Monday, February 23, 2015

Buyers Must Beware When Purchasing Property


Q:       I’m thinking of buying a home, and my friend says a house purchase is a “buyer beware” situation. What does that mean?
A:        Buyer beware,” also known as the doctrine of “caveat emptor,” is an age-old doctrine. It means that, if you intend to buy property, you generally bear the responsibility for finding out about the property’s condition before purchasing it. This doctrine appears to place the entire risk on the shoulders of the homebuyer, but only does so if 1) the condition of the property is open to observation or discoverable upon reasonable inspection to the buyer; 2) the buyer had the opportunity to examine the property; and 3) there is no fraud or wrongdoing on the part of the seller.

Q:       What do I, as a buyer, have to do about a defect that may be found during a home inspection?
A:        A defect that is open, observable and can be discovered through inspection and inquiry is called a “patent defect.” You, as a buyer, are responsible for making efforts to obtain all information about such obvious defects or problems with the property. Also, you will be held responsible and liable for all defects that you could have discovered upon inspection, so make sure you make reasonable efforts to view and inspect the property before buying it.
            For example, you may notice such “patent” obvious defects as large cracks in the concrete foundation of the home, a hole in the roof or rotten wood on the home’s front porch. If you decide to buy the home in spite of these obvious defects, you could not later seek damages or a remedy against the seller for the costs of repairing them. The burden is on you to notice these issues before buying the property.

Q:       What about defects that are not obvious?
A:        The home may have “latent,” defects that are known to the seller, but cannot be easily discovered by the buyer or may present a dangerous condition. They are hidden in nature. As an exception to the doctrine of the caveat emptor/buyer beware doctrine, sellers must disclose latent defects to the buyer. This requirement provides protection for the innocent buyer.
            Latent defects are more complex than patent defects. For example, if a leaking roof can only be noticed when it rains, and an inspection shows no evidence of water damage, this would be a latent defect. Similarly, if a septic tank produces a bad smell occasionally, this would not be a readily observable problem. In such instances the burden falls on the seller. If the seller fails to disclose such issues, the buyer can seek a remedy, if necessary, in court.
            It is very important to retain a licensed property inspector to inspect the property before purchase, and make the purchase agreement contingent upon the property passing inspection. An inspector has the knowledge, skills, and experience necessary to thoroughly evaluate the property and notice issues you may never discover until it is too late.
            A seller is also liable for fraud or misrepresentations to the buyer. For instance, a seller cannot lie and tell the buyer the foundation is in great condition if the seller knows it is in need of repair or in danger of collapsing. Similarly, a seller cannot tell a buyer a roof has never had any leaks if the seller has replaced the ceiling’s drywall and paint to conceal the fact that the roof leaks every time there’s a severe storm.

Q:       What is an “as-is” clause?
A:        In certain circumstances, a seller does not have to disclose latent defects. If a real estate agreement contains an “as-is” clause, then the buyer assumes the risk that latent defects may exist. An “as is” clause relieves the seller of any duty to disclose, and means that the buyer cannot bring a lawsuit against the seller for any passive non-disclosure.
            For example, in Ferguson v. Cadle, 2009-Ohio-4285, the court held that sellers had no liability under an “as is” home sale contract for failing to disclose the existence of a steel support structure that was installed in a basement wall after the wall had sustained water damage.

This “Law You Can Use” consumer information column was provided by the Ohio State Bar Association. It was prepared by Andrew L. Smith, a senior associate attorney in the Cincinnati office of Smith, Rolfes & Skavdahl Company, LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, February 16, 2015

Drug Courts Reduce Crime While Saving Time, Money and Resources


An estimated 1.2 million drug-addicted people are currently involved in the justice system.  “Drug courts” provide effective intervention, save money and significantly reduce drug use and crime through intensive supervision and treatment. Such court dockets exist throughout Ohio’s adult and juvenile courts and there are more than 2,000 across the nation. Over the last 20 years, state and federal studies have consistently shown that drug courts are the most cost-effective way to reduce drug-related crime.
 
