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Abbra Walker Ahmad et al. v. AK Steel Corp., Case nos. 2007-0288 and 2007-0410
12th District Court of Appeals (Butler County)
Polaris Amphitheater Concerts, Inc. v. Delaware County Board of Revision et al., Case no. 2007-0347
State Board of Tax Appeals
State of Ohio v. Reginald Gardner, Jr., Case no. 2007-0375
2nd District Court of Appeals (Montgomery County)
Mark Albrecht et al. v. Brian Treon, M.D., et al., Case no. 2007-0507
U.S. District Court for the Southern District of Ohio
Disciplinary Counsel v. Jay Alan Goldblatt, Case no. 2007-1961
Abbra Walker Ahmad et al. v. AK Steel Corp., Case nos. 2007-0288 and 2007-0410
12th District Court of Appeals (Butler County)
ISSUE: When injury to a guest results from an “open and obvious” hazard on an owner’s property, is the property owner entitled to summary judgment precluding liability for negligence when the hazardous condition that caused injury was in violation of an administrative safety regulation?
BACKGROUND: Under established Ohio case law, a property owner does not owe a legal duty (and therefore cannot be held negligent) for failing to protect a visitor, employee or other invitee from a hazard on the property when that hazard is “open and obvious.” However, another line of court decisions has held that a property owner’s violation of a statutory or administrative safety regulation is evidence of negligence, and exposes the owner to potential liability for injuries arising from the violation.
In this case, the Supreme Court is asked to review lower court rulings granting summary judgment in a personal injury lawsuit in favor of a property owner, the AK Steel Corporation. The Butler County Court of Common Pleas and 12th District Court of Appeals both held that a flight of stairs without handrails at AK’s Middletown headquarters building was an “open and obvious” hazard, and that the company therefore could not be held liable for injuries suffered by Sheila Walker, a security guard who fell on those stairs and broke her ankle while working at the building. Two weeks after her fall, Walker died of a pulmonary embolism. Walker’s son, Abbra Walker Ahmad, filed suit against AK, alleging that the embolism was a result of his mother’s fall. The trial and appellate courts rejected Ahmad’s claim that, even though the hazard was obvious, AK could still be held negligent because the lack of a handrail on the stairs was a violation of OSHA regulations and local building code requirements.
The 12th District certified that the award of summary judgment in Ahmad’s case was in conflict with a ruling of the 1st District Court of Appeals denying summary judgment in a similar case. The Supreme Court has agreed to hear arguments to resolve the conflict between appellate districts.
Attorneys for Ahmad argue that, if affirmed, the trial and appellate court decisions in this case would grant a “free pass” to property owners to violate safety regulations without fear of liability for resulting injuries so long as the hazard created by their violation is an obvious one. They point out that many of the safety regulations that require barriers, guards and signage in dangerous locations are designed to protect employees and visitors from hazards that might be “obvious,” but that nevertheless present a heightened threat of injury and may be difficult or impossible to avoid. In this case, they assert, AK was required by OSHA regulations to place handrails on the stairs where Walker fell but failed to do so. While that violation does not conclusively establish that AK was negligent, they contend, it does raise a “genuine issue of material fact” that was sufficient to defeat AK’s motion for summary judgment and allow Ahmad’s claims to proceed to trial.
Attorneys for AK Steel dispute Ahmad’s claim that OSHA regulations required a handrail on the stairs where Walker fell, but argue that in any case the hazard presented by the absence of a handrail was open and obvious, and that fact alone renders the company immune from liability for Walker’s injuries.
Contacts
William H. Blessing, 513.621.919, for
Abbra Walker Ahmad.
Monica H, McPeek, 513.651.6182, for AK Steel Corporation.
