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

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

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.  

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;

and

"[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

and

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

See also Aeh v. Madison Twp. Trustees, 4

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.

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),

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.)  

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.) 

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.) 

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.

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.
 

 “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.
 

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).

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).

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

Negligence