Equitable Estoppel – Negligent Supervision and Retention
Doe v. Archdiocese of Cincinnati, (2006) 167 Ohio App.3d 488
The First District Court of Appeals rendered a decision which applied the elements of equitable estoppel to prevent the assertion of a statute of limitations defense. Additionally, the case also reviews the elements of negligent supervision and retention, concepts which oftentimes are the subject matter of inquiry to our firm.
In Doe, supra, an inappropriate relationship had occurred between a parishioner and a member of the clergy in 1965, resulting in the birth of a child. In December of 2004, the parishioner/ mother filed an action against the archdiocese and the statute of limitations was asserted as a defense. In response thereto, the plaintiff argued that the doctrine of equitable estoppel should prevent the archdiocese from utilizing the statute of limitations defense. In paragraph 7 – 9, the court discussed the elements and underpinnings of equitable estoppel and stated the following:
“Equitable estoppel ‘prevents a party from exercising rights which that party might have otherwise had against one who has, in good faith, relied upon the conduct of that party to his detriment.’
In order to establish equitable estoppel, a plaintiff must make a prima facie showing of four elements: (1) that the defendant made a factual misrepresentation; (2) that the misrepresentation was misleading; (3) that the misrepresentation induced actual reliance that was reasonable and in good faith; and (4) that the misrepresentation caused detriment to the relying party. Regarding the first two elements, a plaintiff must show either actual or constructive fraud.
Additionally, when it is used in a statute-of-limitations context, a plaintiff asserting equitable estoppel must show either ‘an affirmative statement that the statutory period to bring an action was larger than it actually was or promises to make a better settlement of the claim if plaintiff did not bring the threatened suit, or similar misrepresentations or conduct on the defendant's part.’”
It was noted that the archdiocese had made no express statements to the plaintiff/ parishioner with regard to the length of time to bring suit, made no attempt to settle the claim and, therefore, the issue of the absence of a direct or express statement was potentially fatal to the plaintiff’s efforts to utilize equitable estoppel. It must be noted that the lower court had dismissed the plaintiff’s complaint pursuant to O.R.C.P. 12(B)(6). The appellate court reversed based upon the fact that allegations contained in the complaint were sufficient to overcome the motion to dismiss when considering the plaintiff’s factual allegations to be true and after making all reasonable inferences in favor of the plaintiff.
The court thereafter reviewed the issue of negligent supervision and retention and so stated in paragraph 27 of its opinion, the following:
“To prevail on a claim for negligent supervision and retention, a plaintiff must show the following: ‘(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in ... retaining the employee as the proximate cause of plaintiff's injury.’ A plaintiff must also show that the employee's act was reasonably foreseeable. An act is reasonably foreseeable if the employer knew or should have known of the employee's ‘propensity to engage in similar criminal, tortious, or dangerous conduct.’”
As it pertains to this allegation, the appellate court noted that there was a complete absence of allegations dealing with this particular point and, therefore, upheld the granting of the motion to dismiss that cause of action.
Open and Obvious Doctrine – Sidewalk Accident
Godwin v. Erb (2006) 167 Ohio App3d 645
The Fifth District Court of Appeals dealt with a case on the topic of open and obvious and particularly with regard to a defect in a sidewalk. However, the case raises an excellent point that oftentimes is overlooked in an analysis of potential liability by a landowner with regard to the issue of open and obvious. Most commonly, many of us begin our analysis with a determination as to what was the duty and whether or not a breach of duty occurred on the part of the landowner. This particular case serves as an excellent reminder that this analysis is fallacious inasmuch as in the context of the open and obvious doctrine, the landowner owes no duty and, therefore, the traditional analysis of duty, breach of duty and proximate cause is inapplicable.
In Godwin, the Fifth District Court of Appeals set forth the foregoing assertions in paragraph 5 of its opinion wherein it stated the following:
“The ‘open and obvious doctrine’ provides that the owner of a premises owes no duty to a person that enters upon the premises with respect to open and obvious dangers when the conditions are so obvious that a person may be expected to discover them and protect himself or herself against the conditions.”
