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S. B. No. 108As IntroducedAs Introduced
124th General Assembly | Regular Session | 2001-2002 |
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SENATOR Jacobson
A BILL
To amend sections 1701.95, 1707.01, 1901.18, 2101.31,
2305.25,
2305.251, 2305.37, 2307.24, 2307.27,
2307.30, 2307.60, 2307.61, 2313.46, 2315.23,
2315.24,
2743.18,
2743.19, 2744.01, 2744.02,
2744.03,
2744.05,
3123.17, 4112.02, 4507.07,
4513.263,
4582.27, and
5111.81; to amend, for the
purpose of adopting new section numbers as
indicated in parentheses, sections 2307.24
(2307.16), 2307.27 (2307.17), 2307.30 (2307.18),
2315.07 (2315.05), 2315.08 (2315.06), 2315.18
(2315.07), 2315.23 (2315.08), and 2315.24
(2315.09); to revive and amend sections
109.36,
2117.06, 2125.01, 2125.02, 2125.04,
2305.10,
2305.16, 2305.27, 2305.38, 2307.31,
2307.32,
2307.75, 2307.80, 2315.01, 2315.19,
2315.21,
2501.02, 2744.06, 3722.08, 4112.14,
4113.52,
4171.10, and 4399.18; to revive sections
163.17,
723.01, 1343.03, 1775.14, 2305.01,
2305.11,
2305.35, 2307.33, 2307.71, 2307.72,
2307.73,
2307.78, 2315.18, 2315.20,
2317.62,
2323.51,
2744.04, 4112.99, 4909.42,
5591.36, and
5591.37;
to repeal sections 109.36,
163.17,
723.01,
1343.03, 1775.14, 1901.041,
1901.17,
1901.181,
1901.20, 1905.032, 2117.06,
2125.01,
2125.02,
2125.04, 2305.01, 2305.10,
2305.11,
2305.16,
2305.35, 2305.38, 2307.31,
2307.32,
2307.33,
2307.71, 2307.72, 2307.73,
2307.75,
2307.78,
2307.80, 2315.01, 2315.18, 2315.19,
2315.20,
2315.21, 2317.62, 2323.51, 2501.02,
2744.04,
2744.06, 3701.19, 3722.08, 4112.14,
4112.99,
4113.52, 4171.10, 4399.18, 4909.42,
5591.36, and
5591.37, as they result from Am. Sub.
H.B. 350 of
the 121st General Assembly; to repeal
sections
901.52, 2101.163, 2151.542, 2303.202,
2305.011,
2305.012, 2305.113, 2305.131, 2305.252,
2305.381,
2305.382, 2307.31, 2307.42, 2307.43,
2307.48,
2307.791, 2307.792, 2307.80, 2309.01, 2315.37,
2317.45,
2317.46, 2323.54, and 2323.59; to repeal
sections
1901.262 and 1907.262, as enacted by Am.
Sub. H.B.
350; to suspend part of section 1707.01;
and to
suspend sections 1707.432, 1707.433,
1707.434,
1707.435, 1707.436, 1707.437, and
1707.438
of the
Revised Code and to amend Section
3 of Am.
Sub.
H.B. 438 of the 121st General
Assembly and to
repeal Sections 3, 4, 5, 6, 7, 8,
9, 13, and 16 of
Am. Sub. H.B. 350 of the 121st
General Assembly to
repeal the Tort Reform Act,
Am. Sub. H.B. 350 of
the 121st General Assembly;
to clarify the status
of the law; to reorganize
certain tort related provisions; and to revive
prior law;
to amend
sections 2744.01 and 2744.03
of the
Revised Code
as scheduled to take effect on
January 1, 2002, to
continue the amendments of
this act on and after
that date; and to declare an
emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. It is the intent of this act (1) to repeal the
Tort Reform Act, Am. Sub. H.B. 350 of the 121st General Assembly,
146 Ohio Laws 3867, in conformity with the Supreme Court of Ohio's
decision in
State, ex rel. Ohio Academy of
Trial Lawyers, v.
Sheward (1999), 86 Ohio St.3d 451; (2) to clarify the status of
the law; and (3) to revive the law as it existed prior
to the Tort
Reform Act.
Section 2.01. That sections 1701.95, 1707.01, 1901.18,
2101.31,
2305.25, 2305.251, 2305.37, 2307.24, 2307.27, 2307.30,
2307.60, 2307.61, 2313.46, 2315.23, 2315.24, 2743.18,
2743.19,
2744.01, 2744.02, 2744.03, 2744.05, 3123.17, 4112.02,
4507.07,
4513.263, 4582.27, and 5111.81 be amended; that sections 2307.24
(2307.16), 2307.27 (2307.17), 2307.30 (2307.18), 2315.07
(2315.05), 2315.08 (2315.06), 2315.18 (2315.07), 2315.23
(2315.08), and 2315.24 (2315.09) be amended for the purpose of
adopting new section numbers as indicated in parentheses; that
sections
109.36,
2117.06, 2125.01, 2125.02, 2125.04, 2305.10,
2305.16,
2305.27,
2305.38, 2307.31, 2307.32, 2307.75, 2307.80,
2315.01,
2315.19,
2315.21, 2501.02, 2744.06, 3722.08, 4112.14,
4113.52,
4171.10, and
4399.18 be revived and amended; and that
sections
163.17, 723.01,
1343.03, 1775.14, 2305.01, 2305.11,
2305.35,
2307.33, 2307.71,
2307.72, 2307.73, 2307.78, 2315.18,
2315.20,
2317.62, 2323.51,
2744.04, 4112.99, 4909.42, 5591.36, and
5591.37
of the Revised
Code be revived, all to read as follows:
Sec. 109.36. As used in this section and sections 109.361
to
109.366 of the Revised Code: (A) "Officer or employee" means any
person who, at the
time
a cause of action against
him
the person arises, is serving in an
elected or appointed office or
position with the state or is
employed by the state
or any person that, at the time a cause of
action against the
person, partnership, or corporation arises,
is
rendering medical,
nursing, dental, podiatric, optometric,
physical therapeutic,
psychiatric, or psychological services
pursuant to a personal
services contract or purchased service
contract with a department,
agency, or institution of the state;
or is
rendering medical services to patients in a
state
institution operated by the department of mental health, is
a
member of the institution's staff, and is performing the
services
pursuant to an agreement between the state institution
and a
board
of alcohol, drug addiction, and mental health services
described
in section 340.021 of the Revised Code.
"Officer
or
employee"
does not include any person
elected, appointed, or
employed by any
political subdivision of
the state. (B) "State" means the state of Ohio, including but not
limited to, the general assembly, the supreme court, the offices
of all elected state officers, and all departments, boards,
offices, commissions, agencies, institutions, and other
instrumentalities of the state of Ohio. "State" does not include
political subdivisions. (C) "Political subdivisions" of the state means municipal
corporations, townships, counties, school districts, and all
other
bodies corporate and politic responsible for governmental
activities only in geographical areas smaller than that of the
state. (D) "Employer" means the general assembly, the supreme
court, any office of an elected state officer, or any department,
board, office, commission, agency, institution, or other
instrumentality of the state of Ohio that employs or contracts
with an officer or employee or to which an officer or employee is
elected or appointed.
Sec. 163.17. Where the agency has the right to take
possession of the property before the verdict upon payment into
court of a deposit, and a portion of said
deposit may be
withdrawn
immediately by the owner, the amount of the verdict
which exceeds
the portion of the deposit withdrawable shall
be
subject to
interest from the date of taking to the date of
actual
payment of
the award. Where the agency has no right to take possession of the
property before the verdict, if the award is not paid to the
owner
or deposited in court within twenty-one days after
journalization
of the verdict, interest thereafter shall accrue,
except that
where the owner appeals, interest shall
not accrue
until the
agency takes possession. If the owner appeals and is granted a larger award,
interest
shall be paid on the additional amount awarded from the
date of
taking possession to the date of actual payment or date
of deposit
with immediate right of withdrawal. If the agency wishes to appeal, it may require the deposit
to
remain with the court pending final disposition of the case
provided it pays interest on the final award from date of
taking
possession to the date the money is actually paid or made
available to the owner; provided, the owner may withdraw the
entire award upon posting an appropriate refund bond set by the
court; and provided, that where a building or other
structure
is
taken, the court may, on application of the owner, permit
the
owner to withdraw a reasonable portion of the award allocable
to
the building without giving bond. If the amount of any deposit actually withdrawn by the
owner
exceeds the final award from which no appeal is or can be
taken,
then the owner at the time of entry of judgment on
such
award
shall
refund at once to the court for the
account of the
agency
the
amount of such excess plus
interest on such
excess from the
date
of withdrawal of
such excess until the
date of such refund,
and
upon the failure of the owner to
make such
refund, the agency
shall be entitled to a money
judgment against the owner. Except for cases involving the department of
transportation,
interest as provided for in this section shall be
at the rate of
interest for judgments as set forth in section
1343.03 of the
Revised Code. In a case involving the
appropriation of property
by the department of transportation,
and the department is the
sole public agency seeking to
appropriate
property in the case,
interest as provided for in
this section
shall be at the per annum
rate of either the
interest rate as
defined and established in
division (B) of
section 5703.47 of the
Revised Code, or ten per
cent, whichever
is less.
Sec. 723.01. Municipal corporations shall have special power
to regulate the
use of the streets. Except as provided in section
5501.49 of the Revised
Code, the legislative authority of a
municipal corporation shall have the
care, supervision, and
control of the public highways, streets, avenues,
alleys,
sidewalks, public grounds, bridges, aqueducts, and viaducts within
the
municipal corporation, and the municipal corporation shall
cause them to be kept open, in repair, and free from nuisance.
Sec. 1343.03. (A) In cases other than those provided for
in
sections 1343.01 and 1343.02 of the Revised Code, when money
becomes due and payable upon any bond, bill, note, or other
instrument of writing, upon any book account, upon any settlement
between parties, upon all verbal contracts entered into, and upon
all judgments, decrees, and orders of any judicial tribunal for
the payment of money arising out of tortious conduct or a
contract
or other transaction, the creditor is entitled to
interest at the
rate of ten per cent per annum, and no more,
unless a written
contract provides a different rate
of interest
in
relation to the
money that becomes due and payable, in which
case
the creditor is
entitled to interest at the rate provided in
that
contract. (B) Except as provided in divisions (C) and (D) of this
section, interest on a judgment, decree, or order for the payment
of money rendered in a civil action based on tortious conduct,
including, but not limited to a civil action based on tortious
conduct that has been settled by agreement of the parties, shall
be computed from the date the judgment, decree, or order is
rendered to the date on which the money is paid. (C) Interest on a judgment,
decree, or order for the
payment
of money rendered in a civil
action based on tortious
conduct and
not settled by agreement of
the parties, shall be
computed from
the date the cause of action accrued to
the date on which the
money is paid if,
upon motion of any party to the
action, the
court determines
at a hearing held subsequent to the
verdict or
decision in the action that the party required to pay
the money
failed to
make a good faith effort to settle the case
and that the
party to
whom the money is to be paid did not fail
to make a good
faith
effort to settle the case. (D) Divisions (B) and (C) of this section do not apply to
a
judgment, decree, or order rendered in a civil action based on
tortious conduct if a different period for computing interest on
it is specified by law, or if it is rendered in an action against
the state in the court of claims, or in an
action
under Chapter
4123. of the Revised Code.
Sec. 1701.95. (A)(1) In addition to any other liabilities
imposed by law upon directors of a corporation and except as
provided in division (B) of this section, directors shall be
jointly and severally liable to the corporation as provided in
division (A)(2) of this section if they vote for or assent to any
of the following: (a) The payment of a dividend or distribution, the making
of
a distribution of assets to shareholders, or the purchase or
redemption of the corporation's own shares, contrary
in any such
case to law or the articles; (b) A distribution of assets to shareholders during the
winding up of the affairs of the corporation, on dissolution or
otherwise, without the payment of all known obligations of the
corporation or without making adequate provision for their
payment; (c) The making of a loan, other than in the usual course
of
business, to an officer, director, or shareholder of the
corporation, other than in either of the following cases: (i) In the case of a savings and loan association or of a
corporation engaged in banking or in the making of loans
generally; (ii) At the time of the making of the loan, a majority of
the disinterested directors of the corporation voted for the loan
and, taking into account the terms and provisions of the loan and
other relevant factors, determined that the making of the loan
could reasonably be expected to benefit the corporation. (2)(a) In cases under division (A)(1)(a) of this section,
directors shall be jointly and severally liable up to the amount
of the dividend, distribution, or other payment, in excess of the
amount that could have been paid or distributed without violation
of law or the articles but not in excess of the amount that would
inure to the benefit of the creditors of the corporation if it
was
insolvent at the time of the payment or distribution or there
was
reasonable ground to believe that by that action it would be
rendered insolvent, plus the amount that was paid or distributed
to holders of shares of any class in violation of the rights of
holders of shares of any other class. (b) In cases under division (A)(1)(b) of this section,
directors shall be jointly and severally liable to the extent
that
the obligations of the corporation that are not otherwise
barred
by statute are not paid or for the payment of which
adequate
provision has not been made. (c) In cases under division (A)(1)(c) of this section,
directors shall be jointly and severally liable for the amount of
the loan with interest on it at the rate specified in
division (A)
of section
1343.03 of the Revised Code until the amount has been
paid. (B)(1) A director is not liable under division (A)(1)(a)
or
(b) of this section if, in determining the amount
available
for
any dividend, purchase, redemption, or distribution to
shareholders, the director in good faith relied on a financial
statement of
the corporation prepared by an officer or employee of
the
corporation in charge of its accounts or certified by a public
accountant or firm of public accountants, the director in good
faith
considered the assets to be of their book value, or the
director
followed what the director believed to be sound
accounting and business
practice. (2) A director is not liable under division (A)(1)(c) of
this section for making any loan to, or guaranteeing any loan to
or other obligation of, an employee stock ownership plan, as
defined in section 4975(e)(7) of the Internal Revenue Code. (C) A director who is present at a meeting of the
directors
or a committee of the directors at which action on any
matter is
authorized or taken and who has not voted for or
against the
action shall be presumed to have voted for the action
unless that
director's written dissent from the action is filed,
either during
the meeting or within a reasonable time after the
adjournment of
the meeting, with the person acting as secretary
of the meeting or
with the secretary of the corporation. (D) A shareholder who knowingly receives any dividend,
distribution, or payment made contrary to law or the articles
shall be liable to the corporation for the amount received by that
shareholder
that is in excess of the amount that could have been
paid or
distributed without violation of law or the articles. (E) A director against whom a claim is asserted under or
pursuant to this section and who is held liable on the claim
shall
be entitled to contribution, on equitable principles, from
other
directors who also are liable. In addition, any director
against
whom a claim is asserted under or pursuant to this
section or who
is held liable shall have a right of contribution
from the
shareholders who knowingly received any dividend,
distribution, or
payment made contrary to law or the articles,
and those
shareholders as among themselves
also shall be entitled
to
contribution in proportion to the amounts received by them
respectively. (F) No action shall be brought by or on behalf of a
corporation upon
a
any cause of action arising under division
(A)(1)(a) or (b) of this section
at any time after two
years from
the day on which the violation occurs. (G) Nothing contained in this section shall preclude a
creditor whose claim is unpaid from exercising the rights
that
that creditor otherwise would have by law to enforce that
creditor's
claim against assets of the corporation paid or
distributed to shareholders. (H) The failure of a corporation to observe corporate
formalities relating to meetings of directors or shareholders in
connection with the management of the corporation's affairs shall
not be considered a factor tending to establish that the
shareholders have personal liability for corporate obligations.
Sec. 1707.01. As used in this chapter: (A) Whenever the context requires it, "division" or
"division of securities" may be read as "director of commerce" or
as "commissioner of securities." (B) "Security" means any certificate or instrument that
represents title to or interest in, or is secured by any lien or
charge upon, the capital, assets, profits, property, or credit of
any person or of any public or governmental body, subdivision, or
agency. It includes shares of stock, certificates for shares of
stock, membership interests in limited liability companies,
voting-trust certificates, warrants and options to purchase
securities, subscription rights, interim receipts, interim
certificates, promissory notes, all forms of commercial paper,
evidences of indebtedness, bonds, debentures, land trust
certificates, fee certificates, leasehold certificates, syndicate
certificates, endowment certificates, certificates or written
instruments in or under profit-sharing or participation
agreements
or in or under oil, gas, or mining leases, or
certificates or
written instruments of any interest in or under
the same, receipts
evidencing preorganization or reorganization
subscriptions,
preorganization certificates, reorganization
certificates,
certificates evidencing an interest in any trust or
pretended
trust, any investment contract, any life settlement
interest, any
instrument evidencing a promise or an agreement to
pay money,
warehouse receipts for intoxicating liquor, and the currency of
any
government other than those of the United States and Canada,
but
sections 1707.01 to 1707.45 of the Revised Code do not apply
to
the sale of real estate. (C)(1) "Sale" has the full meaning of "sale" as applied by
or accepted in courts of law or equity, and includes every
disposition, or attempt to dispose, of a security or of an
interest in a security. "Sale" also includes a contract to sell,
an exchange, an attempt to sell, an option of sale, a
solicitation
of a sale, a solicitation of an offer to buy, a
subscription, or
an offer to sell, directly or indirectly, by
agent, circular,
pamphlet, advertisement, or otherwise. (2) "Sell" means any act by which a sale is made. (3) The use of advertisements, circulars, or pamphlets in
connection with the sale of securities in this state exclusively
to the purchasers specified in division (D) of section 1707.03 of
the Revised Code is not a sale when the advertisements,
circulars,
and pamphlets describing and offering those securities
bear a
readily legible legend in substance as follows: "This
offer is
made on behalf of dealers licensed under sections
1707.01 to
1707.45 of the Revised Code, and is confined in this
state
exclusively to institutional investors and licensed
dealers." (4) The offering of securities by any person in
conjunction
with a licensed dealer by use of advertisement,
circular, or
pamphlet is not a sale if that person does not
otherwise attempt
to sell securities in this state. (5) Any security given with, or as a bonus on account of,
any purchase of securities is conclusively presumed to constitute
a part of the subject of that purchase and has been "sold." (6) "Sale" by an owner, pledgee, or mortgagee, or by a
person acting in a representative capacity, includes sale on
behalf of such party by an agent, including a licensed dealer or
salesperson. (D) "Person," except as otherwise provided in this
chapter,
means a natural person, firm, partnership,
limited partnership,
partnership association, syndicate,
joint-stock company,
unincorporated association, trust or trustee
except where the
trust was created or the trustee designated by
law or judicial
authority or by a will, and a corporation or
limited liability
company organized under the laws of any state,
any foreign
government, or any political subdivision of a state
or foreign
government. (E)(1) "Dealer," except as otherwise provided in this
chapter, means every person, other than a salesperson,
who engages
or professes to engage, in this state, for either all or part of
the person's time, directly or indirectly, either in the business
of the sale of securities for the person's own account, or in the
business
of the purchase or sale of securities for the account of
others in the
reasonable expectation of receiving a commission,
fee, or other
remuneration as a result of engaging in the purchase
and sale of
securities. "Dealer" does not mean any of the
following: (a) Any issuer, including any officer, director, employee,
or trustee of, or member or manager of, or partner in, or any
general partner of, any
issuer, that sells, offers for sale, or
does any act in
furtherance of the sale of a security that
represents an economic
interest in that issuer, provided no
commission, fee, or other
similar remuneration is paid to or
received by the issuer for the
sale; (b) Any licensed attorney, public accountant, or firm of
such attorneys or accountants, whose activities are incidental to
the practice of the attorney's, accountant's, or firm's
profession; (c) Any person that, for the account of others, engages in
the purchase or sale of securities that are issued and
outstanding
before such purchase and sale, if a majority or more
of the equity
interest of an issuer is sold in that transaction,
and if, in the
case of a corporation, the securities sold in that
transaction
represent a majority or more of the voting power of
the
corporation in the election of directors; (d) Any person that brings an issuer together with a
potential investor and whose compensation is not directly or
indirectly based on the sale of any securities by the issuer to
the investor; (e) Any bank, savings and loan association, savings bank,
or
credit union chartered under the laws of the United States or
any
state of the United States,
provided that all transactions are
consummated
by or through a person licensed pursuant to section
1707.14 of
the Revised Code; (f) Any person that the division of securities by rule
exempts from the definition of "dealer" under division (E)(1) of
this section. (2) "Licensed dealer" means a dealer licensed under
this
chapter. (F)(1) "Salesman" or "salesperson" means every natural
person,
other than a dealer, who is employed, authorized, or
appointed by a dealer to
sell securities within this state. (2) The general partners of a partnership, and the
executive
officers of a corporation or unincorporated
association, licensed
as a dealer are not salespersons
within the meaning of this
definition, nor are such clerical or other
employees of an issuer
or dealer as are employed for work to
which the sale of securities
is secondary and incidental; but the
division of securities may
require a license from any such
partner, executive officer, or
employee if it determines that
protection of the public
necessitates the licensing. (3) "Licensed salesperson" means a
salesperson licensed
under this chapter. (G) "Issuer" means every person who has issued, proposes
to
issue, or issues any security. (H) "Director" means each director or trustee of a
corporation, each trustee of a trust, each general partner of a
partnership, except a partnership association, each manager of a
partnership association, and any person vested with managerial or
directory power over an issuer not having a board of directors or
trustees. (I) "Incorporator" means any incorporator of a corporation
and any organizer of, or any person participating, other than in
a
representative or professional capacity, in the organization of
an
unincorporated issuer. (J) "Fraud," "fraudulent," "fraudulent acts," "fraudulent
practices," or
"fraudulent transactions" means anything recognized
on or after
July 22, 1929, as such in courts of law or equity; any
device,
scheme, or artifice to defraud or to obtain money or
property by
means of any false pretense, representation, or
promise; any
fictitious or pretended purchase or sale of
securities; and any
act, practice, transaction, or course of
business relating to the
purchase or sale of securities that is
fraudulent or that has operated
or
would operate as a fraud upon
the seller or purchaser. (K) Except as otherwise specifically provided, whenever
any
classification or computation is based upon "par value," as
applied to securities without par value, the average of the
aggregate consideration received or to be received by the issuer
for each class of those securities shall be used as the basis for
that classification or computation. (L)(1) "Intangible property" means patents, copyrights,
secret processes, formulas, services, good will, promotion and
organization fees and expenses, trademarks, trade brands, trade
names, licenses, franchises, any other assets treated as
intangible according to generally accepted accounting principles,
and securities, accounts receivable, or contract rights having no
readily determinable value. (2) "Tangible property" means all property other than
intangible property and includes securities, accounts receivable,
and contract rights, when the securities, accounts receivable, or
contract rights have a readily determinable value. (M) "Public utilities" means those utilities defined in
sections 4905.02, 4905.03, 4907.02, and 4907.03 of the Revised
Code; in the case of a foreign corporation, it means those
utilities defined as public utilities by the laws of its
domicile;
and in the case of any other foreign issuer, it means
those
utilities defined as public utilities by the laws of the
situs of
its principal place of business. The term always
includes
railroads whether or not they are so defined as public
utilities. (N) "State" means any state of the United States, any
territory or possession of the United States, the District of
Columbia, and any province of Canada. (O) "Bank" means any bank, trust company, savings and loan
association, savings bank, or credit union that is
incorporated or
organized
under the laws of the United States, any state of the
United
States, Canada, or any province of Canada and that is
subject to
regulation or supervision by that country, state, or
province. (P) "Include," when used in a definition, does not exclude
other things or persons otherwise within the meaning of the term
defined. (Q)(1) "Registration by description" means that the
requirements of section 1707.08 of the Revised Code have been
complied with. (2) "Registration by qualification" means that the
requirements of sections 1707.09 and 1707.11 of the Revised Code
have been complied with. (3) "Registration by coordination" means that there has
been
compliance with section 1707.091 of the Revised Code.
Reference in
this chapter to registration by qualification also
shall be deemed
to include registration by coordination unless
the context
otherwise indicates. (R) "Intoxicating liquor" includes all liquids and
compounds
that contain more than three and two-tenths per cent of
alcohol by
weight and are fit for use for beverage purposes. (S) "Institutional investor" means any corporation, bank,
insurance company, pension fund or pension fund trust, employees'
profit-sharing fund or employees' profit-sharing trust, any
association engaged, as a substantial part of its business or
operations, in purchasing or holding securities, or any trust in
respect of which a bank is trustee or cotrustee. "Institutional
investor" does not include any business entity formed for the
primary purpose of evading sections 1707.01 to 1707.45 of the
Revised Code. (T) "Securities Act of 1933," 48 Stat. 74, 15 U.S.C.
77a,
"Securities Exchange Act of 1934," 48 Stat. 881,
15 U.S.C. 78a,
"Internal Revenue Code of
1986," 100 Stat. 2085, 26 U.S.C. 1,
"Investment Advisers
Act of 1940," 54 Stat. 847, 15 U.S.C. 80b,
and
"Investment Company Act of 1940," 54 Stat.
789, 15 U.S.C. 80a
mean the federal
statutes of those names as amended before or
after March 18, 1999. (U) "Securities and exchange commission" means the
securities and exchange commission established by the Securities
Exchange Act of 1934. (V)(1) "Control bid" means the purchase of or offer to
purchase any equity security of a subject company from a resident
of this state if either of the following applies: (a) After the purchase of that security, the offeror would
be directly or indirectly the beneficial owner of more than ten
per cent of any class of the issued and outstanding equity
securities of the issuer. (b) The offeror is the subject company, there is a pending
control bid by a person other than the issuer, and the number of
the issued and outstanding shares of the subject company would be
reduced by more than ten per cent. (2) For purposes of division (V)(1) of this section,
"control bid" does not include any of the following: (a) A bid made by a dealer for the dealer's own account in
the
ordinary course of business of buying and selling securities; (b) An offer to acquire any equity security solely in
exchange for any other security, or the acquisition of any equity
security pursuant to an offer, for the sole account of the
offeror, in good faith and not for the purpose of avoiding the
provisions of this chapter, and not involving any public offering
of the other security within the meaning of Section 4 of Title I
of the "Securities Act of 1933," 48 Stat. 77, 15 U.S.C.A. 77d(2),
as amended; (c) Any other offer to acquire any equity security, or the
acquisition of any equity security pursuant to an offer, for the
sole account of the offeror, from not more than fifty persons, in
good faith and not for the purpose of avoiding the provisions of
this chapter. (W) "Offeror" means a person who makes, or in any way
participates or aids in making, a control bid and includes
persons
acting jointly or in concert, or who intend to exercise
jointly or
in concert any voting rights attached to the
securities for which
the control bid is made and also includes
any subject company
making a control bid for its own securities. (X)(1) "Investment adviser" means any person
who, for
compensation, engages in the business of advising
others, either
directly or through publications or writings, as
to the value of
securities or as to the advisability of investing
in, purchasing,
or selling securities, or who, for compensation
and as a part of
regular business, issues or promulgates analyses
or reports
concerning securities.
(2) "Investment adviser" does not mean any of the following: (a) Any attorney, accountant, engineer, or teacher, whose
performance of
investment advisory services described in division
(X)(1) of this
section is solely incidental to the practice of the
attorney's,
accountant's, engineer's, or teacher's profession; (b) A publisher of any bona fide
newspaper, news magazine,
or business or financial publication of
general and regular
circulation; (c) A person who acts solely as an investment adviser
representative; (d) A bank holding company, as defined in the "Bank
Holding
Company Act of 1956," 70 Stat.
133, 12 U.S.C. 1841, that is not an
investment
company; (e) A bank, or any receiver, conservator, or other
liquidating
agent of a bank; (f) Any licensed dealer or licensed salesperson whose
performance
of investment advisory services described in division
(X)(1) of this
section is solely incidental to the conduct of the
dealer's or salesperson's
business as a licensed dealer or
licensed salesperson and who receives no
special compensation for
the services; (g) Any person, the advice, analyses, or reports of which do
not
relate to securities other than securities that are direct
obligations of, or
obligations guaranteed as to principal or
interest by, the United
States, or securities issued or guaranteed
by corporations in which
the United States has a direct or
indirect interest, and
that have been designated by the secretary
of the treasury as exempt
securities as defined in the "Securities
Exchange
Act of 1934," 48 Stat. 881, 15 U.S.C. 78c; (h) Any person that is excluded from the definition of
investment adviser pursuant to section
202(a)(11)(A) to (E) of the
"Investment Advisers Act of 1940," 15 U.S.C.
80b-2(a)(11), or that
has received an
order from the securities and exchange commission
under section
202(a)(11)(F) of the "Investment Advisers Act of
1940," 15 U.S.C.
80b-2(a)(11)(F), declaring that the person is not
within the intent of section
202(a)(11) of the Investment Advisers
Act of 1940. (i) Any other person that the division designates by rule,
if the
division finds that the designation is necessary or
appropriate in the public
interest or for the protection of
investors or clients and consistent with the
purposes fairly
intended by the policy and provisions of this chapter. (Y)(1) "Subject company" means an issuer that satisfies
both
of the following: (a) Its principal place of business or its principal
executive office is located in this state, or it owns or controls
assets located within this state that have a fair market value of
at least one million dollars. (b) More than ten per cent of its beneficial or record
equity security holders are resident in this state, more than ten
per cent of its equity securities are owned beneficially or of
record by residents in this state, or more than one thousand of
its beneficial or record equity security holders are resident in
this state. (2) The division of securities may adopt rules to
establish
more specific application of the provisions set forth
in division
(Y)(1) of this section. Notwithstanding the
provisions set forth
in division (Y)(1) of this section and any
rules adopted under
this division, the division, by rule or in an
adjudicatory
proceeding, may make a determination that an issuer
does not
constitute a "subject company" under division (Y)(1) of
this
section if appropriate review of control bids involving the
issuer
is to be made by any regulatory authority of another
jurisdiction. (Z) "Beneficial owner" includes any person who directly or
indirectly through any contract, arrangement, understanding, or
relationship has or shares, or otherwise has or shares, the power
to vote or direct the voting of a security or the power to
dispose
of, or direct the disposition of, the security.
"Beneficial
ownership" includes the right, exercisable within
sixty days, to
acquire any security through the exercise of any
option, warrant,
or right, the conversion of any convertible
security, or
otherwise. Any security subject to any such option,
warrant,
right, or conversion privilege held by any person shall
be deemed
to be outstanding for the purpose of computing the
percentage of
outstanding securities of the class owned by that
person, but
shall not be deemed to be outstanding for the purpose
of computing
the percentage of the class owned by any other
person. A person
shall be deemed the beneficial owner of any
security beneficially
owned by any relative or spouse or relative
of the spouse residing
in the home of that person, any trust or
estate in which that
person owns ten per cent or more of the
total beneficial interest
or serves as trustee or executor, any
corporation or entity in
which that person owns ten per cent or
more of the equity, and any
affiliate or associate of that
person. (AA) "Offeree" means the beneficial or record owner of any
security that an offeror acquires or offers to acquire in
connection with a control bid. (BB) "Equity security" means any share or similar
security,
or any security convertible into any such security, or
carrying
any warrant or right to subscribe to or purchase any
such
security, or any such warrant or right, or any other
security
that, for the protection of security holders, is treated
as an
equity security pursuant to rules of the division of
securities. (CC)
"Investment company" has the same meaning as in section
3(A) of the
"Investment Company Act of 1940," 54 Stat. 789, 15
U.S.C.
