Under current Ohio law, there are two types of damages that an injured person may recover for their personal injury: one is called "economic" damages and the other is called "non-economic damages."
Each has its own specific statutory definition, but in general "economic damages" are the bills the injured person has had to pay or be liable for as a result of the injury. For instance, in an auto accident, they include the medical bills and the repairs to the injured person's car. Further, if that person lost work as a result of the accident, then the specific amount of lost wages is also considered a type of "economic damages." Obviously, determining the exact amount of "economic damages" is (or should be if all of the parties are operating in good faith) relatively easy - a simple exercise in math.
"Non-economic" damages are often referred to as "pain and suffering" damages, but are more specifically defined to include:
pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.
As you can probably guesss (or as some of you have actually experienced), determining the proper or reasonable amount of "non-economic" damages can be far more complicated than determining the proper or reasonable amount of "economic damages." In fact, most personal injury claims or trial disputes revolve around the proper measure of "non-economic damages." Each person's valuation of "pain and suffering" or "loss of companionship" can be quite different from another's. Suffice to say, if the pain is your own, you see its true value - while the pain you hear about for another is something that must be explained to you in such a way that you can truly appreciate what that other person is going through.
Stay tuned for more posts on how damages in Ohio are calculated - and how Ohio law actually places limits (or, as they are often called, "caps") on specifc types of damages.
Saturday, February 19, 2011
Sunday, February 13, 2011
More on Federal Criminal Jurisdiction and the "Interstate Commerce" Clause
On January 9, 2010, we discussed what is necessary for the federal government to prosecute crimes - specifically that the crime have an effect on “interstate commerce.” This interstate commence requirement is in play in the Federal District Court here in Cleveland, Ohio - in a deadly arson case where 9 people died in a house fire. It is unusual for federal prosecutors to prosecute arson cases - even ones that involve an arson where people have died. Nevertheless, the Federal Government is currently prosecuting (and is in trial against) a man who, they allege, intentionally set a fire that killed nine people. If they are successful in convincing a jury that he intentionally set the fire, they will seek (in a separate phase of the proceedings) the death penalty.
However, just proving that the defendant intentionally set the fire will not be enough for a conviction. The Government will also have to prove that the crime affected "interstate commence." So, how does a fire in a building in Cleveland, Ohio affect interstate commence? The building was located in Cleveland. The defendant lived in Cleveland, and all of the people who died lived in Cleveland. No one crossed state lines, and the things that were used to start the fire were all obtained in the Cleveland area. Nevertheless, this "interstate commerce" issue has already been decided by the United States Supreme Court - where they held that a fire in a 2-unit apartment building affected interstate commence because "the rental of real estate is unquestionably" an activity affecting interstate commerce. The fact that the residence in question was “rented” was enough to trigger the application of the "interstate commence" clause of the US Constitution. So, it may not be too difficult for the Government to prove that a rental house where 9 people were residing or staying has an affect on interstate commence.
Depending on the circumstances, the federal courts are often willing to expand the coverage of the "interstate commence" clause. In the next couple of years, there will be a number of big fights in the federal courts over what does or does not affect "interstate commerce" - including whether or not parts or all of the so-called ObamaCare health law is constitutionally related (enough) to "interstate commence." Stay tuned.
However, just proving that the defendant intentionally set the fire will not be enough for a conviction. The Government will also have to prove that the crime affected "interstate commence." So, how does a fire in a building in Cleveland, Ohio affect interstate commence? The building was located in Cleveland. The defendant lived in Cleveland, and all of the people who died lived in Cleveland. No one crossed state lines, and the things that were used to start the fire were all obtained in the Cleveland area. Nevertheless, this "interstate commerce" issue has already been decided by the United States Supreme Court - where they held that a fire in a 2-unit apartment building affected interstate commence because "the rental of real estate is unquestionably" an activity affecting interstate commerce. The fact that the residence in question was “rented” was enough to trigger the application of the "interstate commence" clause of the US Constitution. So, it may not be too difficult for the Government to prove that a rental house where 9 people were residing or staying has an affect on interstate commence.
Depending on the circumstances, the federal courts are often willing to expand the coverage of the "interstate commence" clause. In the next couple of years, there will be a number of big fights in the federal courts over what does or does not affect "interstate commerce" - including whether or not parts or all of the so-called ObamaCare health law is constitutionally related (enough) to "interstate commence." Stay tuned.
Wednesday, February 2, 2011
What is a "HGN" test for DUI cases?
When a police officer pulls over a person suspected of driving under the influence, that officer is permitted to request that person to submit to a number of what are called "Filed Sobriety Tests" ("FSTs"), including what is called the "Horizontal Gaze Nystagmus" test (the "HGN"). This is the test (as some of you may have seen) where the police officer instructs the suspect to follow his finger or pen - and where the officer is going to observe how the suspect's eyes follow that finger or pen. The term "nystagmus" refers to an involuntary jerking of they eyes. The officer is looking to see how the eyeballs move, and how soon and how much (if at all) those eyeballs begin to shake or jerk.
The theory behind this particular test is that the sooner any jerking begins, and the more pronounced and the longer the eye jerking continues, the more alcohol is in that person's blood - and, the more under the influence that subject is. The officer is looking for three "clues" for each eye, for a total of 6 clues for the whole test - with the generally accepted fail point being just 4 clues. If a suspect fails just the HGN test alone, the officer can place that suspect under arrest and (at the police station) request the suspect to blow into the "BAC" machine. There are other FSTs that an officer does at the scene (including a "walk and turn test and a "heel-to-toe" test), but those other tests will be discussed in future blog postings.
Many defense lawyers take the position that the HGN test is not scientifically reliable, and that a court should never allow a jury to hear about the HGN test. However, the Ohio Supreme Court has long held that a HGN test, when properly administered, is admissible at trial, and that an officer can testify about how the test is often validated by the BAC machine results. The bigger issue in a DUI case is whether the specific police officer administered the test properly - specifically according to a well know manual called the "NHTSA Manual." Most well qualified defense attorneys know what the proper procedures are, and how to properly cross examine a police officer about how a particular HGN was administered. When looking to hire a DUI defense lawyer, make sure that lawyer has sufficient experience with these types of hearings.
The theory behind this particular test is that the sooner any jerking begins, and the more pronounced and the longer the eye jerking continues, the more alcohol is in that person's blood - and, the more under the influence that subject is. The officer is looking for three "clues" for each eye, for a total of 6 clues for the whole test - with the generally accepted fail point being just 4 clues. If a suspect fails just the HGN test alone, the officer can place that suspect under arrest and (at the police station) request the suspect to blow into the "BAC" machine. There are other FSTs that an officer does at the scene (including a "walk and turn test and a "heel-to-toe" test), but those other tests will be discussed in future blog postings.
Many defense lawyers take the position that the HGN test is not scientifically reliable, and that a court should never allow a jury to hear about the HGN test. However, the Ohio Supreme Court has long held that a HGN test, when properly administered, is admissible at trial, and that an officer can testify about how the test is often validated by the BAC machine results. The bigger issue in a DUI case is whether the specific police officer administered the test properly - specifically according to a well know manual called the "NHTSA Manual." Most well qualified defense attorneys know what the proper procedures are, and how to properly cross examine a police officer about how a particular HGN was administered. When looking to hire a DUI defense lawyer, make sure that lawyer has sufficient experience with these types of hearings.
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