Sudden Emergency – Negligence Per Se
Hatala v. Craft, (2006) 165 Ohio App.3d 602
The Seventh District Court of Appeals rendered a decision with regard to the factual underpinnings dealing with negligence per se. Oftentimes, arguments may exist at trial as to the legal effect of violating a safety statute. In paragraphs 18-19 of the opinion, the court reviewed these concepts and stated the following:
“Normally, when a legislative enactment imposes a specific duty for the safety of others, a violation of that statute constitutes negligence per se. The negligence-per-se rule is regularly applied to cases in which a vehicle crosses the center line of a highway and causes an accident. (citations omitted).
It is well established, though, that ‘(n)egligence per se does not equal liability per se. Simply because the law may presume negligence from a person’s violation of a statute or rule does not mean that the law presumes that such negligence was the proximate cause of the harm inflicted.’”
A plaintiff’s attorney may very well argue that a defendant/insured violated a safety statute such as going over the center line which was the subject matter of Hatala supra. However, the important point that this particular case reviews is that merely because one violated a safety statute does not mean that liability rests only with the person who committed the violation.
The Hatala case dealt with the situation where two accidents occurred. The first wherein the vehicle of Mary Ellen Brannigan was struck by another vehicle and this caused her vehicle to lose control and strike the plaintiff’s car. Ms. Brannigan’s counsel filed an affidavit and established the defense of sudden emergency resulting in the granting of summary judgment in favor of Ms. Brannigan. The case is also noteworthy in light of the fact that the Appellate Court went on to uphold the granting of summary judgment based upon the defense of sudden emergency. In paragraphs 20-21, the court stated the following:
“A defendant may avoid liability for negligence in violating a traffic safety statute if a sudden emergency is found to have been the proximate cause of the accident. ‘In a negligence action, the so-called ‘emergency doctrine’ applies only where there was a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation and does not comprehend a static condition which lasted over a period of time.’ (citation omitted).
Thus, in order to avoid liability for injuries resulting from a failure to comply with a safety statute regulating the operation of a motor vehicle on the public highways, the defendant must show that an emergency occurred, that the defendant did not create the emergency, and that it was impossible to comply with the safety statute due to the emergency. (citation omitted). A self-created emergency, one arising from the defendant’s own conduct or from circumstances under his or her control, cannot serve as an excuse.”
It should be noted that the court placed emphasis on the fact that the Brannigan affidavit was not significantly challenged by the non-moving party and, although noting that sudden emergency cases do not typically lend themselves to summary judgment, the case is noteworthy due to the fact that the trial court and appellate court upheld the propriety of the summary judgment motion in favor of defendant Brannigan.
Declaratory Judgment Action – Motion to Intervene –
Rights of Claimant to Insurance Monies
Indiana Ins. Co. v. Murphy, (2006) 165 Ohio App.3d 812:
The Third District Court of Appeals completed an extensive analysis and review as it pertains to an interesting case which pitted the interests of a plaintiff as well as the interests of a liability insurance carrier which was seeking to adjudicate its liability to an insured. The case involved two lawsuits, one of which was commenced by Indiana Insurance against their insured seeking an adjudication that there was no liability insurance coverage applicable to the loss at issue. Natalia Baraby filed a wrongful death lawsuit against the owners of the property. The individuals allegedly insured by Indiana Insurance (Michael and Ann Murphy) were previous owners of the property wherein a fire and deaths occurred.
Ms. Baraby first sought to consolidate both cases, specifically the declaratory judgment action with the underlying tort claim, but this was denied. Subsequently, she thereafter filed a motion to intervene in the declaratory judgment action, but this was denied.