Q:       How does a drug court work?
A:        Usually administered through a traditional court, a “drug court” is a specialized docket created to manage cases involving drug-addicted offenders. The cases that qualify for management through a drug court can be drug-related (i.e., possession of drugs), or seemingly non drug-related (i.e., theft), but all involve drug-addicted offenders. An arrested person who is determined to have a drug addiction, and otherwise meets the court’s criteria, is screened for eligibility and enters the drug court program shortly after arrest. If appropriate, drug offenders begin treatment within two weeks of arrest. While in the community, they must comply with intensive probation requirements. They meet frequently with case managers, probation officers and the presiding drug court judge. They must prove sobriety through urine testing and must comply with all requirements set by the managers.
            In Ohio, the Supreme Court has adopted rules outlining requirements for drug court certification.  These standards create a minimum level of uniform practices for each court, and permit two “tracks” by which offenders may enter the program. Under a “probation track,” offenders enter the program as a condition of probation. Under the “intervention in lieu of conviction” track, offenders are eligible to have the charges dismissed upon successful completion of the program. Intervention in lieu of conviction requires 12 consecutive months of sobriety for eligible offenders. 
            The program requires each offender to complete an individualized case management plan and remain drug and alcohol-free. Offenders may obtain GEDs and/or employment, work with Children’s Services to be reunited with their children, perform volunteer work, attend AA (Alcoholics Anonymous) and NA (Narcotics Anonymous) meetings, and do whatever is necessary to re-enter society as sober, responsible people.
            Offenders in a drug court program must appear in court on a regular basis to and take responsibility if they do not comply with the program’s expectations. If they fail to comply (for example, by missing a meeting or testing positive for drugs), the court imposes a series of graduated sanctions. The first sanction, for example, may require sitting in court for one day. The second sanction may require two days of community service, and three days of jail time may be required for the third sanction, and so on. The offender will not be removed from the program unless he or she is unwilling to try, but the offender’s willingness to try is gauged on actions, and not just words.  Some offenders decline to enter the program, opting for jail or prison instead because they feel the program’s requirements are too difficult. 

Q:       Are there rewards for offenders who successfully complete a drug court program?
A:        Yes. Successful participants receive court commendations for sobriety or other achievements. Rewards can range from praise to tangible items such as certificates and gift cards.  Also, the amount of their fines may be reduced. A formal graduation ceremony acknowledges their successful completion of the program. If the offender entered the program on probation, that probation is concluded. Offenders who enter under intervention in lieu of conviction are eligible to have their cases dismissed.

Q:       Why not just send drug users to jail?
A:        Drug courts reduce crime as much as 45 percent more than other sentencing options. Without drug treatment, more than 70 percent of drug addicts will commit new crimes, but75 percent of drug court graduates nationwide remain arrest-free for at least two years after leaving the program.
            Also, incarceration is an expensive punishment, and national corrections expenditures exceed $60 billion annually. In both the short and long term, drug courts are less expensive than traditional approaches. For every $1 invested in drug courts, taxpayers save as much as $3.36 in criminal justice costs alone. Drug courts reduce police overtime for court appearances and lawyers’ fees for defendants who cannot pay for their own attorneys. Also prosecutors can devote more time to other cases, which helps reduce the court’s docket, and jail beds can be used for other offenders.
            In addition, taxpayers realize long-term savings because rehabilitated offenders can hold jobs, pay taxes, participate in the community, and care for their children rather than neglecting them or leaving them to the care of the state. Finally, a rehabilitated offender’s children are much less likely to become offenders. This effectively ends the cycle of crime for many people.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Hon. Joy Malek Oldfield, a municipal court judge and the presiding judge of a drug court in Akron. The column offers general information about the law.  Seek an attorney’s advice before applying this information to a legal problem.

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Monday, February 9, 2015

Liens and Encumbrances Affect Residential Real Estate


Q:       What are liens and encumbrances? Are they different?
A:        An encumbrance is a claim, liability, or other right that is attached to real property and may lessen its value. A lien is simply a type of encumbrance that can be satisfied with the payment of money. 
A good example of a lien is a mortgage lien. As long as you have a mortgage, the mortgage lender has a lien against your property. If you don’t pay your mortgage on time, the lender can foreclose on your property. However, once you pay your lender all the money you owe under the mortgage, the mortgage is satisfied and no longer affects title to your real property. Another type of lien that may affect your property is a mechanic’s lien. If, for example, you own a home and hired a contractor to do work, but failed to pay for it, the contractor may put a mechanic’s lien on your property which, for practical purposes, will force you to pay for the work before you can sell or refinance your home.  
There are other types of encumbrances that are not liens because they cannot be satisfied by paying money and generally stick with the property for a number of years, or even perpetually. The most common example of such an encumbrance is an easement. Utility companies generally will have perpetual easements along the front, side, or rear of your real property so they can install and maintain various utilities to service the neighborhood. Also, if you have leased your property, the lease constitutes an encumbrance that will last for the number of years stated in the lease.
 
