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Benna v. Slavin12/18/2000
JUDGMENT: AFFIRMED.
David Benna appeals from a decision of the common pleas court granting summary judgment in favor of Jeffrey Slavin in connection with his claim for legal malpractice. Benna urges on appeal the court erroneously determined that Slavin exercised reasonable judgment when he settled Benna's personal injury case. After a careful review the record, we affirm the judgment of the trial court.
The record reveals on June 8, 1996, Benna and his friend, Bill Worona, drove to the Ukranian Youth Camp in Oberlin, Ohio to cut down trees infected with Dutch Elm disease. Afterwards, they had planned to camp there for the remainder of the weekend. After cutting down one tree, Benna decided to swim in the lake. He dove in the lake a couple of times, and then dove head first into shallow water breaking his neck and leaving him paralyzed. Thereafter, Benna retained Slavin to represent him against the Ukranian Youth Camp. However, Slavin perceived that Benna's criminal history and alcohol consumption coupled with the fact that he voluntarily dove into a lake which posed no unnatural hazard and the existence of the Ohio Recreational User statute raised serious liability problems. Slavin did not obtain Benna's medical records, examine the lake or consult with any expert.
Ukrainian's insurance carrier, Scottsdale Insurance Company, made a one-time offer of $100,000.00 to settle the case. Slavin advised Benna that he would file a complaint prior to the expiration of the statute of limitations, but that Benna should accept the offer. Benna then requested that Slavin ask Scottsdale for an additional $25,000.00, which Slavin did, but Scottsdale refused. Benna decided to accept the offer rather than file a complaint and risk a defense verdict at trial, and he signed a release.
Thereafter on March 29, 1999, Benna retained another attorney who filed a complaint against Slavin for legal malpractice claiming that he never examined the scene, conducted discovery, obtained an expert or Benna's medical records and that he failed to file a lawsuit, or forcefully negotiate with Scottsdale and convinced Benna to accept the settlement based on an incorrect interpretation of the Ohio Recreational User statute. The parties conducted discovery taking the depositions of Benna and Slavin. On November 11, 1999, Slavin filed a motion for summary judgment that the court later granted citing that Slavin's actions were an exercise of reasonable judgment. Benna appeals from that decision and raises the following assignment of error:
THE TRIAL COURT ERRED IN AWARDING SUMMARY JUDGMENT TO DEFENDANT BECAUSE THERE WAS SUFFICIENT EVIDENCE IN THE RECORD TO CREATE A GENUINE ISSUE OF FACT AS TO:
A. WHETHER THE DEFENDANT ATTORNEY COMMITTED MALPRACTICE PER SE;
B. WHETHER THE DEFENDANT ATTORNEY MADE REASONABLE DECISIONS IN HANDLING THE CASE;
C. WHETHER THE DEFENDANT ATTORNEY REPRESENTED HIS CLIENT COMPETENTLY; AND
D. WHETHER THE PLAINTIFF'S DECISION TO SETTLE WAS KNOWING AND VOLUNTARY IN LIGHT OF ATTORNEY'S MISSTATEMENTS.
Benna urges that Slavin did not exercise reasonable judgment when he settled Benna's claim and, therefore, the court erroneously granted summary judgment in Slavin's favor. Slavin maintains the court properly granted judgment in his favor because Benna voluntarily settled his case the settlement of which bars any claim for malpractice and in handling the case, he exercised reasonable legal judgment. Thus, we are concerned whether the court properly granted summary judgment in this instance.
Regarding summary judgment, Civ.R. 56(C) states in pertinent part:
* Summary j
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