Findlay Personal Injury Lawyer - Miscellaneous

Ohio dog bite lawyer Dale Emch on dog bite injury liability

Chuck Boyk — Wed, 07 Jan 2009 16:38:00 GMT

What do you do if it is your dog that bites someone? Ohio dog bite lawyer Dale Emch discusses the flip side to dog bite injuries in his most recent Legal Briefs column. If you have a general legal question you would like to see addressed, including those on Ohio car accident settlements, Ohio work injury payments, or medical malpractice, contact Dale today at demch@charlesboyk-law.com.

I heard that a dog's owner isn't responsible for a dog bite if the person bitten was trespassing. So, if I was throwing the football around with my son in my backyard and the ball went into my neighbor's yard, would my neighbor be responsible if his dog bit me when I crossed into his yard to pick up the football?

Let me give you some of the basics about Ohio dog bite law before I zero in on your question. Under Ohio law, the owner, keeper, or harborer of a dog is liable for any injuries caused by the dog. It's a very strict rule that can have some harsh results. For instance, if my dog, Simon, ran out in front of a car, causing the driver to swerve off the road and hit a tree, I'd be responsible for the driver's injuries. And that would be true even if a friend was walking Simon for me and he got away when I wasn't in town. The law imposes strict duties on dog owners, including those who have dogs as headstrong as Simon.

Given the number of dog-bite cases our law office handles, I understand why the law has developed in this way. I've represented children who have been scarred for life and adults whose dog-bite injuries have caused them to be hospitalized for days. It would be little solace to those people if the owners could escape liability by saying, "Gee, our dog has never bitten anyone before, so we had no idea this would happen." There's no such thing as a free bite in the civil arena under Ohio law.

That said, people owning or keeping dogs do have certain defenses. Under the law, it's a defense if the person who was injured was committing or attempting to commit a criminal trespass, committing or attempting to commit any criminal offense other than a minor misdemeanor, or was teasing, tormenting, or abusing the dog. So, the law includes some common-sense protections for dog owners or keepers in limited circumstances.

The key to your question is whether your neighbor would have a defense because you were considered a trespasser. The Ohio General Assembly amended the law this year to change the defense of trespass to criminal trespass. That could be significant, and I expect the change will be the source of some legal wrangling over the next few years. Prior to the change in the law, a number of courts ruled that the trespass defense was available to dog owners whether the trespass was civil or criminal.

It sounds like a small thing, but it could be crucial in a lot of cases. The distinction lies in the difference between a criminal and civil trespass. Boiled down, someone commits a criminal trespass when they knowingly enter the land or premises of another - without privilege to do so - or remain on the land or premises after receiving notice in some form that they're on someone else's property. While there's more to the criminal code section dealing with trespass, that's the general gist.

For the purposes of a civil trespass, on the other hand, it doesn't matter whether the trespasser knew or received notice he was trespassing.

So, let's look at the distinction using the framework of your question. Let's say you had to jump a fence to get into your neighbor's backyard to retrieve the football. It would be hard to say that you didn't commit a criminal trespass because you knowingly entered your neighbor's property.

Let's look at a different scenario. Let's say you were playing football on someone else's property and you had no idea where the property line was. If you inadvertently crossed the property line and the property owner's dog bit you, I would argue that you hadn't committed a criminal trespass and the dog owner would be liable. Under the old version of the law, it didn't matter whether you knew where the boundary line was for the purposes of a civil trespass. If you were bitten on someone else's property and you had no privilege to be there, you were out of luck, at least for purposes of pursuing your claim under the state statute.

As an aside, the concept of privilege is important here. For instance, a letter carrier has the right to enter your property to deliver mail. So the trespass defense wouldn't apply. Or, in your scenario, if your neighbor had seen the ball go over the fence and waved you over to come get it, you wouldn't be a trespasser.

Originally posted at InjuryBoard by Chuck Boyk

ATV accident causes boy to lose eyesight, case settles for $6.01 million

Chuck Boyk — Sun, 21 Dec 2008 17:04:00 GMT

Our Toledo, Ohio ATV accident attorneys want to remind riders to be careful while riding on ATVs, and also want to discourage parents from allowing their children under 16 from riding them at all.