Q:       What are the most common types of liens and encumbrances affecting residential real estate?
A:        All residential real estate is subject to a real estate tax, the most common type of lien. A mortgage is also a very common lien, since most homeowners buy their homes through mortgage financing. Utility easements are very common encumbrances. Finally, homes located within a planned development are usually subject to another common encumbrance, which is a declaration or other document that includes the restrictions, rules and regulations governing the use of the real estate.

Q:       What should I know about liens and encumbrances before signing on the dotted line?
A:         You should review and understand the specific liens and encumbrances which will affect title to your real property. This is especially true if your property is subject to a declaration or other rules and regulations of a homeowners’ association. You need to know, for example, if there are restrictions on how many pets you can have and how big the pets can be, or if you are allowed to put in a fence and what type of fence it can be, and whether or not you can paint your house a certain color or put a shed in the backyard. All of these matters are usually addressed in the declaration and affect the way you can use your home. It’s best to know what the issues are before buying a home. 

Q:       When I buy a home, how can I protect myself against liens and encumbrances that may my hurt my home’s value?  
A:         You should obtain title insurance. In Ohio, the seller usually pays for this. The title insurance commitment shows you what liens and encumbrances will affect title to the real property after closing, and lets you know if, for example, the property is subject to a mechanic’s lien that the seller should pay before closing. 

Q:       I recently put a chain link fence around my property, and my homeowners’ association said that this type of fence is not allowed and must be taken down. The declaration does say that I cannot install a chain link fence, but do I have to abide by this rule, and is there any way to change it?  
A:        Unless the rule is arbitrary, discriminatory or against public policy, you must abide by all of the declaration’s rules and regulations. If the rules do not specifically address declaration amendments, it may be possible to change the terms of a declaration, but only if a large percentage (at least 75 percent) of homeowners in the development approve the change. Because it is usually very difficult to get such approval, it is especially important for you to review the governing declarations before you buy the home.

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Ryan P. Aiello of Dinsmore & Shohl LLP. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, February 2, 2015

Subrogation May Determine Who Pays Debts


Q:       What is subrogation, exactly?
A:        Subrogation is an old legal doctrine that has to do with substituting one person (or entity) for another in the settling of a debt or claim. The purpose of subrogation is to make sure that a debt is paid by the person (or entity) who should ultimately be responsible for it. Subrogation also gives certain rights to the substituted person (or entity) who takes responsibility for the debt or claim.

Q:       I’ve seen the term “subrogation” in my insurance policy. How does subrogation apply to an insurance claim?
A:        Subrogation frequently arises in the context of insurance claims. When you buy auto insurance, the insurance company gives you a policy that says what will be covered in case you are involved in an accident that causes personal injury or property damage.  Let’s say, however, that you are involved in an accident that was not in any way your fault and was not caused by your negligence. Instead, the damage was caused entirely by the other driver. In such a case, your insurance carrier can collect full reimbursement from the insurance carrier of the driver who was at fault. In this way, subrogation has to do with equity, and in this instance, it allows your insurance carrier to “step into your shoes” and, on your behalf, collect reimbursement against the other driver, who was the actual negligent party.

Q:       What if there is more than one person who caused the damage?
A:        In a civil “tort” lawsuit, a “plaintiff” brings legal action “for damages” against one or more persons (or entities) whose action has caused suffering or harm. Subrogation regularly arises in tort lawsuits involving multiple defendants stemming from a single incident or transaction. Torts involve any civil wrong against a person or property. They can range from automobile accidents, product liability claims and medical malpractice situations to claims of defamation, nuisance or even emotional distress. 
            Frequently, a plaintiff may be able to collect an entire judgment against only one defendant under the rules of “joint and several liability.” This means that, even if several people shared responsibility for the harm, any one of them can be held liable for the entire amount of the damages. Subrogation may allow a single defendant who got stuck paying the whole amount of the damages to seek reimbursement from the other defendants.

Q:       If I am injured in an accident that was someone else’s fault, can my doctor collect from that person to cover my medical bills?
A:        Yes. It’s possible for medical providers and insurers who have given you medical care and treatment or paid your medical bills to pursue their subrogation rights so that the person who caused your accident will be held responsible for those bills.