The case is interesting inasmuch as the court seemingly ignored the Ohio Revised Code and instead appeared to follow the decision of Broz v. Winland (1994) 68 Ohio St.3d 521. In particular, the court noted that Boz v. Winland determined that a tort victim had an interest in a declaratory judgment action. However, the court further noted that in 1999, the Ohio General Assembly had superceded the Court’s holding in Broz and found that a declaratory judgment action between and insurer and an insured could proceed and be binding even if the plaintiff was not a party. This apparently troubled the appellate court inasmuch as it stated in paragraph 19 of its opinion, the following:
“Thus, under the amended Declaratory Judgment Act, a declaratory judgment is made binding on the tort claimant even if that claimant is not a party to the declaratory- judgment proceeding. Accordingly, Baraby’s interests in recovering against the Murphys will undoubtedly be impaired by a ruling in the declaratory action in Indiana Insurance’s favor.”
The court went on to find that it believed Ms. Baraby satisfied the intervention requirement set forth in O.R.C.P. 24(B) but then was faced with the fact that O.R.C. 2721.02(B) precludes a tort claimant from being a party to the declaratory judgment action between the tortfeasor and its insured. The court noted the statute and specifically stated the following and recited it in paragraph 24:
“A plaintiff who is not an insured under a particular policy of liability insurance may not commence against the insurer that issued the policy an action or proceeding under this chapter that seeks a declaratory judgment or decree as to whether the policy’s coverage provisions extend to an injury ...”
The court elected to find that intervention was appropriate despite the statutory prohibitions cited above. In order to reach this conclusion, the court focused its analysis on the term “commencement” and stated in paragraph 25 of its opinion, the following:
“However, the clear and unambiguous language of both Sub.H.B. No. 58 and the statute preclude the injured party from commencing a declaratory-judgment action. ... Nothing in either the bill or in R.C. 2729.02(B) precludes an injured tort claimant from participating in a declaratory-judgment action brought by the insurer against the alleged tortfeasor i.e. an action commenced by another party.”
The court thereafter concluded that inasmuch as Baraby was seeking to “participate” as opposed to “commence” in a declaratory judgment action, intervention was appropriate. Although the argument can exist that the appellate court basically ignored the statutory framework which should govern this matter, the case is noteworthy inasmuch as it represents a theoretical mechanism in which a plaintiff claiming a right to a liability insurance policy could seek to intervene into a declaratory judgment action.
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.
Sudden Emergency – Negligence Per Se
Hatala v. Craft, (2006) 165 Ohio App.3d 602
The Seventh District Court of Appeals rendered a decision with regard to the factual underpinnings dealing with negligence per se. Oftentimes, arguments may exist at trial as to the legal effect of violating a safety statute. In paragraphs 18-19 of the opinion, the court reviewed these concepts and stated the following:
“Normally, when a legislative enactment imposes a specific duty for the safety of others, a violation of that statute constitutes negligence per se. The negligence-per-se rule is regularly applied to cases in which a vehicle crosses the center line of a highway and causes an accident. (citations omitted).
It is well established, though, that ‘(n)egligence per se does not equal liability per se. Simply because the law may presume negligence from a person’s violation of a statute or rule does not mean that the law presumes that such negligence was the proximate cause of the harm inflicted.’”
A plaintiff’s attorney may very well argue that a defendant/insured violated a safety statute such as going over the center line which was the subject matter of Hatala supra. However, the important point that this particular case reviews is that merely because one violated a safety statute does not mean that liability rests only with the person who committed the violation.
The Hatala case dealt with the situation where two accidents occurred. The first wherein the vehicle of Mary Ellen Brannigan was struck by another vehicle and this caused her vehicle to lose control and strike the plaintiff’s car. Ms. Brannigan’s counsel filed an affidavit and established the defense of sudden emergency resulting in the granting of summary judgment in favor of Ms. Brannigan. The case is also noteworthy in light of the fact that the Appellate Court went on to uphold the granting of summary judgment based upon the defense of sudden emergency. In paragraphs 20-21, the court stated the following:
“A defendant may avoid liability for negligence in violating a traffic safety statute if a sudden emergency is found to have been the proximate cause of the accident. ‘In a negligence action, the so-called ‘emergency doctrine’ applies only where there was a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation and does not comprehend a static condition which lasted over a period of time.’ (citation omitted).