80a-1 to 80a-52. (DD) "Penny stock" has the same meaning
as in section
3(A)(51) of the "Securities Exchange Act
of 1934," 48 Stat. 881,
15 U.S.C.
78a-78jj, and the rules, regulations, and orders issued
pursuant to that section.
(EE) "Going concern transaction" has
the same meaning given
that term under the rules or regulations on the
securities and
exchange commission issued pursuant to section
13(c) of the
"Securities Exchange Act of 1934," 48 Stat. 881, 15 U.S.C.
78a-78jj.
(FF) "Person acting on behalf of an
issuer" means an
officer, director, or employee of an issuer.
(GG) "Blank check company," "roll-up
transaction,"
"executive officer of an entity," and "direct participation
program" have the same meanings given those terms by rule or
regulation of the
securities and exchange commission.
(HH) "Forward-looking statement" means any of the following:
(1) A statement containing a projection of revenues, income
including
income loss, earnings per share including earnings loss
per share, capital
expenditures, dividends, capital structure, or
other financial items;
(2) A statement of the plans and objectives of the
management of the
issuer for future operations, including plans or
objectives relating to the
products or services of the issuer;
(3) A statement of future economic performance, including
any statement
of that nature contained in a discussion and
analysis of financial conditions
by the management or in the
results of operations included pursuant to the
rules and
regulations of the securities and exchange commission;
(4) Any disclosed statement of the assumptions underlying or
relating to
a statement described in division (B)(1), (2),
or (3)
of section 1707.437 of the Revised
Code;
(5) Any report issued by an outside reviewer retained by an
issuer to
the extent that the report relates to a forward-looking
statement made by the
issuer;
(6) A statement containing a projection or estimate of any
other items
that may be specified by rule or regulation of the
securities and exchange
commission.
(II)(1) "Investment adviser representative" means a
supervised
person of an investment adviser, provided that
the
supervised person has more than five clients who are
natural
persons other than excepted persons defined in division
(KK)(EE)
of
this section, and that more than ten per cent of the
supervised
person's clients are natural persons other than excepted persons
defined in division
(KK)(EE) of this section. "Investment adviser
representative" does not mean any of the following:
(a) A supervised person that does not on a regular basis
solicit,
meet with, or otherwise communicate with clients of the
investment adviser; (b) A supervised person that provides only investment
advisory
services described in division (X)(1) of this section by
means of
written materials or oral statements that do not purport
to meet the
objectives or needs of specific individuals or
accounts; (c) Any other person that the division designates
by rule,
if the division finds that the designation is necessary
or
appropriate in the public interest or for the protection of
investors or clients and is consistent with the provisions
fairly
intended by the policy and provisions of this
chapter. (2) For the purpose of the calculation of clients in
division
(II)(CC)(1) of this section, a
natural person and the
following persons are deemed a single
client: Any minor child of
the natural person; any relative,
spouse, or relative of the
spouse of the natural person who has
the same principal residence
as the natural person; all accounts
of which the natural person or
the persons referred to in
division
(II)(CC)(2) of this
section
are
the only primary beneficiaries; and all trusts of
which the
natural person or persons referred to in division
(II)(CC)(2) of
this
section are the
only primary beneficiaries. Persons who are
not
residents of the
United States
need not be included in the
calculation of clients
under division
(II)(CC)(1) of this section. (3) If subsequent to March 18, 1999, amendments are enacted
or adopted defining "investment adviser representative" for
purposes of the
Investment
Advisers Act of 1940 or additional
rules
or regulations are promulgated by the securities and
exchange
commission regarding the definition of "investment
adviser
representative" for purposes of the
Investment Advisers
Act of 1940, the division of
securities shall, by rule, adopt the
substance of the
amendments, rules, or regulations, unless the
division finds
that the amendments, rules, or regulations are not
necessary for
the protection of investors or in the public
interest.
(JJ)(DD) "Supervised person" means a natural person who is
any
of the
following:
(1) A partner, officer, or director of an investment
adviser, or other
person occupying a similar status or performing
similar functions with respect
to an investment adviser; (2) An employee of an investment adviser; (3) A person who provides investment advisory services
described in
division (X)(1) of this section on behalf of the
investment adviser
and is subject to the supervision and control
of the investment adviser. (KK)(EE) "Excepted person" means a natural person to whom
any of
the following applies:
(1) Immediately after entering into the investment advisory
contract with
the investment adviser, the person has at least
seven hundred fifty thousand
dollars
under the management of the
investment adviser. (2) The investment adviser reasonably believes either of the
following at
the time the investment advisory contract is entered
into with the person: (a) The person has a net
worth, together with assets held
jointly with a spouse, of more than one
million five hundred
thousand dollars. (b) The person is a qualified purchaser as
defined in
division
(LL)(FF) of this section. (3) Immediately prior to entering into an investment
advisory contract with the investment adviser, the person is
either of the following: (a) An executive officer, director,
trustee, general
partner, or person serving in a similar
capacity, of the
investment adviser; (b) An employee of the investment
adviser, other than an
employee performing solely clerical,
secretarial, or
administrative functions or duties for the
investment adviser,
which employee, in connection with the
employee's regular
functions or duties, participates in the
investment activities of
the investment adviser, provided that,
for at least twelve months,
the employee has been performing
such nonclerical, nonsecretarial,
or nonadministrative functions
or duties for or on behalf of the
investment adviser or
performing substantially similar functions
or duties for or on
behalf of another company. If subsequent to March 18, 1999,
amendments are enacted or
adopted defining "excepted person" for
purposes of the Investment
Advisers Act of 1940 or additional rules
or regulations are
promulgated by the securities and exchange
commission regarding
the definition of "excepted person" for
purposes of the Investment
Advisers
Act of 1940, the division of
securities shall, by rule,
adopt the substance of the
amendments, rules, or regulations,
unless the division finds
that the amendments, rules, or
regulations are not necessary for
the protection of investors or
in the public interest.
(LL)(FF)(1) "Qualified purchaser" means either of the
following:
(a) A natural person who owns
not less than five million
dollars in investments as defined by
rule by the division of
securities; (b) A natural person, acting for
the person's own account or
accounts of other qualified
purchasers, who in the aggregate owns
and invests on a
discretionary basis, not less than twenty-five
million dollars
in investments as defined by rule by the division
of
securities. (2) If subsequent to March 18, 1999, amendments are
enacted
or adopted defining "qualified purchaser" for purposes of the
Investment Advisers Act of 1940 or additional rules
or regulations
are promulgated by the securities and exchange
commission
regarding the definition of "qualified purchaser" for
purposes of
the Investment Advisers Act of 1940, the division of
securities
shall, by rule, adopt the amendments, rules, or
regulations,
unless the division finds that the amendments,
rules, or
regulations are not necessary for the protection of
investors or
in the public interest.
(MM)(GG)(1) "Purchase" has the full meaning of "purchase" as
applied
by or accepted in courts of law or equity and includes
every acquisition of,
or attempt to acquire, a security or an
interest in a security. "Purchase"
also includes a contract to
purchase, an exchange, an attempt to purchase, an
option to
purchase, a solicitation of a purchase, a
solicitation of an offer
to sell, a subscription, or an offer to purchase,
directly or
indirectly, by agent, circular, pamphlet, advertisement, or
otherwise.
(2) "Purchase" means any act by which a purchase is made. (3) Any security given with, or as a bonus on account of,
any purchase of
securities is conclusively presumed to constitute
a part of the subject of
that purchase. (NN)(HH) "Life settlement interest" means the entire
interest or
any fractional interest in an insurance policy or
certificate of
insurance, or in an insurance benefit under such a
policy or
certificate,
that is the subject of a life settlement
contract.
For purposes of this division, "life settlement contract"
means an
agreement for the purchase, sale, assignment, transfer,
devise, or
bequest of any portion of the death benefit or
ownership of any life
insurance policy or contract, in return for
consideration or any other
thing of value that is less than the
expected death benefit of the
life insurance policy or contract.
"Life settlement contract"
includes a viatical settlement contract
as defined in section
3916.01 of the Revised Code, but does not
include any of the
following: (1) A loan by an insurer under the terms of a life insurance
policy, including, but not limited to, a loan secured by the cash
value of
the policy; (2) An agreement with a bank that takes an assignment of a
life
insurance policy as collateral for a loan; (3) The provision of accelerated benefits as defined in
section
3915.21 of the Revised Code; (4) Any agreement between an insurer and a reinsurer; (5) An agreement by an individual to purchase an existing
life
insurance policy or contract from the original owner of the
policy
or contract, if the individual does not enter into more
than one
life settlement contract per calendar year;
(6) The initial purchase of an insurance policy or
certificate of
insurance from its owner by a viatical settlement
provider, as defined
in section 3916.01 of the Revised Code, that
is
licensed under
Chapter 3916. of the Revised
Code.
Sec. 1775.14. (A) Subject to section 1339.65 of the Revised
Code and except as provided in division (B) of this section,
all
partners are liable as follows: (1) Jointly and severally for everything chargeable to the
partnership under sections 1775.12 and 1775.13 of the Revised
Code. This joint and several liability is not subject to
division
(D) of section 2315.19 of the
Revised Code with respect
to a
negligence claim that otherwise is subject to
that section. (2) Jointly for all other debts and obligations of the
partnership, but any partner may enter into a separate obligation
to perform a partnership contract. (B) Subject to divisions
(C)(1) and (2) of this section or
as otherwise provided
in a written agreement between the partners
of a registered limited liability
partnership, a partner in a
registered limited liability partnership is not
liable, directly
or indirectly, by way of indemnification, contribution,
assessment, or otherwise, for debts, obligations, or other
liabilities of any
kind of, or chargeable to, the partnership or
another partner or partners
arising from negligence or from
wrongful
acts, errors, omissions, or misconduct, whether or not
intentional
or
characterized as tort, contract, or otherwise,
committed or occurring while
the
partnership is a registered
limited liability partnership and committed or
occurring in the
course of the partnership business by another partner or an
employee, agent, or representative of the partnership. (C)(1) Division
(B) of this section does not affect the
liability of a partner in a registered limited liability
partnership for that
partner's own negligence, wrongful acts,
errors, omissions, or misconduct,
including that partner's own
negligence, wrongful acts, errors, omissions, or
misconduct in
directly supervising any other partner or any employee, agent,
or
representative of the partnership. (2) Division (B) of this section shall
not affect the
liability of a partner for liabilities imposed by
Chapters 5735.,
5739., 5743., and 5747. and
section 3734.908 of the Revised
Code. (D) A partner in a registered limited
liability partnership
is not a proper party to an action or proceeding by or
against a
registered limited liability partnership with respect to any debt,
obligation, or other liability of any kind described in division
(B) of this section, unless the partner is
liable under divisions
(C)(1) and (2) of this section.
Sec. 1901.18. (A) Except as otherwise provided in this
division or section 1901.181 of the Revised Code, subject to the
monetary jurisdiction of municipal courts as set forth in section
1901.17 of the Revised Code, a municipal court has original
jurisdiction within its territory in all of the following actions
or proceedings and to perform all of the following functions: (1) In any civil action, of whatever nature or remedy, of
which judges of county courts have jurisdiction; (2) In any action or proceeding at law for the recovery of
money or personal property of which the court of common pleas has
jurisdiction; (3) In any action at law based on contract, to determine,
preserve, and enforce all legal and equitable rights involved in
the contract, to decree an accounting, reformation, or
cancellation of the contract, and to hear and determine all legal
and equitable remedies necessary or proper for a complete
determination of the rights of the parties to the contract; (4) In any action or proceeding for the sale of personal
property under chattel mortgage, lien, encumbrance, or other
charge, for the foreclosure and marshalling of liens on
personal
property of that nature, and for the rendering of personal
judgment in
the action or proceeding; (5) In any action or proceeding to enforce the collection
of
its own judgments or the judgments rendered by any court
within
the territory to which the municipal court has succeeded,
and to
subject the interest of a judgment debtor in personal
property to
satisfy judgments enforceable by the municipal court; (6) In any action or proceeding in the nature of
interpleader; (7) In any action of replevin; (8) In any action of forcible entry and detainer; (9) In any action concerning the issuance and enforcement
of
temporary protection orders pursuant to section 2919.26 of the
Revised Code or protection orders pursuant to
section 2903.213 of
the Revised Code or the enforcement of protection
orders issued by
courts of another state,
as defined in section 2919.27 of the
Revised Code; (10) If the municipal court has a housing or environmental
division, in any action over which the division is given
jurisdiction by section 1901.181 of the Revised Code, provided
that, except as specified in division
(B)(B) of that section, no
judge of the court other than the judge of the division shall
hear
or determine any action over which the division has
jurisdiction; (11) In any action brought pursuant to division (I) of
section 3733.11 of the Revised Code, if the residential premises
that are the subject of the action are located within the
territorial jurisdiction of the court; (12) In any civil action as described in division (B)(1)
of
section 3767.41 of the Revised Code that relates to a public
nuisance, and, to the extent any provision of this chapter
conflicts or is inconsistent with a provision of that section,
the
provision of that section shall control in the civil action. (B) The Cleveland municipal court also
shall have
jurisdiction within its territory in all of the following actions
or proceedings and to perform all of the following functions: (1) In all actions and proceedings for the sale of real
property under lien of a judgment of the municipal court or a
lien
for machinery, material, or fuel furnished or labor
performed,
irrespective of amount, and, in those actions and
proceedings, the
court may proceed
to foreclose and marshal all liens and all
vested or contingent
rights, to appoint a receiver, and to render
personal judgment
irrespective of amount in favor of any party. (2) In all actions for the foreclosure of a mortgage on
real
property given to secure the payment of money or the
enforcement
of a specific lien for money or other encumbrance or
charge on
real property, when the amount claimed by the plaintiff
does not
exceed fifteen thousand dollars
and the real property is situated
within the territory, and, in those
actions, the court may
proceed
to foreclose all liens and all vested and contingent
rights and
may proceed to render judgments
and make
findings and orders
between the parties in the same manner and
to the same extent as
in similar actions in the court of
common
pleas. (3) In all actions for the recovery of real property
situated within the territory to the same extent as courts of
common pleas have jurisdiction; (4) In all actions for injunction to prevent or terminate
violations of the ordinances and regulations of the city of
Cleveland enacted or promulgated under the police power of the
city of Cleveland, pursuant to Section 3 of Article XVIII, Ohio
Constitution, over which the court of common pleas has or may
have
jurisdiction, and, in those
actions, the court may proceed to
render judgments and make findings and
orders in the
same manner
and to the same extent as in similar actions
in the court of
common pleas.
Sec. 2101.31. All questions of fact shall be determined by
the probate judge,
unless
he
the judge orders
them
those questions
of fact to be tried
by
before a
jury, or
referred,
refers those
questions of fact to a special master commissioner as
provided in
sections
2101.06 and 2101.07,
and sections 2315.26 to 2315.37,
inclusive, of the
Revised
Code.
Sec. 2117.06. (A) All creditors having claims against an
estate, including claims arising out of contract, out of tort, on
cognovit notes, or on judgments, whether due or not due, secured
or unsecured, liquidated or unliquidated, shall present their
claims in one of the following manners: (1) To the executor or administrator in a writing; (2) To the executor or administrator in a writing, and to
the probate court by filing a copy of the writing with it; (3) In a writing that is sent by ordinary mail addressed
to
the decedent and that is actually received by the executor or
administrator within the appropriate time specified in division
(B) of this section. For purposes of this division, if an
executor or administrator is not a natural person, the writing
shall be considered as being actually received by the executor or
administrator only if the person charged with the primary
responsibility of administering the estate of the decedent
actually receives the writing within the appropriate time
specified in division (B) of this section. (B) All claims shall be presented within one year after
the
death of the decedent, whether or not the estate is released
from
administration or an executor or administrator is appointed
during
that one-year period. Every claim presented shall set
forth the
claimant's address. (C) A claim that is not presented within one year
ater
after
the death of the decedent shall be forever barred as to all
parties, including, but not limited to, devisees, legatees, and
distributees. No payment shall be made on the claim and no
action
shall be maintained on the claim, except as otherwise
provided in
sections 2117.37 to 2117.42 of the Revised Code, with
reference to
contingent claims. (D) In the absence of any prior demand for allowance, the
executor or administrator shall allow or reject all claims,
except
tax assessment claims, within thirty days after their
presentation, provided that failure of the executor or
administrator to allow or reject within that time shall not
prevent
him
the executor or administrator from doing so after
that
time and shall not prejudice
the rights of any claimant. Upon the
allowance of a claim, the
executor or the administrator, on demand
of the creditor, shall
furnish the creditor with a written
statement or memorandum of
the fact and date of such
allowance. (E) If the executor or administrator has actual knowledge
of
a pending action commenced against the decedent prior to
his
the
decedent's
death in a court of record in this state, such
executor
or
administrator shall file a notice of his
the
appointment
of the
executor or administrator in such
pending
action within ten days
after acquiring such
knowledge.
If the
administrator or executor
is not a natural person, actual
knowledge of a pending suit
against the decedent shall be limited
to the actual knowledge of
the person charged with the primary
responsibility of
administering the estate of the decedent.
Failure to file the
notice within the ten-day period does not
extend the claim period
established by this section. (F) This section applies to any person who is required to
give written notice to the executor or administrator of a motion
or application to revive an action pending against the decedent
at
the date of the death of the decedent. (G) Nothing in this section or in section 2117.07 of the
Revised Code shall be construed to reduce the time mentioned in
section
2125.02, 2305.09,
2305.10,
2305.11, or
2305.12 of
the
Revised Code, provided that no portion of any recovery on a
claim
brought pursuant to any of those sections shall come from
the
assets of an estate, unless the claim has been presented
against
the estate in accordance with Chapter 2117. of the Revised
Code. (H) Any person whose claim has been presented, and not
thereafter rejected, is a
creditor as that
term is used in
Chapters 2113. to 2125. of the Revised Code.
Claims that are
contingent need not be presented except as
provided in sections
2117.37 to 2117.42 of the Revised Code, but,
whether presented
pursuant to those sections or this section,
contingent claims may
be presented in any of the manners described
in division (A) of
this section. (I) If a creditor presents a claim against an estate in
accordance with division (A)(2) of this section, the probate
court
shall not close the administration of the estate until that
claim
is allowed or rejected. (J) The probate court shall not require an executor or
administrator to make and return into the court a schedule of
claims against the estate. (K) If the executor or administrator makes a distribution
of
the assets of the estate prior to the expiration of the time
for
the filing of claims as set forth in this section,
he
the executor
or administrator shall
provide notice to each distributee as
provided in section
2113.533 of the Revised Code.
Sec. 2125.01. When the death of a person is caused by
wrongful act, neglect, or default which would have entitled
the
party injured to maintain an action
and recover
damages if death
had not ensued, the person who would have been
liable if death
had
not ensued, or the administrator or executor
of the estate of
such
person, as such
administrator or executor, shall be liable
to an
action for
damages,
nothwithstanding
notwithstanding the
death of
the person injured and although the death was
caused
under
circumstances which make it aggravated murder,
murder, or
manslaughter. When the action is
against
such administrator or
executor, the damages recovered
shall be a valid claim against
the
estate of such deceased person. No action
for the wrongful
death
of a person may
be maintained against the owner or lessee
of the
real property
upon which the death occurred if the cause
of the
death was the
violent unprovoked act of a party other than
the
owner,
lessee, or a person under the control of the owner or
lessee,
unless the acts or omissions of the owner, lessee, or
person under
the control of the owner or lessee constitute gross
negligence. When death is caused by
a wrongful
act, neglect, or default
in another state or foreign country, for
which a right to
maintain
an action
and recover
damages is given by a statute of
such other
state
or foreign country, such right of action
may be
enforced in
this state. Every such action shall be
commenced
within the time
prescribed for the commencement of such
actions
by the statute
of such other
state or foreign country. The same remedy shall apply to any such cause of action now
existing and to any such action commenced before January 1, 1932,
or attempted to be commenced in proper time and now appearing on
the files of any court within this state, and no prior law of
this
state shall prevent the maintenance of such cause of action.
Sec. 2125.02. (A)(1) Except as provided in this division,
an action for wrongful death shall be brought in the name of the
personal representative of the decedent for the exclusive benefit
of the surviving spouse, the children, and the parents of the
decedent, all of whom are rebuttably presumed to have suffered
damages by reason of the wrongful death, and for the exclusive
benefit of the other next of kin of the decedent. A parent who
abandoned a minor child who is the decedent shall not receive any
benefit in a wrongful death action brought under this
division. (2) The jury, or the court if the action is not
tried to a
jury, may award damages authorized by division
(B) of this
section, as it determines are proportioned to the
injury and loss
resulting to the beneficiaries described in
division (A)(1) of
this section by reason of the wrongful death
and may award the
reasonable funeral and burial expenses incurred
as a result of
the
wrongful death. In its verdict, the jury or
court shall set
forth
separately the amount, if any, awarded for
the reasonable
funeral
and burial expenses incurred as a result of
the wrongful
death. (3)(a) The date of the decedent's death fixes, subject to
division (A)(3)(b)(iii) of this section,
the status of all
beneficiaries of the action for
purposes of
determining the
damages suffered by them and the amount of damages
to be awarded.
A person who is conceived prior to the decedent's
death and who
is
born alive after
his
the decedent's death is a
beneficiary of the
action. (b)(i) In determining
the amount of damages to be awarded,
the jury or court may consider all factors existing at the time
of
the decedent's death that are relevant to a determination of
the
damages suffered by reason of the wrongful death. (ii) Consistent with the Rules of Evidence, any
party to
an
action for wrongful death may present evidence of the cost of
an
annuity in connection with any issue of
recoverable future
damages. If such evidence is presented, then,
in addition
to
the
factors described in division (A)(3)(b)(i) of this section
and,
if
applicable, division (A)(3)(b)(iii) of this section, the
jury
or
court may consider that evidence in determining
the future
damages
suffered by reason of the wrongful death. If such
evidence is
presented, the present value in dollars
of any
annuity is its
cost. (iii) Consistent with the Rules of Evidence, any
party to
an
action for wrongful death may present evidence that the
surviving
spouse of the decedent is remarried. If such
evidence
is
presented, then, in addition to the factors described
in
divisions
(A)(3)(b)(i) and (ii) of this section, the jury or
court may
consider that evidence in determining
the damages
suffered by the
surviving spouse by reason of the wrongful death. (B) Compensatory damages may be awarded in an action for
wrongful death and may include damages for the following: (1) Loss of support from the reasonably expected earning
capacity of the decedent; (2) Loss of services of the decedent; (3) Loss of the society of the decedent, including loss of
companionship, consortium, care, assistance, attention,
protection, advice, guidance, counsel, instruction, training, and
education, suffered by the surviving spouse, minor
children,
parents, or next of kin; (4) Loss of prospective inheritance to the decedent's
heirs
at law at the time of
his
the decedent's death; (5) The mental anguish incurred by the surviving spouse,
minor children, parents, or next of kin. (C) A personal representative appointed in this state,
with
the consent of the court making the appointment and at any
time
before or after the commencement of an action for wrongful
death,
may settle with the defendant the amount to be paid. (D) An action for wrongful death shall be commenced within
two years after the decedent's death. (E)(1) If the personal representative of a deceased minor
has actual knowledge or reasonable cause to believe that the
minor
was abandoned by a parent seeking to benefit from the
wrongful
death action or if any person
listed in
division (A)(1)
of this
section who is permitted to benefit in a
wrongful death
action
filed
in relation to a
deceased minor has actual knowledge
or
reasonable
cause to believe that the minor was abandoned by a
parent seeking
to benefit from the wrongful death action, the
personal
representative or the person may file a motion in the
court in
which the wrongful death action is filed requesting the
court to issue an order finding that the parent abandoned the
child and is not entitled to recover damages in the
wrongful
death
action based on the death of the deceased minor child. (2) The movant who files a motion described in division
(E)(1) of this section shall name the parent who abandoned the
child and, whether or not that parent is a
resident of this
state,
the parent shall be served with a summons and a copy of
the
motion
in accordance with the Rules of Civil Procedure. Upon
the
filing
of the motion, the court shall conduct a hearing. In
the
hearing
on the motion, the movant has the burden of proving,
by a
preponderance of the evidence, that the parent abandoned the
deceased minor child. If, at the hearing, the court finds that
the movant has sustained that burden of proof, the court shall
issue an order that includes its finding that the
parent
abandoned
the deceased minor child and, because of
the
prohibition set forth
in division (A) of this section, the
parent
is not entitled to
recover damages in the wrongful death
action
based on the death of
the deceased minor child. (3) A motion requesting a court to issue an order finding
that the specified parent abandoned the
child and is not
entitled
to recover damages in the wrongful death action based on the
death
of the deceased minor child may
be filed at any time
during
the
pendency of the wrongful death
action. (F) As used in this section: (1)
"Annuity" means an annuity that would be purchased
from
either of the following types of insurance companies: (a) An insurance company that the A. M. Best Company, in
its
most recently published rating guide of life insurance
companies,
has rated A or better and has rated XII or higher as
to financial
size or strength; (b)(i) An insurance company that the superintendent of
insurance, under rules adopted pursuant to Chapter 119. of the
Revised Code for purposes of implementing this division,
determines is licensed to do business in this state and,
considering the factors described in division (F)(1)(b)(ii) of
this section, is a stable insurance company that issues annuities
that are safe and desirable. (ii) In making determinations as described in division
(F)(1)(b)(i) of this section, the superintendent shall be guided
by the principle that the jury or court in an action for wrongful
death should be presented only with evidence as to the cost of
annuities that are safe and desirable for the beneficiaries of
such an action who are awarded compensatory damages under
this
section. In making such determinations, the superintendent
shall
consider the financial condition, general standing,
operating
results, profitability, leverage, liquidity, amount and
soundness
of reinsurance, adequacy of reserves, and the management
of any
insurance company in question and also may
consider ratings,
grades, and classifications of any nationally
recognized rating
services of insurance companies and any other
factors relevant to
the making of such determinations. (2)
"Future damages" means damages that result from the
wrongful death and that will accrue after the verdict or
determination of liability by the jury or court is rendered in
the
action for wrongful death. (3)
"Abandoned" means that a parent of a minor failed
without
justifiable cause to communicate with the minor, care for
him
the
minor, and provide for
his
the maintenance or support
of the minor
as required by
law or judicial decree for a period of at
least one
year
immediately prior to the date of the death of the
minor. (4)
"Minor" means a person who is less than eighteen years
of
age.
Sec. 2125.04. In every action for wrongful death commenced
or attempted to be
commenced within the time specified by
section
2125.02 of the
Revised Code, if a judgment for the plaintiff is
reversed or if
the plaintiff fails otherwise than upon the
merits,
and the
time limited by such section for the
commencement of such
action has
expired at the date of
such reversal or failure, the
plaintiff or, if
he
the plaintiff
dies and the cause of action
survives,
his
the personal
representative
of the plaintiff may
commence
a new action within one year after such date.
Sec. 2305.01. The court of common pleas has original
jurisdiction in
all civil cases in which the sum or matter in
dispute exceeds the
exclusive original jurisdiction of county
courts and appellate
jurisdiction from the decisions of boards of
county commissioners.
The court of common pleas may on its own motion transfer
for
trial any action in the court to any municipal court in the
county
having concurrent jurisdiction of the subject matter of,
and the
parties to, the action, if the amount sought by the
plaintiff does
not exceed one thousand dollars and if the judge
or presiding
judge of the municipal court concurs in the proposed
transfer.
Upon the issuance of an order of transfer, the clerk
of courts
shall remove to the designated municipal court the
entire case
file. Any untaxed portion of the common pleas
deposit for court
costs shall be remitted to the municipal court
by the clerk of
courts to be applied in accordance with section
1901.26 of the
Revised Code, and the costs taxed by the municipal
court shall be
added to any costs taxed in the common pleas
court. The court of common pleas has jurisdiction in any action
brought pursuant to division (I) of section 3733.11 of the
Revised
Code if the residential premises that are the subject of
the
action are located within the territorial jurisdiction of the
court. The courts of common pleas of Adams, Athens, Belmont,
Brown,
Clermont, Columbiana, Gallia, Hamilton, Jefferson,
Lawrence,
Meigs, Monroe, Scioto, and Washington counties have
jurisdiction
beyond the north or northwest shore of the Ohio
river extending to
the opposite shore line, between the extended
boundary lines of
any adjacent counties or adjacent state. Each
of those courts of
common pleas has concurrent jurisdiction on
the Ohio river with
any adjacent court of common pleas that
borders on that river and
with any court of Kentucky or of West
Virginia that borders on the
Ohio river and that has jurisdiction
on the Ohio river under the
law of Kentucky or the law of West
Virginia, whichever is
applicable, or under federal law.
Sec. 2305.10. An action for bodily injury or injuring
personal property shall be
brought within two years after the
cause thereof arose. For purposes of this section, a
cause of
action for bodily
injury caused by exposure to asbestos or to
chromium in any of
its
chemical forms arises upon the date
on which the plaintiff
is
informed by competent medical authority
that
he
the plaintiff has
been injured
by such exposure, or upon the date
on which, by the
exercise of
reasonable diligence,
he
the plaintiff should have
become aware
that
he
the plaintiff had
been injured by the
exposure,
whichever
date occurs
first. For purposes of this section, a
cause of
action for bodily
injury incurred by a veteran through exposure to
chemical
defoliants or herbicides or other causative agents,
including
agent orange, arises upon the date on which the
plaintiff is
informed by competent medical authority that
he
the plaintiff has
been injured
by such exposure. As used in this section,
"agent orange,"
"causative agent,"
and
"veteran" have the same meanings as in section 5903.21 of the
Revised Code. For purposes of this section, a
cause of
action for bodily
injury which may be caused by exposure to
diethylstilbestrol or
other nonsteroidal synthetic estrogens,
including exposure before
birth, upon the date on
which the plaintiff learns
from a
licensed
physician that
he
the plaintiff has an injury
which may be
related
to
such exposure, or upon the
date on which by the exercise of
reasonable diligence
he
the
plaintiff should have become aware
that
he
the plaintiff
has
an
injury which may be related to such
exposure,
whichever date
occurs first.