Q:       How does subrogation work in business situations?
A:        Business contracts, including construction contracts, often contain subrogation clauses and provisions. It is common for project owners to place subrogation clauses in agreements for work involving contractors, subcontractors, architects, builders or other professionals. In such a situation, the subrogation clause can shift risk and potentially place reimbursement burdens on your shoulders, which you would not otherwise expect. For this reason, you should always review and analyze such clauses carefully and consider consulting with a qualified attorney before signing.
            Contracts may also include “waiver of subrogation clauses.” If your contract includes a waiver clause and you waive your subrogation rights in a contract, you won’t be able to seek reimbursement from the other party to the contract, even if that party is at fault.

Q:       How can I protect my subrogation rights?
A:        The doctrine of subrogation is widely considered to be a highly technical area of law, and often is applied to very complex situations. Do not miss an opportunity to obtain reimbursement through subrogation, and always read the terms of a subrogation clause carefully. When in doubt, contact an attorney with knowledge in this convoluted area of the law so you can protect and defend your rights.

This “Law You Can Use” consumer information column was provided by the Ohio State Bar Association. It was prepared by Andrew L. Smith, a senior associate attorney in the Cincinnati office of Smith, Rolfes & Skavdahl Company, LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, January 26, 2015

Non-Bankruptcy Alternatives for Dealing with Government Student Loan Debt


            A federally guaranteed student loan can be very difficult to discharge in bankruptcy, but there are ways to obtain debt forgiveness and to discharge federally-guaranteed student loans outside the context of bankruptcy. (The information in this article, current on 11/30/2014, addresses only non-bankruptcy alternatives for government student loans—not private student loans.)

Q:       I got a federal student loan, but now I have a physical disability. Can my loan be forgiven?
A:        If you are a federally guaranteed student loan borrower with a William D. Ford Federal Direct Loan Program loan, a Federal Family Education Loan (FFEL) Program loan, a Federal Perkins Loan Program loan, or a loan through the Teacher Education Assistance for College and Higher Education (TEACH) Grant Program, you may qualify for a Total and Permanent Disability Discharge (TPD) through the Office of the U.S. Department of Education. To qualify:
·       a physician must certify that you cannot engage in any substantial gainful activity due to a medically determinable physical or mental impairment that can be expected to result in death, or has lasted, continuously, for at least 60 months or can be expected to last, continuously, for at least 60 months; or
·       the Secretary of Veteran Affairs must determine that you are unemployable due to a service-connected disability. 
            If your TPD request is approved, a three-year post-monitoring period will run from the date your loan was assigned to the Department of Education. During this three-year period, you cannot earn more than $15,730 (100 percent of the federal poverty guidelines for a family of two in 2014) and you cannot have obtained any new federal student loans. If you are a veteran and your disability is a 100 percent service-connected, then you are immediately eligible for a federal student loan discharge. 
             (For more information on this alternative for discharging your federal student loan, visit: www.disabilitydischarge.com). 

Q:       Can I do some public service so that a portion of my federally guaranteed student loan is forgiven?
A:        Yes, a portion of your federally guaranteed student loan debt may be forgiven under the Public Service Loan Forgiveness (PSLF) Program, but only if you have a non-defaulted William D. Ford Federal Direct Loan Program (Direct Loan Program). Specifically, you may qualify for forgiveness of the remaining balance due on your Direct Loan Program loan after you make 120 qualifying payments while you are employed full-time by certain public service employers, including most local, state, federal, tribal government organizations, or 501(c)(3) corporations. Also, the amount of the debt that is forgiven is not taxable as income.
            The Direct Loan Program includes:
·       Federal Direct Stafford/Ford Loans;
·       Federal Direct Unsubsidized Stafford/Ford Loans;
·       Federal Direct PLUS Loans – for parents and graduate or professional students; and
·       Federal Direct Consolidation Loans. 
            If you took out loans under other federally guaranteed student loan programs, they may become eligible for forgiveness if you consolidate them into a Direct Consolidation Loan. However, only payments you make on the Direct Consolidation Loan will count toward the required 120 qualifying payments. (For more information on this alternative for discharging your federal student loan, visit: https://studentaid.ed.gov/sites/default/files/public-service-loan-forgiveness.pdf). 