A case involving an ATV accident that caused blindness to a little boy was recently settled in Pennsylvania for $6.01 million.

A nine-year-old boy was riding his grandfather’s ATV unsupervised, when a hunting dog escaped from his kennel and startled the boy. He then lost control of the ATV, flipped it, and the handlebar punctured the boy’s eye. The ATV accident caused permanent blindness.

In order to prevent an ATV accident, riders should not use the vehicles on a road – they are built to be off-road. Always travel at a safe speed, and never ride with a passenger. One of the most important factors in preventing a wrongful death from an ATV accident is using a helmet.

Originally posted at InjuryBoard by Chuck Boyk

Lucas County Dog Warden Tom Skeldon named Dog Warden of the Year

Chuck Boyk — Wed, 17 Dec 2008 19:37:00 GMT

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Originally posted at InjuryBoard by Chuck Boyk

Oregon mom helps us learn about ATV accidents

Chuck Boyk — Fri, 14 Nov 2008 18:13:22 GMT

Sue Rabe knows firsthand the devastation that ATV accidents can have on a family. Our attorneys had help continuing their blog series on ATV safety from this mother, also the co-founder of Concerned Families for ATV Safety.

The Rabe family lost their son, Kyle, to an ATV accident when he was only 10 years old. He had been riding for over a year and a half without any accidents. His parents write on the website that he was a very cautious, skilled rider wearing boots, gloves, several layers of clothing and a full face, approved helmet.

But all of those factors did not prevent an ATV accident.

“It’s devastating,” said Sue Rabe of Turner, Oregon. “Kyle was three months shy of his 11^th birthday. Until you have children, you won’t understand that they become your number one. They are everything to you.”

Sue Rabe fought hard to get Oregon Senate Bill 49, “Kyle’s Law,” passed, which would prohibit anyone under 12-years-old from operating an ATV. It would also put stronger restrictions on ATV riders between 12 and 15 years of age, and make helmet use mandatory.

While the bill did not pass, Sue believes that all of the lobbying and attention that Kyle’s Law received helped save lives.

“Last year not one child in the state of Oregon died in an ATV accident,” Sue said. “The year before, eight kids died. Apparently someone is listening.”

Stay tuned for our on-going series on ATV accidents as we report the information that Concerned Families for ATV Safety and Sue Rabe has provided us with.

Originally posted at InjuryBoard by Chuck Boyk

Are you entitled to compensation if you suffer emotional distress?

Chuck Boyk — Mon, 03 Nov 2008 15:25:00 GMT

Are you entitled to any sort of compensation if someone else’s causes you serious emotion distress? Toledo, Ohio car accident lawyer Dale Emch addresses the issue of emotional distress as a type of personal injury in his most recent Toledo Blade “Legal Briefs” column.

Dear Dale: I am interested in finding out whether I can make a claim against my doctor for causing me tremendous emotional distress. Could you please address this issue in your column?

ANSWER: The quick answer is that people can sue for infliction of emotional distress, but without knowing the specifics of your situation, it's really tough to say whether you have a claim. I'll try to provide you with enough information about the law so you can decide whether you have a case worth pursuing.

Under Ohio law, people can bring claims for intentional infliction of emotional distress and negligent infliction of emotional distress. The two are very different - one requires purposeful behavior, while the other is similar to an accident. It's sort of like the difference between someone who purposely rams his car into another driver's vehicle, as opposed to the person who causes a routine traffic accident because he took his eyes off the road.

A claim for intentional infliction of emotional distress requires extreme and outrageous conduct caused by someone's intentional or reckless behavior. The person bringing the claim has to demonstrate serious emotional distress.

Here's an example of intentional infliction of emotional distress: Let's say Bob, a CPA, decides to destroy his business rival, Barbara, by sending anonymous letters to some of her best customers that she's being investigated by the FBI for embezzling clients' money and, by the way, that she's also having an affair with a 16-year-old boy.

Further assume that poor Barbara's client base begins to dwindle and that her husband divorces her because he's heard the rumor about the 16-year-old. Finally, let's say that all the stress from the business failure and her divorce causes Barbara to experience a severe depression as well as debilitating anxiety attacks for which she seeks mental health treatment.