Thus, in order to avoid liability for injuries resulting from a failure to comply with a safety statute regulating the operation of a motor vehicle on the public highways, the defendant must show that an emergency occurred, that the defendant did not create the emergency, and that it was impossible to comply with the safety statute due to the emergency. (citation omitted). A self-created emergency, one arising from the defendant’s own conduct or from circumstances under his or her control, cannot serve as an excuse.”
It should be noted that the court placed emphasis on the fact that the Brannigan affidavit was not significantly challenged by the non-moving party and, although noting that sudden emergency cases do not typically lend themselves to summary judgment, the case is noteworthy due to the fact that the trial court and appellate court upheld the propriety of the summary judgment motion in favor of defendant Brannigan.
Declaratory Judgment Action – Motion to Intervene –
Rights of Claimant to Insurance Monies
Indiana Ins. Co. v. Murphy, (2006) 165 Ohio App.3d 812:
The Third District Court of Appeals completed an extensive analysis and review as it pertains to an interesting case which pitted the interests of a plaintiff as well as the interests of a liability insurance carrier which was seeking to adjudicate its liability to an insured. The case involved two lawsuits, one of which was commenced by Indiana Insurance against their insured seeking an adjudication that there was no liability insurance coverage applicable to the loss at issue. Natalia Baraby filed a wrongful death lawsuit against the owners of the property. The individuals allegedly insured by Indiana Insurance (Michael and Ann Murphy) were previous owners of the property wherein a fire and deaths occurred.
Ms. Baraby first sought to consolidate both cases, specifically the declaratory judgment action with the underlying tort claim, but this was denied. Subsequently, she thereafter filed a motion to intervene in the declaratory judgment action, but this was denied.
The case is interesting inasmuch as the court seemingly ignored the Ohio Revised Code and instead appeared to follow the decision of Broz v. Winland (1994) 68 Ohio St.3d 521. In particular, the court noted that Boz v. Winland determined that a tort victim had an interest in a declaratory judgment action. However, the court further noted that in 1999, the Ohio General Assembly had superceded the Court’s holding in Broz and found that a declaratory judgment action between and insurer and an insured could proceed and be binding even if the plaintiff was not a party. This apparently troubled the appellate court inasmuch as it stated in paragraph 19 of its opinion, the following:
“Thus, under the amended Declaratory Judgment Act, a declaratory judgment is made binding on the tort claimant even if that claimant is not a party to the declaratory- judgment proceeding. Accordingly, Baraby’s interests in recovering against the Murphys will undoubtedly be impaired by a ruling in the declaratory action in Indiana Insurance’s favor.”
The court went on to find that it believed Ms. Baraby satisfied the intervention requirement set forth in O.R.C.P. 24(B) but then was faced with the fact that O.R.C. 2721.02(B) precludes a tort claimant from being a party to the declaratory judgment action between the tortfeasor and its insured. The court noted the statute and specifically stated the following and recited it in paragraph 24:
“A plaintiff who is not an insured under a particular policy of liability insurance may not commence against the insurer that issued the policy an action or proceeding under this chapter that seeks a declaratory judgment or decree as to whether the policy’s coverage provisions extend to an injury ...”
The court elected to find that intervention was appropriate despite the statutory prohibitions cited above. In order to reach this conclusion, the court focused its analysis on the term “commencement” and stated in paragraph 25 of its opinion, the following:
“However, the clear and unambiguous language of both Sub.H.B. No. 58 and the statute preclude the injured party from commencing a declaratory-judgment action. ... Nothing in either the bill or in R.C. 2729.02(B) precludes an injured tort claimant from participating in a declaratory-judgment action brought by the insurer against the alleged tortfeasor i.e. an action commenced by another party.”
The court thereafter concluded that inasmuch as Baraby was seeking to “participate” as opposed to “commence” in a declaratory judgment action, intervention was appropriate. Although the argument can exist that the appellate court basically ignored the statutory framework which should govern this matter, the case is noteworthy inasmuch as it represents a theoretical mechanism in which a plaintiff claiming a right to a liability insurance policy could seek to intervene into a declaratory judgment action.
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.