Q:       I defaulted on a federally guaranteed student loan. Is there anything I can do?
A:        Yes, you may receive a one-time chance to bring your loan out of default. Monthly payments can be reset to a “reasonable rate,” but you must make nine payments on time over a ten-month period. If you meet this requirement, your student loan can be restored to a pre-default status. That means your eligibility for deferment, forbearance, alternative repayments and Title IV aid would be restored and your credit report would be updated.  These federal loans may be eligible for this sort of “rehabilitation”: Federal Stafford Loans, Federal Perkins Loans, Federal PLUS (Parent Loans for Undergraduate Students), Federal Grad PLUS (PLUS loans for graduate and professional students), Federal Consolidation Loans, Federal SLS, Health Professions Student Loans, and Nursing Student Loans. (For more information on this alternative for restoring your federal student loan to a pre-default status, visit: https://studentaid.ed.gov/sites/default/files/public-service-loan-forgiveness.pdf). 

Q:       Are there any other loan forgiveness and cancelation alternatives for a federally guaranteed student loan?
A:        Yes, these alternatives may be helpful if they apply to your situation:
·       a Closed School Discharge (if your school closes while you’re enrolled or soon after you withdraw);
·       a False Certification Discharge (if your school falsely certified your eligibility to receive the loan based on your ability to benefit from its training);
·       a Teacher Loan Forgiveness (if you have been teaching full-time in a low-income elementary or secondary school for five consecutive years, as much as $17,500 of your loans may be forgiven);
·       and a September 11 Survivors Discharge.                         

(For more information about these alternatives and others, visit: https://studentaid.ed.gov/repay-loans/forgiveness-cancellation#false-certification).

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by attorney Jeffrey S. Rosenstiel, a partner in the Cincinnati firm of Graydon Head & Ritchey LLP. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, January 19, 2015

Divorce Affects Benefits and Inheritance


Q:       When my husband and I divorce, will my Social Security benefits be affected?
A:        No. Under federal law, you qualify for Social Security benefits in one of two ways: by 1) earning credits, based on your annual earnings, which determine your monthly benefits when you retire; or by 2) being married to someone for more than 10 years, which qualifies you for a spousal benefit.
When you retire, you may choose whichever of these Social Security options provides you with the greatest benefit: 1) your earned credits into the system, 2) your current spouse’s spousal benefit or 3) the highest spousal benefit from a former spouse of a marriage that lasted more than 10 years.
            Some people have had more than one former marriage, each lasting more than 10 years. Let’s say you are a high wage-earner and have two former spouses from marriages lasting more than ten years each. Even if both of your former spouses claim and receive spousal benefits from your Social Security, it will not affect the amount of benefits you will receive. 

Q:       I’ve been receiving health insurance coverage through my wife’s work policy. Will my family health benefits lapse when we divorce?
A:        As a matter of strict law, family plan medical coverage terminates on the date of a “qualifying event,” which, in your case, would be the date of your divorce or dissolution of marriage. Federal law requires that, within 30 days of the termination of your benefits, your wife’s employer must notify you about the termination and inform you about COBRA coverage, if that coverage applies. (COBRA coverage allows workers and their families who lose their health benefits the right to continue to receive benefits provided by their group plan for a limited amount of time. If you qualify for a COBRA policy, you may be entitled to a maximum of 36 months of additional coverage. However, COBRA plans are expensive.)
            As a practical matter, most insurance companies will maintain your coverage through the end of the month of the final divorce hearing. Also, to avoid any lapses in coverage, any health insurance policy you may buy after your divorce will be retroactive, which means that it will cover you from the date that your family coverage was terminated.

Q:       How do I receive pension benefits from my soon-to-be-ex spouse?
A:        You and your spouse can divide pension benefits as a term of your divorce or dissolution of marriage. If your spouse’s pension plans are not “qualified” and are not protected by the federal Employee Retirement Income Security Act (ERISA), then they may be divided through a trustee-to-trustee transfer. This is just an administrative division that the appropriate financial professional can handle.
            However, most pensions, such as 401(k), 403(b) and some other defined benefit pension plans, are protected by ERISA. If your spouse’s pension benefits are protected, then the benefit must be divided through a “qualified domestic relations order” (QDRO).  The QDRO is a court order that allocates the retirement asset between the person who earned the benefit (the “plan participant” – your former spouse) and the “alternate participant” (you).  When your pension benefits are allocated, it is a non-taxable event. As long as you keep your share of the retirement in a qualified (retirement) account such as an IRA account, it will continue to grow as a tax free retirement account.
 