Fortunately, Barbara finds out that Bob is the culprit of her financial and emotional demise. In this case, she can bring a claim against Bob for intentional infliction of emotional distress (as well as a lot of other claims). As the Ohio Supreme Court put it, it's the type of behavior that would make someone exclaim, "Outrageous!"

Barbara would be able to sue for her medical bills for the mental health treatment she received, the pain and suffering she experienced, her lost wages, and punitive damages designed both to punish Bob and serve as an example to others that such outrageous conduct won't be tolerated in our society.

A claim for negligent infliction of emotional distress generally would result from accidental conduct. Here's an example: John, while fiddling with the radio, loses control of his car, runs up onto the sidewalk and strikes little Rodney who is taking a walk with his mother, Marjorie. Rodney survives, but Marjorie develops post-traumatic stress syndrome and enters extensive counseling to deal with her mental health issues.

In this case, Marjorie would be able to bring a claim for negligent infliction of emotional distress. Some of the factors to consider would be that she witnessed the scene of the accident - in fact, she was almost physically injured herself, she suffered a direct emotional impact, and Rodney was related to her.

Marjorie would be able to seek compensation for the bills incurred to treat her post-traumatic stress syndrome, the pain and suffering she experienced, and wages lost from missing work. Unlike with intentional infliction of emotional distress, she wouldn't be able to seek punitive damages because John's conduct was not purposeful or reckless - it was simply an accident.

I can't answer whether you have a claim because I don't know the details, but I hope this provides a framework for you to examine your situation.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio car accident attorney on Lemon Laws

Chuck Boyk — Fri, 17 Oct 2008 14:13:00 GMT

Toledo, Ohio car accident lawyer Dale Emch answers readers general legal questions on everything from car accidents, workers’ compensation, medical malpractice, or wrongful death. Contact our office if you would like to have your general legal question considered for Attorney Emch's Toledo Blade column, "Legal Briefs."

Dear Dale: My father-in-law purchased a new car that has continued to have the same engine problem. He's taken it in for repairs, but the problem keeps happening again and again. He's fed up and wants to know what his rights are.

ANSWER: It sounds like he may have purchased a lemon and could be entitled to a new car. In certain situations, Ohio's Lemon Law protects consumers who have purchased new cars that are plagued by problems.

The law applies only to new cars that are less than 1 year old or have fewer than 18,000 miles, whichever happens earlier. First of all, the dealer or manufacturer must be given a reasonable opportunity to make any repairs necessary so that the vehicle conforms to the warranty. You might be able to get a new car or a full refund if any of the following factors apply:

• If repairs have been attempted at least three times on essentially the same problem, but the problem persists.

• If one attempt has been made to repair a problem that could cause death or serious bodily injury, and the problem still exists.

• If the car has required eight or more repairs, not necessarily for the same problem.

• If the vehicle has been out of service for repairs for a cumulative total of 30 days.

If the consumer decides to replace the lemon, Ohio law requires that the new vehicle must be acceptable to him. Alternatively, a full refund of the purchase price can be demanded. The purchaser of the lemon also can recoup costs such as fees charged for cancelling a loan or lease, or towing costs and vehicle rental fees.

Despite the law, the consumer may run into a dealer or manufacturer who won't make things right or who believes that you don't have a right to seek the relief contemplated by the law. If that's the case, the lemon's owner can file a lawsuit seeking to recover the damages incurred. The law also allows for the recovery of attorney's fees and court costs if the consumer wins the case. That said, if certain factors are met, the consumer could be forced into arbitration, which essentially is an out-of-court hearing in front of a neutral party.

So, your father-in-law could be entitled to a new car or a full refund if the factors listed apply. It's important that he documents all of the problems and repair attempts so he can exercise his rights under the law. He should start a file and hold on to all of the paperwork associated with the vehicle.

For more information, check out the informative site the Ohio Attorney General's Office has put together on the Lemon Law at www.ag.state.oh.us/citizen/consumer/lemon_law.asp.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio car accident attorney stresses importance of healthcare power of attorney

Chuck Boyk — Tue, 30 Sep 2008 08:45:00 GMT

Living wills and healthcare power of attorneys allow your family to know your wishes, should anything happen to you. Toledo, Ohio dog bite attorney Dale Emch discusses the importance of a living will and healthcare power of attorney in his Toledo Blade column, “Legal Briefs.” If you have a general legal question you would like to see answered in Attorney Emch’s column, such as an inquiry regarding dog bites, car accidents, or workers’ compensation, contact our office.