The case is worthy of note inasmuch as the Court of Appeals was reviewing the propriety of a motion for summary judgment that had been granted in favor of the homeowner. The court held the summary judgment in favor of the homeowner and basically found that, as a matter of law, a hole in the sidewalk was open and obvious. In paragraph 8 of the opinion, the court stated the following:
“Sidewalk hole was an open and obvious danger to bicyclist such that bicyclist could not recover against homeowners for injuries suffered in crash, despite claim of attendant circumstances, including darkness and bad lighting; sidewalk excavation left a three-inch to four-inch gap from the top of the concrete to the dirt and gravel underneath, bicyclist admitted that he saw that the sidewalk was under construction when he visited his mother, who lived next door, just one or two days before the accident, and bicyclist did not claim that lack of street lighting contributed to his fall.”
Based upon the foregoing, the court upheld the granting of summary judgment.
Spoliation of Evidence – Exclusion of Affidavit
Loukinas v. Roto-Rooter Servs. Co., (2006) 167 Ohio App.3d 559
The First District Court of Appeals undertook a careful analysis of this decision and any practitioner or individual interested in a detailed discussion of spoliation of evidence concepts, in conjunction with remedies/sanctions that can ensue, is commended to review this particular decision. However, the salient facts, in conjunction with applicable law, were best summarized in several of the headnotes of the court and are reproduced herein:
“7. The imposition of sanctions for the spoliation of evidence is essential as a matter of public policy to discourage plaintiffs from filing false claims or intentionally discarding evidence that they feel may hurt their case.
8. Trial court may exclude expert testimony as a sanction for spoliation of evidence if it determines that the evidence has been intentionally altered or destroyed by a party or its expert before the defense has had an opportunity to examine the evidence.
9. Conduct of plaintiff owner of automobile repair shop, in allowing plaintiff’s plumbing expert to excavate the area where defendant contractor had installed an oil interceptor system, without allowing defendant the opportunity to observe the excavation, constituted spoliation of evidence, in plaintiff’s action against defendant for negligent installation of the system; defendant was denied the opportunity to examine the crushed clay drain line as it was being exposed.
10. If a threshold showing of spoliation is made, the burden then shifts to the proponent of the evidence to prove that the other side was not prejudiced by the alteration or destruction of the evidence.
11. Test for prejudice from spoliation of evidence is whether there is a reasonable possibility, based on concrete evidence, that access to the evidence which was destroyed or altered, and which was not otherwise obtainable, would produce evidence favorable to the objecting party.
12. In applying the test for prejudice from spoliation of evidence, the trial court must determine the degree of prejudice to the defendant and impose a sanction commensurate with that degree of prejudice.
14. Exclusion of summary judgment affidavit of plumbing expert for plaintiff owner of automobile repair shop was warranted, as sanction for plaintiff’s spoliation of evidence, in action against contractor alleging negligent installation of oil interceptor system, which spoliation involved plaintiff allowing the expert to excavate the area where defendant had installed the oil interceptor system, without allowing defendant the opportunity to observe the excavation.
15. The harsh sanction of outright dismissal of the action is a permissible response to intentional spoliation of evidence by a plaintiff; nonetheless, other remedies, such as the exclusion of expert testimony based on evidence not available to the defendant, are usually more appropriate.”
In the context of personal injury claims, an interesting application of the foregoing analysis would be in a situation if an injured party had secured their original MRI films that had been taken prior to the accident and those MRI films suddenly can no longer be located. A viable argument of spoliation of evidence would exist. In addition, building upon the foregoing concept, what would be the effect of a medical care provider losing medical records that were crucial to the defense of the case assuming that those medical records were the only source of information necessary for the defense to accurately portray the plaintiff’s actual physical condition either before or after the accident? Spoliation of evidence will, in the opinion of Curtin & Associates, continue to be a growing field of litigation and, therefore, it is necessary for all practitioners as well as individuals involved in litigation to be aware of the pitfalls associated with this legal concept.
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.
