|Citations to Cases and Statutes
To establish a
taking, a landowner must demonstrate a substantial or unreasonable
interference with a property right. That interference may include the
deprivation of an intangible interest in the premises. State ex rel.
Hilltop Realtors v. Cincinnati, (Ohio Ct. App. 1
2005-Ohio-6817, ¶ 20 quoting Smith v. Erie Rd. Co. (1938), 134
Ohio St. 135. “A substantial interference with the right of the use,
control, exclusion, or disposition of an owner’s property may result in
a ‘taking’ problem.” Lawrence v. Edwin Shaw Hosp. (1986), 34
Ohio App.3d 137, 138.
taking requiring just compensation.” Lingle v. Chevron
U.S.A., Inc., (2005) 125 S. Ct. 2074, is:
direct government appropriation or physical invasion of private
property. See, e.g., United States v. Pewee Coal Co., 341
U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809. Beginning with Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322,
however, the Court recognized that government regulation of private
property may be so onerous that its effect is tantamount to a direct
appropriation or ouster. Regulatory actions generally will be deemed
per se takings for Fifth Amendment purposes (1) where government
requires an owner to suffer a permanent physical invasion of her
property, see Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868, or (2) where regulations
completely deprive an owner of “all economically beneficial us[e]”
of her property, Lucas v. South Carolina Coastal Council, 505
U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798."
Lingle, 125 S. Ct. 2074.
“Section 19, Article I of the Ohio
Constitution and the Fourteenth and Fifteenth Amendments of the United
States Constitution prohibit the government from taking private property
for public use without just compensation.” (Underline emphasis
added.) State v. Tri-State Group, Inc., (Ohio Ct. App. 7
2004-Ohio-4441, ¶ 46.
jurisprudence “aims to identify regulatory actions that are functionally
equivalent to the classic taking in which government directly
appropriates private property or ousts the owner from his domain.”
Id. at 2082. “[A] plaintiff seeking to challenge a government
regulation as an uncompensated taking of private property may proceed .
. . by alleging a ‘physical’ taking, a Lucas-type ‘total
regulatory taking,’ a Penn Central taking, or a land-use exaction
violating the standards set forth in Nollan and Dolan.”
Lingle, 125 S. Ct. at 2087. (Land
use exactions – dedication of private property to public use as a
condition of permit – were the focus of Dolan v. City of Tigard
(1994) 5122 U.S. 374 and Nollan v. California Coastal Comm’n
(1987) 483 U.S. 825.)
See Penn Cent.
Transp. Co. v. New York City (1978), 438 U.S. 104. (Penn Cent.
provides the proper taking test when the regulation deprives the
property of less than 100 percent of its economically beneficial use.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency (2002), 535 U.S. 302.)
Loss of market value does not
constitute a taking. “[S]omething more than loss of market value or
loss of comfortable enjoyment of the property is needed to constitute a
taking.” State ex rel. BSW Dev. Group v. Dayton (1998), 83 Ohio
St.3d 338, 345, quoting State ex rel. Pitz v. Columbus (1988), 56
Ohio App.3d 41.
See Shemo v.
Mayfield Hts., 88 Ohio St.3d 7, 9; Gerijo, Inc. v. Fairfield,
70 Ohio St.3d 223, syllabus (indicating that Plaintiff has the burden to
prove that the government entity’s act (e.g., zoning ordinance) effected
a regulatory taking).
is the appropriate action to compel public authorities to institute
appropriation proceedings where an involuntary taking of private
property is alleged.” Shemo, 95 Ohio St.3d at 63, 765 N.E.2d
345.” State ex rel. Duncan v. City of Mentor City Council, 105
Ohio St.3d 372, 374, 2005-Ohio-2163; see, also, Buckles v. Columbus
Mun. Airport Auth. (6th Cir. 2004), 90 Fed. Appx. 927, 930. As
cited in Cleveland v. Martin, 2005-Ohio-6482, ¶ 23.
“[B]ad faith,” although not
susceptible of concrete definition, embraces more than bad judgment or
negligence. It imports a dishonest purpose, moral obliquity, conscious
wrongdoing, breach of a known duty through some ulterior motive or ill
will partaking of the nature of fraud. It also embraces actual intent to
mislead or deceive another.
Jackson v. Butler Cty. Bd. of Cty.