Polaris Amphitheater Concerts, Inc. v. Delaware County Board of Revision et al., Case no. 2007-0347
State Board of Tax Appeals
ISSUE: When a property owner appeals the tax valuation of a parcel of improved real property to the State Board of Tax Appeals (BTA), may the owner separately challenge just the portion of assessed value attributed to the land itself, independent of improvements on that land, or must the owner’s appeal address the total valuation of the land and improvements considered as a whole?
BACKGROUND: Polaris Amphitheater Concerts, Inc., the owners of a 90-acre parcel of land near Delaware that includes a 20,000-seat outdoor amphitheater facility, disputed the Delaware County Auditor’s 2003 valuation of that property for tax purposes at $20,734,700. The Olentangy Local School District, a major beneficiary of property taxes assessed against the amphitheater, filed a counter-complaint in support of the auditor’s valuation. The county board of tax revision affirmed the auditor’s valuation, which included an estimated value of $13,799,110 for the land itself and $6,935,590 for improvements. Polaris appealed the board of revision’s ruling to the State Board of Tax Appeals (BTA).
In their written pleadings and testimony before the BTA, Polaris and the school district presented separate expert appraisals of the current market value of the property. Following the standard format for such appraisals, each party’s estimate was broken down into two component figures: an estimated value of the land itself, and a separate estimate of the value of the structures, utilities and other improvements on the property. Polaris’ appraiser set an estimated value of the land component of the property at $7.2 million. The school district’s expert set an estimated value of the land at $8.6 million, but arrived at a total valuation of the property, including all improvements, of $21 million. The BTA ruled that the school district’s appraisal supported the county auditor’s overall valuation of the property, and adopted the auditor’s valuation of $20,734,700 as the true market value of the Polaris property.
Polaris has appealed the BTA’s ruling to the Supreme Court as unreasonable and unlawful. They point out that the expert testimony before the board presented by their own appraiser and by the appraiser hired by the school board set the true value of the land component of their property at either $7.2 million or $8.6 million – both of which figures are dramatically lower than the county auditor’s estimated land value of $13.8 million. They argue that because the BTA is obliged to base its rulings on the evidence in the record before it, the board was required to adopt one or another of the expert appraisals regarding the true value of the land, which would in turn require a substantial reduction from the county auditor’s overall valuation of their property.
They quote from a 2007 decision, Dayton-Montgomery Cty. Port Authority v. Montgomery Cty. Bd. of Revision, in which the Supreme Court held that when evidence in the record contradicts all or part of an auditor’s or board of revision’s valuation, and when no evidence was adduced to support the auditor’s valuation, “(T)he BTA may not simply revert to the auditor’s determination. Whenever it does so, the BTA is acting unlawfully by making a finding that is affirmatively contradicted by the only evidence in the record.”
Attorneys for the school system and the county auditor contend that while the traditional format used in preparing property appraisals separates the total value of a parcel into separate component figures labeled as “land” and “improvements,” that separation has no legal significance in the BTA’s review process. They cite language in the state law authorizing appeals to the BTA, R.C. 5715.19(A)(1)(d), which they say specifies that a property owner contesting a ruling of a county board of revision must file “a complaint against ... the determination of the total valuation or assessment of any parcel that appears on the tax list.” They argue that this statutory language bars Polaris from challenging just the valuation of the land component of their property, and point out that the expert appraiser who testified before the BTA on behalf of the school board arrived at a total valuation of the Polaris property that was within 2 percent of the county auditor’s estimate.
Contacts
Todd W. Sleggs, 216.771.8990, for
Polaris Amphitheater Concerts Inc.
Jeffrey A. Rich, 614.228.5822, for Olentangy Local Schools Board of Education.
Christopher Betts, 740.833.2690, for the Delaware County Auditor and Board of Revision.
State of Ohio v. Reginald Gardner, Jr., Case no. 2007-0375
2nd District Court of Appeals (Montgomery County)
ISSUE: In instructing jurors on a charge of aggravated burglary, which requires a finding that the defendant trespassed in an occupied structure “with a purpose to commit ... any criminal offense,” is a trial court required to identify a specific underlying offense or offenses that the jury must find the defendant intended to commit in order to return a guilty verdict on the burglary charge?