Equitable Estoppel – Negligent Supervision and Retention
Doe v. Archdiocese of Cincinnati, (2006) 167 Ohio App.3d 488
The First District Court of Appeals rendered a decision which applied the elements of equitable estoppel to prevent the assertion of a statute of limitations defense. Additionally, the case also reviews the elements of negligent supervision and retention, concepts which oftentimes are the subject matter of inquiry to our firm.
In Doe, supra, an inappropriate relationship had occurred between a parishioner and a member of the clergy in 1965, resulting in the birth of a child. In December of 2004, the parishioner/ mother filed an action against the archdiocese and the statute of limitations was asserted as a defense. In response thereto, the plaintiff argued that the doctrine of equitable estoppel should prevent the archdiocese from utilizing the statute of limitations defense. In paragraph 7 – 9, the court discussed the elements and underpinnings of equitable estoppel and stated the following:
“Equitable estoppel ‘prevents a party from exercising rights which that party might have otherwise had against one who has, in good faith, relied upon the conduct of that party to his detriment.’
In order to establish equitable estoppel, a plaintiff must make a prima facie showing of four elements: (1) that the defendant made a factual misrepresentation; (2) that the misrepresentation was misleading; (3) that the misrepresentation induced actual reliance that was reasonable and in good faith; and (4) that the misrepresentation caused detriment to the relying party. Regarding the first two elements, a plaintiff must show either actual or constructive fraud.
Additionally, when it is used in a statute-of-limitations context, a plaintiff asserting equitable estoppel must show either ‘an affirmative statement that the statutory period to bring an action was larger than it actually was or promises to make a better settlement of the claim if plaintiff did not bring the threatened suit, or similar misrepresentations or conduct on the defendant's part.’”
It was noted that the archdiocese had made no express statements to the plaintiff/ parishioner with regard to the length of time to bring suit, made no attempt to settle the claim and, therefore, the issue of the absence of a direct or express statement was potentially fatal to the plaintiff’s efforts to utilize equitable estoppel. It must be noted that the lower court had dismissed the plaintiff’s complaint pursuant to O.R.C.P. 12(B)(6). The appellate court reversed based upon the fact that allegations contained in the complaint were sufficient to overcome the motion to dismiss when considering the plaintiff’s factual allegations to be true and after making all reasonable inferences in favor of the plaintiff.
The court thereafter reviewed the issue of negligent supervision and retention and so stated in paragraph 27 of its opinion, the following:
“To prevail on a claim for negligent supervision and retention, a plaintiff must show the following: ‘(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in ... retaining the employee as the proximate cause of plaintiff's injury.’ A plaintiff must also show that the employee's act was reasonably foreseeable. An act is reasonably foreseeable if the employer knew or should have known of the employee's ‘propensity to engage in similar criminal, tortious, or dangerous conduct.’”
As it pertains to this allegation, the appellate court noted that there was a complete absence of allegations dealing with this particular point and, therefore, upheld the granting of the motion to dismiss that cause of action.
Open and Obvious Doctrine – Sidewalk Accident
Godwin v. Erb (2006) 167 Ohio App3d 645
The Fifth District Court of Appeals dealt with a case on the topic of open and obvious and particularly with regard to a defect in a sidewalk. However, the case raises an excellent point that oftentimes is overlooked in an analysis of potential liability by a landowner with regard to the issue of open and obvious. Most commonly, many of us begin our analysis with a determination as to what was the duty and whether or not a breach of duty occurred on the part of the landowner. This particular case serves as an excellent reminder that this analysis is fallacious inasmuch as in the context of the open and obvious doctrine, the landowner owes no duty and, therefore, the traditional analysis of duty, breach of duty and proximate cause is inapplicable.
In Godwin, the Fifth District Court of Appeals set forth the foregoing assertions in paragraph 5 of its opinion wherein it stated the following:
“The ‘open and obvious doctrine’ provides that the owner of a premises owes no duty to a person that enters upon the premises with respect to open and obvious dangers when the conditions are so obvious that a person may be expected to discover them and protect himself or herself against the conditions.”
