February 2002
Vol. 5, Issue 1

House Bill 279 Eliminates The Requirement For Witnesses
By Michael R. Shanabruch, Esq.

House Bill 279, which went into effect on February 1, 2002, changed the way that real property documents are executed in Ohio. Specifically, it eliminates the requirement that two witnesses execute certain documents related to real property, such as deeds, mortgages and leases with a term of more than three years. After February 1, 2002, the documents must still be notarized, but the requirement for the additional two witnesses has been deleted from the sections of the Ohio Revised Code dealing with each of the following property documents.

O.R.C. § 317.113: Translator's certificate on deeds or other instruments executed or certified in
foreign language

O.R.C. § 323.43: Certificate of authority to pay real property taxes levied upon lands

O.R.C. § 1337.01: Power of attorney for real property

O.R.C. § 1337.06: Power of attorney for personal property

O.R.C. § 1337.09: Affidavit of attorney in fact denying knowledge of revocation of power of attorney

O.R.C. § 1337.10: County recorder's option to require that cancellations, releases, or other actions affecting recorded powers of attorney be by separate instrument

O.R.C. § 5301.01: General acknowledgement of deeds, mortgages, land contracts, and memorandum of trusts

O.R.C. § 5301.04: Deeds, mortgages and leases of married persons

O.R.C. § 5301.08: Leases of real property with a term greater than three years (also see 5301.01)

O.R.C. § 5301.251: Memorandum of lease

O.R.C. § 5301.255: Memorandum of trust

O.R.C. § 5301.28: Mortgage release

O.R.C. § 5301.31: Assignment or partial release of mortgage (on the mortgage itself)

O.R.C. § 5301.32: Assignment or partial release of mortgage (by separate instrument)

O.R.C. § 5301.33: Cancellation, partial release or assignment of recorded lease

O.R.C. § 5301.331: Cancellation, partial release or assignment of recorded land contract

O.R.C. § 5301.34: Discharge of mortgage

O.R.C. § 5301.35: Waiver of priority of mortgage lien by lien holder

O.R.C. § 5302.05: General warranty deed

O.R.C. § 5302.07: Limited warranty deed

O.R.C. § 5302.09: Fiduciary Deed

O.R.C. § 5302.11: Quit-claim deed

O.R.C. § 5302.12: Mortgage

O.R.C. § 5302.17: Survivorship deed

O.R.C. § 5302.22: Transfer on death deed

O.R.C. § 5309.05: Registration of title to land

O.R.C. § 5309.10: Spouse's assent to application for registration of title to land

O.R.C. § 5309.30: Owner's signature on receipt or signature card for certificate of title

O.R.C. § 5309.51: Assignment of mortgage, encumbrance, lease, charge or lien upon registered land

O.R.C. § 5309.75: Deed or instrument granting power of attorney

O.R.C. § 5311.05: Condominium declaration

In addition, House Bill 279 repeals O.R.C. § 5301.234, which related to the presumption that a recorded mortgage is properly executed. Prior to House Bill 279, a recorded mortgage was presumed to be properly executed, regardless of any defects in the witnessing or acknowledgment on the mortgage, unless certain specific requirements were met.

As the length of the above list would indicate, essentially all documents related to real estate and certain powers of attorney must now only be notarized. Buckingham, Doolittle & Burroughs received some preliminary information that a deed signed after February 1, 2002 and still containing the signature of two witnesses will actually be rejected in some counties. In the near future, it would be advisable to check with the appropriate county recorder or auditor to determine the form required before executing the document.

Michael Shanabruch is a member of the Real Estate & Construction Law Practice Group and can be reached at mshanabruch@bdblaw.com or 216.615.7346.

Construction Accidents: How to Minimize Your Potential Liability
By Tod T. Morrow, Esq.

The legal consequences of a serious workplace accident can extend beyond a costly workers' compensation claim. The company may also face OSHA fines, penalties for violations of a specific safety requirement (VSSR), intentional tort lawsuits, and in some situations, negligence lawsuits. In cases involving egregious safety violations, company officials may even face criminal prosecution for criminal negligence or manslaughter.

Liability for serious workplace accidents can also extend beyond the injured worker's employer. This is particularly true in the construction industry where the worksite typically involves multiple contractors and businesses working side-by-side. In recognition of this fact, OSHA has developed a multi-employer worksite policy that substantially broadens the scope of OSHA liability so that all employers on a given worksite are potentially liable for OSHA citations. In some cases, even the owner, developer and architect can be liable for OSHA violations. This article will address the potential liability for serious industrial accidents in the construction industry and offer suggestions to help contractors and other employers minimize that liability.

Be Proactive
Once a catastrophic accident occurs, there will be little time to develop a strategy to protect the company. Within a very short period of time, the company will have to deal with the news media, police and fire officials, officials from the Occupational Safety and Health Administration (OSHA), insurance investigators, relatives of the injured employees and others. Therefore, the company should take steps to protect itself before an accident occurs.