Dear Dale: I have been in poor health for the last few years and recently I took a turn for the worse, which required me to move in with my daughter. Can I give her the right to make decisions for me about my health and medical care if need be?

ANSWER: Most of us don't like to think about these issues, but whether you're elderly and in bad health or young and vibrant, it's a good idea to have a living will and health care power of attorney. It makes sense to have your attorney put them together at the same time you have a will drafted, but you actually can create a living will and health care power of attorney on your own.

Living wills provide peace of mind that your wishes at the end of your life will be followed. They're powerful documents that address your desires about what type of care you want to receive if you're not in a position to make the decision yourself.

A living will kicks in when you are terminally ill and unable to express your wishes or when you're permanently unconscious. In applicable situations, a living will addresses things such as a desire not to receive life-sustaining treatment, whether you want to be hooked up to machines to sustain your life, whether medical providers should attempt CPR, and when feeding and fluid tubes should be removed. At the same time you can still be given medicine to ease any pain.

Physicians will recognize living wills, but two doctors have to agree that the conditions mentioned above apply and that you will not recover.

A health care power of attorney makes a good companion to a living will. This document allows you to designate a person who can make health care decisions for you if you aren't able to make them for yourself. It's different than giving someone power of attorney over your finances or over other matters limited to a specific area.

The person given health care power of attorney can make the decision to withdraw or deny life-sustaining treatment provided that a physician determines that you won't recover and be able to make such decisions for yourself.

But unlike a living will, a health care power of attorney can apply to situations that aren't life and death. For instance, if you were temporarily knocked unconscious after being hit by a car while riding your bike, the person to whom you gave health care power of attorney can make certain medical decisions on your behalf, such as signing off on an operation or moving you to a different hospital.

Because you're living with your daughter, you should consider whether you're comfortable giving her health care power of attorney. If you are, have a detailed talk about your end-of-life wishes. The best way to ensure that your desires are followed is to have a living will, which would trump the health care power of attorney even if your designee wants to take another course.

I would encourage you and anyone else interested in exploring these issues to visit Lucas County Probate Judge Jack Puffenberger's Web site at www.lucas-co-probate-ct.org. Not only does it have a tremendous amount of information about these matters, but it has a link that allows you to download forms for a living will and health care power of attorney.

Originally posted at InjuryBoard by Chuck Boyk

Toledo, Ohio personal injury attorney gives answers to general legal questions

Chuck Boyk — Fri, 26 Sep 2008 08:24:00 GMT

Toledo, Ohio personal injury attorney Dale Emch answers general legal questions in his Toledo Blade “Legal Briefs” column. Attorney Emch answers questions on all topics, including those on car accidents, dog bites, and wrongful death.

Dear Dale: My sister has been living with a guy for about three years. She has recently been trying to get him to leave because he has become verbally abusive and sometimes destructive, but he refuses. I would think that being abusive, which her neighbors
Answer: My initial take on this situation is that your sister probably can throw the guy out as long as some provision is made for him to retrieve his belongings.

But your question doesn’t address a few key details, so I’ll try to deal with the “what-ifs” in hopes they’ll be helpful to you or other readers. My main concern about booting the guy out and changing the locks would be if he can be construed to be a tenant who is renting from your sister. If he’s the type of guy who would push the matter on a legal front, it could be a hassle for her to get him out.

In Ohio, a tenant is someone entitled by a rental agreement to use and occupy a residence. A rental agreement can be written or oral. A tenant can be evicted in certain situations, but those evictions have to follow rules spelled out under the law.

For instance, a tenant can be evicted for such things as not paying rent or for holding over past the term of the lease agreement. In that event, the landlord must give the tenant proper notice that he’s being asked to leave and that his eviction could be sought. A complaint would then have to be filed in court and a hearing would be held.