The case is worthy of note inasmuch as the Court of Appeals was reviewing the propriety of a motion for summary judgment that had been granted in favor of the homeowner. The court held the summary judgment in favor of the homeowner and basically found that, as a matter of law, a hole in the sidewalk was open and obvious. In paragraph 8 of the opinion, the court stated the following:
“Sidewalk hole was an open and obvious danger to bicyclist such that bicyclist could not recover against homeowners for injuries suffered in crash, despite claim of attendant circumstances, including darkness and bad lighting; sidewalk excavation left a three-inch to four-inch gap from the top of the concrete to the dirt and gravel underneath, bicyclist admitted that he saw that the sidewalk was under construction when he visited his mother, who lived next door, just one or two days before the accident, and bicyclist did not claim that lack of street lighting contributed to his fall.”
Based upon the foregoing, the court upheld the granting of summary judgment.
Spoliation of Evidence – Exclusion of Affidavit
Loukinas v. Roto-Rooter Servs. Co., (2006) 167 Ohio App.3d 559
The First District Court of Appeals undertook a careful analysis of this decision and any practitioner or individual interested in a detailed discussion of spoliation of evidence concepts, in conjunction with remedies/sanctions that can ensue, is commended to review this particular decision. However, the salient facts, in conjunction with applicable law, were best summarized in several of the headnotes of the court and are reproduced herein:
“7. The imposition of sanctions for the spoliation of evidence is essential as a matter of public policy to discourage plaintiffs from filing false claims or intentionally discarding evidence that they feel may hurt their case.
8. Trial court may exclude expert testimony as a sanction for spoliation of evidence if it determines that the evidence has been intentionally altered or destroyed by a party or its expert before the defense has had an opportunity to examine the evidence.
9. Conduct of plaintiff owner of automobile repair shop, in allowing plaintiff’s plumbing expert to excavate the area where defendant contractor had installed an oil interceptor system, without allowing defendant the opportunity to observe the excavation, constituted spoliation of evidence, in plaintiff’s action against defendant for negligent installation of the system; defendant was denied the opportunity to examine the crushed clay drain line as it was being exposed.
10. If a threshold showing of spoliation is made, the burden then shifts to the proponent of the evidence to prove that the other side was not prejudiced by the alteration or destruction of the evidence.
11. Test for prejudice from spoliation of evidence is whether there is a reasonable possibility, based on concrete evidence, that access to the evidence which was destroyed or altered, and which was not otherwise obtainable, would produce evidence favorable to the objecting party.
12. In applying the test for prejudice from spoliation of evidence, the trial court must determine the degree of prejudice to the defendant and impose a sanction commensurate with that degree of prejudice.
14. Exclusion of summary judgment affidavit of plumbing expert for plaintiff owner of automobile repair shop was warranted, as sanction for plaintiff’s spoliation of evidence, in action against contractor alleging negligent installation of oil interceptor system, which spoliation involved plaintiff allowing the expert to excavate the area where defendant had installed the oil interceptor system, without allowing defendant the opportunity to observe the excavation.
15. The harsh sanction of outright dismissal of the action is a permissible response to intentional spoliation of evidence by a plaintiff; nonetheless, other remedies, such as the exclusion of expert testimony based on evidence not available to the defendant, are usually more appropriate.”
In the context of personal injury claims, an interesting application of the foregoing analysis would be in a situation if an injured party had secured their original MRI films that had been taken prior to the accident and those MRI films suddenly can no longer be located. A viable argument of spoliation of evidence would exist. In addition, building upon the foregoing concept, what would be the effect of a medical care provider losing medical records that were crucial to the defense of the case assuming that those medical records were the only source of information necessary for the defense to accurately portray the plaintiff’s actual physical condition either before or after the accident? Spoliation of evidence will, in the opinion of Curtin & Associates, continue to be a growing field of litigation and, therefore, it is necessary for all practitioners as well as individuals involved in litigation to be aware of the pitfalls associated with this legal concept.
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.