Commrs. (1991), 76 Ohio
App.3d 448, 453-454.
whether conduct would reflect a malicious purpose, the Supreme Court has
held that “[m]alicious” means “indulging or exercising malice; harboring
ill will or enmity.” Furthermore, “malice” can be defined as the willful
and intentional design to do injury, or the intention or desire to harm
another, usually seriously, through conduct which is unlawful or
Jackson v. Butler Cty. Bd. of Cty.
Commrs. (1991), 76 Ohio
App.3d 448, 453-454.
individual acts in a “reckless” manner “if he does an act or
intentionally fails to do an act which it is his duty to the other to
do, knowing or having reason to know of facts which would lead a
reasonable man to realize, not only that his conduct creates an
unreasonable risk of physical harm to another, but also that such risk
is substantially greater than that which is necessary to make his
Jackson v. Butler Cty. Bd. of Cty.
Commrs. (1991), 76 Ohio
App.3d 448, 453-454.
Generally, a party’s
unsupported and self-serving assertions, offered by way of affidavit,
standing alone and without corroborating materials under Civ.R. 56, will
not be sufficient to demonstrate material issues of fact. Otherwise, a
party could avoid summary judgment under all circumstances solely by
simply submitting such a self-serving
affidavit containing nothing more than bare
contradictions of the evidence offered by the moving party. C.R.
Withem Enterprises, v. Maley (Sept. 23, 2002), Fairfield App. No. 01
CA-54, 2002-Ohio-5056, at ¶24;
"[A] nonmoving party may not
avoid summary judgment by merely submitting a self-serving affidavit
contradicting the evidence offered by the moving party. "Belknap v.
th Dist. No. 2003-T-0147, 2004-Ohio-7232, at
A non-moving party may not
defeat a motion for summary judgment by creating an issue of fact by a
contradictory affidavit. Ortner v. Kleshinski, Morrison, & Morris
(Ohio Ct. App. 5
th 2002), 2002-Ohio-4388, Zara v. Gabrail,
1998 Ohio App. LEXIS 6545, 5-7 (Ohio Ct. App. 5th 1998). Accord
Spatar v. Avon Oaks Ballroom (Ohio Ct. App. 11
2002), 2002-Ohio-2443 (ruling that it would be inappropriate to allow an
opposing party to defeat a motion for summary judgment by creating an
issue of fact through a contradictory affidavit.)
See also Aeh v. Madison
Twp. Trustees, 4
th Dist. Case No. 03CA2885,
2004-Ohio-2181; Bell v. Beightler, 10th Dist. No.
02AP-569, 2003-Ohio-88, ¶ 33.
Assumption of the Risk
Assumption of the risk
requires three elements: One must have full knowledge of a condition;
such condition must be patently dangerous to him; and he must
voluntarily expose himself to the hazard created. Briere v. Lathrop
Co. (1970), 22 Ohio St.2d 166, 174-175.
A plaintiff who reasonably
chooses to proceed in the face of a known risk is deemed to have
relieved the defendant of any duty to protect him/her. Siglow,
43 Ohio App.3d at Syllabus. Primary assumption of risk is really 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. Mima
v. Akron (1986), 31 Ohio App.3d 124, 125.
|The elements that must
be proven in a claim for unjust enrichment are '(1) a benefit conferred
by a plaintiff upon a defendant; (2) knowledge by the defendant of the
benefit; and (3) retention of the benefit by the defendant under
circumstances where it would be unjust to do so without payment.'
Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179[, 183,
citing Hummel v. Hummel (1938),
133 Ohio St. 520,
In Hummel v. Hummel (1938),
133 Ohio St. 520
, 525, this court observed that liability in quasi-contract "arises out
of the obligation cast by law upon a person in receipt of benefits which
he is not justly entitled to retain * * *." The court of appeals in this
case listed the elements of quasi-contract as follows: "(1) a benefit
conferred by a plaintiff upon a defendant; (2) knowledge by the
defendant of the benefit; and (3) retention of the benefit by the
defendant under circumstances where it would be unjust to do so without
payment (`unjust enrichment')."
Nevertheless, a recovery may sometimes be had
for unjust enrichment, or quantum meruit, if one person, through his
efforts, produces a benefit for another under circumstances in which it
would be inequitable to permit the person benefited to retain the full
value thereof without some compensation to the person producing the
benefit. Gaier v. Midwestern Group (1991), 76 Ohio App.3d 334,
This is only part of an unjust enrichment
analysis, however. A plaintiff seeking recovery under a theory of unjust
enrichment must also establish that he has incurred a substantial
detriment. It is the existence of a substantial detriment to the
plaintiff, causally connected to a substantial benefit to the defendant,
that makes it inequitable for the defendant to retain the benefit at the
plaintiff's expense, even though there is no contract between them.