Rental agreements also can be terminated without evictions. For instance, a landlord renting to a tenant on a month-to-month basis without a lease can end the agreement by giving the tenant a month’s notice that he has to move.

So, what does that mean for your sister? It really depends on what their agreement was when he moved in. If they formally agreed that he would pay a set amount of money each month to live there, he’d have an argument that he was a tenant. In that case, to be safe legally, she could give him a 30-day written notice that he must leave.

I’m guessing, though, that they didn’t have a formal agreement. If that’s the case, I don’t think he’d be a tenant under Ohio law, and therefore wouldn’t be entitled to the protections available under the law. He’d be no different than a guest, and his refusal to leave would be a trespass. If that’s the situation, my view is that she can kick the guy out today, change the locks, and make his belongings available to him somehow.

The problem is that in these situations there’s always a rub between the legal and the practical. It’s simply bizarre that your sister has told the guy to get out, but he won’t. He may be the type of guy who is going to make things ugly or messy before she can finally get him out the door, regardless of whether the law is on her side. If he has no rental agreement with her, she should ask him to leave again in front of witnesses, and if he doesn’t, she should call the police.

If he is paying rent and he won’t leave after getting written notice, have your sister contact a lawyer who deals with property-law issues so the process can be done in a legally proper way.

Originally posted at InjuryBoard by Chuck Boyk

Local newspapers recognize The Ohio Dog Bite Book

Chuck Boyk — Tue, 23 Sep 2008 08:22:00 GMT

Our Toledo, Ohio dog bite attorneys have been featured in numerous local newspapers for the recent publication of The Ohio Dog Bite Book.

The Toledo Free Press, The City Paper, and The Metro Press all mentioned The Ohio Dog Bite Book as a great reference guide for those suffering a dog bite injury.

The Toledo Free Press focused on The Ohio Dog Bite Book as a public service to the citizens of Toledo. Read an excerpt here:

Working from the premise that “knowledge is power,” the attorneys hope to educate the public, as well as their clients, to improve their ability to facilitate the process of litigation, protect victim's rights and ultimately arrive at the most beneficial solution.

The Metro Press focused on the number of Lucas County dog bites as well as the breed involved in those bites, along with Lucas County Dog Warden Tom Skeldon’s reaction to those numbers.

Pit bulls last year surpassed labs, shepherds and chows as the top breed whose bites required medical attention. Skeldon finds that noteworthy as there are fewer pit bulls in the country than the other three breeds…The attorneys write that Ohio has a strict liability law, which means a victim need only prove who owned the dog that bit them to establish liability for injuries. There are few defenses, such as, did the victim criminally trespass or tease, torment or abuse the dog.

If you or someone you know has suffered personal injury from a dog bite, order your FREE copy of The Ohio Dog Bite Book by contacting our office.

1Originally posted at InjuryBoard by Chuck Boyk

Dog bite injury website reviews Toledo, Ohio dog bite attorney

Chuck Boyk — Fri, 19 Sep 2008 08:11:00 GMT

It looks like Toledo, Ohio dog bite attorney Dale Emch is the focus of more than just the local papers. A dog bite injury website based in Seattle, Washington gave recognition to the Toledo, Ohio dog bite attorney and his Toledo op-ed piece on Lucas County Dog Warden Tom Skeldon.

DogsBite.org stated in their August 23, 2008 post:

"Dale Emch is a Toledo-based attorney. He also writes The Blade's Legal Briefs column and previously worked as a reported and editor at The Blade. Emch recently wrote a piece that supports Skeldon. It is exceptional. Emch nails the true gunners after Skeldon too: 'pit-bull fans who make money by fighting or breeding the dogs.'"

If you or someone you know has suffered personal injury from a dog bite, you need information. The Ohio Dog Bite Book, written by Toledo, Ohio dog bite attorneys Chuck Boyk, Dale Emch, and Mike Bruno, focuses on what do immediately after a dog bite, as well as how to handle the insurance companies.

Some of the tips provided in The Ohio Dog Bite Book include: take photos of the injury as soon as possible, notify the local authorities and dog warden, and do not give any information to the insurance company before consulting an attorney.

To order your FREE copy of The Ohio Dog Bite Book, contact our office.

Originally posted at InjuryBoard by Chuck Boyk