Sec. 2305.11. (A) An action for libel, slander, malicious
prosecution,
or false imprisonment, an action for malpractice
other than an
action upon a medical, dental, optometric, or
chiropractic claim,
or an action
upon a statute for a penalty or
forfeiture shall be
commenced within one year
after the cause of
action accrued, provided that an action by an employee
for the
payment of
unpaid minimum wages, unpaid overtime compensation, or
liquidated
damages by reason of the nonpayment of minimum wages
or
overtime
compensation shall be commenced within two years
after
the cause
of action accrued. (B)(1) Subject to division (B)(2) of this
section, an
action
upon a medical, dental, optometric, or
chiropractic claim
shall be
commenced within one year after the
cause of action accrued,
except that, if prior to the
expiration of that one-year
period,
a
claimant who allegedly
possesses a medical, dental, optometric,
or
chiropractic claim
gives to the person who is the subject of
that
claim written
notice that the claimant is considering
bringing an
action upon
that claim, that action may be commenced
against the
person
notified at any time within one hundred eighty
days after
the
notice is so given. (2) Except as to persons within the age of minority
or of
unsound mind, as provided by section 2305.16 of the Revised
Code: (a) In no event shall any
action upon a
medical, dental,
optometric, or chiropractic claim be
commenced
more than four
years after the occurrence
of the act or omission constituting
the
alleged basis of the
medical, dental, optometric, or
chiropractic
claim. (b) If an action upon a medical, dental, optometric, or
chiropractic claim is not commenced within four years
after the
occurrence of the act or omission constituting the alleged basis
of the medical, dental, optometric,
or chiropractic claim, then,
notwithstanding the time when the action
is determined to accrue
under division (B)(1) of this section, any action upon that claim
is barred. (C) A civil action for unlawful abortion pursuant to
section
2919.12 of the Revised Code, a civil action
authorized by division
(H) of section 2317.56 of the Revised Code,
a civil action
pursuant to division (B)(1) or (2) of section
2307.51 of the
Revised Code for performing a dilation and extraction procedure
or
attempting to perform a dilation and extraction procedure in
violation of
section 2919.15 of the Revised Code, and a civil
action pursuant to division
(B)(1) or (2) of section 2307.52 of
the Revised Code for terminating or
attempting to terminate a
human pregnancy after viability in violation of
division (A) or
(B) of section 2919.17 of the Revised Code shall be commenced
within one year after the performance or inducement of the
abortion, within
one year after the attempt to perform or induce
the abortion in violation of
division (A) or (B) of section
2919.17 of the Revised Code, within one year
after the performance
of the dilation and extraction procedure, or, in the
case of a
civil action pursuant to division (B)(2) of section 2307.51 of the
Revised Code, within one year after the attempt to perform the
dilation and
extraction procedure. (D) As used in this section: (1)
"Hospital" includes any person, corporation,
association,
board, or authority that is responsible for the
operation of any
hospital licensed or registered in the state,
including, but not
limited to, those which are owned or operated
by the state,
political subdivisions, any person, any
corporation,
or any
combination thereof.
"Hospital" also
includes any person,
corporation, association, board, entity, or
authority that is
responsible for the operation of any clinic
that employs a
full-time staff of physicians practicing in more
than one
recognized medical specialty and rendering advice,
diagnosis,
care, and treatment to individuals.
"Hospital" does
not include
any hospital operated by the government of the United
States or
any of its branches. (2)
"Physician" means a person who is licensed to
practice
medicine and surgery or osteopathic medicine and surgery
by the
state medical board or a person who otherwise is authorized to
practice medicine and surgery or osteopathic medicine and surgery
in this
state. (3)
"Medical claim" means any claim that is asserted in
any
civil action against a physician, podiatrist, or hospital,
against
any employee or agent of a physician, podiatrist, or
hospital, or
against a registered nurse or
physical therapist,
and
that arises
out of the medical diagnosis, care, or treatment
of
any person.
"Medical claim" includes derivative claims for
relief
that arise
from the medical diagnosis, care, or treatment
of a
person. (4)
"Podiatrist" means any person who is licensed to
practice
podiatric medicine and surgery by the state medical
board. (5)
"Dentist" means any person who is licensed to practice
dentistry by the state dental board. (6)
"Dental claim" means any claim that is asserted in any
civil action against a dentist, or against any employee or agent
of a dentist, and that arises out of a dental operation or the
dental diagnosis, care, or treatment of any person.
"Dental
claim"
includes derivative claims for relief that arise from a
dental
operation or the dental diagnosis, care, or treatment of a
person. (7)
"Derivative claims for relief" include, but are not
limited to, claims of a parent, guardian, custodian, or spouse of
an individual who was the subject of any medical diagnosis, care,
or treatment, dental diagnosis, care, or treatment, dental
operation, optometric diagnosis, care, or
treatment, or
chiropractic diagnosis, care, or treatment, that arise from that
diagnosis, care, treatment, or operation, and that seek the
recovery of damages for any of the following: (a) Loss of society, consortium, companionship, care,
assistance, attention, protection, advice, guidance, counsel,
instruction, training, or education, or any other intangible loss
that was sustained by the parent, guardian, custodian, or spouse; (b) Expenditures of the parent, guardian, custodian, or
spouse for medical, dental, optometric, or chiropractic care or
treatment, for rehabilitation services, or for other care,
treatment, services, products, or accommodations provided to the
individual who was the subject of the medical diagnosis, care, or
treatment, the dental diagnosis, care, or treatment, the dental
operation, the optometric diagnosis, care, or
treatment, or the
chiropractic diagnosis, care, or treatment. (8)
"Registered nurse" means any person who is licensed to
practice nursing as a registered nurse by the state board of
nursing. (9)
"Chiropractic claim" means any claim that is asserted
in
any civil action against a chiropractor, or against any
employee
or agent of a chiropractor, and that arises out of the
chiropractic diagnosis, care, or treatment of any person.
"Chiropractic claim" includes derivative claims for relief that
arise from the chiropractic diagnosis, care, or treatment of a
person. (10)
"Chiropractor" means any person who is licensed to
practice chiropractic by the chiropractic examining board. (11)
"Optometric claim" means any claim that is asserted
in
any civil action against an optometrist, or against any
employee
or agent of an optometrist, and that arises out of the
optometric
diagnosis, care, or treatment of any person.
"Optometric claim"
includes derivative claims for relief that
arise from the
optometric diagnosis, care, or treatment of a
person. (12)
"Optometrist" means any person licensed to practice
optometry by the state board of optometry. (13)
"Physical therapist" means any person who is licensed
to
practice physical therapy under Chapter 4755. of the Revised
Code.
Sec. 2305.16. Unless otherwise provided in sections
1302.98,
1304.35, and
2305.04 to 2305.14
of the Revised Code,
if a person
entitled to bring any action
mentioned in those
sections, unless
for penalty or forfeiture,
is, at the time the
cause of action
accrues, within the
age of minority or of unsound
mind, the person
may bring it
within the respective times limited
by those
sections, after the
disability is removed. When the
interests of
two or more parties
are joint and inseparable, the
disability of
one shall inure to
the benefit of all. After the cause of action accrues, if the person entitled
to
bring the action becomes of unsound mind and is adjudicated as
such by a court of competent jurisdiction
or
is confined in an
institution or hospital under a diagnosed
condition or disease
which renders
him
the person of unsound
mind, the time
during
which
he
the person is of
unsound mind and
so adjudicated or so
confined shall not be
computed as any part of
the period within
which the action must
be brought.
Sec. 2305.25.
(A) No
health care entity
hospital, no state
or local society, and
no individual
who is a member
of or
works on
behalf
employee of any of the following
boards or committees
of a
health care entity or of any of the
following
corporations shall
be liable in damages to any person
for any acts,
omissions,
decisions, or other conduct within the
scope of the
functions of
the
board, committee, or corporation: (1)(A) A
peer
utilization review committee, quality
assurance, or tissue committee of a hospital or long-term care
facility,
a nonprofit
health care corporation which is a member of
the hospital or long-term care
facility or of
which the hospital
or facility is a member, or a community mental
health
center;
(2)(B) A board or committee of a hospital or long-term care
facility or
of a nonprofit health care corporation which is a
member of the
hospital or long-term care facility or of which the
hospital or
long-term care facility is a
member reviewing
professional
qualifications or activities of the medical staff of
the
hospital or long-term care facility or
applicants for
admission to the medical staff;
(3)(C) A utilization committee of a state or local society
composed of doctors of medicine, doctors of osteopathic
medicine,
or doctors of podiatric medicine;
(4)(D)
A peer review committee, professional standards review
committee, or arbitration committee of a state or local society
composed of doctors of medicine, doctors of osteopathic medicine,
doctors of
dentistry, doctors of optometry, doctors
of podiatric
medicine, psychologists, or pharmacists;
(5)(E) A peer review committee of a health insuring
corporation
that has at least a two-thirds
majority of member
physicians in
active practice and that conducts professional
credentialing and
quality review activities involving the
competence or professional
conduct of health care providers,
which
conduct adversely affects,
or could adversely affect, the
health
or welfare of any patient.
For purposes of this division,
"health
insuring corporation"
includes
wholly owned
subsidiaries of a
health insuring
corporation.
(6)(F) A peer review committee of any insurer authorized
under
Title XXXIX of the Revised Code to do the business of
sickness and
accident insurance in this state that has at least a
two-thirds
majority of physicians in active practice and that
conducts
professional credentialing and quality review activities
involving
the competence or professional conduct of health care
providers,
which conduct adversely affects, or could adversely
affect, the
health or welfare of any patient;
(7)(G) A peer review committee of any insurer authorized
under
Title XXXIX of the Revised Code to do the business of
sickness and
accident insurance in this state that has at least a
two-thirds
majority of physicians in active practice and that
conducts
professional credentialing and quality review activities
involving
the competence or professional conduct of a health care
facility
that has contracted with the insurer to provide health
care
services to insureds, which conduct adversely affects, or
could
adversely affect, the health or welfare of any patient;
(8) A peer review committee of an insurer authorized under
Title XXXIX of the Revised Code to do the business of medical
professional
liability insurance in this state and that conducts
professional quality
review
activities involving the competence or
professional conduct of health care
providers, which conduct
adversely affects, or could affect, the health or
welfare of any
patient;
(9) A peer review committee of a health care entity.
(B)(1) A hospital shall be presumed to not be negligent in
the credentialing
of a qualified person if the hospital proves by
a preponderance of the
evidence that at the time of the alleged
negligent credentialing of the
qualified person it was accredited
by the joint commission on accreditation of
health care
organizations, the American osteopathic association, or the
national committee for quality assurance.
(2) The presumption that a hospital is not negligent as
provided in division
(B)(1) of this section may be rebutted only
by proof, by a preponderance of
the evidence, of any of the
following:
(a) The credentialing and review requirements of the
accrediting
organization did not apply to the hospital, the
qualified person, or the type
of professional care that is the
basis of the claim against the hospital.
(b) The hospital failed to comply with all material
credentialing and review
requirements of the accrediting
organization that applied to the qualified
person.
(c) The hospital, through its medical staff executive
committee
or its governing body and sufficiently in advance to
take appropriate action,
knew that a previously competent
qualified person with
staff privileges at the hospital had
developed a pattern of
incompetence that indicated that the
qualified person's privileges should have
been limited prior to
treating the plaintiff at the
hospital.
(d) The hospital, through its medical staff executive
committee
or its governing body and sufficiently in advance to
take appropriate action,
knew that a previously competent
qualified person with
staff privileges at the hospital would
provide fraudulent
medical treatment but failed to limit the
qualified person's
privileges prior to treating the plaintiff at
the
hospital.
(3) If the plaintiff fails to rebut the presumption provided
in division
(B)(1) of this section, upon the motion of the
hospital, the court shall enter
judgment in favor of the hospital
on the claim of negligent credentialing.
(C) Nothing in this section
otherwise shall relieve any
individual or
health care entity
hospital from liability arising
from
treatment of a
patient or resident.
Nothing in this section
shall
be construed as
creating an exception
to section 2305.251 of
the
Revised Code.
This section shall also apply to any member or employee of a
nonprofit corporation engaged in performing the functions of a
peer review committee of nursing home providers or administrators
or of a peer review or professional standards review committee. (D) No person who provides information under this section
without
malice and in the reasonable
belief that the information
is warranted by the facts known
to the person shall be subject to
suit for civil
damages as a result of providing the information.
(E) As used in this section:
(1)
"Peer review committee" means a utilization review
committee, quality
assurance committee, quality improvement
committee, tissue committee,
credentialing committee, or other
committee that conducts professional
credentialing and quality
review activities involving the competence or
professional conduct
of health care practitioners.
(2)
"Health care entity" means a government entity, a
for-profit or
nonprofit corporation, a limited liability company,
a partnership, a
professional corporation, a state or local
society as described in division
(A)(3) of this section, or other
health care organization, including,
but not limited to, health
care entities described in division (A) of
this section, whether
acting on its own behalf or on behalf of or in
affiliation with
other health care entities, that conducts, as part of its
purpose,
professional credentialing or quality review activities involving
the competence or professional conduct of health care
practitioners or
providers.
(3)
"Hospital" means either of the following:
(a) An institution that has been registered or licensed by
the
Ohio department of health as a hospital;
(b) An entity, other than an insurance company authorized to
do business in this state, that owns, controls, or is
affiliated
with an institution that has been registered
or licensed by the
Ohio department of health as a hospital.
(4)
"Qualified person" means a member of the medical staff
of
a hospital
or a person who has professional privileges at a
hospital pursuant to section
3701.351 of the Revised Code.
(F) This section shall be considered to be purely
remedial
in its operation and shall be applied in a remedial
manner in any
civil action in which this section is relevant,
whether the civil
action is pending in court or commenced on or
after the effective
date of this section, regardless of when the
cause of action
accrued and notwithstanding
any other section
of the Revised Code
or prior rule of law of this state.
Sec. 2305.251. Proceedings and records
within the scope of
the peer review
or utilization review functions of all review
boards, committees, or corporations described in section
2305.25
of the Revised Code shall
be held in confidence and shall not be
subject to discovery or
introduction in evidence in any civil
action against a health
care professional, a hospital, a long-term
care facility, a
not-for-profit health care
corporation that is a
member of a hospital or long-term care facility
or of which
a
hospital or long-term care facility is a member, or another health
care
entity
institution
arising
out of matters that are the
subject of
evaluation and review by
the
review board, committee,
or
corporation. No person in
attendance at a meeting of a review
board, committee, or corporation or serving as a member
or
employee of a review
board, committee, or corporation shall be
permitted or required to testify in any civil action as to any
evidence or other matters produced or presented during the
proceedings of the
review board, committee, or corporation or as
to any finding, recommendation, evaluation, opinion, or other
action of the
review board, committee, or corporation or a member
or
employee of it
thereof. Information, documents, or records
otherwise
available from original sources are not to be construed
as being
unavailable for discovery or for use in any civil
action
merely
because they were presented during proceedings of a
review
board,
committee, or corporation, nor should any person
testifying
before
a
review board, committee, or corporation or
who is a
member
or
employee of the
review board, committee, or corporation
be
prevented from testifying as
to matters within the person's
knowledge, but the witness cannot be
asked about the witness's
testimony before the
review board,
committee, or corporation or
an
opinion formed by the witness as a result of
the
review board,
committee, or corporation hearing.
An order by a court to
produce
for discovery or for use at trial the
proceedings or records
described in this section is a final order.
Sec. 2305.27. Except as provided in section 2743.02 of the
Revised Code, in any medical claim, as defined in division (D) of
section 2305.11 of the Revised Code, an award of damages shall not
be reduced by insurance proceeds or payments or other benefits
paid under any insurance policy or contract where the premium or
cost of such insurance policy or contract was paid either by or
for the person who has obtained the award, or by
his
the person's
employer, or both, or by direct payments from
his
the person's
employer, but shall be reduced by any other collateral recovery
for medical and hospital care, custodial care or rehabilitation
services, and loss of earned income. Unless otherwise expressly
provided by statute, a collateral source of indemnity shall not be
subrogated to the claimant against a physician, podiatrist, or
hospital.
Sec. 2305.35. (A) As used in this section: (1)
"Agency" has the same meaning as in section 2305.37 of
the Revised Code. (2)
"Donor" means an owner, lessee, renter, or operator of
a
farm or other real property who gives permission to a gleaner
to
enter the property to salvage free-of-charge food items
remaining
on the property for subsequent donations of the food
items to, or
subsequent distributions of the food items by, an
agency or
nonprofit organization. (3)
"Gleaner" means any person that, with the permission
of
the owner, lessee, renter, or operator of a farm or other real
property, enters the property to salvage free-of-charge food
items
remaining on the property for subsequent donations of the
food
items to, or subsequent distributions of the food items by,
an
agency or nonprofit organization. (4)
"Hazard" means a risk of serious physical harm to
persons
or property. (5)
"Nonprofit organization" means a corporation,
association, group, institution, society, or other organization
that is exempt from federal income taxation under section
501(c)(3) of the
"Internal Revenue Code of 1986," 100 Stat. 2085,
26 U.S.C. 501(c)(3), as amended. (6)
"Tort action" means a civil action for damages for
injury, death, or loss to person or property.
"Tort action"
includes a product liability claim that is subject to sections
2307.71 to 2307.80 of the Revised Code but does not
include a
civil action for damages for a breach of contract or another
agreement between persons. (B)(1) Except as provided in division (B)(2) of this
section, a donor is not liable in damages to any person in a tort
action for injury, death, or loss to person or property sustained
by a gleaner as a result of any of the following: (a) Any condition of the farm or other real property on
which the gleaner is salvaging food items; (b) Any normal agricultural operations occurring on the
farm
or other real property on which the gleaner is salvaging
food
items; (c) Any risks of physical harm to persons or property
involved in salvaging the food items the gleaner is salvaging. (2) The immunity described in division (B)(1) of this
section does not apply to a donor in a tort action for injury,
death, or loss to person or property sustained by a gleaner as a
result of any condition, operations, or risks described in
division (B)(1)(a), (b), or (c) of this section if the injury,
death, or loss to person or property sustained by the gleaner was
caused by any of the following actions or omissions: (a) An action or omission of the donor that constitutes
negligence, if that negligence involves one or both of the
following: (i) The failure of the donor to warn the gleaner of a
hazard
of which the donor had actual knowledge prior to the
gleaner
entering the property; (ii) The creation or enhancement of a hazard by the donor
prior to the gleaner entering the property. (b) An action or omission of the donor that constitutes
willful or wanton misconduct or intentionally tortious conduct; (c) An action or omission of an employee of the donor, a
family member of the donor or another person associated with the
donor that is imputable to the donor and that constitutes
negligence, if that negligence involves one or both of the
following: (i) The failure of the employee, family member, or other
associated person to warn the gleaner of a hazard of which the
employee, family member, or other associated person had actual
knowledge prior to the gleaner entering the property; (ii) The creation or enhancement of a hazard by the
employee, family member, or other associated person prior to the
gleaner entering the property. (d) An action or omission of an employee of the donor, a
family member of the donor, or another person associated with the
donor, that is imputable to the donor and that constitutes
willful
or wanton misconduct. (C)(1) This section does not create a new cause of action
or
substantive legal right against donors. (2) This section does not affect any immunities from or
defenses to tort liability established by another section of the
Revised Code or available at common law, to which donors may be
entitled under circumstances not covered by this section.
Sec. 2305.37. (A) As used in this section: (1) "Agency" means any nonhospital, charitable nonprofit
corporation that is organized and operated pursuant to Chapter
1702. of the Revised Code and that satisfies both of the
following, or any
nonhospital, charitable association, group,
institution, organization, or
society that is
not organized and
not operated for profit and that satisfies both
of the following: (a) It distributes perishable food, directly or indirectly,
to individuals in need. (b) It does not charge or accept any form of compensation
from the individuals in need for the distribution of the
perishable food to them. (2) "Food service operation" has the same meaning as in
section 3717.01 of the Revised Code. (3) "Food that is gleaned" means perishable food that
remains on a farm or
other real property and that the owner,
lessee, renter, or operator of the
property permits one or more
persons to salvage free-of-charge for subsequent
donation to one
or more agencies. (4) "Harm" means injury, death, or loss to person or
property. (5) "Hospital" has the same meaning as in section 2108.01,
3701.01, or 5122.01 of the Revised Code. (6) "Individuals in need" means those persons who an
agency
determines are eligible to receive free distributions of
perishable food because of poverty, illness, disability, infancy,
or other conditions or circumstances that may result in persons
having a need to receive free distributions of perishable food. (7) "Perishable food" means any food that may spoil or
otherwise become unfit for human consumption because of its
nature, age, or physical condition. "Perishable food" includes,
but is not limited to, fresh meats, processed meats, poultry,
fish
and other seafood, dairy products, bakery products, eggs in
the
shell, fresh fruits, fresh vegetables, food that is gleaned, food
that is
packaged, refrigerated, or frozen, food that is canned,
and prepared or
other food that has not been served by a
restaurant, cafeteria,
hospital, hotel, caterer, or other food
service operation to any
customer, patient, or other person in the
ordinary course of
business, by a public or private school,
college, university, or
other educational institution to a student
or another person on
the premises in the ordinary course of the
operation of the
institution, or by a fraternal, veteran's, or
other organization
to its members or other persons on the premises
in the ordinary
course of the operation of the organization. (8) "Person" has the same meaning as in section 1.59 of
the
Revised Code and additionally includes governmental entities. (9) "Sale date" has the same meaning as in section
3715.171
of the Revised Code. (10) "Tort action" means a civil action for damages for
injury, death, or loss to person or property. "Tort action"
includes a product liability claim
that is subject to sections
2307.71 to 2307.80 of the Revised Code but does not
include a
civil action for a breach of contract or another agreement
between
persons. (B) Notwithstanding Chapter 3715. of the Revised Code, a
person who, in good faith, donates perishable food to an agency
is
not liable in damages in a tort action for harm that allegedly
arises because that perishable food, when distributed by the
agency or any other agency to a particular individual in need, is
not fit for human consumption, if both of the following apply: (1) Prior to the donation of the perishable food to the
agency, the person determines that the perishable food will be
fit
for human consumption at the time of its donation. A
presumption
favoring liability does not arise because the
perishable food is
donated to an agency on or after an applicable
sale date. (2) The person does not make the determination that the
perishable food will be fit for human consumption at the time of
its donation to the agency in a manner that constitutes
negligence
or willful or wanton misconduct. (C)(1) This section does not create a new cause of action or
substantive
legal right against persons who donate perishable food
to an agency. (2) This section does not affect any immunities from or
defenses to tort
liability established by another section of the
Revised Code or
available at common law to which persons who
donate perishable
food other than to agencies may be entitled.
Sec. 2305.38. (A) As used in this section: (1)
"Charitable organization" means either of the
following: (a) Any charitable nonprofit corporation that is organized
and operated pursuant to Chapter 1702. of the Revised Code,
including, but not limited to, any such corporation
whose
articles
of incorporation specify that it is organized and
to be
operated
for an education-related purpose; (b) Any charitable association, group, institution, or
society that is not organized and not operated for profit,
including, but not limited to, any such association, group,
institution, or society that is organized and
operated
for any
education-related purpose. (2)
"Compensation" does not include actual
and necessary
expenses that are incurred by a
volunteer in connection with the
services that
he
the volunteer
performs for a charitable
organization,
and that
are reimbursed to
the volunteer or
otherwise paid. (3)
"Corporate services" means services that are performed
by
a volunteer who is associated with a charitable organization
as
defined in division (A)(1)(a) of this section and that reflect
duties or responsibilities arising under Chapter 1702. of the
Revised Code. (4)
"Supervisory services" means services that are
performed
by a volunteer who is associated with a charitable
organization as
defined in division (A)(1)(a) or (b) of this
section and that
involve duties and responsibilities in
connection with the
supervision of one or more officers,
employees, trustees, or other
volunteers of that charitable
organization. (5)
"Volunteer" means an officer, trustee, or other person
who performs services for a charitable organization but does not
receive compensation, either directly or indirectly, for those
services. (B) A volunteer is not liable in damages in a civil action
for injury, death, or loss to
persons
person or property that
arises
from the actions or omissions of any of the officers,
employees,
trustees, or other volunteers of the charitable
organization for
which
he
the volunteer performs services, unless
either of the
following
applies: (1) With prior knowledge of an action or omission of a
particular officer, employee, trustee, or other volunteer, the
volunteer authorizes, approves, or otherwise actively
participates
in that action or omission;. (2) After an action or omission of a particular officer,
employee, trustee, or other volunteer, the volunteer, with full
knowledge of that action or omission, ratifies it. (C) A volunteer is not liable in damages in a civil action
for injury, death, or loss to
persons
person or property that
arises
from
his
the volunteer's actions or omissions in connection
with
any supervisory
or corporate services that
he
the volunteer
performs for the
charitable
organization, unless either of the
following applies: (1) An action or omission of the volunteer involves
conduct
as described in division (B)(1) or (2) of this section; (2) An action or omission of the volunteer constitutes
willful or wanton misconduct or intentionally tortious conduct. (D) A volunteer is not liable in damages in a civil action
for injury, death, or loss to
persons
person or property that
arises
from
his
the volunteer's actions or omissions in connection
with
any
nonsupervisory or noncorporate services that
he
the
volunteer
performs for the
charitable organization, unless either
of the following applies: (1) An action or omission of the volunteer involves
conduct
as described in division (B)(1) or (2) of this section; (2) An action or omission of the volunteer constitutes
negligence, willful or wanton misconduct, or intentionally
tortious conduct. (E)(1) This section does not create, and shall not be
construed as creating, a new cause of action or substantive legal
right against a volunteer. (2) This section does not affect, and shall not be
construed
as affecting, any immunities from civil liability or
defenses
established by another section of the Revised Code or
available at
common law, to which a volunteer may be entitled
under
circumstances not covered by this section. This section
does not
diminish in any respect the immunities provided in
section 2305.25
of the Revised Code. The immunities conferred
upon volunteers in
this section are not intended to affect the
liability of a
charitable organization in a civil action for
injury, death, or
loss to
persons
person or property.
Sec. 2307.24
2307.16. A partnership formed for the purpose
of
carrying on a trade or
business in this state, or holding
property
in this state, may sue or be sued
by the usual or
ordinary name
which is
that it has assumed, or by which it is
known.
Sec. 2307.27
2307.17. In an action for the recovery of real
or
personal property, a
person claiming an interest in the
property,
on
his application, may be
made a party.
Sec. 2307.30
2307.18.
An
A judicial officer against whom an
action is brought
to recover
personal property taken by
him
the
officer on
execution, or for
the proceeds of such property sold by
him
the
officer, upon
exhibiting to the court the process under
which
he
the officer
acted, with
his
the officer's affidavit that
the
property was
taken or sold by
him
the officer under such
process,
may have
the benefit of
section 2307.29 of the Revised
Code
Civil Rule 22,
against the party in whose
favor the execution
issued.
Sec. 2307.31. (A) Except as otherwise
provided in
this
section or section 2307.32 of the Revised
Code,
if two or more
persons are jointly and severally liable in
tort for the same
injury or loss to person or property or for the
same
wrongful
death, there is a right of contribution among them
even
though
judgment has not been recovered against all or any of
them. The
right of contribution exists only in favor of a
tortfeasor who has
paid more than
his
that tortfeasor's
proportionate share of the
common liability, and
his
that
tortfeasor's
total recovery is
limited to the amount paid by
him
that tortfeasor in excess of
his
that tortfeasor's proportionate
share. No tortfeasor is compelled
to make contribution beyond
his
that tortfeasor's own
proportionate share of the common
liability.
There is no right of
contribution in favor of any tortfeasor
who
intentionally has
caused or intentionally has contributed to the
injury or
loss to
person or property or the wrongful death. (B) A tortfeasor who enters into a settlement with a
claimant is not entitled
recover contribution from another
tortfeasor whose liability for the injury
or loss to person or
property or the wrongful death is not extinguished by
the
settlement, or in respect to any amount paid in a settlement
which
is in excess of what is reasonable. (C) A liability insurer that by payment has discharged in
full or in part of the liability of a tortfeasor and has
thereby
discharged in full its obligation as insurer is
subrogated to
the
tortfeasor's right of contribution to the extent
of the amount it
has paid
in excess of the tortfeasor's
proportionate share of the
common liability.
This division does
not limit or impair any right
of subrogation arising
from any
other relationship. (D) This section does not impair any right of indemnity
under existing law. If one tortfeasor is entitled to indemnity
from another, the right of the indemnity obligee is for indemnity
and not
contribution, and the indemnity obligor is not entitled to
contribution from
the obligee for any portion of
his
the indemnity
obligation. (E) This section does not apply to breaches of trust or of
other
fiduciary obligations. (F) The proportionate shares of tortfeasors in the common
liability shall be
based upon their relative degrees of legal
responsibility. If equity
requires the collective liability of
some as a group, the group shall
constitute a single share, and
prinicples of equity applicable to contribution
generally shall
apply. (G) Whether or not judgment has been entered in an action
against two or
more tortfeasors for the same injury or loss to
person or property or for the
same
wrongful death, contribution
may be enforced by separate action. (H) Whenever the provisions of the
"Federal Tort Claims
Act," 60 Stat. 842
(1946), 28 U.S.C. 2671 et seq., are applicable
to a tort and the United States
is held liable in tort, the United
States shall have no right of
contribution hereunder against the
state pursuant
to the
waiver of sovereign
immunity contained in
Chapter 2743. of the Revised Code.
Sec. 2307.32. (A) If a judgment that
imposes
joint
and
several liability has been entered in an action
against
two or
more tortfeasors for the same injury or loss to
person or
property
or for the same wrongful death, contribution
may be
enforced in
that action by judgment in favor of one against
other
judgment
debtors, by motion, upon notice to all parties to
the
action. (B) If there is a judgment for the injury or loss to
person
or property or the wrongful death against the tortfeasor
seeking
contribution, any separate action by
him
that tortfeasor to
enforce
contribution shall be commenced within one year after the
judgment has become final by lapse of time for appeal or after
appellate review. (C) If there is no judgment for the injury or loss to
person
or property or the wrongful death against the tortfeasor
seeking
contribution,
his
that tortfeasor's right of contribution is
barred unless
he that tortfeasor either has discharged by payment
the common
liability within
the statute of limitations period
applicable to the claimant's
right of action against
him
that
tortfeasor and has commenced
his
that tortfeasor's
action for
contribution within one year after payment, or has agreed
while
an
action is pending against
him
that tortfeasor to
discharge the
common
liability
and has within one year after
the agreement paid
the
common liability
and commenced
his
that tortfeasor's action
for contribution. (D) The recovery of a judgment for an injury or loss to
person or property or a wrongful death against one tortfeasor
does
not of itself discharge the other tortfeasors from liability
for
the injury, loss, or wrongful death unless the judgment is
satisfied. The satisfaction of the judgment does not impair any
right of contribution. (E) Valid answers to interrogatories by a jury or findings
of fact by a court sitting without a jury in determining the
liability of the several defendants for an injury or loss to
person or property or a wrongful death shall be binding as among
such defendants in determining their right to
contribution. (F) When a release or a covenant not to sue or not to
enforce judgment is given in good faith to one of two or more
persons liable in tort for the same injury or loss to person or
property or the same wrongful death, the following apply: (1) The release or covenant does not discharge any of the
other tortfeasors from liability for the injury, loss, or
wrongful
death unless its terms otherwise provide, but it reduces
the claim
against the other tortfeasors to the extent of any
amount
stipulated by the release or the covenant, or in the
amount of the
consideration paid for it, whichever is the
greater;. (2) The release or covenant discharges the tortfeasor to
whom it is given from all liability for contribution to any other
tortfeasor.
Sec. 2307.33. (A) Neither section
2307.31 nor 2307.32 of
the Revised Code
applies to a negligence claim to the extent that
division
(D) of section
2315.19 of the Revised Code makes a party
against
whom a judgment is entered
liable to the complainant only
for the proportionate share of
that party as
described in division
(D)(1)(a) of
that section. (B) Sections 2307.31 and 2307.32 of the Revised Code apply
to a
negligence claim if division (D) of section 2315.19 of the
Revised Code is
not applicable to that claim.
Sec. 2307.60.
(A) Anyone injured in person or property by a
criminal act has, and
may recover full damages in, a civil action
unless specifically excepted by
law, may recover the costs of
maintaining the civil action and attorney's fees
if authorized by
any provision of the Rules of Civil Procedure or another
section
of the Revised Code or under the common law of this state, and may
recover
punitive or exemplary damages if authorized by section
2315.21 or another
section of the Revised Code.
A
No record of a
conviction, unless
obtained by confession in open court, shall
not
be used as evidence in a civil
action brought pursuant to
division
(A) of this section. (B)(1) As used in division (B) of this section:
(a) "Harm" means injury, death, or loss to person or
property.