For contractors, this means developing a comprehensive safety program that incorporates frequent and regular safety meetings and periodic inspections of the worksite to ensure compliance with OSHA regulations. Employees who fail to observe safety rules should be disciplined. Most important, all safety efforts, including employee discipline, should be documented.

Owners and developers can also take steps to protect themselves. Such steps include reviewing their contracts to ensure that they are not contractually responsible for worksite safety conditions; that is typically the responsibility of the general contractor. They may, however; require contractors to provide evidence of safety compliance. In some cases, OSHA has taken the position that owners and developers are responsible for verifying that contractors have an adequate safety program.

Respond Effectively to Serious Accidents
If a serious accident occurs, the company must take immediate steps to protect its interests. While the company's response will vary depending upon the severity and circumstances of the accident, the company should keep the following in mind:

1. Give Immediate Attention to the Needs of the Victims and Their Families
Although the employer should be wary of doing anything that could be construed as an admission of fault, it should always demonstrate concern for the well-being of the victim and his or her family. If the company appears callous and disinterested, hard feelings could produce years of costly litigation that could ultimately destroy the company.

2. Investigate the Accident Immediately
The best way to avoid liability is to investigate the accident immediately and gather facts while they are still fresh. A timely record of events surrounding the accident, as well as pictures and measurements of the accident scene, can be of tremendous assistance should litigation ensue. In this regard, immediate legal advice is crucial. Accident investigation reports prepared at the request of legal counsel are usually protected by the attorney-client privilege and immune from discovery by outside parties, including OSHA.

A recent case that I handled underscores the importance of an immediate accident investigation. An employee suffered permanent paralysis when he fell and broke his neck while working on a construction project. The employer's accident investigation revealed that the employee was working above ground at a height that was below the threshold required for fall protection safety devices. Nevertheless, the employee filed suit against the company. The affidavits, measurements and photographs taken shortly after the accident were crucial in successfully refuting the injured worker's contention that he was working above the regulatory threshold height.

3. Dealing with OSHA
When a serious accident occurs, OSHA citations are a virtual certainty. Employers should adopt a policy of "cautious cooperation" when dealing with OSHA. That means refraining from obstructing or hindering the OSHA inspector, yet insisting that OSHA respect your legal rights. If an accident occurs, there is little an employer can do to keep OSHA out. The company can; however, limit the scope of the OSHA inspection to safety conditions pertaining to the accident.

If the company receives an OSHA citation arising out of a serious accident, the company should usually contest the citation. Failure to contest the citation could be construed in subsequent lawsuits as an admission of fault. By contesting, the employer can substantially reduce fines and possibly vacate some or all of the citations. Moreover, a settlement agreement between an employer and OSHA is generally not admissible evidence in a subsequent lawsuit.

Ironically, OSHA can sometimes prove to be a helpful ally where an intentional tort lawsuit is filed. OSHA's investigation may show that the company did not violate any safety regulations or that the accident was caused by the injured worker's own negligence. In some cases, I have obtained summary judgment for the employer by arguing that OSHA's classification of the safety violations as merely "serious," rather than "willful," indicates that the employer's conduct was not sufficiently egregious to support allegations of an intentional tort.

4. Dealing with the Media
The company should be prepared to deal with the news media. If an employer remains silent or responds with "no comment," the public may interpret its silence as an admission of fault or a general lack of concern. Therefore, the company may want to issue a short press release, expressing the company's concern for the injured worker and his or her family and setting forth the facts that put the company in a favorable light, such as a good safety record or safety awards that it has received.

5. Dispel Rumors and Restore Morale
Rumors often breed lawsuits. Therefore, an employer should know what its workers are saying about the accident. The company may want to meet with its employees to dispel false rumors. This meeting can also help restore morale and demonstrate the employer's concern for the safety of its workforce.

In conclusion, a company that experiences a serious workplace accident can expect to run a veritable gauntlet of legal horrors. The most effective way to minimize liability for construction accidents is to take a proactive approach that incorporates comprehensive safety training, timely investigation of serious accidents and a close review of the company's contractual responsibility for workplace safety.

Tod Morrow is a member of the Employment Law and Workers' Compensation Practice Groups and can be reached at tmorrow@bdblaw.com or 330.491.5229.

Practice Group Profile Featuring Kenneth A. Fisher, Esq.

Ken Fisher practices Construction Law from our Columbus office. He dedicates his practice to representing owners, contractors, subcontractors, suppliers, and design professionals in construction contracting and dispute resolution. Because Ken is also a Registered Architect, his understanding of the construction process and the relationships of the different players are unique among attorneys. Whether negotiating a contract or resolving a dispute, Ken is aware of and appreciates the perspectives of all of the parties involved.