Gaier v. Midwestern Group (1991), 76 Ohio App.3d 334, 339
The general rule of unjust enrichment is stated
in the Restatement of the Law, Restitution (1937) 12, Section 1: "A
person who has been unjustly enriched at the expense of another is
required to make restitution to the other." Unjust enrichment occurs
when a party retains money or benefits which in justice and equity
belong to someone else. Liberty Mut. Ins. Co. v. Indus. Comm.
40 Ohio St.3d 109,
110-111, 532 N.E.2d 124, 125-126.
Civil liability may be imposed where one party
retains a benefit from another's labors. Shaw v. J. Pollock & Co.
82 Ohio App.3d 656,
662 [612 N.E.2d 1295, 1299-1300], citing to Rice v. Wheeling Dollar
Savings & Trust (1951),
155 Ohio St. 391
[44 O.O. 374, 99 N.E.2d 301]. This implied obligation (i.e., quasi
contract) is derived from the equitable principle `based on the moral
obligation to make restitution which rests upon a person who has
received a benefit which, if retained by him, would result in inequity
and injustice.' Rice, supra at 398 [44 O.O. at 377, 99 N.E.2d at
305]. In order to prevent such unjust enrichment the law implies a
promise to pay a reasonable amount for services in the absence of a
specific contract. Thomas & Boles v. Burns (March 31, 1994),
Cuyahoga App. No. 64995, unreported, 1994 WL 110950.
|In order to state a
cause of action for malicious civil prosecution in Ohio, four essential
elements must be alleged by the plaintiff: (1) malicious institution of
prior proceedings against the plaintiff by defendant, (2) lack of
probable cause for the filing of the prior lawsuit, (3) termination of
the prior proceedings in plaintiff's favor, and (4) seizure of
plaintiff's person or property during the course of the prior
proceedings. Crawford v. Euclid Natl. Bank ,
19 Ohio St.3d 135,
19 OBR 341, 483 N.E.2d 1168.
Signature on a Document
A person of ordinary mind
cannot say that he was misled into signing a paper which was different
from what he intended to sign when he could have known the truth by
merely looking when he signed. Ed Schory & Sons, Inc. v. Soc. Natl.
Bank (1996), 75 Ohio St.3d 433, 441, quoting Dice v. Akron,
Canton & Youngstown R.R. Co. (1951), 155 Ohio St. 185, 191,
reversed on other grounds (1952), 342 U.S. 359.
If a person can read and is
not prevented from reading what he signs, he alone is responsible for
his omission to read what he signs. Id.
“A person filing a motion for
relief from judgment under Civ.R. 60(B) is not automatically entitled to
such relief[.]” Adomeit v. Baltimore (1974), 39 Ohio App.2d 97,
104. “The grounds for invoking Civ. R. 60(B)(5) should be
substantial.” Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d
64 at Syllabus, ¶ 2. “It should only be applied to highly unusual
and unfair circumstances.” Chahda v. Skliros Builders,
2005-Ohio-3440, ¶ 20. (Underline emphasis added.)
Duty to Control
Conduct of Another Person
There is no duty under Ohio
law to control the conduct of another person so as to prevent him from
causing physical harm to another unless a “special relation” exists
between the actor and that person which imposes a duty upon the actor to
control the person's conduct. Such a “special relation” exists when one
takes charge of a person whom he knows or should know is likely to cause
bodily harm to others if not controlled. Littleton, 39 Ohio
St.3d at 92. (Internal citations omitted.)
Negligence - Wrongful Death
To maintain a wrongful death
action on a theory of negligence, a plaintiff must show (1) the
existence of a duty owing to plaintiff’s decedent, (2) a breach of that
duty, and (3) proximate causation between the breach of duty and the
death. The same three elements must be shown to establish a negligence
action generally, including a survivorship action predicated upon
ordinary negligence or medical malpractice. Littleton v. Good
Samaritan Hospital & Health Ctr. (1988), 39 Ohio St.3d 86, 92.
(Internal citations omitted.)
Section 1983 Claims
The elements needed to
support a claim under Section 1983 are:
There must be a deprivation
of the Plaintiff’s “rights, privileges or immunities secured by the
Constitution and the laws of the United States”;
The Plaintiff must allege
that the Defendants deprived him of his constitutional right under
“color of any statute, ordinance, regulation, custom or usage of any
state or territory.”