(b) "Tort action" means a civil action for damages for
injury, death, or loss
to person or property other than a civil
action
for damages for a breach of contract or another agreement
between
persons "Tort action" includes, but is not limited to, a
product
liability claim, an action for wrongful death under
Chapter 2125.
of the Revised Code, and an action based on
derivative claims for relief.
(2) Recovery on a claim for relief in a tort action is
barred to any
person or the person's legal representative if the
person has been convicted
of or has pleaded guilty to a felony, or
to a misdemeanor
that is an offense of violence, arising out of
criminal conduct
that was a proximate cause of the injury or loss
for which relief is claimed
in the action.
(3) Division (B) of this section does not apply
to civil
claims based upon alleged intentionally tortious conduct, alleged
violations of the United States Constitution, or alleged
violations of statutes of the United States pertaining to civil
rights.
Sec. 2307.61. (A) If a property owner brings a civil
action
pursuant to
division (A) of section 2307.60 of the
Revised Code to
recover
damages from any person who willfully damages the owner's
property or who commits a theft offense, as defined in section
2913.01 of the Revised Code, involving the owner's property, the
property owner may recover as follows: (1) In the civil action, the property owner may elect to
recover moneys as described in division (A)(1)(a) or (b) of this
section: (a) Compensatory damages that may include, but are not
limited to, the value of the property and liquidated damages in
whichever of the following amounts applies: (i) Fifty dollars, if the value of the property was fifty
dollars or less at the time it was willfully damaged or was the
subject of a theft offense; (ii) One hundred dollars, if the value of the property was
more than fifty dollars, but not more than one hundred dollars,
at
the time it was willfully damaged or was the subject of a
theft
offense; (iii) One hundred fifty dollars, if the value of the
property was more than one hundred dollars at the time it was
willfully damaged or was the subject of a theft offense. (b) Liquidated damages in whichever of the following
amounts
is greater: (ii) Three times the value of the property at the time it
was willfully damaged or was the subject of a theft offense,
irrespective of whether the property is recovered by way of
replevin or otherwise, is destroyed or otherwise damaged, is
modified or otherwise altered, or is resalable at its full market
price. This division does not apply to a check, negotiable order
of
withdrawal, share draft, or other negotiable instrument that
was returned or
dishonored for insufficient funds by a financial
institution if the check,
negotiable order of withdrawal, share
draft, or other negotiable instrument
was presented by an
individual borrower to a check-cashing business licensed
pursuant
to sections 1315.35 to 1315.44 of the Revised Code for a
check-cashing loan
transaction. (2) In a civil action in which the value of the property
that was willfully damaged or was the subject of a theft offense
is less than five thousand dollars, the property owner may
recover
damages as described in division (A)(1)(a) or (b) of this
section
and additionally may recover the reasonable
administrative costs,
if any, of the property owner that were
incurred in connection
with actions taken pursuant to division
(A)(2) of this section,
the cost of maintaining the civil action,
and reasonable
attorney's fees, if all of the following apply: (a) The property owner, at least thirty days prior to the
filing of the civil action, serves a written demand for payment
of
moneys as described in division (A)(1)(a) of this section and
the
reasonable administrative costs, if any, of the property
owner
that have been incurred in connection with actions taken
pursuant
to division (A)(2) of this section, upon the person who
willfully
damaged the property or committed the theft offense. (b) The demand conforms to the requirements of division
(C)
of this section and is sent by certified mail, return receipt
requested. (c) Either the person who willfully damaged the property
or
committed the theft offense does not make payment to the
property
owner of the amount specified in the demand within
thirty days
after the date of its service upon that person
and does not
enter
into an agreement with the property owner during that
thirty-day
period for that payment or the person who willfully
damaged the
property or committed the theft offense enters into
an agreement
with the property owner during that thirty-day
period for that
payment but does not make that payment in
accordance with the
agreement. (B) If a property owner who brings a civil action pursuant
to
division (A) of section 2307.60 of the Revised Code to
recover
damages for
willful damage to property or for a theft offense
attempts to
collect the reasonable administrative costs, if any,
of the
property owner that have been incurred in connection with
actions
taken pursuant to division (A)(2) of this section, the
cost of
maintaining the civil action, and reasonable attorney's
fees
under authority of that division and if the defendant
prevails in
the civil action, the defendant may recover from the
property
owner reasonable attorney's fees, the cost of defending
the civil
action, and any compensatory damages that may be proven. (C) For purposes of division (A)(2) of this section, a
written demand for payment shall include a conspicuous notice to
the person upon whom the demand is to be served that indicates
all
of the following: (1) The willful property damage or theft offense that the
person allegedly committed; (2) That, if the person makes payment of the amount
specified in
the demand within thirty days after its service upon
the
person or
enters into an agreement with the property owner
during that
thirty-day period for that payment and makes that
payment in
accordance with the agreement, the person cannot be
sued by
the property owner in a civil action in relation to the
willful property damage or theft offense; (3) That, if the person fails to make payment of the amount
specified in the demand within thirty days after the date of its
service upon the person and fails to enter into an agreement for
that
payment with the property owner during that thirty-day period
or
enters into an agreement for that payment with the property
owner
during that thirty-day period but does not make that payment
in
accordance with the agreement, the person may be sued in a
civil action
in relation to the willful property damage or theft
offense; (4) The potential judgment that the person may be required
to pay if the person is sued in a civil action in relation to the
willful property damage or theft offense and judgment is rendered
against
the person in that civil action; (5) That, if the person is sued in a civil action by the
property owner in relation to the willful property damage or theft
offense, if the civil action requests that the person be
required
to pay
the reasonable administrative costs, if any, of the
property
owner that have been incurred in connection with actions
taken
pursuant to division (A)(2) of this section, the cost of
maintaining the action, and reasonable attorney's fees, and if
the
person prevails in the civil action, the person
may recover from
the property
owner reasonable attorney's fees, the cost of
defending the
action, and any compensatory damages that can be
proved. (D) If a property owner whose property was willfully
damaged
or was the subject of a theft offense serves a written
demand for
payment upon a person who willfully damaged the
property or
committed the theft offense and if the person makes
payment of the
amount specified in the demand within thirty days
after the date
of its service upon the person or the person enters into
an
agreement with the property owner during that thirty-day
period
for that payment and makes payment in accordance with the
agreement, the property owner shall not file a civil action
against the person in relation to the willful property damage or
theft offense. (E) If a property owner whose property was willfully
damaged
or was the subject of a theft offense serves a written
demand for
payment upon a person who willfully damaged the
property or
committed the theft offense and if the person, within
thirty days
after the date of service of the demand upon the
person, enters
into an agreement with the property owner for the payment
of the
amount specified in the demand but does not make that
payment in
accordance with the agreement, the time between the
entering of
the agreement and the failure to make that payment
shall not be
computed as any part of the period within which a
civil action
based on the willful property damage or theft
offense must be
brought under the Revised Code. (F) A civil action to recover damages for willful property
damage or for a theft offense may be joined with a civil action
that is brought pursuant to Chapter 2737. of the Revised Code to
recover the property. If the two actions are joined, any
compensatory damages recoverable by the property owner shall be
limited to the value of the property. (G)(1) In a civil action to recover damages for willful
property damage or for a theft offense, the trier of fact may
determine that an owner's property was willfully damaged or that
a
theft offense involving the owner's property has been
committed,
whether or not any person has pleaded guilty to or has
been
convicted of any criminal offense or has been adjudicated a
delinquent child in relation to any act involving the owner's
property. (2) This section does not affect the prosecution of any
criminal action or
proceeding or any action to obtain a delinquent
child
adjudication in connection with willful property damage or a
theft offense. (H) As used in this section: (1) "Administrative costs" includes the costs of written
demands for payment and associated postage under division (A)(2)
of this section. (2) "Value of the property" means one of the following: (a) The retail value of any property that is offered for
sale by a mercantile establishment, irrespective of whether the
property is destroyed or otherwise damaged, is modified or
otherwise altered, or otherwise is not resalable at its full
market price; (b) The face value of any check or other negotiable
instrument that is not honored due to insufficient funds in the
drawer's account, the absence of any drawer's account, or another
reason, and all charges imposed by a bank, savings and loan
association, credit union, or other financial institution upon
the
holder of the check or other negotiable instrument; (c) The replacement value of any property not described in
division (H)(1) or (2) of this section.
Sec. 2307.71. As used in sections 2307.71 to 2307.80
of
the
Revised Code: (A)
"Claimant" means either of the following: (1) A person who asserts a product liability claim or on
whose behalf such a claim is asserted; (2) If a product liability claim is asserted on behalf of
the surviving spouse, children, parents, or other next of kin of
a
decedent or on behalf of the estate of a decedent, whether as a
claim in a wrongful death action
under
Chapter 2125. of the
Revised Code or as a survivorship claim,
whichever of the
following is appropriate: (a) The decedent, if the reference is to the person who
allegedly sustained harm or economic loss for which, or in
connection with which, compensatory damages or punitive or
exemplary damages are sought to be recovered; (b) The personal representative of the decedent or the
estate of the decedent, if the reference is to the person who is
asserting or has asserted the product liability claim. (B)
"Economic loss" means direct, incidental, or
consequential pecuniary loss, including, but not limited to,
damage to the product in question, and nonphysical
damage
to
property other than that product. Harm is not
"economic loss." (C)
"Environment" means navigable waters, surface water,
ground water, drinking water supplies, land surface, subsurface
strata, and air. (D)
"Ethical drug" means a prescription drug that is
prescribed or dispensed by a physician or any other person who is
legally authorized to prescribe or dispense a prescription drug. (E)
"Ethical medical device" means a medical device that
is
prescribed, dispensed, or implanted by a physician or any
other
person who is legally authorized to prescribe, dispense, or
implant a medical device and that is regulated under the
"Federal
Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. 301-392,
as amended. (F)
"Foreseeable risk" means a risk of harm that satisfies
both of the following: (1) It is associated with an intended or reasonably
foreseeable use, modification, or alteration of a product in
question; (2) It is a risk that the manufacturer in question should
recognize while exercising both of the following: (a) The attention, perception, memory, knowledge, and
intelligence that a reasonable manufacturer should possess; (b) Any superior attention, perception, memory, knowledge,
or intelligence that the manufacturer in question possesses. (G)
"Harm" means death, physical injury to person, serious
emotional distress, or physical damage to property other than the
product in question. Economic loss is not
"harm." (H)
"Hazardous or toxic substances" include, but are not
limited to, hazardous waste as defined in section 3734.01 of the
Revised Code, hazardous waste as specified in the rules of the
director of environmental protection pursuant to division (A) of
section 3734.12 of the Revised Code, hazardous substances as
defined in section 3716.01 of the Revised Code, and hazardous
substances, pollutants, and contaminants as defined in or by
regulations adopted pursuant to the
"Comprehensive Environmental
Response, Compensation, and Liability Act of 1980," 94 Stat.
2767,
42 U.S.C. 9601, as amended. (I)
"Manufacturer" means a person engaged in a business to
design, formulate, produce, create, make, construct, assemble, or
rebuild a product or a component of a product. (J)
"Person" has the same meaning as in division (C) of
section 1.59 of the Revised Code and also includes governmental
entities. (K)
"Physician" means a person who is licensed to practice
medicine and surgery or osteopathic medicine and surgery by the
state medical board. (L)(1)
"Product" means, subject to division (L)(2) of this
section, any object, substance, mixture, or raw material that
constitutes tangible personal property and that satisfies all of
the following: (a) It is capable of delivery itself, or as an assembled
whole in a mixed or combined state, or as a component or
ingredient; (b) It is produced, manufactured, or supplied for
introduction into trade or commerce; (c) It is intended for sale or lease to persons for
commercial or personal use. (2)
"Product" does not include human tissue, blood, or
organs. (M)
"Product liability claim" means a claim that is
asserted
in a civil action and that seeks to recover compensatory
damages
from a manufacturer or supplier for death, physical
injury to
person, emotional distress, or physical damage to
property other
than the product in question, that
allegedly arose
from
any of the
following: (1) The design, formulation, production, construction,
creation, assembly, rebuilding, testing, or marketing of that
product; (2) Any warning or instruction, or lack of warning or
instruction, associated with that product; (3) Any failure of that product to conform to any relevant
representation or warranty. (N)
"Representation" means an express representation of a
material fact concerning the character, quality, or safety of a
product. (O)(1)
"Supplier" means, subject to division
(O)(2) of
this
section, either of the following: (a) A person that, in the course of a business conducted
for
the purpose, sells, distributes, leases, prepares, blends,
packages, labels, or otherwise participates in the placing of a
product in the stream of commerce; (b) A person that, in the course of a business conducted
for
the purpose, installs, repairs, or maintains any aspect of a
product that allegedly causes harm. (2)
"Supplier" does not include any of the following: (b) A seller of real property; (c) A provider of professional services who, incidental to
a
professional transaction the essence of which is the furnishing
of
judgment, skill, or services, sells or uses a product; (d) Any person who acts only in a financial capacity with
respect to the sale of a product, or who leases a product under a
lease arrangement in which the selection, possession,
maintenance,
and operation of the product are controlled by a
person other than
the lessor. (P)
"Unavoidably unsafe" means that, in the state of
technical, scientific, and medical knowledge at the time a
product
in question left the control of its manufacturer, an
aspect of
that product was incapable of being made safe.
Sec. 2307.72. (A) Any recovery of compensatory damages
based on a product liability claim is subject to sections 2307.71
to 2307.79 of the Revised Code. (B) Any recovery of punitive or exemplary damages in
connection with a product liability claim is subject to sections
2307.71 to 2307.80 of the Revised Code. (C) Any recovery of compensatory damages for economic loss
based on a claim that is asserted in a civil action, other than a
product liability claim, is not subject to sections 2307.71 to
2307.79 of the Revised Code, but may occur
under the
common law
of this state or other applicable sections of the
Revised Code. (D)(1) Sections
2307.71 to 2307.80 of the Revised
Code do
not supersede, modify, or otherwise affect any statute,
regulation, or rule of this state or of the United States, or the
common law of this state or of the United States, that relates to
liability in compensatory damages or punitive or exemplary
damages
for injury, death, or loss to person or property, or to
relief in
the form of the abatement of a nuisance, civil
penalties, cleanup
costs, cost recovery, an injunction or
temporary restraining
order, or restitution, that arises, in
whole or in part, from
contamination or pollution of the
environment or a threat of
contamination or pollution of the
environment, including
contamination or pollution or a threat of
contamination or
pollution from hazardous or toxic substances. (2) Consistent with the Rules of Civil Procedure, in the
same civil action against the same defendant or different
defendants, a claimant may assert both of the following: (a) A product liability claim, including a claim for the
recovery of punitive or exemplary damages in connection with a
product liability claim; (b) A claim for the recovery of compensatory damages or
punitive or exemplary damages for injury, death, or loss to
person
or property, or for relief in the form of the abatement of
a
nuisance, civil penalties, cleanup costs, cost recovery, an
injunction or temporary restraining order, or restitution, that
arises, in whole or in part, from contamination or pollution of
the environment or a threat of contamination or pollution of the
environment, including contamination or pollution or a threat of
contamination or pollution from hazardous or toxic substances.
Sec. 2307.73. (A) A manufacturer is subject to liability
for compensatory damages based on a product liability claim only
if the claimant establishes, by a preponderance of the evidence,
both of the following: (1) Subject to division (B) of this section, the product
in
question was defective in manufacture or construction as
described
in section 2307.74 of the Revised Code, was defective
in design or
formulation as described in section 2307.75 of the
Revised Code,
was defective due to inadequate warning or
instruction as
described in section 2307.76 of the Revised Code,
or was defective
because it did not conform to a representation
made by its
manufacturer as described in section 2307.77 of
the
Revised Code; (2) A
defective aspect of the product in question as
described in division (A)(1) of this section was a proximate
cause
of harm for which the claimant seeks to recover
compensatory
damages. (B) If
a claimant is unable because a product in question
was destroyed to establish by direct evidence that the product in
question was defective or if a claimant otherwise is unable to
establish by direct evidence that a product in question was
defective, then, consistent with the Rules of Evidence, it shall
be sufficient for the claimant to present circumstantial or other
competent evidence that
establishes, by a preponderance of the
evidence, that the product
in question was defective in any one
of
the four respects
specified in division (A)(1) of this
section.
Sec. 2307.75. (A) Subject to divisions (D), (E), and (F)
of
this section, a product is defective in design or formulation
if
either of the following applies: (1) When it left the control of its
manufacturer, the
foreseeable risks associated with its design or
formulation as
determined pursuant to division (B) of this section
exceeded the
benefits associated with that design or formulation
as determined
pursuant to division (C) of this section;
(2) It is more dangerous than an ordinary consumer would
expect when used in an intended or reasonably foreseeable manner. (B) The foreseeable risks associated with the design or
formulation of a product shall be determined by considering
factors including, but not limited to, the following: (1) The nature and magnitude of the risks of harm
associated
with that design or formulation in light of the
intended and
resonably
reasonably foreseeable uses,
modifications, or
alterations of the product; (2) The likely awareness of product users, whether based
on
warnings, general knowledge, or otherwise, of those risks of
harm; (3) The likelihood that that design or formulation would
cause harm in light of the intended and reasonably foreseeable
uses, modifications, or alterations of the product; (4) The extent to which that design or formulation
conformed
to any applicable public or private product standard
that was in
effect when the product left the control of its
manufacturer. (C) The benefits associated with the design or formulation
of a product shall be determined by considering factors
including,
but not limited to, the following: (1) The intended or actual utility of the product,
including
any performance or safety advantages associated with
that design
or formulation; (2) The technical and economic feasibility, when the
product
left the control of its manufacturer, of using an
alternative
design or formulation; (3) The nature and magnitude of any foreseeable risks
associated with such an alternative design or formulation. (D) An ethical drug or ethical medical device is not
defective in design or formulation because some aspect of it is
unavoidably unsafe, if the manufacturer of the ethical drug or
ethical medical device provides adequate warning and instruction
under section 2307.76 of the Revised Code concerning that
unavoidably unsafe aspect. (E) A product is not defective in design or formulation if
the harm for which the claimant seeks to recover compensatory
damages was caused by an inherent characteristic of the product
which is a generic aspect of the product that cannot be
eliminated
without substantially compromising the product's
usefulness or
desirability and which is recognized by the
ordinary person with
the ordinary knowledge common to the
community. (F) A product is not defective in design or formulation
if,
at the time the product left the control of its manufacturer,
a
practical and technically feasible alternative design or
formulation was not available that would have prevented the harm
for which the claimant seeks to recover compensatory damages
without substantially impairing the usefulness or intended
purpose
of the product, unless the manufacturer acted
unreasonably in
introducing the product into trade or commerce.
Sec. 2307.78. (A) Subject to division (B) of this
section,
a supplier is subject to liability for
compensatory
damages based
on a product liability claim only if the claimant
establishes, by
a preponderance of the evidence, that either of
the following
applies: (1) The supplier in question was negligent and
that,
negligence was a proximate cause of harm for which the
claimant
seeks to recover compensatory damages; (2) The product in question did not conform, when it left
the control of the supplier in question, to a representation made
by that supplier, and that representation
and the failure
to
conform to it were a proximate cause of harm for which the
claimant seeks to recover compensatory damages. A supplier is
subject to
liability for such a representation and the failure
to
conform to it even though the supplier did not act
fraudulently,
recklessly, or negligently in making the
representation. (B) A supplier of a product is subject to liability for
compensatory damages based on a product liability claim under
sections 2307.71 to 2307.77 of the Revised Code, as if it were
the
manufacturer of that product, if the manufacturer of that
product
is or would be subject to liability for compensatory
damages based
on a product liability claim under sections 2307.71
to 2307.77 of
the Revised Code and any of the following applies: (1) The manufacturer of that product is not subject to
judicial process in this state; (2) The claimant will be unable to enforce a judgment
against the manufacturer of that product due to actual or
asserted
insolvency of the manufacturer; (3) The supplier in question owns or, when it supplied
that
product, owned, in whole or in part, the manufacturer of
that
product; (4) The supplier in question is owned or, when it supplied
that product, was owned, in whole or in part, by the manufacturer
of that product; (5) The supplier in question created or furnished a
manufacturer with the design or formulation that was used to
produce, create, make, construct, assemble, or rebuild that
product or a component of that product; (6) The supplier in question altered, modified, or failed
to
maintain that product after it came into the possession of,
and
before it left the possession of, the supplier in question,
and
the alteration, modification, or failure to maintain that
product
rendered it defective; (7) The supplier in question marketed that product under
its
own label or trade name; (8) The supplier in question failed to respond timely and
reasonably to a written request by or on behalf of the claimant
to
disclose to the claimant the name and address of the
manufacturer
of that product.
Sec. 2307.80. (A) Subject to
division (C) of this
section,
punitive or
exemplary damages shall not be awarded
against a
manufacturer
or supplier in question in connection with
a product
liability
claim unless the claimant
establishes, by
clear and
convincing evidence, that harm for which
he
the claimant is
entitled
to recover compensatory damages in accordance with
section
2307.73 or 2307.78 of the
Revised Code was the result of
misconduct of the manufacturer or
supplier in question that
manifested a flagrant disregard of the
safety of persons who
might
be harmed by the product in question. The fact
by itself
that a
product is defective does not
establish a flagrant
disregard of
the safety of persons who might
be harmed by that
product. (B) Whether the trier of fact is a jury or the court, if
the
trier of fact determines that a manufacturer or supplier
in
question is liable for punitive or exemplary damages in
connection
with a product liability claim,
the amount of those
damages shall
be determined by the court. In
determining the
amount of punitive
or exemplary damages, the court
shall
consider
factors including,
but not limited to, the following: (1) The likelihood that serious harm would arise from the
misconduct of the manufacturer or supplier in question; (2) The degree of the awareness of the manufacturer or
supplier in question of that likelihood; (3) The profitability of the misconduct to the
manufacturer
or supplier in question; (4) The duration of the misconduct and any concealment of
it
by the manufacturer or supplier in question; (5) The attitude and conduct of the manufacturer or
supplier
in question upon the discovery of the misconduct and
whether the
misconduct has terminated; (6) The financial condition of the manufacturer or
supplier
in question; (7) The total effect of other punishment imposed or likely
to be imposed upon the manufacturer or supplier in question as a
result of the misconduct, including awards of punitive or
exemplary damages to persons similarly situated to the claimant
and the severity of criminal penalties to which the manufacturer
or supplier in question has been or is likely to be subjected.
(C)
If a claimant alleges in a product liability claim
that a
drug
caused harm to
him
the claimant, the manufacturer
of the
drug
shall not be liable for punitive or
exemplary damages in
connection with that product liability claim
if the drug that
allegedly caused the harm was manufactured and labeled in
relevant
and material
respects in accordance with the terms of an
approval
or license
issued by the federal food and drug
administration
under the
"Federal Food, Drug, and Cosmetic Act,"
52 Stat. 1040
(1938), 21
U.S.C. 301-392, as amended, or the
"Public
Health
Service Act," 58
Stat. 682
(1944), 42 U.S.C. 201-300cc-15, as
amended, unless it is
established by a preponderance of the
evidence, that the
manufacturer fraudulently and in violation of
applicable
regulations of the food and drug administration
withheld from the
food and drug administration information known
to be material and
relevant to the harm that the claimant
allegedly suffered or
misrepresented to the food and drug
administration information of
that type. For purposes of this
division,
"drug" has the meaning given
to that term in
section
1201(g)(1) of the
"Federal Food, Drug, and Cosmetic
Act," 52
Stat.
1040,
1041 (1938), 21 U.S.C.
301-392
321(g)(1), as
amended.
Sec. 2315.01. When the jury is sworn, unless for
special
reasons the court otherwise directs, the trial shall
proceed in
the following order except as provided in section
2315.02 of the
Revised Code: (A) The plaintiff concisely must state
his
the
plaintiff's
claim, and
briefly may state
his
the plaintiff's
evidence to
sustain it. (B) The defendant must then briefly state
his
the
defendant's defense, and
briefly may state
his
the defendant's
evidence in support of it. (C) The party who would be defeated if no evidence were
offered on either side, first, must produce
his
that
party's
evidence, and the
adverse party must then produce
his
the
adverse
party's evidence. (D) The parties then shall be confined to rebutting
evidence, unless the court for good reasons, in the
furtherance
of
justice, permits them to offer evidence in their
original
cases. (E) When the evidence is concluded, either party may
present
written instructions to the court on matters of law and
request
them to be given to the jury, which instructions shall be
given or
refused by the court before the argument to the
jury is
commenced. (F) The parties then may submit or argue the case to the
jury. The party required first to produce
his
that party's
evidence shall
have the opening and closing arguments. If several
defendants,
having separate defenses, appear by different
counsel,
the
court
shall arrange their relative order. (G) The court, after the argument is concluded,
before
proceeding with other business, shall charge the jury. Any
charge
shall be reduced to writing by the court if either party,
before
the argument to the jury
is commenced, requests it.
Such
charge
may be examined by the
parties
before any
closing argument
is
made by any of the parties. A charge or
instruction, when
so
written and given,
shall not be orally
qualified, modified, or in
any manner explained to the
jury
by the
court. All written
charges and instructions shall be taken
by
the jurors in their
retirement, returned with their
verdict into
court, and shall
remain on file with the papers of
the case.
Sec. 2313.46. Sections 2313.01 to 2313.46, inclusive, and
2315.01 to 2315.24,
inclusive,
Chapter 2315. of the Revised Code
do not
contravene or affect any section of the
Revised Code
relating to
jurors in the inferior courts in any county of the
state.
Sec. 2315.07
2315.05. Because of the sickness of a juror, or
an
accident or calamity
which requires it, or with the consent of
both parties, or after jurors have
been kept together until it
satisfactorily appears that there is no
probability of their
agreeing, the court may discharge the jury.
Sec. 2315.08
2315.06. When the jury is discharged during a
trial or
after a cause is
submitted, such cause may at once be
tried again,
or on a future day, as the
court directs.
Sec. 2315.18
2315.07. Except as otherwise provided in this
section,
when
by the verdict in a civil action tried to a jury any
party in
the
action is entitled
to recover money from an adverse
party, the
jury shall determine
the amount of
the recovery in its
verdict. A
jury shall not determine the
amount of
punitive or
exemplary
damages recoverable by a party in a tort
action pursuant
to
section 2315.21 or another section of the Revised Code except
as
provided
in division (D)(5) of section 2315.21 of the Revised
Code. As used in this section,
"tort action" has the same meaning
as
in section
2315.21 of the Revised Code.
Sec. 2315.23
2315.08. So far as in their nature applicable,
sections
2315.01 to
2315.19, inclusive, of the Revised Code,
respecting
trials by jury, apply to
trials by the court.
Sec. 2315.24
2315.09. Parties to a question
which
that might
be the
subject of a civil
action, on filing an affidavit that the
controversy is real and the proceeding
in good faith to determine
their rights, may agree upon a case containing the
facts upon
which the controversy depends and present a submission of it to
any
court of competent jurisdiction, which. The court shall hear
and
determine the case and
render judgment as if an action were
pending. The case, the submission, and the judgment constitutes the
record of a
question submitted under this section. Such judgment shall be with costs, may be enforced, and shall
be subject to
reversal, in like manner, as if it were rendered in
an action, unless
otherwise provided in the submission.
Sec. 2315.19. (A)(1) Contributory negligence or implied
assumption of the risk
of the
complainant or of the person for
whom the
complainant is legal representative may be asserted as
an
affirmative defense to a negligence claim. (2) Contributory negligence or implied assumption of the
risk of a person does not
bar
the person or
his
the person's legal
representative
as
complainant from recovering damages that have
directly
and proximately resulted from the negligence of one or
more other persons, if the contributory
negligence or
implied
assumption of the risk of the complainant or
of the
person for
whom
he
the complainant is legal representative
was no
greater
than the combined negligence
of
all other persons from whom the
complainant seeks
recovery. However, any
compensatory
damages
recoverable by the complainant
shall be
diminished by an amount
that is
proportionately equal to the
percentage of negligence or
implied
assumption of the risk of the
complainant or of the
person
for whom
he
the
complainant is legal representative, which
percentage is determined pursuant
to division (B) of this section.
This section does not apply to actions
described in section
4113.03 of the Revised Code. (B) If contributory negligence or implied assumption of the
risk is asserted and
established as an affirmative defense to a
negligence claim, the
court in a
nonjury action shall make
findings of fact, and the
jury in a jury action
shall return a
general verdict accompanied
by answers to interrogatories, that
shall specify the following: (1) The total amount of the compensatory damages that
would
have been recoverable on that negligence claim but for the
negligence or implied assumption
of the
risk of the complainant or
the person for whom
he
the
complainant is legal representative; (2) The portion of the compensatory damages specified
under
division (B)(1) of this section that represents economic
loss; (3) The portion of the compensatory damages specified
under
division (B)(1) of this section that represents noneconomic
loss; (4) The percentage of negligenc or
implied assumption of the
risk that directly and
proximately
caused the injury, death,
or
loss to person or property, in
relation to one hundred per
cent,
that is attributable to the
complainant or the person for
whom he
is legal representative, and
the percentage of negligence
that
directly and proximately caused
the injury, death, or loss
to
person or property, in relation to
one hundred per cent, that
is
attributable to each party to the
action from whom the
complainant
seeks recovery. If the court or
jury must determine
percentages
of negligence under this division
for two or more
parties from
whom the complainant seeks recovery
and an issue of
vicarious
liability, including, but not limited
to, liability of
a principal
or master for the negligent actions
or omissions of
an agent or
servant, exists relative to those
parties, then, for
purposes of
determining such percentages, the
court in a nonjury
action shall
determine, or the jury in a jury
action pursuant to
an instruction
from the court shall determine,
that the parties
in question are
to be treated as a single party
to the extent
that any vicarious
liability is determined to exist
relative to
those parties. (C) After the court makes its findings of fact or after
the
jury returns its general verdict accompanied by answers to
interrogatories as described in division (B) of this section, the
court shall diminish the total amount of the compensatory damages
that would have been recoverable by an amount that is
proportionately equal to the percentage of negligence or implied
assumption of the risk that is
attributable to the complainant or
the person for whom
he
the complainant is legal representative,
which percentage was
determined pursuant to division (B) of this
section. If the
percentage of the negligence or
implied
assumption of the risk that is attributable to the complainant or
the person for whom
he
the complainant is
legal
representative is
greater than the total of the
percentages of the
negligence that
is attributable to all parties from whom
the
complainant seeks
recovery, which percentages were
determined pursuant to division
(B) of this section, the court
shall enter judgment in favor of
those parties. (D)(1) If contributory negligence or implied assumption of
the risk is asserted as an
affirmative
defense to a negligence
claim, if it is determined that the
complainant or the person for
whom
he
the complainant is
legal representative was contributorily
negligent or impliedly
assumed a risk and
that such contributory
negligence or
implied assumption of the risk was a direct and
proximate cause of
the injury, death, or loss to person or
property in
question, and
if the complainant is entitled to
recover compensatory
damages pursuant to this section from more
than one party, then,
after it
makes findings of fact or after the
jury returns its
general verdict
accompanied by answers to
interrogatories as
described in division (B) of this section, the
court shall enter
a
judgment that is in favor of the complainant
and
that
states all of the following: (a) Proportionate shares of the portion of the
compensatory
damages that represents noneconomic loss for each
party against
whom the judgment is entered and for the
complainant or the person
for whom he is legal representative,
which shares shall be
computed by multiplying the portion of the
compensatory damages
that represents noneconomic loss as
determined pursuant to
division (B)(3) of this section by the
respective percentages of
negligence or implied assumption of the
risk as determined
pursuant to division (B)(4) of this section; (b) In relation to the portion of the compensatory damages
that represents noneconomic loss as determined pursuant to
division (B)(3) of this section, each party against whom the
judgment is entered is liable to the complainant only for the
proportionate share of that party as described in division
(D)(1)(a) of this section; (c) In relation to the portion of the compensatory damages
that represents economic loss as determined pursuant to division
(B)(2) of this section, each party against whom the judgment is
entered is jointly and severally liable to the complainant for
the
entire amount of economic loss for which the complainant is
entitled to judgment as determined pursuant to divisions (B)(2)
and (C) of this section. (2) Sections 2307.31 and 2307.32 of the Revised Code apply
in relation to the portion of the compensatory damages that
represents economic loss and for which joint and several
liability
attaches under division (D)(1)(c) of this section. (E) As used in this section: (1)
"Economic loss" means any of the following types of
pecuniary harm: (a) All wages, salaries, or other compensation lost as a
result of an injury, death, or loss to person or property that is
a subject of a negligence claim; (b) All expenditures for medical care or treatment,
rehabilitation services, or other care, treatment, services,
products, or accommodations as a result of an injury, death, or
loss to person or property that is a subject of a negligence
claim; (c) Any other expenditures incurred as a result of an
injury, death, or loss to person or property that is a subject of
a negligence claim. (2)
"Negligence claim" means a civil action for damages
for
injury, death, or loss to person or property to the extent
that
such damages are sought or recovered based on allegation
or
proof
of negligence. (3)
"Noneconomic loss" means nonpecuniary harm that
results
from an injury, death, or loss to person or property that
is a
subject of a negligence claim, including, but not limited
to, pain
and suffering, loss of society, consortium,
companionship, care,
assistance, attention, protection, advice,
guidance, counsel,
instruction, training, or education, mental
anguish, and any other
intangible loss.