Q:       If I die in the middle of the divorce, who inherits my estate?
A:        The answer depends on whether you and your spouse signed a separation agreement before your death, and whether there is language in the separation agreement stating that the agreement will be binding if there is no final divorce decree. If you and your spouse have waived the surviving spouse rights in the separation agreement, which is almost always done, AND the agreement is binding in the absence of a final divorce decree, then whatever you and your spouse agreed to in the separation agreement can be enforced. If you and your spouse did not sign a separation agreement, then all spousal rights apply. 

This “Law You Can Use” article was provided by the Ohio State Bar Association. It was prepared by Cleveland attorney Manav (Manu) H. Raj, Esq. of Rieth Antonelli & Raj. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, January 12, 2015

Twibel: Online Communications Bring New Legal Challenges

Q:       How have social media and electronic communication brought about new legal challenges?
A:        Online communication has become a hotbed for litigation, in part because people believe they can hide their identities behind a computer or smartphone screen. Many users are discovering, however, that their online fouls can cross over the line into actionable, illegal conduct. Social media has become a primary communication tool in our culture, and has resulted in new types of lawsuits. For example, employees have been terminated from employment for communications or disclosures made via social media, and individuals have been sued for defamatory statements they have made via social media.

Q:       What kind of online statements can expose someone to liability?
A:        Social media is a fairly new communication tool, but the law regarding communication has not changed. The term Twibel, a combination of “Twitter” and “libel” has been adopted to describe this mix of social media communications and old law. Libel is defaming someone (publishing a false statement of fact that harms another’s reputation or business) through written or printed words, pictures, or any form other than the spoken word. Twibel is simply libel that is committed through a social media communication tool.
In one Twibel suit, a real estate company brought a $50,000 suit against a tenant for tweeting this: “Who said sleeping in a moldy apartment was bad for you? [The real estate company] thinks it’s okay.” The court dismissed the case, finding the tweet was “too vague to meet the legal standard for libel.” Others cases have been similarly unsuccessful.
Twibel cases are reviewed just like old-fashioned print defamation cases, and courts still want to see proof of damage to reputation. If the plaintiff (the person bringing suit) cannot prove that his or her reputation was damaged, then the court usually will dismiss the case, unless the defamatory statement is a per se statement. A per se statement is a communication that is very obviously damaging. For example, if someone wrote that the plaintiff has a sexually transmitted disease, the court might decide that damages are inferred even if not proven.
The outcome of a defamation case is also affected by whether or not the person claiming defamation is a public figure. Courts rarely decide that a public figure has been defamed because a public figure is considered a “fair target” for defamatory statements. To be awarded damages in a defamation case, a public figure must prove that a defamatory statement was not only damaging, but that it was made with malicious intent. This private vs. public distinction figured in the very first Twibel trial in 2014. The attorney for deceased musician Kurt Cobain’s estate brought a defamation suit against Courtney Love, Cobain’s spouse. In that case, the judge determined that Cobain’s estate attorney was a public figure. The judge’s determination meant that the attorney had to prove Love’s defamatory statement was made “with actual malice, meaning that she intentionally made a false statement, knowing it was false, or that she acted without regard to its truth or falsity. The jury determined that Love had not made the statement “with actual malice,” but if she had made the same statement about a private figure, the jury may well have decided against Love. 

Q:       Can I be held liable for statements I make on anonymous review sites like Yelp and Angie’s List?
A:        Yes. Online communication suits also concern online reviews attached to products and services reviewed on the Internet through sites like Yelp, Citisearch, and Angie’s List. However, you would have to make a false statement of fact, not opinion. Defamation lawsuits must be about false statements of fact. In one of the first cases of this type (Dietz v. Perez), a Virginia contractor filed a $750,000 defamation lawsuit against a blogger. Through Angie’s List, the blogger had not only accused the contractor of poor work, but also of trespassing and stealing. The blogger filed a countersuit, also alleging defamation. At trial, the jury decided that both sides had defamed each other, but neither was awarded damages. Eventually, the blogger took down the scathing review. In the court’s ruling, the judge wrote that it was not his job to rule on free speech, but that the blogger’s actions had endangered people’s ability to write freely in online reviews: “If you want to chill free speech, keep it up, because eventually one of these companies is going to win big…. That will chill free speech, when somebody is hit with a huge monetary verdict.”

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Sara H. Jodka of Porter, senior counsel with McDonald Hopkins LLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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