Evidence Rule 803 – Learned Treatise
Several important changes to the Ohio Rules of Civil Procedure were filed by The Supreme Court of Ohio with the General Assembly and became effective July 1, 2006. A significant change has dealt with the learned treatise exception to the hearsay rules.
Evidence Rule 803 has now been amended so as to include subsection 18 which states as follows:
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
...
(18) To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.”
Statute Of Limitations – Discovery Rule
Laipply v. Bates, (2006) 166 Ohio App.3d 132
The Seventh District Court of Appeals analyzed a case which had began as a small claims complaint by homeowners against a neighbor regarding faulty repair to the homeowners’ gas line on the neighbor’s property. The homeowners prevailed and the neighbors appealed. One issue reviewed by the appellate court was whether or not the plaintiff had failed to commence the action within the applicable statute of limitations. The “discovery rule” is most commonly found in medical malpractice cases, but this case is worthy of review in light of the fact that the “discovery rule” was applied to a property damage claim.
In paragraphs 14 – 17 of its opinion, the court stated the following:
“Typically, a cause of action for negligence accrues at the time the wrongful act was committed. (citation omitted). However, the discovery rule provides an exception to this general rule.
The discovery rule provides that an applicable cause of action accrues ‘at the time when the plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained of injury,’ (citation omitted).
The four-year statute of limitations and the discovery rule are applicable in this case. In NCR Corp. v. U.S. Mineral Prods. Co. (1995), 72 Ohio St.3d 269, 649 N.E.2d 175, the Ohio Supreme Court stated:
‘The discovery rule is appropriate for the accrual of such a cause of action. ... While this court has applied the discovery rule most often in medical malpractice cases, ... the underlying rationale also fits with latent property-damage actions. The discovery rule is invoked in situations where the injury complained of may not manifest itself immediately and therefore, fairness necessitates allowing the assertion of a claim when discovery of the injury occurs beyond the statute of limitations. ... The discovery rule has not previously been applied to property-damage cases decided by this court. However, other jurisdictions have found the discovery rule useful and appropriate in resolving the limitations-of-actions issues in asbestos-removal-litigation cases.”
The court noted that the Ohio Supreme Court four years after NCR Corp supra, reaffirmed the proposition that the discovery rule is applicable to a real property situation wherein the court stated the following in paragraphs 18 – 19 of its opinion:
“Furthermore, four years later, in Harris, 86 Ohio St.3d at 207, 714 N.E.2d 377, the Ohio Supreme Court held:
“A negligence action against a developer-vendor of real property for damage to the property accrues and the four-year statute of limitations of R.C. 2305.09(D) commences to run when it is first discovered, or through the exercise of reasonable diligence it should have been discovered, that there is damage to the property.”
The court concluded that the statute of limitation begins to run when there is a “cognizable event” whereby a reasonable person would be alerted and the issue of reasonableness is a factual determination. Thus, the trier of fact would determine what is reasonable. The court concluded that the plaintiff’s action was not time-barred by the statute of limitations.
Discovery Rule – Sexual Abuse
Doe v. Archdiocese of Cincinnati (2006), 109 Ohio St.3d 491, 2006-Ohio-2625:
The Ohio Supreme Court in its syllabus stated the following:
A minor who is the victim of sexual abuse has two years from the date he or she reaches the age of majority to assert any claims against the employer of the perpetrator arising from the sexual abuse when at the time of the abuse, the victim knows the identity of the perpetrator, the employer of the perpetrator, and that a battery has occurred. (citation omitted).
The case represents a very interesting and detailed discussion pertaining to the history of the statute of limitations, prior case law decided on that topic, a discussion of Ohio’s “discovery rule” as well as an analysis of other jurisdictions treatments on the same topic coupled with concepts of equitable estoppel and public-policy considerations. For those insurance clients who have exposure in this subject matter, the case is certainly worthy of review.
Summary Judgment – Party’s Affidavit That Is Inconsistent With Same Party’s Deposition Does Not Give Rise To Issue Of Fact
Byrd v. Smith (2006) 110 Ohio St.3d 24, 2006-Ohio-3455
In Byrd v. Smith, the Ohio Supreme Court defined the issue upon review and stated the following in paragraph 1:
“This case is before the court on a certified conflict over whether a party’s affidavit that is inconsistent with or contradictory to the party’s deposition testimony should be considered by the trial court in deciding a motion for summary judgment.”
A motion for summary judgment is many times thwarted by the opposing party claiming the existence of a material issue of fact. This case is unique insofar as the party opposing the motion for summary judgment gave conflicting testimony and attempted to argue that the contradictory testimony presented a question of fact.