Sec. 2315.20. (A) As used in this section, "claimant,"
"harm,"
"product liability claim," and
"supplier"
have the same
meanings as in section
2307.71 of the Revised Code. (B)(1) Express or implied assumption of the risk may be
asserted as an affirmative defense to a product liability claim
under sections 2307.71 to 2307.80 of the Revised Code. (2) Subject to division (B)(3) of this section, if express
or implied assumption of the risk is asserted as an
affirmative
defense to a product liability claim under sections
2307.71 to
2307.80 of the Revised Code and if it is determined
that the
claimant expressly or impliedly assumed a risk and that
such
express or implied assumption of the risk was a direct
and
proximate cause of harm for which the claimant seeks to
recover
damages, the express or implied assumption of the risk is
a
complete bar to the recovery of those damages. (3) If implied assumption of the risk is asserted as an
affirmative defense to a product liability claim against a
supplier under division (A)(1) of section 2307.78
of the Revised
Code, section 2315.19 of the Revised Code is applicable to that
affirmative defense and shall be used to determine whether the
claimant is entitled to recover compensatory damages based on
that
claim and the amount of any recoverable compensatory
damages. (C)(1) Except as provided in division (C)(2) of this
section, contributory negligence
is not an affirmative defense to
a product liability claim under sections 2307.71 to 2307.80
of
the
Revised Code. (2) Contributory negligence may be asserted as an
affirmative defense to a product liability claim against a
supplier under division (A)(1) of section 2307.78 of the Revised
Code. If contributory negligence
is asserted as an affirmative
defense to such a product liability claim, section 2315.19 of the
Revised Code is applicable to that affirmative defense and shall
be used to determine whether the claimant is entitled to recover
compensatory damages based on that claim and the amount of any
recoverable compensatory damages.
Sec. 2315.21. (A) As used in this section: (1)
"Tort action" means a civil action for damages for
injury
person or property.
"Tort
action"
includes a
product liability
claim for damages for injury or loss
to person
or property that is
subject to sections 2307.71 to
2307.80
of the Revised Code, but
does not include a civil
action
for damages for
a breach of
contract or another agreement between
persons. (2)
"Trier of fact" means the jury or, in a
nonjury
action,
the court. (B) Subject to division (D) of this
section,
punitive or
exemplary damages are not recoverable from a defendant in
question
in a tort action unless both of the following apply: (1) The actions or omissions of that defendant demonstrate
malice, aggravated or egregious fraud, oppression, or insult, or
that defendant as principal or master authorized, participated
in,
or ratified actions or omissions of an agent or servant that
so
demonstrate; (2) The
plaintiff in
question has adduced proof of actual
damages that resulted from
actions or omissions as described in
division (B)(1) of this
section. (C)(1) In a tort action, the trier of fact shall
determine
the liability of any defendant for punitive or
exemplary damages. (2) In a tort action, whether the trier of fact is a jury
or
the court, if the trier of fact determines that any defendant
is
liable for punitive or exemplary damages, the amount of
those
damages shall be determined by the court. (3) In a tort action, the burden of proof
shall be upon a
plaintiff
in question, by clear and
convincing
evidence,
to
establish that
he
the plaintiff is entitled to
recover punitive or
exemplary damages. (D) This section does not apply to tort actions against
the
state in the court of claims or to
the extent that another
section
of the Revised Code
expressly provides any of the
following: (1) Punitive or exemplary damages are recoverable from a
defendant in question in a tort action on a basis other than that
the actions or omissions of that defendant demonstrate malice,
aggravated or egregious fraud, oppression, or insult, or on a
basis other than that the defendant in question as principal or
master authorized, participated in, or ratified actions or
omissions of an agent or servant that so demonstrate; (2) Punitive or exemplary damages are recoverable from a
defendant in question in a tort action irrespective of whether
the
plaintiff in question has adduced proof of actual damages; (3) The burden of proof upon a plaintiff in question to
recover punitive or exemplary damages from a defendant in
question
in a tort action is one other than clear and convincing
evidence; (4) Punitive or exemplary damages are not recoverable from
a
defendant in question in a tort action; (5) The amount of punitive or exemplary damages awarded
against a defendant in question in a tort action may be
determined
by a jury as the trier of fact.
Sec. 2317.62. (A) As used in this section: (1)
"Annuity" means an annuity that would be purchased
from
either of the following types of insurance companies: (a) An insurance company that the A.M. Best Company, in
its
most recently published rating guide of life insurance
companies,
has rated A or better and has rated XII or higher as
to financial
size or strength; (b)(i) An insurance company that the superintendent of
insurance, under rules adopted pursuant to Chapter 119. of the
Revised Code for purposes of implementing this division,
determines is licensed to do business in this state and,
considering the factors described in division (A)(1)(b)(ii) of
this section, is a stable insurance company that issues annuities
that are safe and desirable; (ii) In making determinations as described in division
(A)(1)(b)(i) of this section, the superintendent shall be guided
by the principle that the trier of fact in a tort action should
be
presented only with evidence as to the cost of annuities that
are
safe and desirable for the plaintiffs in such an action
who
are
awarded damages. In making such determinations, the
superintendent shall consider the financial condition, general
standing, operating results, profitability, leverage, liquidity,
amount and soundness of reinsurance, adequacy of reserves, and
the
management of any insurance company in
question and
also may
consider ratings, grades, and classifications of any
nationally
recognized rating services of insurance companies and
any other
factors relevant to the making of such
determinations. (2)
"Future damages" means damages that result from an
injury
or loss to person or property that is a subject of a tort
action
and that will accrue after the verdict or determination of
liability by the trier of fact is rendered in that tort action. (3)
"Tort action" means a civil action for damages for
injury
or loss to person or property.
"Tort
action"
includes a
product
liability claim that is subject to sections
2307.71 to
2307.80 of
the Revised Code, but does not
include a
civil action
for damages
for a breach of contract or another
agreement between
persons. (4)
"Trier of fact" means the jury or, in a nonjury
action,
the court. (B) Consistent with the Rules of
Evidence,
any party to a
tort action may present evidence of the
cost of an annuity in
connection with any issue of recoverable
future damages. If such
evidence is presented, then the
trier of fact may consider that
evidence in determining the future
damages suffered by reason of
an injury or loss to person or
property that is a subject of the
tort action. If such
evidence is presented, the present
value in
dollars of any annuity
is its cost.
Sec. 2323.51. (A) As used in this section: (1)
"Conduct" means any of the following: (a) The filing of a civil action,
the assertion of a claim,
defense, or other position in connection with
a civil action,
or
the taking of any other action in
connection with a
civil action; (b) The filing by an inmate of a civil action or appeal
against a
government entity or employee, the assertion of a claim,
defense or other
position in connection with a civil action of
that nature or the assertion of
issues of law in an appeal of that
nature, or the taking of any other action
in connection with a
civil action or appeal of that nature. (2)
"Frivolous conduct" means either of the following: (a) Conduct of an inmate or other party to a
civil action,
of an inmate who has filed an appeal of the type
described in
division (A)(1)(b) of this
section, or of the inmate's or other
party's
counsel of record that satisfies either of the
following: (i) It obviously serves merely to harass or maliciously
injure another party to the civil action or appeal. (ii) It is not warranted under existing law and cannot be
supported by a good faith argument for an extension,
modification,
or reversal of existing law. (b) An inmate's commencement of a civil action or appeal
against
a government entity or employee when any of the following
applies: (i) The claim that is the basis of the civil action fails to
state a claim or the issues of law that are the basis of the
appeal fail to
state any issues of law. (ii) It is clear that the inmate cannot prove material facts
in
support of the claim that is the basis of the civil action or
in support of
the issues of law that are the basis of the appeal. (iii) The claim that is the basis of the civil action
is
substantially
similar to a claim in a previous civil action
commenced by the inmate or the
issues of law that are the basis of
the appeal are substantially similar to
issues of law raised in a
previous appeal commenced by the inmate, in that the
claim that is
the basis of the current civil action or the issues of law that
are the basis of the current appeal involve the same parties or
arise from the
same operative facts as the claim or issues of law
in the previous civil
action or appeal. (3)
"Civil action or appeal against a government entity or
employee,"
"inmate,"
"political subdivision," and
"employee" have
the same
meanings as in section
2969.21 of the Revised Code. (4)
"Reasonable attorney's fees" or
"attorney's fees," when
used in
relation to a civil action or appeal against a government
entity or employee,
includes both of the following, as applicable: (a) The approximate amount of the compensation, and the
fringe
benefits, if any, of the attorney general, an assistant
attorney general, or special counsel appointed by the attorney
general that has been or will be paid by the state in connection
with the legal services that were rendered by the attorney
general, assistant attorney general, or special counsel in the
civil action or appeal against the government entity or employee,
including,
but not limited to, a civil action or appeal commenced
pro se
by an inmate, and that were necessitated by frivolous
conduct of
an inmate represented by counsel of record, the counsel
of record of an inmate, or a pro se inmate. (b) The approximate amount of the compensation, and the
fringe benefits, if any, of a prosecuting attorney or other chief
legal
officer of a
political subdivision, or an assistant to a
chief legal officer of those
natures, who has been or will be paid
by a political subdivision in connection
with the legal services
that were rendered by the chief legal officer or
assistant in the
civil action or appeal against the government entity or
employee,
including, but not limited to, a civil action or appeal commenced
pro se by an inmate, and that were necessitated by frivolous
conduct of an
inmate represented by counsel of record, the counsel
of record of an inmate,
or a pro se inmate. (5)
"State" has the same meaning as in section 2743.01 of
the
Revised
Code.
(6)
"State correctional institution" has the same meaning
as
in section 2967.01 of the
Revised
Code.
(B)(1) Subject to divisions (B)(2) and (3), (C), and (D)
of
this section, at any time prior
to the commencement of the
trial
in a civil action or within twenty-one days after the entry
of
judgment in a civil action or at any time prior to the hearing in
an
appeal of the type described in division (A)(1)(b) of
this
section that is filed by an inmate or within twenty-one days after
the
entry of judgment in an appeal of that nature, the court may
award
court costs, reasonable
attorney's fees, and other
reasonable expenses incurred in
connection with the civil action
or appeal to any party to
the civil action or appeal who was
adversely affected by
frivolous conduct. The award may be
assessed as provided in
division (B)(4) of this section. (2) An award may be made
pursuant to division (B)(1) of this
section upon the motion of a
party to a civil action or an appeal
of the type described in that
division, but only after the court
does all of the
following: (a) Sets a date for a hearing to be conducted in accordance
with
division (B)(2)(c) of this section, to
determine whether
particular conduct was frivolous, to determine, if the
conduct was
frivolous, whether any party was adversely affected by it,
and to
determine, if an award is to be made, the amount of that
award; (b) Gives notice of the date of the hearing described in
division (B)(2)(a) of this section to each party or counsel of
record who allegedly engaged in frivolous conduct and to each
party who allegedly was adversely affected by frivolous conduct; (c) Conducts the hearing described in division (B)(2)(a)
of
this section in accordance with this division, allows the parties
and counsel of record
involved to present any relevant evidence at
the hearing,
including evidence of the type described in division
(B)(5) of
this section, determines that the conduct involved
was
frivolous and that a party was adversely affected by it, and then
determines the amount of the award to be made. If any party or
counsel of
record who allegedly engaged in or allegedly
was
adversely affected by frivolous conduct is confined in a state
correctional
institution or in a county, multicounty, municipal,
municipal-county, or
multicounty-municipal jail or workhouse, the
court, if practicable, may hold
the hearing by telephone or, in
the alternative, at the institution, jail, or
workhouse in which
the party or counsel is confined. (3) The amount of an award made pursuant to
division (B)(1)
of this section that represents reasonable attorney's
fees shall
not exceed, and may be
equal to or less than, whichever of the
following is applicable: (a) If the party is being represented on a contingent fee
basis, an amount that corresponds to reasonable fees that would
have been charged for legal services had the party been
represented on an
hourly fee
basis or another basis other than a
contingent fee basis; (b) In all situations other than that described in
division
(B)(3)(a) of this section, the attorney's fees that were
reasonably incurred by a party. (4) An award made pursuant to
division (B)(1) of this
section may be made against a party, the
party's
counsel of
record, or both. (5)(a) In connection with the hearing described in division
(B)(2)(a) of this section, each party who may be awarded
reasonable
attorney's fees and the party's counsel of record may
submit
to the court
or be ordered by the court to submit to it,
for consideration in
determining the amount of the reasonable
attorney's
fees, an itemized list or
other evidence of the legal
services rendered, the time expended in
rendering the
services,
and whichever of the following is applicable: (i) If the party is being represented by that counsel on a
contingent fee basis, the reasonable attorney's fees that would
have been associated with those services had the party been
represented by that counsel on an hourly fee basis or another
basis other than a contingent fee basis; (ii) In all situations other than those described in
division (B)(5)(a)(i) of this section, the attorney's fees
associated with those services. (b) In connection with the hearing described in
division
(B)(2)(a) of this
section, each party who may be awarded court
costs and other
reasonable expenses incurred in connection with
the civil action
or appeal may submit to the court or be ordered
by the court to submit to
it, for consideration in determining the
amount of the costs and
expenses, an itemized list or other
evidence of the costs and
expenses incurred in
connection with
that action or appeal,
including, but not limited to, expert
witness fees and expenses
associated with discovery. (C) An award of reasonable attorney's fees under this
section does not affect or determine the amount of or the manner
of computation of attorney's fees as between an attorney and the
attorney's client. (D) This section does not affect or limit the application
of
any provision of the Rules of Civil Procedure, the Rules
of
Appellate Procedure, or another court rule
or section of the
Revised Code to the extent that the
provision prohibits an award
of court costs,
attorney's
fees, or other expenses incurred in
connection with a particular
civil action or appeal or authorizes
an
award of court costs, attorney's fees, or other
expenses
incurred in connection with a particular civil action or appeal
in
a specified manner, generally, or subject to limitations.
Sec. 2501.02. Each judge of a court of appeals shall have
been admitted to practice as an attorney at law in this state and
have, for a total of six years preceding
his
the judge's
appointment or
commencement of
his
the judge's term, engaged in
the practice of
law in this
state or served as a judge of a court
of record in any
jurisdiction in the United States, or both. One
judge shall be
chosen in each court of appeals district every two
years, and
shall hold office for six years, beginning on the ninth
day of
February next after
his
the judge's election.
In In addition to the original
jurisdiction conferred by Section
3 of Article IV, Ohio
Constitution, the court shall have
jurisdiction: upon an appeal
upon questions of law to review,
affirm, modify, set aside, or
reverse judgments or final orders of
courts of record inferior to
the court of appeals within the
district, including the finding,
order, or judgment of a juvenile
court that a child is
delinquent, neglected, abused, or
dependent,
for prejudicial
error
committed by such lower court. The court, on good cause shown, may issue writs of
supersedeas in any case, and all other writs, not specially
provided for or prohibited by statute, necessary to enforce the
administration of justice.
Sec. 2743.18. (A)(1) Prejudgment interest shall be allowed
with respect to a civil action on which a judgment or
determination is rendered against the state for the same period
of
time and at the same rate as allowed between private parties
to a
suit. (2) The court of claims, in its discretion, may deny
prejudgment interest for any period of undue delay between the
commencement of the civil action and the entry of a judgment
or
determination against the state, for which it finds the
claimant
to have been responsible. (B)(1) Except as otherwise provided in division
(B)(2) of
this section, interest shall be allowed on a judgment
or
determination rendered against the state in a civil
action
pursuant to this chapter at the same rate that is applicable
to
judgments rendered against private parties to a suit as specified
in
division (A) of section 1343.03 of the Revised Code and for
each day
between the date of entry of the judgment or the
determination pursuant to
division (C) of section 2743.10 of the
Revised Code and the date
of payment of the judgment or
determination pursuant to division
(C)(3) or
(6) of section
2743.19 of the Revised Code, or for sixty days from the date of
entry of the judgment or the determination, whichever is less. (2) If the court of claims renders a judgment pursuant to
this
chapter against the state in a civil action or the clerk of
the court of
claims enters an administrative determination under
section 2743.10 of the
Revised Code
against the state in a civil
action, the civil action is not based on tortious
conduct, and the
claimant in the court of claims prevails in any appeal of
the
judgment or determination, postjudgment interest
shall be paid
with respect to the judgment or determination rendered against
the
state at the same rate that is applicable to judgments rendered
against
private parties to a suit as set forth in
division (A) of
section
1343.03 of the Revised Code and for each
day between the
date of entry of the judgment or
determination and the
date of
payment of the judgment or determination pursuant to
division
(C)(3) or (6) of section 2743.19 of the Revised Code.
Sec. 2743.19. (A) In rendering a judgment against the
state, the court of claims shall determine and specify in the
judgment the department, office, commission, board, agency,
institution, or other instrumentality of the state against which
a
determination of liability has been made. The court of claims
shall award compensation for fees to a prevailing party in an
action under this chapter in accordance with section 2335.39 of
the Revised Code. (B) No execution shall issue against the state or any
department, board, office, commission, agency, institution, or
other instrumentality of the state upon any judgment for the
payment of money. (C) Judgments shall be accomplished only through the
following procedure, which may be enforced by writ of mandamus
directed to the appropriate official: (1) The clerk of the court of claims shall forward a
certified copy of the judgment to the director of budget and
management and the attorney general or the officer who signed the
investigative report for the department, office, commission,
board, agency, institution, or other instrumentality of the state
against which a determination of liability has been made. (2) The expense of a judgment paid, plus interest at the
same rate that is applicable to judgments rendered against
private
parties to a suit as specified in
division (A) of section 1343.03
of
the Revised
Code and for the number of days determined pursuant
to division
(B)(1) or (2) of section 2743.18 of the Revised Code,
shall be charged by the
director of budget and management against
available unencumbered moneys in the appropriations to whichever
state departments, boards, offices, commissions, agencies,
institutions, or other instrumentalities are named in the
judgment. The director of budget and management shall have sole
discretion to determine whether or not unencumbered moneys in a
particular appropriation are available for satisfaction of a
judgment. (3) The director of budget and management, upon receipt of
the certified copy
of the judgment from the clerk of the court of
claims pursuant to
division (C)(1) of this section, shall provide
for payment of the
judgment creditor in the amount of the judgment
certified by the
clerk of the court of claims, plus interest. (4) If the director of budget and management determines that
sufficient
unencumbered moneys do not exist in the particular
appropriations
to pay the judgment and interest, the director may
make application
for payment of the judgment and interest out of
the emergency purposes account
or another appropriation for
emergencies or
contingencies. (5) If moneys in the emergency purposes account or another
appropriation for
emergencies or contingencies are not used
to pay
the judgment and interest, the director of budget and management
shall
request the general assembly to make an appropriation
sufficient to pay the
judgment and interest, and no payment shall
be made until the appropriation
has been
made. The appropriate
state department, board, office,
commission, agency, institution,
or other instrumentality shall
make this appropriation request
during the current biennium and
during each succeeding biennium
until a sufficient appropriation
is made. (6) If the judgment is against any department, board,
office, commission, agency, institution, or other instrumentality
of the state whose funds are not handled by the director of budget
and
management, the instrumentality against which the judgment is
made,
within sixty days after the date of the judgment, shall pay
the judgment
creditor in the amount of the judgment plus interest
at
the same rate that is applicable to judgments rendered against
private parties to a suit as specified in
division (A) of section
1343.03 of
the Revised
Code and for the number of days determined
pursuant
to division (B)(1) or (2) of section 2743.18 of the
Revised Code. (D) No judgment shall be forwarded by the clerk of the
court
of claims to the director of budget and management until all
appeals
have been
determined and all rights to appeal have been
exhausted, except
as otherwise provided in this section. If a
party to a civil
action against the state appeals from only a
portion of a
judgment and if a remaining portion provides for the
payment of
money by the state, a certified copy of the judgment
and
a copy of the notice of appeal shall be forwarded to the
director, and that part of the judgment calling for the payment
of
money by the state and not a subject of the appeal shall be
processed for payment as described in this section.
Sec. 2744.01. As used in this chapter: (A)
"Emergency call" means a call to duty, including, but
not
limited to, communications from citizens, police dispatches,
and
personal observations by peace officers of inherently
dangerous
situations that demand an immediate response on the
part
of a
peace officer. (B)
"Employee" means an officer, agent, employee, or
servant,
whether or not compensated or full-time or part-time,
who
is
authorized to act and is acting within the scope of
the
officer's,
agent's, employee's, or servant's
employment for a
political
subdivision.
"Employee" does not
include an independent
contractor
and does not include any
individual engaged by a school
district
pursuant to section
3319.301 of the Revised Code.
"Employee"
includes any elected or
appointed official of a
political
subdivision.
"Employee" also
includes a person who has
been
convicted of or pleaded guilty to
a criminal offense and who
has
been sentenced to perform
community service work in a
political
subdivision whether
pursuant to section 2951.02 of the
Revised
Code or otherwise, and
a child who is found to be a
delinquent
child and who is ordered
by a juvenile court pursuant
to section
2151.355 of the Revised
Code to perform community
service or
community work in a
political subdivision. (C)(1)
"Governmental function" means a function of a
political subdivision that is specified in division (C)(2) of
this
section or that satisfies any of the following: (a) A function that is imposed upon the state as an
obligation of sovereignty and that is performed by a political
subdivision voluntarily or pursuant to legislative requirement; (b) A function that is for the common good of all citizens
of the state; (c) A function that promotes or preserves the public
peace,
health, safety, or welfare; that involves activities that
are not
engaged in or not customarily engaged in by
nongovernmental
persons; and that is not specified in division
(G)(2) of this
section as a proprietary function. (2) A
"governmental function" includes, but is not limited
to, the following: (a) The provision or nonprovision of police, fire,
emergency
medical, ambulance, and rescue services or protection; (b) The power to preserve the peace; to prevent and
suppress
riots, disturbances, and disorderly assemblages; to
prevent,
mitigate, and clean up releases of oil and hazardous and
extremely
hazardous substances as defined in section 3750.01 of
the Revised
Code; and to protect persons and property; (c) The provision of a system of public education; (d) The provision of a free public library system; (e) The regulation of the use of, and the maintenance and
repair of, roads, highways, streets, avenues, alleys, sidewalks,
bridges, aqueducts, viaducts, and public grounds; (f) Judicial, quasi-judicial, prosecutorial, legislative,
and quasi-legislative functions; (g) The construction, reconstruction, repair, renovation,
maintenance, and operation of buildings that are used in
connection with the performance of a governmental function,
including, but not limited to, office buildings and courthouses; (h) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of jails, places of juvenile
detention, workhouses, or any other detention facility, as
defined
in section 2921.01 of the Revised Code; (i) The enforcement or nonperformance of any law; (j) The regulation of traffic, and the erection or
nonerection of traffic signs, signals, or control devices; (k) The collection and disposal of solid wastes, as
defined
in section 3734.01 of the Revised Code, including, but
not limited
to, the operation of solid waste disposal facilities,
as
"facilities" is defined in that section, and the collection
and
management of hazardous waste generated by households. As
used in
division (C)(2)(k) of this section,
"hazardous waste
generated by
households" means solid waste originally generated
by individual
households that is listed specifically as hazardous
waste in or
exhibits one or more characteristics of hazardous
waste as defined
by rules adopted under section 3734.12 of the
Revised Code, but
that is excluded from regulation as a hazardous
waste by those
rules. (l) The provision or nonprovision, planning or design,
construction, or reconstruction of a public improvement,
including, but not limited to, a sewer system; (m) The operation of a human services department or
agency,
including, but not limited to, the provision of
assistance to aged
and infirm persons and to persons who are
indigent; (n) The operation of a health board, department, or
agency,
including, but not limited to, any statutorily required
or
permissive program for the provision of immunizations or other
inoculations to all or some members of the public, provided that
a
"governmental function" does not include the supply,
manufacture,
distribution, or development of any drug or vaccine
employed in
any such immunization or inoculation program by any
supplier,
manufacturer, distributor, or developer of the drug or
vaccine; (o) The operation of mental health facilities, mental
retardation or developmental disabilities facilities, alcohol
treatment and control centers, and children's homes or agencies; (p) The provision or nonprovision of inspection services
of
all types, including, but not limited to, inspections in
connection with building, zoning, sanitation, fire, plumbing, and
electrical codes, and the taking of actions in connection with
those types of codes, including, but not limited to, the approval
of plans for the construction of buildings or structures and the
issuance or revocation of building permits or stop work orders in
connection with buildings or structures; (q) Urban renewal projects and the elimination of slum
conditions; (r) Flood control measures; (s) The design, construction, reconstruction, renovation,
operation, care, repair, and maintenance of a township cemetery; (t) The issuance of revenue obligations under section
140.06
of the Revised Code; (u) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of any park, playground,
playfield, indoor recreational facility, zoo, zoological park,
bath, swimming pool, pond, water park, wading pool, wave pool,
water
slide, and other type of
aquatic facility, or golf course; (v) The provision of public defender services by a county
or
joint county public defender's office pursuant to Chapter 120.
of
the Revised Code; (w) A function that the general assembly mandates a
political subdivision to perform. (D)
"Law" means any provision of the constitution,
statutes,
or rules of the United States or of this state;
provisions of
charters, ordinances, resolutions, and rules of
political
subdivisions; and written policies adopted by boards of
education.
When used in connection with the
"common law," this
definition
does not apply. (E)
"Motor vehicle" has the same meaning as in section
4511.01 of the Revised Code. (F)
"Political subdivision" or
"subdivision" means a
municipal corporation, township, county, school district, or
other
body corporate and politic responsible for governmental
activities
in a geographic area smaller than that of the state.
"Political
subdivision" includes, but is not limited to, a county
hospital
commission appointed under section 339.14 of the Revised
Code,
regional planning commission created pursuant to section
713.21 of
the Revised Code, county planning commission created
pursuant to
section 713.22 of the Revised Code, joint planning
council created
pursuant to section 713.231 of the Revised Code,
interstate
regional planning commission created pursuant to
section 713.30 of
the Revised Code, port authority created
pursuant to section
4582.02 or 4582.26 of the Revised Code or in
existence on December
16, 1964, regional council established by
political subdivisions
pursuant to Chapter 167. of the Revised
Code, emergency planning
district and joint emergency planning
district designated under
section 3750.03 of the Revised Code,
joint emergency medical
services district created pursuant to section 307.052
of the
Revised Code, fire and ambulance district created pursuant to
section
505.375 of the Revised Code, joint interstate emergency
planning district
established
by an agreement entered into under
that section, county solid waste
management district and joint
solid waste management district
established under section 343.01
or 343.012 of the Revised Code, and
community school established
under Chapter 3314. of the Revised Code. (G)(1)
"Proprietary function" means a function of a
political
subdivision that is specified in division (G)(2) of
this
section
or that satisfies both of the following: (a) The function is not one described in division
(C)(1)(a)
or (b) of this section and is not one specified in
division (C)(2)
of this section; (b) The function is one that promotes or preserves the
public peace, health, safety, or welfare and that involves
activities that are customarily engaged in by nongovernmental
persons. (2) A
"proprietary function" includes, but is not limited
to, the following: (a) The operation of a hospital by one or more political
subdivisions; (b) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of a public cemetery other
than
a township cemetery; (c) The establishment, maintenance, and operation of a
utility, including, but not limited to, a light, gas, power, or
heat plant, a railroad, a busline or other transit company, an
airport, and a municipal corporation water supply system; (d) The maintenance, destruction, operation, and upkeep of
a
sewer system; (e) The operation and control of a public stadium,
auditorium, civic or social center, exhibition hall, arts and
crafts center, band or orchestra, or off-street parking facility. (H)
"Public roads" means public roads, highways, streets,
avenues, alleys, and bridges within a political subdivision.
"Public roads"
does not include berms, shoulders, rights-of-way,
or traffic control
devices
unless the
traffic control devices are
mandated by the Ohio manual of uniform
traffic control devices. (I)
"State" means the state of Ohio, including, but not
limited to, the general assembly, the supreme court, the offices
of all elected state officers, and all departments, boards,
offices, commissions, agencies, colleges and universities,
institutions, and other instrumentalities of the state of Ohio.
"State" does
not include political subdivisions.