Plaintiff must show causal
deprivation without due process of a right secured him by the federal
laws. Brown v. Miller (5th Cir.1980), 631 F.2d 408, 410.
Supreme Court of Ohio recognizes the “well-established and uniform rule
that courts of equity have no authority to interfere with the action of
voluntary and unincorporated associations where no property right is
involved.” State, ex rel.
Ohio H. S. Athletic Assn. v. Judges of
the Ct. of Common Pleas, 173
Ohio St. 239, 247 (1962). Plaintiff apparently relies on the
“qualifying” language of this opinion and its progeny to make sure he
alleges that the decision of the Executive Board was “collusive,
arbitrary and contrary to law.”
“And neither will such a court interfere with the management
of a society unless the officers are acting in excess of their powers,
or collusion or fraud is claimed to exist on the part of the officers
or a majority of the members.” Id. See also Lough v. Varsity Bowl,
Inc., 16 Ohio St. 2d 153, 155 (1968) (“As a general rule, courts
will not interfere with the quasi-judicial decisions of voluntary
associations unless such decisions are allege and shown to be the
result of fraud, arbitrariness or collusion.”)
|“[W]aiver . . is the
voluntary relinquishment of a known right. As a general rule, the
doctrine of waiver is applicable to all personal rights and privileges,
whether secured by contract, conferred by statute, or guaranteed by the
Constitution, provided that the waiver does not violate public policy.
State, ex rel. Hess v. Akron (1937), 132 Ohio St. 305, 307.
is used to prevent re-litigation of issues already decided by a court or
matters that should have been brought as part of a previous action.
Lasko v. General Motors Corp., 11th Dist. No. 2002-T-0143,
2003-Ohio-4103, at ¶16.
In order for res judicata to apply, a
valid, final judgment must have been rendered upon the merits and an
identity of parties or their privies must exist. Whitehead v. Gen.
Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10,
paragraph one of the syllabus, modified in part on other grounds in
Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 382, 653 N.E.2d
226, 229. Res judicata also applies where an issue is litigated
that has been "actually and necessarily litigated and determined in a
prior action." Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107,
538 N.E.2d 1058, 1062.
|In Willott v.
Beachwood (1964), 175 Ohio St. 557, the Ohio Supreme Court held:
The power of a municipality to establish zones, to classify property, to
control traffic and to determine land use policy is a legislative
function which will not be interfered with by the courts, unless such
power is exercised in such an arbitrary, confiscatory or unreasonable
manner as to be in violation of constitutional guaranties. Id. at
paragraph three of the syllabus.
Further, Court has held that township trustees may set minimum lot sizes
in the exercise of the zoning authority. Ketchel v. Bainbridge Twp.
(1990), 52 Ohio St.3d 239, paragraph one of syllabus.
“Zoning ordinances can validly impose
minimum area and width requirements for residential use if they do not
effectively render the property useless.” Clark v. Woodmere
(1985), 28 Ohio App.3d 66, paragraph two of the syllabus.
Where no taking is alleged, the Court need only
decide whether the zoning ordinance being challenged is “clearly
arbitrary and unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare.” Shemo v. Mayfield Hts.
(2000), 88 Ohio St.3d 7, 9 quoting Euclid v. Ambler Realty Co.
(1926), 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303, 314. This is
the test of an ordinance purported to advance a legitimate governmental
Inc. v. Toledo-Lucas Cty. Bd. Of Health (2002) 96 Ohio St. 3d 250
, the Court articulated a
well-established rule of construction.
well-established principles are: (a) all words of a statute should have
effect and no part should be disregarded, (b) the importance of context,
(c) an agency cannot on its own extend its authority beyond the specific
grant by the legislature, and (d) the intention and extent of the grant
of power from the legislature must be clear, and, in case of doubt, that
doubt is to be resolved not in favor of the grant but against it. Id.
“It is axiomatic in
statutory construction that words are not inserted into an act without
some purpose. Nor may we give a construction which would render words
superfluous. Words in statutes should not be construed to be redundant,
nor should any words be ignored.” Eastwood Mall, Inc. v. Slanco
(1994), 68 Ohio St.3d 221
(internal citations omitted).
medical malpractice, the injured party must show that the injury was
"caused by the doing of some particular thing or things that a physician
or surgeon of ordinary skill, care, and diligence would not have done
under like or similar circumstances, or by the failure or omission to do
some particular thing or things that such a physician or surgeon would
have done under like or similar conditions and circumstances, and that
the injury complained of was the direct and proximate result of such
doing or failure to do some one or more of such particular things."
See Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 346 N.E.2d
673, paragraph one of the syllabus.
In a medical negligence claims a
plaintiff must generally prove the following: "[a] duty running from the
defendant to the plaintiff, breach of duty by that defendant, damages
suffered by the plaintiff, and a proximate cause relationship between
the breach of duty and the damages."8 In a medical negligence case,
expert testimony may be used to show that the defendant did not meet the
standard of care, and that the failure to adhere to the standard of care
proximately caused the plaintiff's injury." See Powell v.
Hawkins 175 Ohio App. 3d 138 (2007-Ohio-3557).
A Mary Carter agreement has come to
designate a contract between a plaintiff and at least one defendant
allying them against another defendant at trial.
Vogel v. Wells (1991), 57
Ohio St.3d 91, 93, 566 N.E.2d 154. "In effect, the `Mary Carter
agreement' is a partial
settlement of a dispute between a plaintiff and at least one of the
defendants. The role of the contracting defendant is comparable to that
of the role of an actor in a real play. He is a favored party to the
litigation as he hides behind his mask, thereby precluding the court,
the jury, and the noncontracting defendant or defendants from
recognizing what has conspiratorily transpired to their detriment. The
contracting defendant or defendants are defendants in name only, since
they, by `agreement,' actively promote the plaintiff's case. They may
very well abandon or not even assert certain obvious defenses, such as
contributory negligence, assumption of the risk, or even misuse of the
product. They may readily admit the reasonableness of the damages
claimed by the plaintiff. In either event, the `conduct' of the
contracting defendant or defendants must influence the judge and jury,
especially in those situations where the judge and jury are unaware of
the executed `Mary Carter agreement.' Therefore, any recovery by the
plaintiff is tainted because it also accrues to the benefit of the
contracting defendant or defendants at the expense of the noncontracting
defendant or defendants." (Emphasis sic.)
Vermont Union School Dist. No. 21 v.
H.P. Cummings Const. Co. (Vt.1983), 469 A.2d 742, 749,
quoting Freedman, The Expected Demise of "Mary Carter": She Never Was
Well (1975), 633 Ins.L.J. 602, 610.
Ohio Supreme Court has established that Mary Carter agreements are
generally characterized by three basic provisions: "`First, the settling
defendant guarantees the plaintiff a minimum payment, regardless of the
court's judgment. Second, the plaintiff agrees not to enforce the
court's judgment against the settling defendant. Third, the settling
defendant remains a party in the trial, but his exposure is reduced in
proportion to any increase in the liability of his codefendants over an
agreed amount. Some Mary Carter agreements include a fourth element:
that the agreement be kept secret between the settling parties.'"
Vogel, 57 Ohio St.3d at 93,
fn. 1, quoting Benedict, It's a Mistake to Tolerate the Mary Carter
Agreement (1987), 87 Colum.L.Rev. 368, 369-70.
Hodesh v. Korelitz,
|To establish proximate
cause, the plaintiff must prove that his injuries were the natural and
probable consequence of the negligent act. Strother v. Hutchinson
(1981), 67 Ohio St.2d 282, 287. The plaintiff must prove more than the
fact that he was injured; he must prove that his injury was caused by
some negligent act or omission by the defendant. J.C. Penny Co. v.
Robison (1934), 128 Ohio St. 626, paragraph four of the syllabus.
The injury must have been reasonably foreseeable; not that the defendant
had to anticipate the particular injury that occurred, just that it
could be reasonably anticipated that some type of injury would occur
from the negligent act. Strother, supra.
actionable negligence, a plaintiff must prove that: (1) the defendant
owed the plaintiff a duty; (2) the defendant breached that duty; and (3)
the breach of the duty proximately caused the plaintiff's injury.
Chambers v. St. Mary's School, 82 Ohio St.3d 563, 565,
1998-Ohio-184, citing Wellman v. East Ohio Gas Co. (1953), 160
Ohio St. 103, 108-109. Generally, a duty may be established by common
law, legislative enactment or by the particular facts and circumstances
of the case. Id., citing Eisenhuth v. Moneyhon (1954), 161 Ohio
St. 367, paragraph one of the syllabus.
provided here are meant to provide a quick, easily accessible
statement of the law at the time of the decision of the court. The
law, however, changes. You should not rely on these citations as the
current statement of the law; rather, they are intended to provide a
path for your legal research.