Plaintiff Bryan Byrd filed a Scott-Pontzer claim against his employer’s insurance carrier and one of the dispositive issues was whether or not Mr. Byrd was in the course and scope of his employment at the time of the accident. In a deposition taken in 2001, Mr. Byrd stated he was on a personal errand at the time of the accident, having stopped at his future father-in-law’s home to pick up a part to repair his future brother-in-law’s car. Several years later, in response to a motion for summary judgment filed by the insurance carrier, he executed an affidavit basically indicating that he was available for “24 hour service” and as long as he was driving a company car, he considered that he was working for the company. The court began its analysis by reviewing prior case law that had held as follows in paragraph 22 of the opinion:
“This court has already held that a moving party’s contradictory affidavit may not be used to obtain summary judgment. Turner v. Turner (1993), 67 Ohio St.3d 337, 617 N.E.2d 1123. In Turner, even though the mother’s affidavit and earlier deposition about whether she had had to brake to avoid the auto collision that injured her passenger son were not explicitly contradictory, summary judgment in favor of the mother as the moving party was inappropriate when, by her own statements, an issue of fact was created. Turner held that ‘when a litigant’s affidavit in support of his or her motion for summary judgment is inconsistent with his or her earlier deposition testimony, summary judgment in that party’s favor is improper because there exits a question of credibility which can be resolved only by the trier of fact.’ In other words, a summary judgment movant may not benefit from changing a deposition with a later sworn statement.”
In Byrd, supra, the situation was different insofar as the non-moving party was attempting to utilize a contradiction between affidavit and prior deposition testimony to argue that a question of fact existed. In analyzing this issue, the court stated in paragraph 27 of its opinion, the following:
“With respect to a nonmoving party, the analysis is a bit different. If an affidavit appears to be inconsistent with a deposition, the court must look to any explanation for the inconsistency. We do not say that a nonmoving party’s affidavit should always prevent summary judgment when it contradicts the affiant’s previous deposition testimony. After all, deponents may review their depositions and correct factual error before the depositions are signed. ... Sham affidavits are subject to a motion to strike and motions for sanctions.”
The court set forth its holding in paragraph 29 of its opinion and stated the following:
“In summary, in response to the certified question, we answer that when an inconsistent affidavit is presented in support of, or in opposition to, a motion for summary judgment, a trial court must consider whether the affidavit contradicts or merely supplements the affiant’s earlier sworn testimony. A movant’s contradictory affidavit will prevent summary judgment in that party’s favor. A nonmoving party’s contradictory affidavit must sufficiently explain the contradiction before a genuine issue of material fact is created.”
The court reversed the appellate court’s decision and remanded the case for a determination as to Mr. Byrd’s explanation for the inconsistency between his deposition and affidavit.
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.
Evidence Rule 803 – Learned Treatise
Several important changes to the Ohio Rules of Civil Procedure were filed by The Supreme Court of Ohio with the General Assembly and became effective July 1, 2006. A significant change has dealt with the learned treatise exception to the hearsay rules.
Evidence Rule 803 has now been amended so as to include subsection 18 which states as follows:
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
...
(18) To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.”
Statute Of Limitations – Discovery Rule
Laipply v. Bates, (2006) 166 Ohio App.3d 132
The Seventh District Court of Appeals analyzed a case which had began as a small claims complaint by homeowners against a neighbor regarding faulty repair to the homeowners’ gas line on the neighbor’s property. The homeowners prevailed and the neighbors appealed. One issue reviewed by the appellate court was whether or not the plaintiff had failed to commence the action within the applicable statute of limitations. The “discovery rule” is most commonly found in medical malpractice cases, but this case is worthy of review in light of the fact that the “discovery rule” was applied to a property damage claim.
In paragraphs 14 – 17 of its opinion, the court stated the following:
“Typically, a cause of action for negligence accrues at the time the wrongful act was committed. (citation omitted). However, the discovery rule provides an exception to this general rule.
The discovery rule provides that an applicable cause of action accrues ‘at the time when the plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained of injury,’ (citation omitted).
The four-year statute of limitations and the discovery rule are applicable in this case. In NCR Corp. v. U.S. Mineral Prods. Co. (1995), 72 Ohio St.3d 269, 649 N.E.2d 175, the Ohio Supreme Court stated:
‘The discovery rule is appropriate for the accrual of such a cause of action. ... While this court has applied the discovery rule most often in medical malpractice cases, ... the underlying rationale also fits with latent property-damage actions. The discovery rule is invoked in situations where the injury complained of may not manifest itself immediately and therefore, fairness necessitates allowing the assertion of a claim when discovery of the injury occurs beyond the statute of limitations. ... The discovery rule has not previously been applied to property-damage cases decided by this court. However, other jurisdictions have found the discovery rule useful and appropriate in resolving the limitations-of-actions issues in asbestos-removal-litigation cases.”
The court noted that the Ohio Supreme Court four years after NCR Corp supra, reaffirmed the proposition that the discovery rule is applicable to a real property situation wherein the court stated the following in paragraphs 18 – 19 of its opinion:
“Furthermore, four years later, in Harris, 86 Ohio St.3d at 207, 714 N.E.2d 377, the Ohio Supreme Court held:
“A negligence action against a developer-vendor of real property for damage to the property accrues and the four-year statute of limitations of R.C. 2305.09(D) commences to run when it is first discovered, or through the exercise of reasonable diligence it should have been discovered, that there is damage to the property.”