Sec. 2744.02. (A)(1) For the purposes of this chapter,
the
functions of political subdivisions are hereby classified as
governmental functions and proprietary functions. Except as
provided in division (B) of this section, a political subdivision
is not liable in damages in a civil action for injury, death, or
loss to person or property allegedly caused by any act or
omission
of the political subdivision or an employee of the
political
subdivision in connection with a governmental or
proprietary
function. (2) Subject to statutory limitations upon their monetary
jurisdiction, the courts of common pleas, the municipal courts,
and the county courts have jurisdiction to hear and determine
civil actions governed by or brought pursuant to this chapter. (B) Subject to sections 2744.03 and 2744.05 of the Revised
Code, a political subdivision is liable in damages in a civil
action for injury, death, or loss to person or property
allegedly
caused by an act or omission of the political
subdivision or of
any of its employees in connection with a
governmental or
proprietary function, as follows: (1) Except as otherwise provided in this division,
political
subdivisions are liable for injury, death, or loss to
person or
property caused by the negligent operation of any
motor vehicle by
their employees upon the public roads, highways, or streets when
the employees are
engaged within the scope of their employment and
authority. The following are
full defenses to that liability: (a) A member of a municipal corporation police department
or
any other police agency was operating a motor vehicle while
responding to an emergency call and the operation of the vehicle
did not constitute willful or wanton misconduct; (b) A member of a municipal corporation fire department or
any other firefighting agency was operating a motor vehicle while
engaged in duty at a fire, proceeding toward a place where a fire
is in progress or is believed to be in progress, or answering
any
other emergency alarm and the operation of the vehicle did
not
constitute willful or wanton misconduct; (c) A member of an emergency medical service owned or
operated by a political subdivision was operating a motor vehicle
while responding to or completing a call for emergency medical
care or treatment, the member was holding a valid commercial
driver's license issued pursuant to Chapter 4506. or a driver's
license issued pursuant to Chapter 4507. of the Revised Code, the
operation of the vehicle did not constitute willful or wanton
misconduct, and the operation complies with the precautions of
section 4511.03 of the Revised Code. (2) Except as otherwise provided in sections 3314.07
and
3746.24 of the Revised Code,
political subdivisions are liable for
injury, death,
or loss to person or property caused by the
negligent
performance of acts by their employees with respect to
proprietary functions of the political subdivisions. (3) Except as otherwise provided in section 3746.24 of the
Revised Code,
political subdivisions are liable for injury, death,
or loss to person or property caused by their
negligent failure
to
keep
public roads, highways, streets, avenues, alleys, sidewalks,
bridges, aqueducts, viaducts, or public grounds within the
political subdivisions open, in repair
and other negligent failure
to remove obstructions from
public roads, and free from nuisance,
except that it is a full defense to that liability, when a bridge
within a municipal corporation is involved, that the municipal
corporation does not have the responsibility for maintaining or
inspecting the bridge. (4) Except as otherwise provided in section 3746.24 of the
Revised Code,
political subdivisions are liable for injury, death,
or loss to person or property that is caused by the negligence
of
their employees and that occurs within or on the grounds of, and
is due to physical defects within or on the grounds of,
buildings
that are used in connection with the performance of a
governmental
function, including, but not limited to, office
buildings and
courthouses, but not including jails, places of
juvenile
detention, workhouses, or any other detention facility,
as defined
in section 2921.01 of the Revised Code. (5) In addition to the circumstances described in
divisions
(B)(1) to (4) of this section, a political subdivision
is liable
for injury, death, or loss to person or property when
liability is
expressly imposed upon the political subdivision by
a section of
the Revised Code, including, but not limited to,
sections 2743.02
and 5591.37 of the Revised Code. Liability
shall not be construed
to exist under another section of the
Revised Code merely because
that section imposes a responsibility
or
mandatory duty
is imposed
upon a political subdivision,
or because of a general
authorization
in that section that a political subdivision may sue
and be sued, or because
that section
uses the term "shall" in a
provision pertaining to a political
subdivision. (C) An order that denies a political subdivision or an
employee of a
political subdivision the benefit of an alleged
immunity from liability as
provided in Chapter 2744. or any other
provision of the law is a final order.
Sec. 2744.03. (A) In a civil action brought against a
political subdivision or an employee of a political subdivision
to
recover damages for injury, death, or loss to persons or
property
allegedly caused by any act or omission in connection
with a
governmental or proprietary function, the following
defenses or
immunities may be asserted to establish nonliability: (1) The political subdivision is immune from liability if
the employee involved was engaged in the performance of a
judicial, quasi-judicial, prosecutorial, legislative, or
quasi-legislative function. (2) The political subdivision is immune from liability if
the conduct of the employee involved, other than negligent
conduct, that gave rise to the claim of liability was required by
law or authorized by law, or if the conduct of the employee
involved that gave rise to the claim of liability was necessary
or
essential to the exercise of powers of the political
subdivision
or employee. (3) The political subdivision is immune from liability if
the action or failure to act by the employee involved that gave
rise to the claim of liability was within the discretion of the
employee with respect to policy-making, planning, or enforcement
powers by virtue of the duties and responsibilities of the office
or position of the employee. (4) The political subdivision is immune from liability if
the action or failure to act by the political subdivision or
employee involved that gave rise to the claim of liability
resulted in injury or death to a person who had been convicted of
or pleaded guilty to a criminal offense and who, at the time of
the injury or death, was serving any portion of the person's
sentence by
performing community service work for or in the
political
subdivision whether pursuant to section 2951.02 of the
Revised
Code or otherwise, or resulted in injury or death to a
child who
was found to be a delinquent child and who, at the time
of the
injury or death, was performing community service or
community
work for or in a political subdivision in accordance
with the
order of a juvenile court entered pursuant to section
2151.355 of
the Revised Code, and if, at the time of the person's
or
child's injury or death, the
person or child was covered for
purposes of Chapter 4123. of the
Revised Code in connection with
the community service or
community work for or in the political
subdivision. (5) The political subdivision is immune from liability if
the injury, death, or loss to persons or property resulted from
the exercise of judgment or discretion in determining whether to
acquire, or how to use, equipment, supplies, materials,
personnel,
facilities, and other resources unless the judgment
or discretion
was exercised with malicious purpose, in bad faith,
or in a wanton
or reckless manner. (6) In addition to any immunity or defense referred to in
division (A)(7) of this section and in circumstances not covered
by that division or sections 3314.07 and 3746.24 of the
Revised
Code, the employee is
immune from liability unless
one of the
following applies: (a) The employee's acts or omissions were manifestly
outside
the scope of the employee's employment or official
responsibilities; (b) The employee's acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; (c) Liability is expressly imposed upon the employee by a
section of the Revised Code.
Liability shall not be construed to
exist
under another section of the Revised Code merely because
that section imposes
a responsibility or mandatory duty upon an
employee, because of a general
authorization in that section that
an employee may sue and be sued, or because
the section uses the
term
"shall" in a provision pertaining to an employee. (7) The political subdivision, and an employee who is a
county prosecuting attorney, city director of law, village
solicitor, or similar chief legal officer of a political
subdivision, an assistant of any such person, or a judge of a
court of this state is entitled to any defense or immunity
available at common law or established by the Revised Code. (B) Any immunity or defense conferred upon, or referred to
in connection with, an employee by division (A)(6) or (7) of this
section does not affect or limit any liability of a political
subdivision for an act or omission of the employee as provided in
section 2744.02 of the Revised Code.
Sec. 2744.04. (A) An action against a political
subdivision
to recover damages for injury, death, or loss to
persons or
property allegedly caused by any act or omission in
connection
with a governmental or proprietary function, whether
brought as an
original action, cross-claim, counterclaim,
third-party claim, or
claim for subrogation, shall be brought
within two years after the
cause of action arose, or
within any
applicable shorter
period of
time for bringing the action
provided by the Revised
Code. This
division applies to actions
brought against political subdivisions
by all persons,
governmental entities, and the state. (B) In the complaint filed in a civil action against a
political subdivision or an employee of a political subdivision
to
recover damages for injury, death, or loss to persons or
property
allegedly caused by an act or omission in connection
with
a
governmental or proprietary function, whether filed in an
original
action, cross-claim, counterclaim, third-party claim, or
claim for
subrogation, the complainant shall include a demand for
a judgment
for the damages that the judge in a nonjury trial or
the jury in a
jury trial finds that the complainant is entitled
to
be awarded,
but shall not specify in that demand any monetary
amount for
damages sought.
Sec. 2744.05. Notwithstanding any other provisions of the
Revised Code or rules of a court to the contrary, in an action
against a political subdivision to recover damages for injury,
death, or loss to person or property caused by an act or
omission
in connection with a governmental or proprietary
function: (A) Punitive or exemplary damages shall not be awarded. (B)(1) If a claimant receives or is entitled to receive
benefits for injuries or loss allegedly incurred from a policy or
policies of insurance or any other source, the benefits shall be
disclosed to the court, and the amount of the benefits shall be
deducted from any award against a political subdivision
recovered
by that claimant. No insurer or other person is
entitled to bring
an action under a subrogation provision in an
insurance or other
contract against a political subdivision with
respect to those
benefits.
The amount of the
benefits shall be deducted from an
award against a political subdivision under
division (B)(1) of
this section regardless of whether the claimant
may be under an
obligation to pay back the benefits upon recovery, in whole or
in
part, for the claim. A claimant whose benefits have been deducted
from an
award under division (B)(1) of this section is not
considered fully
compensated and shall not be required to
reimburse a subrogated claim for
benefits deducted from an award
pursuant to division (B)(1) of this
section. (2) Nothing in
this division
(B)(1) of this
section shall be
construed to do either of the following:
(a)(1) Limit the rights of
a beneficiary under a life
insurance
policy or the rights of sureties under fidelity or
surety bonds;
(b)(2) Prohibit the department of job and family services
from
recovering
from the political subdivision, pursuant to
section
5101.58 of the Revised
Code, the cost of
medical
assistance
benefits provided under Chapter 5107., 5111., or
5115.
of the
Revised Code.
(C)(1) There shall not be any limitation on compensatory
damages that represent the actual loss of the person who is
awarded the damages. However, except in wrongful death actions
brought pursuant to Chapter 2125. of the Revised Code, damages
that arise from the same cause of action, transaction or
occurrence, or series of transactions or occurrences and that do
not represent the actual loss of the person who is awarded the
damages shall not exceed two hundred fifty thousand dollars in
favor of any one person. The limitation on damages that do not
represent the actual loss of the person who is awarded the
damages
provided in this division does not apply to court costs
that are
awarded to a plaintiff, or to interest on a judgment
rendered in
favor of a plaintiff, in an action against a
political
subdivision. (2) As used in this division, "the actual loss of the
person
who is awarded the damages" includes all of the following: (a) All wages, salaries, or other compensation lost by the
person injured as a result of the injury, including wages,
salaries, or other compensation lost as of the date of a judgment
and future expected lost earnings of the person injured; (b) All expenditures of the person injured or another
person
on behalf of the person injured for medical care or
treatment, for
rehabilitation services, or for other care, treatment, services,
products, or accommodations that were necessary because of the
injury; (c) All expenditures to be incurred in the future, as
determined by the court, by the person injured or another person
on behalf of the person injured for medical care or
treatment, for
rehabilitation
services, or for other care, treatment, services,
products, or
accommodations that will be necessary because of the
injury; (d) All expenditures of a person whose property was
injured
or destroyed or of another person on behalf of the
person whose
property was injured or destroyed in order to repair or
replace
the property that was injured or destroyed; (e) All expenditures of the person injured or of the person
whose
property was injured or destroyed or of another person on
behalf
of the person injured or of the person whose property was
injured or
destroyed in relation to the actual preparation or
presentation of
the claim involved; (f) Any other expenditures of the person injured or of the
person
whose property was injured or destroyed or of another
person on behalf
of the person injured or of the person whose
property was injured or
destroyed that the court determines
represent an actual loss
experienced because of the personal or
property injury or
property loss. "The actual loss of the person who is awarded the damages"
does not include any fees paid or owed to an attorney for any
services rendered in relation to a personal or property injury or
property loss, and does not include any damages awarded for pain
and suffering, for the loss of society, consortium,
companionship,
care, assistance, attention, protection, advice,
guidance,
counsel, instruction, training, or education of the
person
injured, for mental anguish, or for any other intangible
loss.
Sec. 2744.06. (A) Real or personal property, and moneys,
accounts, deposits, or investments of a political subdivision are
not subject to execution, judicial sale, garnishment, or
attachment to satisfy a judgment rendered against a political
subdivision in a civil action to recover damages for injury,
death, or loss to
persons
person or property caused by an act or
omission of the political subdivision or any of its employees in
connection with a governmental or proprietary function. Such
judgments shall be paid from funds of the political
subdivisions
that have been appropriated for that purpose, but, if
sufficient
funds are not currently appropriated for the payment of
judgments,
the fiscal officer of a political subdivision shall
certify the
amount of any unpaid judgments to the taxing
authority
of the
political subdivision for inclusion in the next
succeeding
budget
and annual appropriation measure and payment in
the next
succeeding fiscal year as provided by section 5705.08 of
the
Revised Code, unless any such judgment is to
be
paid from the
proceeds of bonds issued pursuant to section 133.14
of the
Revised
Code or pursuant to annual installments authorized
by
division (B)
or (C) of this section. (B)(1)(a) As used in this division,
"the actual loss of
the
person who is awarded the damages" includes all of the
following: (i) All wages, salaries, or other compensation lost by the
person injured as a result of the injury, as of the date of the
judgment; (ii) All expenditures of the person injured or of another
person on
his behalf
of the person injured for medical care or
treatment, for
rehabilitation services, or for other care,
treatment, services,
products, or accommodations that were
necessary because of the
injury; (iii) All expenditures of a person whose property was
injured or destroyed or of another person on
his behalf
of the
person whose property was injured or destroyed in order
to repair
or replace the property that was injured or destroyed; (iv) All expenditures of the person injured or whose
property was injured or destroyed or of another person on
his
behalf
of the person injured or whose property was injured or
destroyed
in relation to the actual preparation or presentation of
the person's claim; (v) Any other expenditures of the person injured or
of the
person whose property was injured or destroyed or of another
person on
his behalf
of the person injured or whose property was
injured or destroyed that the court determines represent an
actual
loss experienced because of the personal or property
injury or
property loss. (b) As used in this division,
"the actual loss of the
person
who is awarded the damages" does not include any of the
following: (i) Wages, salaries, or other compensation lost by the
person injured as a result of the injury, that are future
expected
earnings of such a person; (ii) Expenditures to be incurred in the future, as
determined by the court, by the person injured or by another
person on
his behalf
of the person injured for medical care or
treatment, for
rehabilitation services, or for other care,
treatment, services,
products, or accommodations that will be
necessary because of the
injury; (iii) Any fees paid or owed to an attorney for any
services
rendered in relation to a personal or property injury or
property
loss; (iv) Any damages awarded for pain and suffering, for the
loss of society, consortium, companionship, care, assistance,
attention, protection, advice, guidance, counsel, instruction,
training, or education of the person injured, for mental anguish,
or for any other intangible loss. (2) Except as specifically provided to the contrary in
this
division, a court that renders a judgment against a
political
subdivision as described in division (A) of this
section and that
is not in favor of the state may authorize the
political
subdivision, upon the motion of the political
subdivision, to pay
the judgment or a specified portion of the
judgment in annual
installments over a period not to exceed ten
years, subject to the
payment of interest at the rate specified
in
section 1343.03 of
the Revised Code. A
court shall not
authorize
the payment in
installments under this division of any
portion of
a judgment or
entire judgment that represents the
actual loss of
the person who
is awarded the damages. Additionally, a court shall not authorize the payment in
installments under this division of any portion of a judgment or
entire judgment that does not represent the actual loss of the
person who is awarded the damages unless the court, after
balancing the interests of the political subdivision and of the
person in whose favor the judgment was rendered, determines that
installment payments would be appropriate under the circumstances
and would not be unjust to the person in whose favor the judgment
was rendered. If a court makes such a determination, it shall
fix
the amount of the installment payments in
such a manner as to
achieve for the person in whose
favor the judgment
was rendered,
the same economic result over the
period as
he
that person would
have
received if the judgment or
portion of the judgment subject
to
the installment payments had
been paid in a lump sum payment. (C) At the option of a political subdivision, a judgment
as
described in division (A) of this section and that is rendered
in
favor of the state may be paid in equal annual installments
over a
period not to exceed ten years, without the payment of
interest.
Sec. 3123.17. (A) When a court issues or modifies a
court support order, the court
shall determine the following: (1) Whether the obligor is in default under a prior court
support order or
the court support order being modified; (2) If the obligor is in default, the date the court support
order went
into default and the amount of
support arrearages owed
pursuant to the default. If the court determines the obligor is in default under a
support
order, the court shall issue a new order requiring the
obligor to pay support.
If
the court determines the default was
willful, the
court shall assess interest on the arrearage amount
from the date the court specifies as the
date of default to the
date the court issues the new
order
requiring the payment of
support and shall compute the interest
at the rate specified in
division (A) of section 1343.03 of
the Revised Code. The court
shall specify in the support order the amount of
interest the
court assessed against the obligor and incorporate
the amount of
interest into the new monthly payment plan. (B) When a court issues or
modifies a court support order,
the court may include in
the support order a statement ordering
either party to pay the
costs of the action, including, but not
limited to, attorney's
fees, fees for genetic tests in contested
actions under sections
3111.01 to 3111.18 of the Revised Code,
and court
costs.
Sec. 3722.08. (A) If the director of health determines
that
an adult care facility is in violation of this chapter or
rules
adopted under it,
he
the director may impose a civil penalty,
pursuant
to rules adopted by the public health council under this
chapter,
on the owner of the facility. The director shall
determine the
classification and amount of the penalty by
considering the
following factors: (1) The gravity of the violation, the severity of the
actual
or potential harm, and the extent to which the provisions
of this
chapter or rules adopted under it were violated; (2) Actions taken by the owner or manager to correct the
violation; (3) The number, if any, of previous violations by the
adult
care facility. (B) The director shall give written notice of the order
imposing a civil penalty to the adult care facility by certified
mail, return receipt requested, or shall provide for delivery of
the notice in person. The notice shall specify the
classification
of the violation as determined by rules adopted by
the public
health council pursuant to this chapter, the amount of
the penalty
and the rate of interest, the action that is required
to be taken
to correct the violation, the time within which it is
to be
corrected as specified in division (C) of this section, and
the
procedures for the facility to follow to request a conference
on
the order imposing a civil penalty. If the facility requests
a
conference in a letter mailed or delivered not later than two
working days after it has received the notice, the director shall
hold a conference with representatives of the facility concerning
the civil penalty. The conference shall be held not later than
seven days after the director receives the request. The
conference shall be conducted as prescribed in division (C) of
section 3722.07 of the Revised Code. If the director issues an
order upholding the civil penalty, the facility may request an
adjudication hearing pursuant to Chapter 119. of the Revised Code,
but the order of the director shall be in effect during
proceedings instituted pursuant to that chapter until a final
adjudication is made. (C) The director shall order that the condition or
practice
constituting a class I violation be abated or eliminated
within
twenty-four hours or any longer period
he
that the director
considers
reasonable. The notice for a class II or a class III
violation
shall specify a time within which the violation is
required to be
corrected. (D) If the facility does not request a conference or if,
after a conference, it fails to take action to correct a
violation, the director shall issue an order upholding the
penalty, plus interest at the rate specified in
section 1343.03
of
the Revised Code for each day beyond the date
set for payment
of
the penalty. The director may waive the
interest payment for
the
period prior to the conference if
he
the
director concludes that
the
conference was necessitated by a
legitimate dispute. (E) The director may cancel or reduce the penalty for a
class I violation if the facility corrects the violation within
the time specified in the notice unless a resident suffers
physical harm because of the violation or unless the facility has
been cited previously for the same violation, in which case the
director shall impose the penalty even though the facility has
corrected the violation. The director shall cancel the penalty
for a class II or class III violation if the facility corrects
the
violation within the time specified in the notice unless the
facility has been cited previously for the same violation. Each
day of a violation of any class, after the date the director sets
for abatement or elimination, constitutes a separate and
additional violation. (F) If an adult care facility fails to pay a penalty
imposed
under this section, the director may commence a civil
action to
collect the penalty. The license of an adult care
facility that
has failed to pay a penalty imposed under this
section shall not
be renewed until the penalty has been paid. (G) If a penalty is imposed under this section, a fine
shall
not be imposed under section 3722.99 of the Revised Code
for the
same violation. (H) Notwithstanding any other division of this section,
the
director shall not impose a penalty for a class I violation
if all
of the following apply: (1) A resident has not suffered physical harm because of
the
violation; (2) The violation has been corrected and is no longer
occurring; (3) The violation is discovered by an inspector authorized
to inspect an adult care facility pursuant to this chapter by
his
an
examination of the records of the facility.
Sec. 4112.02. It shall be an unlawful discriminatory
practice: (A) For any employer, because of the race, color,
religion,
sex, national origin, disability, age, or
ancestry of any
person,
to discharge without just cause, to refuse to hire, or
otherwise
to discriminate against that person with respect to
hire, tenure,
terms, conditions, or privileges of employment, or
any matter
directly or indirectly related to employment. (B) For an employment agency or personnel placement
service,
because of race, color, religion, sex, national origin,
disability, age, or ancestry, to do any of the
following: (1) Refuse or fail to accept, register, classify properly,
or refer for employment, or otherwise discriminate against any
person; (2) Comply with a request from an employer for referral of
applicants for employment if the request directly or indirectly
indicates that the employer fails to comply with the provisions
of
sections 4112.01 to 4112.07 of the Revised Code. (C) For any labor organization to do any of the following: (1) Limit or classify its membership on the basis of race,
color, religion, sex, national origin, disability, age,
or
ancestry; (2) Discriminate against, limit the employment
opportunities
of, or otherwise adversely affect the employment
status, wages,
hours, or employment conditions of any person as
an employee
because of race, color, religion, sex, national
origin,
disability, age, or ancestry. (D) For any employer, labor organization, or joint
labor-management committee controlling apprentice training
programs to discriminate against any person because of race,
color, religion, sex, national origin, disability, or
ancestry in
admission to, or employment in, any program established to
provide
apprentice training. (E) Except where based on a bona fide occupational
qualification certified in advance by the commission, for any
employer, employment agency, personnel placement service, or
labor
organization, prior to employment or admission to
membership, to
do any of the following: (1) Elicit or attempt to elicit any information concerning
the race, color, religion, sex, national origin,
disability, age,
or ancestry of an applicant for employment or membership; (2) Make or keep a record of the race, color, religion,
sex,
national origin, disability, age, or ancestry of
any applicant
for
employment or membership; (3) Use any form of application for employment, or
personnel
or membership blank, seeking to elicit information
regarding race,
color, religion, sex, national origin,
disability,
age, or
ancestry; but an employer holding a contract containing a
nondiscrimination clause with the government of the United
States,
or any department or agency of that government, may
require an
employee or applicant for employment to furnish
documentary proof
of United States citizenship and may retain
that proof in the
employer's personnel records and may use
photographic or
fingerprint identification for security purposes; (4) Print or publish or cause to be printed or published
any
notice or advertisement relating to employment or membership
indicating any preference, limitation, specification, or
discrimination, based upon race, color, religion, sex, national
origin, disability, age, or ancestry; (5) Announce or follow a policy of denying or limiting,
through a quota system or otherwise, employment or membership
opportunities of any group because of the race, color, religion,
sex, national origin, disability, age, or ancestry of
that group; (6) Utilize in the recruitment or hiring of persons any
employment agency, personnel placement service, training school
or
center, labor organization, or any other employee-referring
source
known to discriminate against persons because of their
race,
color, religion, sex, national origin,
disability, age, or
ancestry. (F) For any person seeking employment to publish or cause
to
be published any advertisement that specifies or in any manner
indicates that person's race, color, religion, sex, national
origin, disability, age, or ancestry, or expresses a
limitation or
preference as to the race, color, religion, sex, national origin,
disability, age, or ancestry of any prospective
employer. (G) For any proprietor or any employee, keeper, or manager
of a place of public accommodation to deny to any person, except
for reasons applicable alike to all persons regardless of race,
color, religion, sex, national origin, disability, age, or
ancestry, the full enjoyment of the accommodations, advantages,
facilities, or privileges of the place of public accommodation. (H) For any person to do any of the following: (1) Refuse to sell, transfer, assign, rent, lease,
sublease,
or finance housing accommodations, refuse to negotiate
for the
sale or rental of housing accommodations, or otherwise
deny or
make unavailable housing accommodations because of race,
color,
religion, sex, familial status, ancestry,
disability, or
national
origin; (2) Represent to any person that housing accommodations
are
not available for inspection, sale, or rental, when in fact
they
are available, because of race, color, religion, sex,
familial
status, ancestry, disability, or national
origin; (3) Discriminate against any person in the making or
purchasing of loans or the provision of other financial
assistance
for the acquisition, construction, rehabilitation,
repair, or
maintenance of housing accommodations, or any person
in the making
or purchasing of loans or the provision of other
financial
assistance that is secured by residential real estate,
because of
race, color, religion, sex, familial status, ancestry,
disability,
or national origin or because of the racial
composition
of the
neighborhood in which the housing accommodations are
located,
provided that the person, whether an individual,
corporation, or
association of any type, lends money as one of
the principal
aspects or incident to the person's principal business and
not
only as a part of the purchase price of an owner-occupied
residence the person is selling nor merely casually or
occasionally to a
relative or friend; (4) Discriminate against any person in the terms or
conditions of selling, transferring, assigning, renting, leasing,
or subleasing any housing accommodations or in furnishing
facilities, services, or privileges in connection with the
ownership, occupancy, or use of any housing accommodations,
including the sale of fire, extended coverage, or homeowners
insurance, because of race, color, religion, sex, familial
status,
ancestry, disability, or national origin or
because of the
racial
composition of the neighborhood in which the housing
accommodations are located; (5) Discriminate against any person in the terms or
conditions of any loan of money, whether or not secured by
mortgage or otherwise, for the acquisition, construction,
rehabilitation, repair, or maintenance of housing accommodations
because of race, color, religion, sex, familial status, ancestry,
disability, or national origin or because of the racial
composition
of the neighborhood in which the housing
accommodations are
located; (6) Refuse to consider without prejudice the combined
income
of both husband and wife for the purpose of extending
mortgage
credit to a married couple or either member of a married
couple; (7) Print, publish, or circulate any statement or
advertisement, or make or cause to be made any statement or
advertisement, relating to the sale, transfer, assignment,
rental,
lease, sublease, or acquisition of any housing
accommodations, or
relating to the loan of money, whether or not
secured by mortgage
or otherwise, for the acquisition,
construction, rehabilitation,
repair, or maintenance of housing
accommodations, that indicates
any preference, limitation,
specification, or discrimination based
upon race, color,
religion, sex, familial status, ancestry,
disability,
or national
origin, or an intention to make any such
preference, limitation,
specification, or discrimination; (8) Except as otherwise provided in division (H)(8) or
(17)
of this section, make any inquiry, elicit any information,
make or
keep any record, or use any form of application
containing
questions or entries concerning race, color, religion,
sex,
familial status, ancestry, disability, or national
origin in
connection with the sale or lease of any housing accommodations
or
the loan of any money, whether or not secured by mortgage or
otherwise, for the acquisition, construction, rehabilitation,
repair, or maintenance of housing accommodations. Any person may
make inquiries, and make and keep records, concerning race,
color,
religion, sex, familial status, ancestry,
disability, or
national
origin for the purpose of monitoring compliance with
this chapter. (9) Include in any transfer, rental, or lease of housing
accommodations any restrictive covenant, or honor or exercise, or
attempt to honor or exercise, any restrictive covenant; (10) Induce or solicit, or attempt to induce or solicit, a
housing accommodations listing, sale, or transaction by
representing that a change has occurred or may occur with respect
to the racial, religious, sexual, familial status, or ethnic
composition of the block, neighborhood, or other area in which
the
housing accommodations are located, or induce or solicit, or
attempt to induce or solicit, a housing accommodations listing,
sale, or transaction by representing that the presence or
anticipated presence of persons of any race, color, religion,
sex,
familial status, ancestry, disability, or national
origin, in
the
block, neighborhood, or other area will or may have results
including, but not limited to, the following: (a) The lowering of property values; (b) A change in the racial, religious, sexual, familial
status, or ethnic composition of the block, neighborhood, or
other
area; (c) An increase in criminal or antisocial behavior in the
block, neighborhood, or other area; (d) A decline in the quality of the schools serving the
block, neighborhood, or other area. (11) Deny any person access to or membership or
participation in any multiple-listing service, real estate
brokers' organization, or other service, organization, or
facility
relating to the business of selling or renting housing
accommodations, or discriminate against any person in the terms
or
conditions of that access, membership, or participation, on
account of race, color, religion, sex, familial status, national
origin, disability, or ancestry; (12) Coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment of, or on account of that
person's having exercised or enjoyed or having aided or
encouraged
any other person in the exercise or enjoyment of, any
right
granted or protected by division (H) of this section; (13) Discourage or attempt to discourage the purchase by a
prospective purchaser of housing accommodations, by representing
that any block, neighborhood, or other area has undergone or
might
undergo a change with respect to its religious, racial,
sexual,
familial status, or ethnic composition; (14) Refuse to sell, transfer, assign, rent, lease,
sublease, or finance, or otherwise deny or withhold, a burial lot
from any person because of the race, color, sex, familial status,
age, ancestry, disability, or national origin of any
prospective
owner or user of the lot; (15) Discriminate in the sale or rental of, or otherwise
make unavailable or deny, housing accommodations to any buyer or
renter because of a disability of any of the following: (b) A person residing in or intending to reside in the
housing accommodations after they are sold, rented, or made
available; (c) Any individual associated with the person described in
division (H)(15)(b) of this section. (16) Discriminate in the terms, conditions, or privileges
of
the sale or rental of housing accommodations to any person or
in
the provision of services or facilities to any person in
connection with the housing accommodations because of a
disability
of any of the following: (b) A person residing in or intending to reside in the
housing accommodations after they are sold, rented, or made
available; (c) Any individual associated with the person described in
division (H)(16)(b) of this section. (17) Except as otherwise provided in division (H)(17) of
this section, make an inquiry to determine whether an applicant
for the sale or rental of housing accommodations, a person
residing in or intending to reside in the housing accommodations
after they are sold, rented, or made available, or any individual
associated with that person has a disability, or make
an inquiry
to
determine the nature or severity of a disability of the
applicant
or such a person or individual. The following inquiries
may be
made of all applicants for the sale or rental of housing
accommodations, regardless of whether they have
disabilities: (a) An inquiry into an applicant's ability to meet the
requirements of ownership or tenancy; (b) An inquiry to determine whether an applicant is
qualified for housing accommodations available only to persons
with disabilities or persons with a particular type of
disability; (c) An inquiry to determine whether an applicant is
qualified for a priority available to persons with
disabilities or
persons with a particular type of disability; (d) An inquiry to determine whether an applicant currently
uses a controlled substance in violation of section 2925.11 of
the
Revised Code or a substantively comparable municipal
ordinance; (e) An inquiry to determine whether an applicant at any
time
has been convicted of or pleaded guilty to any offense, an element
of
which is the illegal sale, offer to sell, cultivation,
manufacture, other
production,
shipment, transportation, delivery,
or other distribution of a
controlled substance. (18)(a) Refuse to permit, at the expense of a
person with a
disability, reasonable modifications of existing housing
accommodations that are occupied or to be occupied by the
person
with a disability, if the modifications may
be necessary to
afford
the person with a disability full enjoyment
of the housing
accommodations. This division does not preclude a landlord of
housing accommodations that are rented or to be rented to a
disabled tenant from conditioning permission for a
proposed
modification upon the disabled tenant's doing one or
more of
the
following: (i) Providing a reasonable description of the proposed
modification and reasonable assurances that the proposed
modification will be made in a workerlike manner and
that any
required building permits will be obtained prior to the
commencement of the proposed modification; (ii) Agreeing to restore at the end of the tenancy the
interior of the housing accommodations to the condition they were
in prior to the proposed modification, but subject to reasonable
wear and tear during the period of occupancy, if it is reasonable
for the landlord to condition permission for the proposed
modification upon the agreement; (iii) Paying into an interest-bearing escrow account that
is
in the landlord's name, over a reasonable period of time, a
reasonable amount of money not to exceed the projected costs at
the end of the tenancy of the restoration of the interior of the
housing accommodations to the condition they were in prior to the
proposed modification, but subject to reasonable wear and tear
during the period of occupancy, if the landlord finds the account
reasonably necessary to ensure the availability of funds for the
restoration work. The interest earned in connection with an
escrow account described in this division shall accrue to the
benefit of the disabled tenant who makes payments
into the
account. (b) A landlord shall not condition permission for a
proposed
modification upon a disabled tenant's
payment of a
security
deposit that exceeds the customarily required security
deposit of
all tenants of the particular housing accommodations. (19) Refuse to make reasonable accommodations in rules,
policies, practices, or services when necessary to afford a
person
with a disability equal opportunity to use
and enjoy a dwelling
unit, including associated public and common use areas; (20) Fail to comply with the standards and rules adopted
under division (A) of section 3781.111 of the Revised Code; (21) Discriminate against any person in the selling,
brokering, or appraising of real property because of race, color,
religion, sex, familial status, ancestry, disability,
or national
origin; (22) Fail to design and construct covered multifamily
dwellings for first occupancy on or after June 30, 1992, in
accordance with the following conditions: (a) The dwellings shall have at least one building
entrance
on an accessible route, unless it is impractical to do
so because
of the terrain or unusual characteristics of the site. (b) With respect to dwellings that have a building
entrance
on an accessible route, all of the following apply: (i) The public use areas and common use areas of the
dwellings shall be readily accessible to and usable by
persons
with a disability. (ii) All the doors designed to allow passage into and
within
all premises shall be sufficiently wide to allow passage
by
persons with a disability who are in wheelchairs. (iii) All premises within covered multifamily dwelling
units
shall contain an accessible route into and through the
dwelling;
all light switches, electrical outlets, thermostats,
and other
environmental controls within such units shall be in
accessible
locations; the bathroom walls within such units shall
contain
reinforcements to allow later installation of grab bars;
and the
kitchens and bathrooms within such units shall be
designed and
constructed in a manner that enables an individual
in a wheelchair
to maneuver about such rooms. For purposes of division (H)(22) of this section, "covered
multifamily dwellings" means buildings consisting of four or more
units if such buildings have one or more elevators and ground
floor units in other buildings consisting of four or more units. (I) For any person to discriminate in any manner against
any
other person because that person has opposed any unlawful
discriminatory practice defined in this section or because that
person has made a charge, testified, assisted, or participated in
any manner in any investigation, proceeding, or hearing under
sections 4112.01 to 4112.07 of the Revised Code. (J) For any person to aid, abet, incite, compel, or coerce
the doing of any act declared by this section to be an unlawful
discriminatory practice, to obstruct or prevent any person from
complying with this chapter or any order issued under it, or to
attempt directly or indirectly to commit any act declared by this
section to be an unlawful discriminatory practice. (K)(1) Nothing in division (H) of this section shall bar
any
religious or denominational institution or organization, or
any
nonprofit charitable or educational organization that is
operated,
supervised, or controlled by or in connection with a
religious
organization, from limiting the sale, rental, or
occupancy of
housing accommodations that it owns or operates for
other than a
commercial purpose to persons of the same religion,
or from giving
preference in the sale, rental, or occupancy of
such housing
accommodations to persons of the same religion,
unless membership
in the religion is restricted on account of
race, color, or
national origin. (2) Nothing in division (H) of this section shall bar any
bona fide private or fraternal organization that, incidental to
its primary purpose, owns or operates lodgings for other than a
commercial purpose, from limiting the rental or occupancy of the
lodgings to its members or from giving preference to its members. (3) Nothing in division (H) of this section limits the
applicability of any reasonable local, state, or federal
restrictions regarding the maximum number of occupants permitted
to occupy housing accommodations. Nothing in that division
prohibits the owners or managers of housing accommodations from
implementing reasonable occupancy standards based on the number
and size of sleeping areas or bedrooms and the overall size of a
dwelling unit, provided that the standards are not implemented to
circumvent the purposes of this chapter and are formulated,
implemented, and interpreted in a manner consistent with this
chapter and any applicable local, state, or federal restrictions
regarding the maximum number of occupants permitted to occupy
housing accommodations. (4) Nothing in division (H) of this section requires that
housing accommodations be made available to an individual whose
tenancy would constitute a direct threat to the health or safety
of other individuals or whose tenancy would result in substantial
physical damage to the property of others. (5) Nothing in division (H) of this section pertaining to
discrimination on the basis of familial status shall be construed
to apply to any of the following: (a) Housing accommodations provided under any state or
federal program that have been determined under the "Fair Housing
Amendments Act of 1988," 102 Stat. 1623, 42 U.S.C.A. 3607, as
amended, to be specifically designed and operated to assist
elderly persons; (b) Housing accommodations intended for and solely
occupied
by persons who are sixty-two years of age or older; (c) Housing accommodations intended and operated for
occupancy by at least one person who is fifty-five years of age
or
older per unit, as determined under the "Fair Housing
Amendments
Act of 1988," 102 Stat. 1623, 42 U.S.C.A. 3607, as
amended. (L) Nothing in divisions (A) to (E) of this section shall
be
construed to require a person with a disability
to be employed or
trained under circumstances that would significantly increase the
occupational hazards affecting either the person with a
disability,
other employees, the general public, or the facilities
in which
the work is to be performed, or to require the employment
or
training of a person with a disability in a job that
requires
the person with a disability
routinely to undertake any task, the
performance of which is
substantially and inherently impaired by
the person's
disability. (M) Nothing in divisions (H)(1) to (18) of this section
shall be construed to require any person selling or renting
property to modify the property in any way or to exercise a
higher
degree of care for a person with a
disability, to relieve
any
person with a disability of any obligation
generally imposed on
all
persons regardless of disability in a written lease,
rental
agreement, or contract of purchase or sale, or to forbid
distinctions based on the inability to fulfill the terms and
conditions, including financial obligations, of the lease,
agreement, or contract. (N) An aggrieved individual may enforce the individual's
rights
relative to discrimination on the basis of age as provided
for in
this section by instituting a civil action, within
two
years
one hundred eighty days after the
alleged unlawful
discriminatory practice
occurred, in any court with jurisdiction
for any legal or
equitable relief that will effectuate the
individual's rights. A person who files a civil action under this division is
barred, with respect to the practices complained of, from
instituting a civil action under section 4112.14 of the Revised
Code and from filing a charge with the commission under section
4112.05 of the Revised Code. (O) With regard to age, it shall not be an unlawful
discriminatory practice and it shall not constitute a violation
of
division (A) of section 4112.14 of the Revised Code for any
employer, employment agency, joint labor-management committee
controlling apprenticeship training programs, or labor
organization to do any of the following: (1) Establish bona fide employment qualifications
reasonably
related to the particular business or occupation that
may include
standards for skill, aptitude, physical capability,
intelligence,
education, maturation, and experience; (2) Observe the terms of a bona fide seniority system or
any
bona fide employee benefit plan, including, but not limited
to, a
retirement, pension, or insurance plan, that is not a
subterfuge
to evade the purposes of this section. However, no
such employee
benefit plan shall excuse the failure to hire any
individual, and
no such seniority system or employee benefit plan
shall require or
permit the involuntary retirement of any
individual, because of
the individual's age except as provided for in the "Age
Discrimination in Employment Act Amendment of 1978," 92 Stat.
