About Us
Representative Matters
Citations to the Law
Employment Law
Health Care
Legal Resources
dicta inter alia
Privacy Policy
Contact Information

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

st) 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.

A “paradigmatic taking requiring just compensation.”  Lingle v. Chevron U.S.A., Inc.,  (2005) 125 S. Ct. 2074, is:

"[A] 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

th)  2004-Ohio-4441, ¶ 46.

Regulatory takings 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). 

 “Mandamus 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.  

Bad Faith
“[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.


Malicious Purpose
As to 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 unjustified.  Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 453-454.


Reckless Manner
[A]n 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 conduct negligent.”  Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 453-454.


Contradictory Affidavits

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. Vigorito, 11

th Dist. No. 2003-T-0147, 2004-Ohio-7232, at ¶27;


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 th 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.



Unjust Enrichment
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, 525].

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, 338

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. (1988), 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. (1992),

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.


Malicious Prosecution
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 [1985], 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.



Civ.R.60(B) Motion

“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.




Voluntary Associations
The 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.

Res Judicata
Res judicata 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 interest.

Statutory Construction
In D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. Of Health (2002) 96 Ohio St. 3d 250 , the Court articulated a well-established rule of construction. 

Those 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.  at  259. 

“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 , 225 (internal citations omitted).


Medical Malpractice
To establish 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).

Mary Carter Agreement
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.

The 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, 2008-Ohio-2052


Proximate Cause
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.


To establish 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.


The citations 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.





The content of this web site is for general information purposes only. It does not constitute legal advice or an attorney-client relationship. Contacting anyone at this e-mail address does not establish an attorney-client relationship. Any use of this web site is for personal use only. All other uses are prohibited. © 2003 - 2010 MARTIN JAMES O'CONNELL . All rights reserved.

For information about this web site, contact:


Copyright 2010 Martin James O'Connell


Home ] About Us ] Representative Matters ] Citations to the Law ] Litigation ] Employment Law ] Health Care ] Legal Resources ] dicta inter alia ] Privacy Policy ] Search ] E-mail ] Contact Information ]