a charging lien.”
Primary Assumption of the Risk
Konesky v. Wood Cty. Agricultural Soc. (2005) 164 Ohio App.3d 839:
The Sixth District Court of Appeals rendered an interesting decision which carefully reviewed the subject matter of primary assumption of the risk. On that basis, this particular case is reproduced in this Newsletter. In a nutshell, an attendee at a county fair filed suit after the attendee was injured by a horse which ran through the opening of a fence and subsequently trampled the attendee. The court stated in its syllabus, the following:
“1. Risk of being trampled by runaway horse that came off of county fair racetrack through a gap in the surrounding fence was not an inherent risk of horse racing, and thus the doctrine of primary assumption of the risk did not apply to fair attendee’s action against county agricultural society for injuries suffered when horse left racetrack at county fair and trampled her.”
2. Primary assumption of the risk is an alternative expression for the concept that a defendant either owed no duty of care to the plaintiff or did not breach any duty owed; primary assumption of the risk has nothing to do with plaintiff’s conduct.
3. The types of risks that are covered under the doctrine of primary assumption of the risk are those that are the foreseeable and customary risks of the sport or recreational activity at issue.
4. Only those risks directly associated with the activity in question are within the scope of the doctrine of primary assumption of the risk.
5. To be covered under the doctrine of primary assumption of the risk, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.
6. A trial court must proceed with caution when contemplating whether the doctrine of primary assumption of the risk completely bars a plaintiff’s recovery.
7. Genuine issue of material fact as to whether county agricultural society breached its duty of ordinary care by allowing gate at county fair racetrack to remain open, thereby creating an unreasonable danger that someone located outside of the racetrack would be trampled by a runaway horse, precluded summary judgment in fair attendee’s negligence action against agricultural society for injuries suffered when she was trampled by horse.”
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.