189,
29 U.S.C.A. 623, as amended by the "Age Discrimination in
Employment Act Amendments of 1986," 100 Stat. 3342, 29 U.S.C.A.
623, as amended. (3) Retire an employee who has attained sixty-five years
of
age who, for the two-year period immediately before
retirement, is
employed in a bona fide executive or a high
policymaking position,
if the employee is entitled to an
immediate nonforfeitable annual
retirement benefit from a
pension, profit-sharing, savings, or
deferred compensation plan,
or any combination of those plans, of
the employer of the
employee, which equals, in the aggregate, at
least forty-four
thousand dollars, in accordance with the
conditions of the "Age
Discrimination in Employment Act Amendment
of 1978," 92 Stat.
189, 29 U.S.C.A. 631, as amended by the "Age
Discrimination in
Employment Act Amendments of 1986," 100 Stat.
3342, 29 U.S.C.A.
631, as amended; (4) Observe the terms of any bona fide apprenticeship
program if the program is registered with the Ohio apprenticeship
council pursuant to sections 4139.01 to 4139.06 of the Revised
Code and is approved by the federal committee on apprenticeship
of
the United States department of labor. (P) Nothing in this chapter prohibiting age discrimination
and nothing in division (A) of section 4112.14 of the Revised
Code
shall be construed to prohibit the following: (1) The designation of uniform age the attainment of which
is necessary for public employees to receive pension or other
retirement benefits pursuant to Chapter 145., 742., 3307., 3309.,
or 5505. of the Revised Code; (2) The mandatory retirement of uniformed patrol officers
of
the state highway patrol as provided in section 5505.16 of the
Revised Code; (3) The maximum age requirements for appointment as a
patrol
officer in the state highway patrol established by section
5503.01
of the Revised Code; (4) The maximum age requirements established for original
appointment to a police department or fire department in sections
124.41 and 124.42 of the Revised Code; (5) Any maximum age not in conflict with federal law that
may be established by a municipal charter, municipal ordinance,
or
resolution of a board of township trustees for original
appointment as a police officer or firefighter; (6) Any mandatory retirement provision not in conflict
with
federal law of a municipal charter, municipal ordinance, or
resolution of a board of township trustees pertaining to police
officers and firefighters; (7) Until January 1, 1994, the mandatory retirement of any
employee who has attained seventy years of age and who is serving
under a contract of unlimited tenure, or similar arrangement
providing for unlimited tenure, at an institution of higher
education as defined in the "Education Amendments of 1980," 94
Stat. 1503, 20 U.S.C.A. 1141(a). (Q)(1)(a) Except as provided in division (Q)(1)(b) of this
section, for purposes of divisions (A) to (E) of this section, a
disability does not include any physiological disorder
or
condition, mental or psychological disorder, or disease or
condition caused by an illegal use of any controlled substance by
an employee, applicant, or other person, if an employer,
employment agency, personnel placement service, labor
organization, or joint labor-management committee acts on the
basis of that illegal use. (b) Division (Q)(1)(a) of this section does not apply to
an
employee, applicant, or other person who satisfies any of the
following: (i) The employee, applicant, or other person has
successfully completed a
supervised drug
rehabilitation program
and no longer is engaging in the illegal
use of any controlled
substance, or the employee, applicant, or
other person otherwise
successfully has
been rehabilitated and no longer is engaging in
that illegal use. (ii) The employee, applicant, or other person is
participating in a
supervised drug
rehabilitation program and no
longer is engaging in the illegal
use of any controlled substance. (iii) The employee, applicant, or other person is
erroneously regarded as
engaging in the
illegal use of any
controlled substance, but the employee,
applicant, or other person
is not engaging
in that illegal use. (2) Divisions (A) to (E) of this section do not prohibit
an
employer, employment agency, personnel placement service,
labor
organization, or joint labor-management committee from
doing any
of the following: (a) Adopting or administering reasonable policies or
procedures, including, but not limited to, testing for the
illegal
use of any controlled substance, that are designed to
ensure that
an individual described in division (Q)(1)(b)(i) or
(ii) of this
section no longer is engaging in the illegal use of
any controlled
substance; (b) Prohibiting the illegal use of controlled substances
and
the use of alcohol at the workplace by all employees; (c) Requiring that employees not be under the influence of
alcohol or not be engaged in the illegal use of any controlled
substance at the workplace; (d) Requiring that employees behave in conformance with
the
requirements established under "The Drug-Free Workplace Act
of
1988," 102 Stat. 4304, 41 U.S.C.A. 701, as amended; (e) Holding an employee who engages in the illegal use of
any controlled substance or who is an alcoholic to the same
qualification standards for employment or job performance, and
the
same behavior, to which the employer, employment agency,
personnel
placement service, labor organization, or joint
labor-management
committee holds other employees, even if any
unsatisfactory
performance or behavior is related to an
employee's illegal use of
a controlled substance or alcoholism; (f) Exercising other authority recognized in the "Americans
with Disabilities
Act of 1990," 104 Stat. 327, 42
U.S.C.A. 12101,
as amended, including, but not limited to,
requiring employees to
comply with any applicable federal
standards. (3) For purposes of this chapter, a test to determine the
illegal use of any controlled substance does not include a
medical
examination. (4) Division (Q) of this section does not encourage,
prohibit, or authorize, and shall not be construed as
encouraging,
prohibiting, or authorizing, the conduct of testing
for the
illegal use of any controlled substance by employees,
applicants,
or other persons, or the making of employment
decisions based on
the results of that type of testing.
Sec. 4112.14. (A) No employer shall discriminate in any
job
opening against any applicant or discharge without just cause
any
employee aged forty or older who is physically able to
perform the
duties and otherwise meets the established
requirements of the job
and laws pertaining to the relationship
between employer and
employee. (B) Any person aged forty or older who is discriminated
against in any job opening or discharged without just cause by an
employer in violation of division (A) of this section may
institute a civil action against the employer in a
court of
competent jurisdiction. If the court finds that an
employer has
discriminated on the basis of age, the court shall
order an
appropriate remedy which shall include reimbursement to
him
the
applicant or employee for the costs, including reasonable
attorney
attorney's fees, of the action, or to reinstate the
employee in
his
the employee's former position with
compensation
for lost
wages and any lost fringe benefits from the
date of the
illegal
discharge and to reimburse
him
the employee
for the costs,
including reasonable
attorney
attorney's fees, of
the action.
The
remedies available under this section are coexistent with
remedies
available pursuant to sections 4112.01 to 4112.11 of the
Revised
Code; except that any person
instituting a civil
action under
this
section is, with
respect to the practices complained of,
thereby
barred from
instituting a civil action under division (N)
of
section 4112.02
of the Revised Code or from filing a charge
with
the Ohio civil
rights commission under section 4112.05 of
the
Revised Code. (C) The cause of action described in division (B) of this
section and any remedies available pursuant to sections
4112.01
to 4112.11 of the Revised Code shall
not be
available in the case
of discharges where the employee has
available to
him
the
employee
the opportunity to arbitrate the
discharge or where a discharge
has been arbitrated and has been
found to be for just cause.
Sec. 4112.99. Whoever violates this chapter is subject to a
civil action for
damages, injunctive relief, or any other
appropriate relief.
Sec. 4113.52. (A)(1)(a) If an employee becomes aware in
the
course of
his
the employee's
employment of a violation of any
state
or federal statute or any ordinance or regulation of a
political
subdivision that
his
the employee's employer has
authority to
correct, and the
employee reasonably believes that
the violation either is a
criminal offense that is likely to cause
an imminent risk of
physical harm to persons or a hazard to public
health or safety
or is a felony, the employee orally shall notify
his
the employee's
supervisor
or other responsible officer of
his
the employee's employer of the
violation and
subsequently shall
file with that supervisor or officer a written
report that
provides sufficient detail to identify and describe
the violation.
If the employer does not correct the violation or
make a
reasonable and good faith effort to correct the violation
within
twenty-four hours after the oral notification or the
receipt of
the report, whichever is earlier, the employee may
file a written
report that provides sufficient detail to identify
and describe
the violation with the prosecuting authority of the
county or
municipal corporation
where the violation
occurred,
with
a peace
officer, with the inspector general if the violation
is
within
his
the inspector general's jurisdiction, or with any other
appropriate public
official or agency that has regulatory
authority over the
employer and the industry, trade, or business
in which
he
the employer
is
engaged. (b) If an employee makes a report under division (A)(1)(a)
of this section, the employer, within twenty-four hours after the
oral notification was made or the report was received or by the
close of business on the next regular business day following the
day on which the oral notification was made or the report was
received, whichever is later, shall notify the employee, in
writing, of any effort of the employer to correct the alleged
violation or hazard or of the absence of the alleged violation or
hazard. (2) If an employee becomes aware in the course of
his
the
employee's
employment of a violation of chapter 3704., 3734.,
6109., Or
6111. Of the revised code that is a criminal offense,
the
employee directly may notify, either orally or in writing, any
appropriate public official or agency that has regulatory
authority over the employer and the industry, trade, or business
in which
he
the employer is engaged. (3) If an employee becomes aware in the course of
his
the
employee's
employment of a violation by a fellow employee of any
state or
federal statute, any ordinance or regulation of a
political
subdivision, or any work rule or company policy of
his
the employee's
employer
and the employee reasonably believes
that
the violation either is
a criminal offense that is likely to
cause
an imminent risk of
physical harm to persons or a hazard to
public
health or safety
or is a felony, the employee orally shall
notify
his
the employee's
supervisor
or other responsible officer
of
his
the employee's employer of the
violation and
subsequently
shall
file with that supervisor or officer a written
report that
provides sufficient detail to identify and describe
the violation. (B) Except as otherwise provided in division (C) of this
section, no employer shall take any disciplinary or retaliatory
action against an employee for making any report authorized by
division (A)(1) or (2) of this section, or as a result of the
employee's having made any inquiry or taken any other action to
ensure the accuracy of any information reported under either such
division. No employer shall take any
disciplinary or retaliatory
action against an employee for making
any report authorized by
division (A)(3) of this section if the
employee made a reasonable
and good faith effort to determine the
accuracy of any
information
so reported, or as a result of the
employee's having
made any
inquiry or taken any other action to
ensure the accuracy
of any
information reported under that
division. For purposes of
this
division, disciplinary or
retaliatory action by the employer
includes, without limitation, doing any of
the following: (1) Removing or suspending the employee from employment; (2) Withholding from the employee salary increases or
employee benefits to which the employee is otherwise
entitled; (3) Transferring or reassigning the employee; (4) Denying the employee a promotion that otherwise would
have been received; (5) Reducing the employee in pay or position. (C) An employee shall make a reasonable and good faith
effort to determine the accuracy of any information reported
under
division (A)(1) or (2) of this section. If the employee
who makes
a report under either division
fails to make
such an
effort,
he
the employee may be subject to
disciplinary action by
his
the
employee's
employer,
including
suspension or removal, for
reporting information
without a
reasonable basis to do so under
division (A)(1) or (2)
of this
section. (D) If an employer takes any disciplinary or retaliatory
action against an employee as a result of the employee's having
filed a report under division (A) of this section, the employee
may bring a civil action for appropriate injunctive relief or for
the remedies set forth in division (E) of this section, or both,
within one hundred eighty days after the date the disciplinary or
retaliatory action was taken, in a court of common pleas in
accordance with the Rules of Civil Procedure. A civil action
under this division is not available to an employee as a remedy
for any disciplinary or retaliatory action taken by an appointing
authority against the employee as a result of the employee's
having filed a report under division (A) of section 124.341 of
the
Revised Code. (E) The court, in rendering a judgment for the employee in
an action brought pursuant to division (D) of this section, may
order, as it determines appropriate, reinstatement of the
employee
to the same position
he
that the employee held at the time of
the
disciplinary or retaliatory action and at the same site of
employment or to a comparable position at that site, the payment
of back wages, full reinstatement of fringe benefits and
seniority
rights, or any combination of these remedies. The
court also may
award the prevailing party all or a portion of the
costs of
litigation, and, if the employee who brought the action
prevails
in the action, may award the prevailing employee
reasonable
attorney's fees, witness fees, and fees for experts
who testify at
trial, in an amount the court determines
appropriate. If the
court determines that an employer
deliberately has violated
division (B) of this section, the
court, in making an award of
back pay, may include interest at
the rate specified in section
1343.03 of the
Revised Code. (F) Any report filed with the inspector general under this
section shall be filed as a complaint in accordance with section
121.46 of the Revised Code.
Sec. 4171.10. The express assumption of risk set forth in
section 4171.09 of
the Revised Code shall serve as a complete
defense to a
suit against an
operator by a roller skater for
injuries resulting from the
assumed risks of
roller skating. The
comparative negligence provisions of
section 2315.19 of
the
Revised Code shall
not apply unless the operator has breached
his
the operator's
duties
pursuant to sections 4171.06 and 4171.07 of
the Revised
Code.
Sec. 4399.18. Notwithstanding section
2307.60
of the Revised
Code and except
as
otherwise provided in
this section and in
section 4399.01 of
the
Revised Code, no person, and no executor or
administrator of the
person, who suffers personal
injury, death,
or
property damage as
a result
of the actions of an
intoxicated
person has a cause of
action against any liquor permit holder or
his
an employee
of a liquor permit holder
who
sold beer or
intoxicating liquor to the intoxicated person
unless
the injury,
death, or property damage
occurred on the permit
holder's premises
or in a parking
lot
under
his
the control
of the
permit holder and
was
proximately caused by the negligence of the
permit holder
or
his employees
an employee of the permit holder.
A
person
has a
cause of action against a permit holder or
his
an
employee
of a
permit holder for
personal injury,
death,
or property
damage
caused by the negligent
actions of an
intoxicated
person occurring
off the
premises or away
from a
parking lot
under the permit
holder's control only when
both of
the
following
can be shown by a
preponderance of the evidence: (A) The permit holder or
his
an employee
of the permit
holder knowingly sold an
intoxicating beverage to at
least one of
the following: (1) A noticeably intoxicated person in violation of
division
(B) of section 4301.22 of the Revised Code; (2) A person in violation of division (C) of section
4301.22
of the Revised Code; (3) A person in violation of section 4301.69 of the
Revised
Code;. (B) The person's intoxication proximately caused the
personal injury, death, or property
damage. Notwithstanding sections 4399.02 and 4399.05 of the Revised
Code, no person, and no executor or administrator of the
person,
who suffers personal injury, death, or
property damage as a
result
of the actions
of an intoxicated person has a cause of
action
against
the owner of a building or premises who rents or
leases
the
building or premises to a liquor permit holder against
whom a
cause of action may be brought under this section, except
when the
owner and the permit holder are the same person.
Sec. 4507.07. (A) The registrar of motor vehicles shall
not
grant the application of any minor under eighteen years of
age for
a probationary license, a restricted license, or a
temporary
instruction permit, unless
the application is signed by one of the
minor's parents, the minor's guardian,
another
person having
custody of the applicant, or, if there is no parent
or guardian, a
responsible person who is willing to assume the
obligation imposed
under this section. At the time a minor under eighteen years of age submits an
application for a license or permit at a driver's license
examining
station, the adult who signs the application shall
present
identification establishing that the adult is the
individual whose
signature appears on the application. The
registrar shall prescribe, by rule,
the types of identification
that are suitable for the purposes of this paragraph. If the
adult who signs the application does not provide identification
as
required by this paragraph, the application shall not be
accepted. When a minor under eighteen years of age applies for a
probationary license, a restricted license, or a temporary
instruction permit, the registrar shall give
the adult who signs
the application
notice of the potential liability that may be
imputed to the
adult pursuant to division (B) of this section and
notice of how
the adult may prevent any liability from being
imputed to
the adult pursuant to that division. (B) Any negligence, or willful or wanton misconduct, that
is
committed by a minor under eighteen years of age when driving
a
motor vehicle upon a highway shall be imputed to the person who
has signed the application of the minor for a probationary
license, restricted license, or temporary instruction
permit,
which person shall be jointly and
severally liable with the minor
for any damages caused by the
negligence or the willful or wanton
misconduct. This joint and
several liability is not subject to
division (D) of section
2315.19, division (F) of section 2315.20,
or division
(B) of section 2307.31 of the Revised Code with
respect to a negligence
or other tort
claim that otherwise is
subject to
any of those
sections
that section. There shall be no imputed liability imposed under this
division if a minor under eighteen years of age has proof of
financial responsibility with respect to the operation of a motor
vehicle owned by the minor or, if the minor is not the owner of a
motor vehicle, with respect to the minor's operation of any motor
vehicle, in the form and in the amounts required under Chapter
4509. of the Revised Code. (C) Any person who has signed the application of a minor
under eighteen years of age for a license or permit subsequently
may
surrender to the registrar the license or temporary
instruction
permit of the minor and request that the license or
permit be
canceled. The registrar then shall cancel the license
or
temporary instruction permit, and the person who signed the
application
of the minor shall be relieved from the liability
imposed by
division (B) of this section. (D) Any minor under eighteen years of age whose
probationary
license, restricted license, or temporary
instruction permit is
surrendered to the registrar by the person
who signed the
application for the license or permit and whose license
or
temporary instruction permit subsequently is canceled by the
registrar may obtain a new license or temporary instruction
permit
without having to undergo the examinations otherwise
required by
sections 4507.11 and 4507.12 of the Revised Code and
without
having to tender the fee for that license or
temporary instruction
permit, if the minor is able to produce another parent, guardian,
other person having custody of the minor, or other adult, and
that
adult is willing to assume the
liability imposed under division
(B) of
this section. That adult shall comply
with the procedures
contained in division (A) of this section.
Sec. 4513.263. (A) As used in this section and in section
4513.99 of the Revised Code: (1) "Automobile" means any commercial tractor, passenger
car, commercial car, or truck that is required to be
factory-equipped with an occupant restraining device for the
operator or any passenger by regulations adopted by the United
States secretary of transportation pursuant to the "National
Traffic and Motor Vehicle Safety Act of 1966," 80 Stat. 719, 15
U.S.C.A. 1392. (2) "Occupant restraining device" means a seat safety
belt,
shoulder belt, harness, or other safety device for
restraining a
person who is an operator of or passenger in an
automobile and
that satisfies the minimum federal vehicle safety
standards
established by the United States department of
transportation. (3) "Passenger" means any person in an automobile, other
than its operator, who is occupying a seating position for which
an occupant restraining device is provided. (4) "Commercial tractor," "passenger car," and "commercial
car" have the same meanings as in section 4501.01 of the Revised
Code. (5) "Vehicle" and "motor vehicle," as used in the
definitions of the terms set forth in division (A)(4) of this
section, have the same meanings as in section 4511.01 of the
Revised Code. (6) "Manufacturer" and "supplier" have the same meanings as
in
section 2307.71 of the Revised Code.
(7) "Tort action" means a civil action for damages for
injury, death, or
loss to person or property. "Tort action"
includes a product liability claim
but does not include a civil
action for damages for a breach of contract or
another agreement
between persons.
(B) No person shall do any of the following: (1) Operate an automobile on any street or highway unless
that person is wearing all of the available elements of a properly
adjusted occupant restraining device, or operate a school bus
that
has an occupant restraining device installed for use in its
operator's seat unless that person is wearing all of the available
elements of the device, as properly adjusted; (2) Operate an automobile on any street or highway unless
each passenger in the automobile who is subject to the
requirement
set forth in division (B)(3) of this section is
wearing all of the
available elements of a properly adjusted
occupant restraining
device; (3) Occupy, as a passenger, a seating position on the
front
seat of an automobile being operated on any street or
highway
unless that person is wearing all of the available elements
of a
properly adjusted occupant restraining device; (4) Operate a taxicab on any street or highway unless all
factory-equipped occupant restraining devices in the taxicab are
maintained in usable form. (C) Division (B)(3) of this section does not apply to a
person who is required by section 4511.81 of the Revised Code to
be secured in a child restraint device. Division (B)(1) of this
section does not apply to a person who is an employee of the
United States postal service or of a newspaper home delivery
service, during any period in which the person is engaged in the
operation of an automobile to deliver mail or newspapers to
addressees. Divisions (B)(1) and (3) of this section do not
apply
to a person who has an affidavit signed by a physician
licensed to
practice in this state under Chapter 4731. of the
Revised Code or
a chiropractor licensed to practice in this state
under Chapter
4734. of the Revised Code that states that the
person has a
physical impairment that makes use of an occupant
restraining
device impossible or impractical. (D) Notwithstanding any provision of law to the contrary,
no
law enforcement officer shall cause an operator of an
automobile
being operated on any street or highway to stop the
automobile for
the sole purpose of determining whether a
violation of division
(B) of this section has been or is being
committed or for the sole
purpose of issuing a ticket, citation,
or summons for a violation
of that nature or
causing the arrest of or
commencing a
prosecution of a person for a violation of
that nature, and no
law
enforcement officer shall view the interior or visually
inspect
any automobile being operated on any street or highway
for the
sole purpose of determining whether a violation of that
nature has
been or is being committed. (E) All fines collected for violations of division (B) of
this section, or for violations of any ordinance or resolution of
a political subdivision that is substantively comparable to that
division, shall be forwarded to the treasurer of state for deposit
as follows: (1) Eight per cent shall be deposited into the seat belt
education fund, which is hereby created in the state treasury,
and
shall be used by the department of public safety to establish a
seat belt education program. (2) Eight per cent shall be deposited into the elementary
school program fund, which is hereby created in the state
treasury,
and shall be used by the department of public safety to
establish
and administer elementary school programs that encourage
seat safety
belt use. (3) Two per cent shall be
deposited into the Ohio
ambulance
licensing trust fund created by section 4766.05 of the
Revised
Code. (4) Twenty-eight per cent shall be deposited into the
trauma
and emergency medical services fund, which is hereby created in
the
state treasury, and shall be used by the department of public
safety for the administration of the division of emergency
medical
services and the state board of emergency medical services. (5) Fifty-four per cent shall be
deposited
into the trauma
and emergency
medical services grants fund, which is hereby
created in the state
treasury, and shall be used by the state
board of emergency
medical services to make grants, in accordance
with section
4765.07 of the Revised Code and rules the board
adopts
under
section 4765.11 of the Revised Code. (F)
The
(1) Subject to division (F)(2) of this section, the
failure of a person to wear all of the available elements of a
properly adjusted occupant restraining device
in violation of
division
(B)(1) or (3) of this section or
the failure of a person
to ensure that each
minor who is a
passenger of an automobile
being
operated by
that
the person is wearing all of the available
elements of
such a
properly
adjusted occupant restraining device,
in violation of division (B)(2) of this
section, shall
not
be
considered
by the trier of fact in a tort action
or used as
evidence of negligence or contributory negligence
or other
tortious conduct or considered for
any other relevant purpose if
the failure contributed to the harm alleged in
the tort action and
may, shall not diminish
pursuant
to section 2315.19 or 2315.20 of
the Revised Code a recovery
of
compensatory
for damages in
a tort
any civil action
involving the person arising from the ownership,
maintenance, or operation of an automobile; shall not be used as
a
basis for a criminal prosecution of the person other than a
prosecution for a violation of this section; and shall not be
admissible as evidence in
a
any civil or criminal action involving
the person other than a prosecution for a violation of this
section. (2) If, at the time of an accident involving a passenger
car
equipped with occupant restraining devices, any occupant of
the
passenger car who sustained injury or death was not wearing
an
available occupant restraining device, was not wearing all of
the
available elements of such a device, or was not wearing such
a
device as properly adjusted, then, consistent with the Rules of
Evidence, the fact that the occupant was not wearing the
available
occupant restraining device, was not wearing all of the
available
elements of such a device, or was not wearing such a
device as
properly adjusted is admissible in evidence in relation
to any
claim for relief in a tort action to the extent that the
claim for
relief satisfies all of the following: (a) It seeks to recover damages for injury or death to the
occupant. (b) The defendant in question is the manufacturer,
designer,
distributor, or seller of the passenger car. (c) The claim for relief against the defendant in question
is that the injury or death sustained by the occupant was
enhanced
or aggravated by some design defect in the passenger car
or that
the passenger car was not crashworthy. (3) As used in division (F)(2) of this section,
"tort
action" means a civil action for damages for injury, death, or
loss to person or property.
"Tort action" includes a product
liability claim that is subject to sections 2307.71 to 2307.80 of
the Revised Code, but does not include a civil action for damages
for a breach of a contract or another agreement between persons.
Sec. 4582.27.