The court concluded that the statute of limitation begins to run when there is a “cognizable event” whereby a reasonable person would be alerted and the issue of reasonableness is a factual determination. Thus, the trier of fact would determine what is reasonable. The court concluded that the plaintiff’s action was not time-barred by the statute of limitations.
Discovery Rule – Sexual Abuse
Doe v. Archdiocese of Cincinnati (2006), 109 Ohio St.3d 491, 2006-Ohio-2625:
The Ohio Supreme Court in its syllabus stated the following:
A minor who is the victim of sexual abuse has two years from the date he or she reaches the age of majority to assert any claims against the employer of the perpetrator arising from the sexual abuse when at the time of the abuse, the victim knows the identity of the perpetrator, the employer of the perpetrator, and that a battery has occurred. (citation omitted).
The case represents a very interesting and detailed discussion pertaining to the history of the statute of limitations, prior case law decided on that topic, a discussion of Ohio’s “discovery rule” as well as an analysis of other jurisdictions treatments on the same topic coupled with concepts of equitable estoppel and public-policy considerations. For those insurance clients who have exposure in this subject matter, the case is certainly worthy of review.
Summary Judgment – Party’s Affidavit That Is Inconsistent With Same Party’s Deposition Does Not Give Rise To Issue Of Fact
Byrd v. Smith (2006) 110 Ohio St.3d 24, 2006-Ohio-3455
In Byrd v. Smith, the Ohio Supreme Court defined the issue upon review and stated the following in paragraph 1:
“This case is before the court on a certified conflict over whether a party’s affidavit that is inconsistent with or contradictory to the party’s deposition testimony should be considered by the trial court in deciding a motion for summary judgment.”
A motion for summary judgment is many times thwarted by the opposing party claiming the existence of a material issue of fact. This case is unique insofar as the party opposing the motion for summary judgment gave conflicting testimony and attempted to argue that the contradictory testimony presented a question of fact.
Plaintiff Bryan Byrd filed a Scott-Pontzer claim against his employer’s insurance carrier and one of the dispositive issues was whether or not Mr. Byrd was in the course and scope of his employment at the time of the accident. In a deposition taken in 2001, Mr. Byrd stated he was on a personal errand at the time of the accident, having stopped at his future father-in-law’s home to pick up a part to repair his future brother-in-law’s car. Several years later, in response to a motion for summary judgment filed by the insurance carrier, he executed an affidavit basically indicating that he was available for “24 hour service” and as long as he was driving a company car, he considered that he was working for the company. The court began its analysis by reviewing prior case law that had held as follows in paragraph 22 of the opinion:
“This court has already held that a moving party’s contradictory affidavit may not be used to obtain summary judgment. Turner v. Turner (1993), 67 Ohio St.3d 337, 617 N.E.2d 1123. In Turner, even though the mother’s affidavit and earlier deposition about whether she had had to brake to avoid the auto collision that injured her passenger son were not explicitly contradictory, summary judgment in favor of the mother as the moving party was inappropriate when, by her own statements, an issue of fact was created. Turner held that ‘when a litigant’s affidavit in support of his or her motion for summary judgment is inconsistent with his or her earlier deposition testimony, summary judgment in that party’s favor is improper because there exits a question of credibility which can be resolved only by the trier of fact.’ In other words, a summary judgment movant may not benefit from changing a deposition with a later sworn statement.”
In Byrd, supra, the situation was different insofar as the non-moving party was attempting to utilize a contradiction between affidavit and prior deposition testimony to argue that a question of fact existed. In analyzing this issue, the court stated in paragraph 27 of its opinion, the following:
“With respect to a nonmoving party, the analysis is a bit different. If an affidavit appears to be inconsistent with a deposition, the court must look to any explanation for the inconsistency. We do not say that a nonmoving party’s affidavit should always prevent summary judgment when it contradicts the affiant’s previous deposition testimony. After all, deponents may review their depositions and correct factual error before the depositions are signed. ... Sham affidavits are subject to a motion to strike and motions for sanctions.”
The court set forth its holding in paragraph 29 of its opinion and stated the following:
“In summary, in response to the certified question, we answer that when an inconsistent affidavit is presented in support of, or in opposition to, a motion for summary judgment, a trial court must consider whether the affidavit contradicts or merely supplements the affiant’s earlier sworn testimony. A movant’s contradictory affidavit will prevent summary judgment in that party’s favor. A nonmoving party’s contradictory affidavit must sufficiently explain the contradiction before a genuine issue of material fact is created.”
The court reversed the appellate court’s decision and remanded the case for a determination as to Mr. Byrd’s explanation for the inconsistency between his deposition and affidavit.
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.