BACKGROUND: Reginald Gardner Jr. of Dayton was charged with aggravated burglary, felonious assault and other offenses for forcing his way into a home and assaulting another man following a verbal confrontation between the two outside the home. In instructing the jury on the findings it must make to return a guilty verdict on the charge of the aggravated burglary, the trial judge recited the language of the aggravated burglary statute, R.C. 2911.11(A)(2), which states that a person is guilty of aggravated burglary if he trespasses by force, stealth or deception in a structure occupied by a person other than an accomplice “with a purpose to commit ... any criminal offense.” The judge did not identify in his instruction on aggravated burglary any specific criminal offense as the underlying “purpose” for Gardner’s illegal entry into the home, however he subsequently instructed the jury on the separate charge of felonious assault based on Gardner’s actions after he entered the home.
The jury found Gardner guilty of aggravated burglary with a firearm specification, but not guilty of felonious assault. He was sentenced to three years in prison on the burglary count and an additional three years for the firearm specification, with the sentences to be served consecutively. Gardner appealed, alleging among other assignments of error that the judge’s jury instruction on aggravated burglary had been fatally defective because it allowed jurors to find him guilty of burglary without a unanimous finding that he had entered the house “with a purpose to commit” any specific underlying offense. The 2nd District Court of Appeals upheld Gardner’s claim regarding the jury instruction, vacated his conviction and sentence and remanded the case for a new trial.
The state, represented by the Montgomery County prosecutor’s office, now asks the Supreme Court to overrule the 2nd District and reinstate Gardner’s conviction. They note that the trial judge’s jury instruction faithfully quoted the language of the aggravated burglary statute, and that the jury was also instructed at the same hearing on the separate charge of felonious assault, which was clearly based on Gardner’s physical attack on a resident of the home within seconds of his forcible entry. They point out that Gardner did not object to the jury instruction on aggravated burglary at the time of the sentencing hearing, and so has waived all but “plain error.” Because the facts of the case made it clear that the alleged criminal “purpose” for Gardner’s forcible trespass was to assault an occupant of the home, they assert, the trial judge’s failure to actually name the specific underlying offense in his jury instruction did not constitute plain error and therefore was not a sufficient ground to vacate Gardner’s convictions.
Attorneys for Gardner urge the Court to affirm the ruling of the 2nd District and its order granting the defendant a new trial. They argue that a defendant’s right to a unanimous verdict is violated when a trial judge’s instruction allows jurors to vote for conviction on a charge that requires a “purpose to commit a criminal offense” without requiring that all of the jurors agree on at least one specific criminal offense the defendant intended to commit.
Contacts
R. Lynn Nothstine, 937.225.5757, for
the State of Ohio and Montgomery County prosecutor’s office.
Richard A. Nystrom, 937.223.1011, for Reginald Gardner Jr.
Mark Albrecht et al. v. Brian Treon, M.D., et al., Case no. 2007-0507
U.S. District Court for the Southern District of Ohio
ISSUE: Does the next-of-kin of a decedent upon whom an autopsy has been performed have a protected right under Ohio law to recover the decedent’s tissue, organs, or other body parts that have been removed and retained by a coroner for post-autopsy examination and testing?
BACKGROUND: This case involves a federal class action lawsuit that has been filed against coroners and medical examiners in 87 of Ohio’s 88 counties. A group of surviving family members of deceased persons is seeking to recover damages based on the coroners’ removal, retention and subsequent disposal of organs and other tissue taken from the decedents’ bodies for post-autopsy testing without disclosure to their next of kin. The plaintiffs allege that the coroners violated their constitutional rights to be notified that their loved ones’ organs had been removed, and to recover the removed tissue for burial after necessary testing had been completed.
