In Ohio, there are three forms of pleading in traffic or criminal cases, guilty, not guilty and not guilty by reason of insanity. For purposes of this blog entry, I will not be discussing the third. But, the reader should be aware of the issues involved in entering a plea of guilty or no contest. A plea of “guilty” is a complete admission of guilt, Crim.R. 11(B)(1). A plea of no contest indicates that, while you are not admitting guilt, you do not dispute the charge. In most instances, a no contest plea prevents any conviction being used in a civil action. This is most prevalent in traffic accident cases where the defendant is charged with causing the accident. By pleading no contest, the defendant can adjudicate the traffic case and prevent their plea from being used in a subsequent civil law suit for damages. In the case of an OVI your plea takes on a much important role. The nature of your plea determines your rights on appeal. An example of this issue was illustrated in the recent case of State v. Ramsey, 2012 Ohio 134. In the case, the defendant was arrested for OVI. He filed several pre-trial motions which were all denied. Subsequently, he entered a plea guilty to a lesser and charge and then appealed the lower court’s denial of his motions. The appellate court refused to rule on his appeal reasoning the “A plea of guilty is a complete admission of guilt...A defendant who enters a plea of guilty waives the right to appeal all nonjurisdictional issues arising at prior stages of the proceedings, although the defendant may contest the constitutionality of the plea itself. Ross v. Common Pleas Court of Auglaize Cty. (1972), 30 Ohio St.2d 323, 285 N.E.2d 25. "Thus, by entering a guilty plea, a defendant waives the right to raise on appeal the propriety of a trial court's suppression ruling." State v. McQueeney, 148 Ohio App.3d 606, 774 N.E.2d 1228, 2002 Ohio 3731, ¶13. Therefore, once a defendant pleads guilty they waives all appealable issues other than the plea itself. Therefore, be forewarned, if your intent is to appeal the findings of the lower court, an entry of no contest will preserve that right as it is not a complete admission of guilt but merely an admission to the facts.
Archive for the ‘Civil Liability’ Category
Past blogs have identified areas of concern resulting from an OVI conviction. As discussed, an OVI conviction not only has severe penalties, but can materially affect employment, insurance, and professional licenses. A recent court of appeals case points to another possible consequence of multiple OVI convictions - child custody. In the case of Oberlin v. Oberlin, 2011 Ohio 6245, the Ninth Appellant District (Summit County) affirmed a lower court’s decision to reallocate parental rights and custody resulting from multiple OVI convictions. Before rendering its decision, the lower court referred the child custody issue to a Family Court Services Evaluator who prepared a report with an initial custody determination and ultimately recommended that Father be awarded custody. The trial court noted in the divorce decree that evaluator felt the case was "a close call" and recommended the wife seek custody in the event there are any further alcohol-related issued. Subsequently, the husband was convicted of a second OVI and the wife filed a motion in court for a reallocation of parental rights asking that the wife be made the custodial parent. The lower court granted her motion and conveyed custody of the child to the mother. The husband appealed. The appellate court’s opinion began by citing O.R.C. 3109.04(E)(1)(a) which states, “ [A] court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child's residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child." The court continued, “As such, ‘before a modification can be made pursuant to R.C. 3109.04(E)(1)(a), the trial court must make a threshold determination that a change in circumstances has occurred.’ Buttolph v. Buttolph, 9th Dist. No. 09CA0003, 2009 Ohio 6909, at ¶11. Moreover, the requisite change of circumstances ‘must be a change of substance, not a slight or inconsequential change.’ Davis, 77 Ohio St.3d at 418. The statute is intentionally designed to require a significant change in order ‘to spare children from a constant tug of war between their parents who would file a motion for change of custody each time the parent out of custody thought he or she could provide the child a 'better' environment.’ Id., quoting Wyss v. Wyss (1982), 3 Ohio App.3d 412, 416. The father argued that an OVI conviction, by itself, cannot constitute a change in circumstances. The Ninth Appellate District disagreed. The court pointed to the testimony of the Family Court Services Evaluator who testified that her report included the recommendation that the wife should seek custody of the child if there were any further alcohol-related offenses. The appellate court agreed that the second OVI conviction constituted a change of circumstances and affirmed the lower court’s decision to reallocate custody to the wife. I would be remiss if I failed to report that the court did review other factors such as the husband’s working hours in determining custody. But the OVI conviction constituted nearly 75% of the court’s opinion. So, one can only conclude that the conviction was a major issue in the court’s decision. Also a major factor in the court’s decision was the Family Court Services Evaluator’s report which warned the husband of the consequences of any additional alcohol-related incidents. Would the court’s decision been different if the warning was not present in the report? This question is open to speculation. But, the Ninth Appellate District Court has made it clear that OVI convictions and alcohol-related issues will be a determining factor in custody issues.
A recent Ohio Supreme Court case has opened a Pandora’s box. In the case of Estate of Graves v. City of Circleville, 2010 Ohio 168, the court let stand a lawsuit filed against a city and its police officers resulting from the death of an individual killed by a drunk driver.
In the case, a multiple OVI offender names Copley was arrested, once again, for OVI. The next afternoon Copley was released. Finding no “hold” on the vehicle, the police released the vehicle to Copley. The next morning Copley drove his vehicle while intoxicated and caused a collision killing both he and Graves.