(A) A port authority created in accordance
with section 4582.22 of the Revised Code shall be governed by a
board of directors. Members of a board of directors of a port
authority created by the exclusive action of a municipal
corporation shall consist of the number of members it
considers
necessary and shall be appointed by the mayor with the
advice and
consent of the council. Members of a board of directors of a
port
authority created by the exclusive action of a township
shall
consist of such members as it considers necessary
and shall be
appointed by the township trustees of the township. Members of a
board of directors of a port authority created by the exclusive
action of a county shall consist of such members as it
considers
necessary and shall be appointed by the board of
county
commissioners of the county. Members of a board of
directors of a
port
authority created by a combination of political subdivisions
shall be divided among the political subdivisions in such
proportions as the political subdivisions may agree and shall be
appointed by the participating political subdivisions in the same
manner as this section provides for the appointment
of members by
a political subdivision
creating its own port authority. If a
participating political
subdivision is not authorized by section
4582.22 of the Revised Code to create its own port authority, the
political
subdivision's
elected legislative body, if the political
subdivision has an elected
legislative body, or the political
subdivision's elected official or officials
who appoint the
legislative body of the political subdivision shall appoint
the
members of a board of directors of a port authority that are to be
appointed
by
that political subdivision. If the electors of a
participating political
subdivision do not elect either the
legislative body of the political
subdivision or the official or
officials who appoint the legislative body of
the political
subdivision, the participating political subdivision may not
appoint any member of a board of directors of a port authority.
When a port
authority is created by a combination of political
subdivisions, the number of directors comprising the
board shall
be determined by agreement between the political
subdivisions,
which number may be changed from time to time by
amendment of the
agreement. The appointing body may at any time remove a
director
appointed
by it for misfeasance, nonfeasance, or malfeasance in
office. A majority of the directors shall have been
qualified
electors of, or
shall have had their businesses or
places of
employment in, one or
more political subdivisions within the area
of the jurisdiction
of the port authority, for a period of at
least three years next
preceding their appointment. The directors of any port authority first appointed shall
serve staggered terms. Thereafter each successor shall serve for
a term of four years, except that any person appointed to fill a
vacancy shall be appointed to only the unexpired term and any
director is eligible for reappointment. The board of directors by rule may provide for the removal
of
a director who fails to attend three consecutive regular
meetings
of the board. If a director is so removed, a successor
shall be
appointed for the remaining term of the removed
director in the
same manner provided for the original
appointment. The directors shall elect one of their membership as
chairperson and another as
vice-chairperson, and shall designate
their
terms of office, and shall appoint a secretary who need not
be a
director. A majority of the board of directors shall
constitute
a quorum, the affirmative vote of which shall be
necessary for
any action taken by the port authority. No vacancy
in the
membership of the board shall impair the rights of a quorum
to
exercise all the rights and perform all the duties of the port
authority. Each member of the board of directors of a port authority
shall be entitled to receive from the port authority such sum of
money as the board of directors may determine as compensation for
services as director and reimbursement for reasonable
expenses in
the performance of official duties. (B) Except for civil actions that arise out of the
operation
of a motor vehicle and civil actions in which the port
authority
is the plaintiff, no director, officer, or employee of
a port
authority shall be liable in any civil action that arises
under
the law of this state for damage or injury caused in the
performance of his duties, unless the director's, officer's, or
employee's actions were manifestly outside the scope of his
employment or official responsibilities, or unless the director,
officer, or employee acted with malicious purpose, in bad faith,
or in a wanton or reckless manner. This division does not eliminate, limit, or reduce any
immunity from civil liability that is conferred upon a director,
officer, or employee by any other provision of the Revised Code
or
by case law. (C)(1) A port authority shall, except as provided in
division (B) of this section, indemnify a director, officer, or
employee from liability incurred in the performance of his duties
by paying any judgment in, or amount negotiated in settlement of,
any civil action arising under federal law, the law of another
state, or the law of a foreign jurisdiction. The reasonableness
of the amount of any consent judgment or settlement is subject to
the review and approval of the board of the port authority. The
maximum aggregate amount of indemnification paid directly from
funds to or on behalf of any director, officer or employee
pursuant to this division shall be one million dollars per
occurrence, regardless of the number of persons who suffer
damage,
injury, or death as a result of the occurrence. (2) A port authority shall not indemnify a director,
officer, or employee under any of the following circumstances: (a) To the extent the director, officer, or employee is
covered by a policy of insurance for civil liability purchased by
the port authority; (b) When the director, officer, or employee acts
manifestly
outside the scope of his employment or official
responsibilities,
with malicious purpose, in bad faith, or in a
wanton or reckless
manner; (c) For any portion of a judgment that represents punitive
or exemplary damages; (d) For any portion of a consent judgment or settlement
that
is unreasonable. (3) The port authority may purchase a policy or policies
of
insurance on behalf of directors, officers, and employees of
the
port authority from an insurer or insurers licensed to do
business
in this state providing coverage for damages in
connection with
any civil action, demand, or claim against the
director, officer,
or employee by reason of an act or omission by
the director,
officer, or employee occurring in the performance
of his duties
and not coming within the terms of division
(C)(2)(b) of this
section. (4) This section does not affect either of the following: (a) Any defense that would otherwise be available in an
action alleging personal liability of a director, officer, or
employee; (b) The operation of section 9.83 of the Revised Code.
Sec. 4909.42. If the proceeding on an application filed
with
the public utilities commission under section 4909.18 of the
Revised Code by any public utility requesting an increase on any
rate, joint rate, toll, classification, charge, or rental or
requesting a change in a regulation or practice affecting the
same
has not been concluded and an order entered pursuant to
section
4909.19 of the Revised Code at the expiration of two
hundred
seventy-five days from the date of filing the
application, the
proposed increase shall go into effect upon the
filing of an
undertaking by the public utility. The undertaking
shall be filed
with the commission and shall be payable to the
state for the use
and benefit of the customers affected by the
proposed increase or
change. The undertaking must be signed by two of the officers
of
the
utility, under oath, and must contain a
promise to refund any
amounts collected by the utility over the
rate, joint rate, toll,
classification, charge, or rental, as
determined in the final
order of the commission. All refunds
shall include interest at
the rate stated in
section 1343.03 of the Revised Code. The
refund
shall be in the form of a temporary reduction in
rates
following
the final order of the commission, and shall be
accomplished in
such manner as shall be prescribed by
the
commission in its
final order. The commission shall exercise
continuing and
exclusive jurisdiction over such refunds. If the public utilities commission has not entered a final
order within five hundred forty-five days from the date of the
filing of an application for an increase in rates under section
4909.18 of the Revised Code, a public utility shall have no
obligation to make a refund of amounts collected after the five
hundred forty-fifth day which exceed the amounts authorized
by
the
commission's final order. Nothing in this section shall be construed to mitigate any
duty of the commission to issue a final order under section
4909.19 of the Revised Code.
Sec. 5111.81.
(A) There is hereby established the pharmacy
and
therapeutics committee of the department of job and family
services. The
committee
shall consist of eight members and shall
be appointed by the director
of job and family services. The
membership of the
committee shall include: two
pharmacists
licensed under Chapter 4729. of the Revised Code; two doctors of
medicine and two doctors of osteopathy licensed under Chapter
4731. of the
Revised Code; a registered nurse licensed under
Chapter 4723. of the Revised
Code; and a pharmacologist who has a
doctoral degree. The committee shall
elect one of its members as
chairperson. (B) In the absence of fraud or bad faith, neither the
pharmacy
and therapeutics committee nor a current or former
member, agent,
representative, employee, or independent contractor
of the committee shall be
held liable in damages to a person as
the result of an act, omission,
proceeding, conduct, or decision
relating to the official duties undertaken or
performed pursuant
to this section or
rules promulgated pursuant to section 111.15 or
Chapter 119. of the Revised
Code. If a current or former member,
agent, representative, employee, or
independent
contractor of the
committee requests the state to defend the current or
former
member, agent, representative, employee, or independent contractor
against a claim or in an action arising out of an act, omission,
proceeding,
conduct, or
decision relating to official duties
undertaken or performed, if the request
is made in writing at a
reasonable time before the trial of the claim or in
the action,
and if the person requesting the defense cooperates in good faith
in the defense of the claim or action, the state shall provide and
pay for the
defense of the claim or action and shall pay any
resulting judgment,
compromise, or settlement. The state shall
not pay that part of a claim or
judgment that is for punitive or
exemplary damages.
Sec. 5591.36. The board of county
commissioners shall
erect
and maintain, where not already done,
one or more
guardrails on
each end of a county bridge, viaduct, or
culvert
more than five
feet high and on each side of every
approach to a
county bridge,
viaduct, or culvert, if the approach
or embankment
is more than
six feet high. The board shall
also
protect, by
suitable
guardrails, all perpendicular wash banks
more than eight
feet in
height, where
such
banks have an
immediate connection
with a
public highway other than state
highways, or are adjacent
thereto
in an unprotected condition. It shall be a sufficient compliance with this section, if
the
board causes to be erected and maintained a good stockproof
hedge
fence where a quardrail is required. Such guardrails or
hedge
fences shall be erected in a substantial manner, having
sufficient
strength to protect life and property, the expense
thereof to be
paid out of
the county bridge fund.
Sec. 5591.37. Failure to comply with
section
5591.36 of the
Revised Code
shall render the county liable
for all accidents or
damages as a result of
such failure.
Section 2.02. That all the following are repealed: (A) Existing sections 1701.95, 1707.01, 1901.18, 2101.31,
2305.25,
2305.251, 2305.37, 2307.24, 2307.27, 2307.30, 2307.60,
2307.61, 2313.46, 2315.07, 2315.08, 2315.18, 2315.23, 2315.24,
2743.18, 2743.19,
2744.01,
2744.02, 2744.03, 2744.05, 3123.17,
4112.02, 4507.07,
4513.263,
4582.27, and 5111.81 of the Revised
Code; (B) Sections 109.36, 163.17, 723.01, 1343.03, 1775.14,
1901.041, 1901.17, 1901.181, 1901.20, 1905.032, 2117.06, 2125.01,
2125.02, 2125.04, 2305.01, 2305.10, 2305.11, 2305.16, 2305.35,
2305.38, 2307.31, 2307.32, 2307.33, 2307.71, 2307.72, 2307.73,
2307.75, 2307.78, 2307.80, 2315.01, 2315.18, 2315.19, 2315.20,
2315.21, 2317.62, 2323.51, 2501.02, 2744.04, 2744.06, 3701.19,
3722.08, 4112.14, 4112.99, 4113.52, 4171.10, 4399.18, 4909.42,
5591.36, and 5591.37 of the Revised Code, as they result from
Section 1 of Am. Sub. H.B. 350 of the 121st General Assembly; (C) Sections 901.52, 2101.163, 2151.542, 2303.202, 2305.011,
2305.012, 2305.113, 2305.252, 2305.381, 2305.382, 2307.31,
2307.42, 2307.43, 2307.48, 2307.791, 2307.792, 2307.80, 2309.01,
2315.37,
2317.46, 2323.54, and 2323.59 of the Revised Code;
(D) Sections 1901.262 and 1907.262 of the Revised Code, as
enacted by Section 1 of Am. Sub. H.B. 350; (E) Section 2305.131 of the Revised Code, both as it results
from and as it existed prior to its repeal and re-enactment by
Sections 1 and 2 of Am. Sub. H.B. 350;
(F) New sections 2307.31 and 2307.80 of the Revised Code, as
enacted by Section 1 of Am. Sub. H.B. 350; and (G) Section 2317.45 of the Revised Code.
Section 2.03. That sections 2744.01 and 2744.03 of the
Revised Code as scheduled to take effect on January 1, 2002, be
amended to read as follows:
Sec. 2744.01. As used in this chapter: (A) "Emergency call" means a call to duty, including, but
not limited to, communications from citizens, police dispatches,
and personal observations by peace officers of inherently
dangerous situations that demand an immediate response on the
part
of a peace officer. (B) "Employee" means an officer, agent, employee, or
servant, whether or not compensated or full-time or part-time,
who
is authorized to act and is acting within the scope of
the
officer's, agent's, employee's, or servant's
employment for a
political subdivision. "Employee" does not
include an independent
contractor and does not include any
individual engaged by a school
district pursuant to section
3319.301 of the Revised Code.
"Employee" includes any elected or
appointed official of a
political subdivision. "Employee" also
includes a person who has
been convicted of or pleaded guilty to
a criminal offense and who
has been sentenced to perform
community service work in a
political subdivision whether
pursuant to section 2951.02 of the
Revised Code or otherwise, and
a child who is found to be a
delinquent child and who is ordered
by a juvenile court pursuant
to section 2152.19
or 2152.20 of the Revised
Code to perform
community service or community work in a
political subdivision. (C)(1) "Governmental function" means a function of a
political subdivision that is specified in division (C)(2) of
this
section or that satisfies any of the following: (a) A function that is imposed upon the state as an
obligation of sovereignty and that is performed by a political
subdivision voluntarily or pursuant to legislative requirement; (b) A function that is for the common good of all citizens
of the state; (c) A function that promotes or preserves the public
peace,
health, safety, or welfare; that involves activities that
are not
engaged in or not customarily engaged in by
nongovernmental
persons; and that is not specified in division
(G)(2) of this
section as a proprietary function. (2) A "governmental function" includes, but is not limited
to, the following: (a) The provision or nonprovision of police, fire,
emergency
medical, ambulance, and rescue services or protection; (b) The power to preserve the peace; to prevent and
suppress
riots, disturbances, and disorderly assemblages; to
prevent,
mitigate, and clean up releases of oil and hazardous and
extremely
hazardous substances as defined in section 3750.01 of
the Revised
Code; and to protect persons and property; (c) The provision of a system of public education; (d) The provision of a free public library system; (e) The regulation of the use of, and the maintenance and
repair of, roads, highways, streets, avenues, alleys, sidewalks,
bridges, aqueducts, viaducts, and public grounds; (f) Judicial, quasi-judicial, prosecutorial, legislative,
and quasi-legislative functions; (g) The construction, reconstruction, repair, renovation,
maintenance, and operation of buildings that are used in
connection with the performance of a governmental function,
including, but not limited to, office buildings and courthouses; (h) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of jails, places of juvenile
detention, workhouses, or any other detention facility, as
defined
in section 2921.01 of the Revised Code; (i) The enforcement or nonperformance of any law; (j) The regulation of traffic, and the erection or
nonerection of traffic signs, signals, or control devices; (k) The collection and disposal of solid wastes, as
defined
in section 3734.01 of the Revised Code, including, but
not limited
to, the operation of solid waste disposal facilities,
as
"facilities" is defined in that section, and the collection
and
management of hazardous waste generated by households. As
used in
division (C)(2)(k) of this section, "hazardous waste
generated by
households" means solid waste originally generated
by individual
households that is listed specifically as hazardous
waste in or
exhibits one or more characteristics of hazardous
waste as defined
by rules adopted under section 3734.12 of the
Revised Code, but
that is excluded from regulation as a hazardous
waste by those
rules. (l) The provision or nonprovision, planning or design,
construction, or reconstruction of a public improvement,
including, but not limited to, a sewer system; (m) The operation of a human services department or
agency,
including, but not limited to, the provision of
assistance to aged
and infirm persons and to persons who are
indigent; (n) The operation of a health board, department, or
agency,
including, but not limited to, any statutorily required
or
permissive program for the provision of immunizations or other
inoculations to all or some members of the public, provided that
a
"governmental function" does not include the supply,
manufacture,
distribution, or development of any drug or vaccine
employed in
any such immunization or inoculation program by any
supplier,
manufacturer, distributor, or developer of the drug or
vaccine; (o) The operation of mental health facilities, mental
retardation or developmental disabilities facilities, alcohol
treatment and control centers, and children's homes or agencies; (p) The provision or nonprovision of inspection services
of
all types, including, but not limited to, inspections in
connection with building, zoning, sanitation, fire, plumbing, and
electrical codes, and the taking of actions in connection with
those types of codes, including, but not limited to, the approval
of plans for the construction of buildings or structures and the
issuance or revocation of building permits or stop work orders in
connection with buildings or structures; (q) Urban renewal projects and the elimination of slum
conditions; (r) Flood control measures; (s) The design, construction, reconstruction, renovation,
operation, care, repair, and maintenance of a township cemetery; (t) The issuance of revenue obligations under section
140.06
of the Revised Code; (u) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of any park, playground,
playfield, indoor recreational facility, zoo, zoological park,
bath, swimming pool, pond, water park, wading pool, wave pool,
water
slide, and other type of
aquatic facility, or golf course; (v) The provision of public defender services by a county
or
joint county public defender's office pursuant to Chapter 120.
of
the Revised Code; (w) A function that the general assembly mandates a
political subdivision to perform. (D) "Law" means any provision of the constitution,
statutes,
or rules of the United States or of this state;
provisions of
charters, ordinances, resolutions, and rules of
political
subdivisions; and written policies adopted by boards of
education.
When used in connection with the "common law," this
definition
does not apply. (E) "Motor vehicle" has the same meaning as in section
4511.01 of the Revised Code. (F) "Political subdivision" or "subdivision" means a
municipal corporation, township, county, school district, or
other
body corporate and politic responsible for governmental
activities
in a geographic area smaller than that of the state.
"Political
subdivision" includes, but is not limited to, a county
hospital
commission appointed under section 339.14 of the Revised
Code,
regional planning commission created pursuant to section
713.21 of
the Revised Code, county planning commission created
pursuant to
section 713.22 of the Revised Code, joint planning
council created
pursuant to section 713.231 of the Revised Code,
interstate
regional planning commission created pursuant to
section 713.30 of
the Revised Code, port authority created
pursuant to section
4582.02 or 4582.26 of the Revised Code or in
existence on December
16, 1964, regional council established by
political subdivisions
pursuant to Chapter 167. of the Revised
Code, emergency planning
district and joint emergency planning
district designated under
section 3750.03 of the Revised Code,
joint emergency medical
services district created pursuant to section 307.052
of the
Revised Code, fire and ambulance district created pursuant to
section
505.375 of the Revised Code, joint interstate emergency
planning district
established
by an agreement entered into under
that section, county solid waste
management district and joint
solid waste management district
established under section 343.01
or 343.012 of the Revised Code, and
community school established
under Chapter 3314. of the Revised Code. (G)(1) "Proprietary function" means a function of a
political subdivision that is specified in division (G)(2) of
this
section or that satisfies both of the following: (a) The function is not one described in division
(C)(1)(a)
or (b) of this section and is not one specified in
division (C)(2)
of this section; (b) The function is one that promotes or preserves the
public peace, health, safety, or welfare and that involves
activities that are customarily engaged in by nongovernmental
persons. (2) A "proprietary function" includes, but is not limited
to, the following: (a) The operation of a hospital by one or more political
subdivisions; (b) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of a public cemetery other
than
a township cemetery; (c) The establishment, maintenance, and operation of a
utility, including, but not limited to, a light, gas, power, or
heat plant, a railroad, a busline or other transit company, an
airport, and a municipal corporation water supply system; (d) The maintenance, destruction, operation, and upkeep of
a
sewer system; (e) The operation and control of a public stadium,
auditorium, civic or social center, exhibition hall, arts and
crafts center, band or orchestra, or off-street parking facility. (H)
"Public roads" means public roads, highways, streets,
avenues, alleys, and bridges within a political subdivision.
"Public roads"
does not include berms, shoulders, rights-of-way,
or traffic control
devices
unless the
traffic control devices are
mandated by the Ohio manual of uniform
traffic control devices. (I) "State" means the state of Ohio, including, but not
limited to, the general assembly, the supreme court, the offices
of all elected state officers, and all departments, boards,
offices, commissions, agencies, colleges and universities,
institutions, and other instrumentalities of the state of Ohio.
"State" does
not include political subdivisions.
Sec. 2744.03. (A) In a civil action brought against a
political subdivision or an employee of a political subdivision
to
recover damages for injury, death, or loss to persons or
property
allegedly caused by any act or omission in connection
with a
governmental or proprietary function, the following
defenses or
immunities may be asserted to establish nonliability: (1) The political subdivision is immune from liability if
the employee involved was engaged in the performance of a
judicial, quasi-judicial, prosecutorial, legislative, or
quasi-legislative function. (2) The political subdivision is immune from liability if
the conduct of the employee involved, other than negligent
conduct, that gave rise to the claim of liability was required by
law or authorized by law, or if the conduct of the employee
involved that gave rise to the claim of liability was necessary
or
essential to the exercise of powers of the political
subdivision
or employee. (3) The political subdivision is immune from liability if
the action or failure to act by the employee involved that gave
rise to the claim of liability was within the discretion of the
employee with respect to policy-making, planning, or enforcement
powers by virtue of the duties and responsibilities of the office
or position of the employee. (4) The political subdivision is immune from liability if
the action or failure to act by the political subdivision or
employee involved that gave rise to the claim of liability
resulted in injury or death to a person who had been convicted of
or pleaded guilty to a criminal offense and who, at the time of
the injury or death, was serving any portion of the person's
sentence by
performing community service work for or in the
political
subdivision whether pursuant to section 2951.02 of the
Revised
Code or otherwise, or resulted in injury or death to a
child who
was found to be a delinquent child and who, at the time
of the
injury or death, was performing community service or
community
work for or in a political subdivision in accordance
with the
order of a juvenile court entered pursuant to section
2152.19 or 2152.20 of the Revised Code, and if, at
the
time of the
person's or
child's injury or death, the
person or child was
covered for purposes of Chapter 4123. of the
Revised Code in
connection with the community service or
community work for or in
the political subdivision. (5) The political subdivision is immune from liability if
the injury, death, or loss to persons or property resulted from
the exercise of judgment or discretion in determining whether to
acquire, or how to use, equipment, supplies, materials,
personnel,
facilities, and other resources unless the judgment
or discretion
was exercised with malicious purpose, in bad faith,
or in a wanton
or reckless manner. (6) In addition to any immunity or defense referred to in
division (A)(7) of this section and in circumstances not covered
by that division or sections 3314.07 and 3746.24 of the
Revised
Code, the employee is
immune from liability unless
one of the
following applies: (a) The employee's acts or omissions were manifestly
outside
the scope of the employee's employment or official
responsibilities; (b) The employee's acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; (c) Liability is expressly imposed upon the employee by a
section of the Revised Code.
Liability shall not be construed to
exist
under another section of the Revised Code merely because
that section imposes
a responsibility or mandatory duty upon an
employee, because of a general
authorization in that section that
an employee may sue and be sued, or because
the section uses the
term "shall" in a provision pertaining to an employee. (7) The political subdivision, and an employee who is a
county prosecuting attorney, city director of law, village
solicitor, or similar chief legal officer of a political
subdivision, an assistant of any such person, or a judge of a
court of this state is entitled to any defense or immunity
available at common law or established by the Revised Code. (B) Any immunity or defense conferred upon, or referred to
in connection with, an employee by division (A)(6) or (7) of this
section does not affect or limit any liability of a political
subdivision for an act or omission of the employee as provided in
section 2744.02 of the Revised Code.
Section 2.04. That existing sections 2744.01 and 2744.03 of
the Revised Code as scheduled to take effect on January 1, 2002,
are repealed.
Section 2.05. Sections 2.03 and 2.04 of this
act take
effect on January 1, 2002.
Section 3. (A) In Section 2.01 of this act: (1) Sections 1701.95, 1707.01, 2305.25, 2305.251,
2305.37,
2307.60, 2307.61, 2743.18, 2743.19, 2744.01,
2744.02, 2744.03,
2744.05, 3123.17, 4112.02, 4507.07, 4513.263,
4582.27, and 5111.81
of the Revised Code, which have been amended
by acts subsequent to
their amendment by Am. Sub. H.B. 350 of the
121st General
Assembly, are amended to remove matter inserted by,
or to revive
matter removed by, Am. Sub. H.B. 350. Amendments
made by Am. Sub.
H.B. 350 or the subsequent acts that are
independent of the
purposes of Am. Sub. H.B. 350 are retained. (2) Section 1901.18 of the Revised Code, as amended
subsequently to Sub. H.B. 350 by Am. Sub. S.B. 1 and Sub. H.B. 302
of the 122nd General Assembly, is amended to ratify a
cross-reference correction made to the section by Am. Sub. H.B.
350. (3) Sections 109.36, 2117.06, 2125.01, 2125.02, 2125.04,
2305.10, 2305.16, 2305.38, 2307.31, 2307.32, 2307.75, 2307.80,
2315.01, 2315.19, 2315.21, 2501.02, 2744.06, 3722.08, 4112.14,
4113.52, 4171.10, and 4399.18 of the Revised Code are revived and
amended, supersede the versions of the same sections that are
repealed by Section 2.02 of this act, and include amendments that
gender neutralize the language of the sections (as contemplated by
section 1.31 of the Revised Code) and that correct apparent error. (4) Sections 163.17, 723.01, 1343.03, 1775.14, 2305.01,
2305.11, 2305.35, 2307.33, 2307.71, 2307.72, 2307.73, 2307.78,
2315.18, 2315.20, 2317.62, 2323.51, 2744.04, 4112.99, 4909.42,
5591.36, and 5591.37 of the Revised Code are revived and supersede
the versions of the same sections that are repealed by Section
2.02 of this act.
(5) Notwithstanding its attempted repeal by Am. Sub. H.B.
350, section 2305.27 of the Revised Code is revived and amended to
gender neutralize the language of the section. (6) Former sections 2307.31 and 2307.80 of the Revised Code,
as they existed prior to being renumbered by Am. Sub. H.B. 350,
are revived and amended as explained in division (A)(2) of this
section. Am. Sub. H.B. 350 renumbered former
sections 2307.31 and
2307.80 of the Revised Code and reassigned
their numbers to new
sections. Only new sections 2307.31 and
2307.80 of the Revised
Code, as enacted by Section 1 of Am. Sub.
H.B. 350, are repealed
by Section 2.02 of this act.
(7) Section 3123.17 of the Revised Code is amended as
explained in division (A)(1) of this section to remove
matter
inserted into former section 3113.219 of the Revised Code
by Am.
Sub. H.B. 350. Am. Sub. S.B. 180 of the 123rd General
Assembly
amended and renumbered former section 3113.219 of the
Revised Code
as section 3123.17 of the Revised Code as part of its
general
revision of the child support laws. The amendments of Am.
Sub.
S.B. 180 are retained.
(B) The repeal by Section 2.02 of this act of: (1) Sections 1901.041, 1901.17, 1901.181, 1901.20, 1901.262,
1905.032, and 1907.262 of the Revised Code as they result from Am.
Sub. H.B. 350 is intended to enable the sections to remain in
effect as they result from Am. Sub. H.B. 438 of the 121st General
Assembly, 146 Ohio Laws 4823.
(2) Section 2317.45 of the Revised Code responds to the
section having been held unconstitutional by the Supreme Court of
Ohio's decision in
Sorrell v. Thevenir (1994), 69 Ohio St.3d 415. (3) Section 3701.19 of the Revised Code as it results from
Am. Sub. H.B. 350 is intended to enable the section to remain in
effect as it results from Sub. H.B. 670 of the 121st General
Assembly, 146 Ohio Laws 6440. (C) In Section 2.03 of this act sections 2744.01 and 2744.03
of the Revised Code are amended effective January 1, 2002, to
continue the amendments made to those sections by Section 2.01 of
this act as explained in division (A)(1) of this section.
Sections
2744.01 and 2744.03 were amended subsequently to Am. Sub.
H.B. 350
by Am. Sub. S.B. 179 of the 123rd General Assembly,
effective
January 1, 2002.
Section 4. Because Am. Sub. H.B. 551 of the 123rd General
Assembly takes effect on October 5, 2001:
(A) Section 1707.01 of the Revised Code, which is presented
in this act as it results from Am. Sub. H.B. 551, takes effect as
amended by this act on October 5, 2001.
(B) Divisions (CC), (DD), (EE), (FF), (GG), and (HH) of
section 1707.01 of the Revised Code, which were inserted into the
section by Am. Sub. H.B. 350 of the 121st General Assembly, are
suspended on the effective date of this section, pending section
1707.01 of the Revised Code taking effect as amended by this act
on
October 5, 2001. (C) Sections 1707.432, 1707.433, 1707.434, 1707.435,
1707.436, 1707.437, and 1707.438 of the Revised Code, which were
enacted by Am. Sub. H.B. 350, are suspended on the effective date
of this section, pending their repeal by Am. Sub. H.B. 551 taking
effect on October 5, 2001.
Section 5.01. That Section 3 of Am. Sub. H.B. 438 of the
121st General Assembly, which was amended by Am. Sub. H.B. 350 of
the 121st General Assembly, be amended to read as follows:
"
Sec. 3. Sections 1 and 2 of Am. Sub. H.B. 438 of the 121st
General Assembly shall take effect on July 1, 1997, except that
section 2317.023 of the Revised Code, as amended by Am. Sub. H.B.
438 of the 121st General Assembly, shall take effect on the
effective date of Am. Sub. H.B. 350 of the 121st General
Assembly."
Section 5.02. That existing Section 3 of Am. Sub. H.B. 438 of
the 121st General Assembly is repealed.
Section 5.03. Notwithstanding the attempted amendment of
Section 3 of Am. Sub. H.B. 438 by Am. Sub. H.B. 350 of the 121st
General Assembly, section 2317.023 of the Revised Code, as enacted
by Am. Sub. H.B. 438 of the 121st General Assembly, took effect on
July 1, 1997.
Section 6. Sections 3, 4, 5, 6, 7, 8, 9, 13, and 16 of Am.
Sub. H.B. 350 of the 121st General Assembly are repealed.
Section 7. In sections contained in this act that have been
amended by acts subsequent to their amendment by Am. Sub. H.B. 350
of the 121st General Assembly (other than section 1901.18 of the
Revised Code), matter removed by Am. Sub. H.B. 350 is revived, and
matter inserted by Am. Sub. H.B. 350 is removed, by amendment
indicated as directed in rule 103-5-01
of the Administrative Code.
But, notwithstanding rule 103-5-01 of
the Administrative Code, in
sections contained in this act that have not been amended by acts
subsequent to their amendment by Am. Sub. H.B. 350 of the 121st
General Assembly (1) matter removed by Am. Sub. H.B. 350 is
revived
by being reinserted without
underlining, so as to indicate
the
intention that it is old law
that is being revived and (2)
matter
inserted by Am. Sub. H.B. 350
is removed by being omitted,
so as
to indicate the intention that, by virtue of its
noninclusion, it
is being
repealed because constitutionally
meaningless. In section
1901.18 of the Revised Code, ratification
of Sub. H.B. 350's
cross-reference correction is indicated by
amendment as directed
in rule 103-5-01 of the Administrative Code.
Section 8. Section 109.36 of the Revised Code is presented
in
this act as a composite of the section as amended by both Sub.
H.B. 715 and Am. Sub. H.B. 571 of
the 120th General Assembly.
Section 4112.02 of the Revised Code is presented in
this act as a
composite of the section as amended by both Am. H.B. 264 and H.B.
471 of
the 123rd General Assembly. The General Assembly, applying
the
principle stated in division (B) of section 1.52 of the
Revised
Code that amendments are to be harmonized if reasonably
capable of
simultaneous operation, finds that the composites are
the resulting
version of the sections in effect prior to the
effective date of
the sections as presented in this act.
Section 9. This act is an emergency measure necessary for
the
immediate preservation of the public peace, health, and
safety.
The reason for the necessity is that repeal of the Tort
Reform Act
and revival of prior law will clarify the status of law
that is
unsettled as a result of the act being held
unconstitutional.
Therefore, this act goes into immediate effect.
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