Before reviewing the federal claims asserted by the plaintiffs, the U.S. District Court for the Southern District has asked the Supreme Court of Ohio to answer a threshold question of state law upon which the plaintiffs’ case largely depends: did they, as the next of kin of decedents on whom autopsies were performed, have a “protected right” under Ohio law to recover and dispose of their loved ones’ body parts after a coroner had completed forensic testing?
Attorneys representing the coroners point out that state law and public health regulations not only permit but require them to perform autopsies and to retain organs and tissue samples for further testing in cases where death may have been the result of a criminal act, where death is sudden or where the decedent is a young child, among other circumstances. They note that administrative regulations in effect since 1991 specifically require coroners to dispose of organs and tissue samples taken from decedents under safety protocols prescribed for “medical waste,” and assert that nothing in any state law or regulation grants family members a right to recover such specimens after they have been tested or imposes a requirement that coroners seek the consent of a decedent’s next of kin before safely and appropriately disposing of such material.
The plaintiffs argue that state law confers a clear duty on public officials to treat the bodies of decedents over which they have control with appropriate respect, and to turn over the body of a decedent to the next of kin for burial. They cite these laws and prior court decisions holding that family members may recover damages from a third party for unauthorized harvesting of organs from a decedent or for abuse of a loved one’s corpse as evidence that Ohio law does recognize a “protected interest” of survivors in the remains of a decedent. They argue that the failure of coroners to disclose to family members that a decedent’s brain, heart or other major organs have been removed prior to delivering the body for burial, and the subsequent disposal of those organs as “medical waste” without any effort to return them for interment with the rest of the decedent’s body, violates the next of kin’s right to possession of their loved one’s remains and to have those remains treated with dignity.
NOTE: Multiple amicus curiae (friend of the court) briefs have been submitted supporting the positions of both sides in this case. A listing of amici supporting each party and viewable/downloadable copies of their briefs are available on the Supreme Court’s Web site at:
http://www.sconet.state.oh.us/clerk_of_court/ecms/resultsbycasenumber.asp?type=3&year=2007&number=0507&myPage=searchbycasenumber%2Easp.
Contacts
Patrick J. Perotti, 440.352.3391, for
Mark Albrecht and other plaintiffs.
H. Elizabeth Mason, 513.732.7585, for Clermont County Coroner Brian Treon.
Disciplinary Counsel v. Jay Alan Goldblatt, Case no. 2007-1961
The Board of Commissioners on Grievances & Discipline has recommended that Cleveland attorney Jay Alan Goldblatt be indefinitely suspended from the practice of law for violations of state disciplinary rules arising from his attempt to arrange a sexual encounter with a minor that resulted in his conviction on two felony charges.
The Board found that Goldblatt engaged in illegal conduct involving moral turpitude and conduct that adversely reflects on his fitness to practice law when he initiated phone conversations with an undercover police officer pretending to be a “pimp” who could arrange sex with an underage girl. Goldblatt subsequently withdrew cash from an ATM to pay for the encounter and appeared at the designated location, where he was met and arrested by the police. He was subsequently convicted on felony counts of compelling prostitution and possessing criminal tools, and sentenced to five years of community control. His law license has been under an interim suspension since January 2006 based on the felony convictions.
Neither Goldblatt nor the Office of Disciplinary Counsel, which prosecuted the ethics complaint against him, have filed objections to the disciplinary board’s findings or its recommended sanction of an indefinite suspension with no credit for the time he has already served under the interim suspension. The Court has scheduled oral argument in response to a notice entered by Goldblatt’s attorney offering to respond to any questions the Court might wish to ask before entering judgment on the disciplinary charges.
Contacts
Laurence A. Turbow, 216.881.7939, for Jay Alan Goldblatt.
Carol A. Costa, 614.461.0256, for the Office of Disciplinary Counsel.
These summaries are prepared by the Office of Public Information solely to help news reporters determine if they want to cover the arguments. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.