THE KING CAN DO NO WRONG
We’ve been working on a couple briefs in a big case here at the BikeLawyer’s World HQ. Chris Carville, the KY BikeLawyer, and I represent a fellow who was hurt by a “traffic control device” – a gate next to a roadway – which was able to be moved into the roadway due to its deteriorated condition – we sued the city & a park district.
Suing a city or county or trail or park district is never easy. The general rule of yore was “The King Can Do No Wrong”
There are numerous laws designed to protect government entities from suit in Ohio. Getting the facts in your case to line up with the pattern of facts needed to defeat the various immunities is like crafting a complex old fashioned key to turn a castle door lock.
Once you have your depositions in the bag the defense starts firing at you… Motions for Summary Judgment are filed which basically argue that no matter WHAT set of facts you have there is no way for your client to win so the court should throw out the case. [see below]
If you craft a great key… one that gets into just the right nooks and crannies…MAYBE the judge will say SORRY KING, they might win- they might lose – but they have shown enough to get the opportunity to have a JURY decide.
YAY you think… we’re going to trial…
But WAIT…
Even if you are successful in getting past the initial motions you are faced with a unique thing in Ohio… an “interlocutory appeal” – meaning an appeal in the MIDDLE of a case.
The general rule in Ohio is that you can ONLY appeal when the case is completely finished and a “Final Appealable Order” is placed in the record that terminates the litigation. Parties are not usually, most of the time, not allowed to lose a preliminary legal skirmish and go running off to the court of appeals.
In many cases NOT involving the King one party or the other [or both] will file a “motion for summary judgment” – this is a motion which says, in essence, that even if we assume the VERY BEST case that can possibly be gleaned from the facts produced the other side has no case and cannot win and their case needs be thrown out prior to trial. Ohio Courts must PRESUME the truth of facts in a way that best benefits the opposing party and if there is any dispute over a material/important fact [i.e., witness A says X and witness B says Y] then the motion must be denied. Courts are not allowed to make a credibility decision as to which witness is right – only a jury gets to do that.
In MOST cases, though, If the judge overrules the motion the loser may NOT appeal right away. Rather, the case proceeds, typically to trial. After the trial is over an appeal may taken. One of the issues you can raise is that the court erred in not granting your summary judgment motion. However, in Ohio typically NO appeal of that decision is taken until AFTER the trial.
But… the KING gets special rules…
When you sue the king in Ohio… whether it’s the state or a city or township or state or government agency or park district… the king has the right to file the motion asking the court to throw out your case, and if the trial court disagrees and denies the king’s motion the king can appeal IMMEDIATELY in Ohio… i.e., take what’s called an interlocutory appeal…
and… just like that… your case simply STOPS for 12 -18 months while the parties file briefs … and then, maybe, conduct oral arguments before the court of appeals. The appellate court then chews on the matter for several to many months before issuing a written decision. So a YEAR or more after you win in the trial court you might win in the court of appeals…
YAY!!
But Wait…
If you win in the court of appeals the king can immediately APPEAL again to the Ohio Supreme Court – but it’s not automatic …no… it takes… more time…
Now, the Ohio Supreme Court has what is called “discretionary authority” so it gets to pick and choose which cases it wants to hear and it only hears those cases it chooses to hear, not every case. How does it decide?
To make that decision both sides… again… file lengthy briefs explaining why the court should, or shouldn’t, hear the case. Then… you wait…
It may well takes a matter of months for the Supreme Court to decide if it even wants to hear your case…
Best case scenario, you WIN that argument … and the case is sent BACK trial court.
Yay!
But… if you lose that jurisdictional argument then and the Court accepts the case then … yep… the parties once again file extensive briefs in the Ohio Supreme Court… and then wait for the Court to schedule & conduct oral arguments in Columbus… and, once again, you wait for a decision…
I mean, it’s possible that the King might NOT appeal your court of appeals victory to the Supremes… but… HAHAHAHAHAHAHAHA … seriously… are you kidding me?
It’s hard to imagine lawyers who are being paid a significant sum by the hour to represent the King NOT recommending preparing the paperwork to ASK the Supreme Court to hear the case they lost in the appellate court …right?
Remember… this is not even “THE CASE” … this is not yet about your case against the King… this is just the free-for-all scrum that occurs BEFORE YOUR CASE EVER GETS TO THE COURTROOM… you have to pass through this multi-year procedural gauntlet…
OK, so the Supreme Court takes your case… you brief it…. You argue in Columbus… and you WIN!
YAY!!!
Congratulations… Now you go all the way back to Square 1 at the trial level and you get your case ready for trial…
so YAY? … you’re back in front of the trial judge who kicked your case out of court out 2-3 YEARS earlier… yea…
Then it’ll take 6-12 months after getting back to the trial court to get on the court’s trial docket, if you’re lucky… Some day, several years after you filed your lawsuit you MIGHT actually have a trial -your day in Court!
Yay!
And… if you WIN… HOORAY …but…
guess what…
The King can APPEAL AGAIN, this time only about things it says were done wrong by the trial court at trial…
so… Yay???
After you win in an actual trial you get to go through ANOTHER romp in the Court of Appeals, and maybe even the Supreme Court… and then…after all that… if you DID win your case and if money damages were awarded… you might get some justice for your client… after fees and expenses…
Yea… suing the King is tough… we are at stage 1 right now in our case .. preparing briefs arguing why our case shouldn’t be tossed out…Here we GOOO…..I’m 65 now – Hopefully the case will resolve before I hit 70… I’m not optimistic, but… we’ll see!
Tags: bicycle, insurance, municipal liability, Uninsured/Underinsured Motorist
© 2024.