Ken developed a strong problem-solving orientation while practicing architecture. After graduating from Ohio State, he put himself through Capital Law School at night while working for an architecture firm during the day. He says, "We designed functional, cost-driven buildings that provided practical solutions that met the owners' program and budget requirements."

Ken brings the same approach to the practice of law. "Construction disputes raise some very interesting challenges," he explains, "because it is rare to find one party that is completely without any responsibility. To the parties, every project involves a lot of money, but not a lot of time and sometimes it just does not work. Who is the plaintiff and who is the defendant may simply depend on who gets to the courthouse first. But when the dispute flares up while the project is being built, the lawyer's objective in most cases should be to move the project forward."

A significant amount of Ken's construction-law practice involves negotiating modifications of standard form contracts to fit specific projects. "One of the biggest issues is always the allocation of risk," he explains. "A form contract typically limits the risk of the party represented by the trade organization that published that form. The trick is knowing how the risk may be redistributed without making the contract unenforceable, driving up project costs, or turning an insured risk into an uninsured risk by assigning it to the wrong party." As Ken points out, "bargaining power is not everything." His rule of thumb is, "just because you can doesn't mean you should."

Educating those involved in construction through the several seminars he presents every year is one of Ken's passions. Because the typical owner has not built a project for some time, if at all, he or she is not as well versed in the process as are design professionals and contractors. However, even those who deal with the AIA documents every day, for instance, may not be aware of all the details. As a case point, Ken has found that many contractors are surprised to learn that AIA documents do not contain a one-year warranty on the work.

Whether he is representing an owner, a contractor, or a design-professional, Ken makes a conscious effort to talk in the client's language. "Advice that is not understood is a waste of time and money, and is often worse than no advice at all."

Ken Fisher is a member of the Real Estate & Construction Law and Litigation Practice Groups and can be reached at kfisher@bdblaw.com or 614.227.4290.

On February 28, 2002, Buckingham, Doolittle & Burroughs' Real Estate & Construction Practice Group will be holding its Complimentary Annual Seminar in Akron, Ohio. "The topics include: The Impact of Insolvency on Mechanics' Liens and Real Estate; Construction Contracts: Form and Substance; Hot Topics; The Impact of House Bill 272 on Brokers and Real Estate Agents; and The Top 10 Pitfalls to Avoid in Commercial Leases." Two hours of continuing education credit will be granted from the State of Ohio Division of Real Estate. To register on line visit www.bdblaw.com/seminars.asp or contact Maria Hawkins at mhawkins@bdblaw.com or 330.258.6478.

Save The Date for these Additional Presentations:
On March 20, 2002, Robert A. Hager and John P. Slagter will be presenting "Understanding Legal Aspects of Construction Contracts," for the Associated Builders and Contractors Association. Please refer to www.abc.org for more information.

The Ohio State Bar Association/Continuing Legal Education Institute is sponsoring a series entitled "Implementing Strategies to Minimize the Risk of Mechanics' Liens and 'Paying Twice.'" The presenters, dates and cities are as follows:
Donald B. Leach, Jr. on March 6, 2002 in Columbus, Ohio;
John P. Slagter and Robert A. Hager on April 5, 2002 in Toledo, Ohio;
Kenneth A. Fisher on April 12, 2002 in Cincinnati, Ohio;
John P. Slagter and Robert A. Hager on May 3, 2002 in Cleveland, Ohio;
Please reference www.ohiocle.org for additional information.

The Builders Exchange of Central Ohio in Columbus, will sponsor two presentations. Kenneth A. Fisher will present "Introduction to Construction Contracts," on February 26, 2002. Donald B. Leach, Jr. will present "Ohio's Mechanics' Lien Law: The How's and Why's of the Paperwork - General Contractors, Owners" on June 4, 2002, Please refer to www.bx.org for registration information.

Out and About - Recent Presentations:
Donald B. Leach, Jr. and Craig B. Paynter were presenters at the Columbus Bar Association Real Property Institute on February 9, 2002. Don's topic was "What the General Assembly Knows About Construction" and Craig's topic was "Annexation Update: Significant Changes."

Robert A. Hager presented "Legal Aspects of Construction Contracts" to the American Society of Professional Estimators on February 19, 2002.


If you are interested in obtaining information on upcoming seminars or would be interested in having speakers from Buckingham, Doolittle & Burroughs make a presentation to your organization, please contact: Cheryl Warren, Director of Client Relations and Marketing at cwarren@bdblaw.com or 800.686.2825 ext. 546.


At BDB we are always improving our processes so that we operate efficiently and effectively. Please let us know how you like our new broadcast format. E-mail: bdb@bdblaw.com Phone: 330.258.6473 Fax: 330.252.5473. 
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