The estate filed suit against the officers, alleging that they had breached their duty to Graves by failing to remove Copley’s license plates from his vehicle and by releasing the vehicle to him. More specifically, the estate claimed that (1) R.C. 4507.38 required that Copley’s vehicle be held until his initial court appearance because he had been charged with driving on a suspended license and (2) R.C. 4511.195 required that Copley’s vehicle remain impounded because he had been convicted of operating a motor vehicle under the influence of alcohol (“OMVI”) within the prior six-year period. The estate alleged that the officers were aware that Copley was a recidivist drunk driver who was driving on a suspended license and that the officers violated the law by allowing Copley to obtain his vehicle from the impound lot. The estate further alleged that the officers acted wantonly, recklessly, and with complete disregard for the foreseeable consequences of their actions.
The city and officers defended themselves based upon Ohio’s Sovereign Immunity Statute contained in O.R.C. Chapter 2744. That statute bars any suit against any political subdivision of the state and/or its employees in the performance of their duties. However, the one exception is when the employee acts in a wanton and reckless manner (O.R.C. 2744.03(A)(6)(b)). The city asked the lower court to dismiss the case on that basis.
In its ruling, the court acknowledged the sovereign immunity statute but alluded to the Plaintiff’s claim of wanton and reckless behavior. Therefore, it remanded the case back to the lower court to determine the culpability of the officer’s behavior.
A recent Lorain County case discussed a pertinent issue relative to OVI. That issue, in the case of Allstate Ins. Co. v. Jaeger, 2009 Ohio 5756, concerned parental liability for the acts of their child. The case arose from the actions of a 15 year old who became intoxicated and crashed into another’s property damaging a garage and a fence. Allstate insurance paid the claim of its insured and then sued the parents of the minor. The theory of liability was two-fold: (1) O.R.C. 3109.09(B), the parental liability statue and (2) common law negligent supervision.
O.R.C. 3109.09(B) – Parental Liability Statute
The statute’s language is as follows: “[a]ny owner of property . . . may maintain a civil action to recover compensatory damages not exceeding ten thousand dollars and court costs from the parent of a minor if the minor willfully damages property belonging to the owner or commits acts cognizable as a ‘theft offense…involving the property of the owner.” Therefore, there are two independent grounds for liability:
1. A child’s wilful damage to property, or
2. A child’s cognizable act of theft involving property of the owner.
In order for a parent to be liable in the first instance, it must be shown that the child intentionally caused the damage to the property. The Supreme Court of Ohio distinguished between “wanton negligence” and a “willful tort” that “involves the element of intent or purpose,” A parent may not be held liable under the willful acts provision of Section 3109.09 for damage caused by joyriding in a stolen car unless the child also intentionally caused the subsequent damage, Motorists Mut. Ins. Co. v. Bill, 56 Ohio St. 2d 258, 266, 383 N.E.2d 880. Thus, the court distinguished between a negligent act and an intentional one. Based upon that dicta, the court determined the act of the child had to be intentional not merely negligent. Therefore, in order to prevail the plaintiff must prove that the child intended to damage property before parental liability will attach. Since Allstate could not prove that the child intentionally damaged the property, liability did not attach.
In the second instance parental liability arises under the ‘theft provision’ of R.C. 3109.09 when the child has engaged in conduct which is the equivalent of theft and the property thereafter is damaged, regardless of whether the child acted in a willful manner at the time the property was damaged, Conover v. McCutcheon, 9th Dist. No. 1832, 1990 Ohio App. LEXIS 1329, 1990 WL 40163. Therefore, if the act of the child amounts to a “theft” as defined by law, the parent can be held liable in the event of damages caused as a result of that “theft” whether or not the child acted wilfully.
While it is not pertinent to this discussion, I point out that the court denied liability under the second ground because although the child did “steal” the car, Allstate was not the owner of the damaged property as required by the statute.
Negligent Supervision
Although at common law a parent is not ordinarily liable for damages caused by his child’s wrongful conduct, “liability can attach when the injury committed by the child is the foreseeable consequence of a parent’s negligent act,” Huston v. Konieczny, 52 Ohio St. 3d 214, 217, 556 N.E.2d 505 (1990). The Ohio Supreme Court has outlined three ways that parents may incur liability: (1) negligent entrustment; (2) negligent supervision, and (3) consenting to or directing the child’s wrongful conduct.
The relevant element in any negligence theory is that of foreseeablility. In the case of parental liability, could the parent foresee the actions of their child? In the Allstate case, the court pointed to the fact that “…[the parent] pointed to evidence tending to show that she did not know of any prior instance wherein her son had acted in a similar manner, endangering others or their property by using a car. She also pointed to evidence that she had supervised her son to the extent that she had spoken with him on the evening of the incident and she detected no cause for concern that he might ‘do anything that would be dangerous to himself or to others.’”
The court concluded that “…reasonable minds could only conclude that [the parent] did not know, nor should she have known, that injury to another was a probable consequence of her son’s behavior. Therefore, the court denied liability under this theory of liability.
While the subject matter of this blog is the theory of “Parental Liability,” it is important to note the potential consequence to a parent who knowingly allows their child to operate a vehicle knowing or having reason to believe the child is under the influence of alcohol or drugs or both, or might potentially be under the influence (prom, school dance, fraternity/sorority party, etc.).