In Carter v. Reese, Slip Opinion 2016-Ohio-5569, the Ohio Supreme Court, in a case of first impression, recently addressed the limits on liability under Ohio’s Good Samaritan statute, Ohio Revised Code §2305.23, and held that 1) the statute applies to any person, not only health care professionals, who administers emergency care or treatment at the scene of an emergency; and 2) the phrase “administering emergency care” as used in the statute includes rendering medical and any other form of assistance to the safety and well-being of another when the result of “an unforeseen combination of circumstances calls for immediate action.”

Plaintiffs sued after Dennis Carter sustained injuries when he asked Larry Reese, Jr. to move a tractor-trailer that had pinned Carter’s leg between the trailer and a loading dock and Reese sought immunity under the statute, which states in relevant part: “[n]o person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency . . . for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.

Carter was a truck driver for S & S Transport and he pulled a tractor-trailer into the loading dock at AIC Contracting, Inc. to deliver an empty trailer and to pick up another. After attaching the second trailer, he pulled his truck about four to six inches away from the loading dock, unlocked the trailer brake, and locked the tractor brake so that the tractor wheels could not move. As he pulled himself onto the loading dock to close the trailer door, he slipped, and his leg became wedged between the loading dock and the trailer. He did not feel any pain but he could not free himself and he began yelling for help and banging on the loading dock door. About 10 minutes later, Reese arrived and offered to help. Carter told him to “get in my truck, move it forward about a foot, . . . but whatever you do, don’t put it in reverse.” Reese climbed into the cab of the truck and put it in neutral before realizing that he did not know how to operate it. Carter alleged that Reese “revved up” the truck three times before he heard the air brake release, and almost immediately, the trailer rolled backwards and broke his leg. Unfortunately, the break was so severe that Carter’s leg had to be amputated above the knee and Carter and his wife eventually sued Reese based on negligence and did not allege any willful or wanton conduct on Reese’s part. Reese affirmatively defended based on the Good Samaritan statute and moved for summary judgment, which was granted by the trial court and affirmed by the appeals court. The appeals court held that the statute applied to anyone, not only healthcare professionals, that assists at the scene of an emergency as long as they meet the statute’s requirement that the acts are not willful or wanton. The Ohio Supreme Court accepted the case in order to review Carter’s claim that the statute “is limited in scope and application to health care responders providing emergency medical care or treatment to another individual at the scene of an emergency and who otherwise satisfy the statute.”

In response, Reese argued that the statute applied to any person regardless of profession and that if the legislature had intended to limit the statute’s application it could have used the phrase “health care professionals” and that limiting it to those rendering emergency medical care or treatment would require the court to add the word “medical” to the statute. The court determined that it had to answer two questions with regard to the legislature’s intent: 1) did the legislature intend to limit the statute’s application to only medical professionals; and 2) by using the phrase “administering emergency care” did it intend to limit the application to only medical care or to extend it to all forms of care administered at the scene of an emergency?

The court noted that at common law, there was no duty to assist another but if assistance was given, the assistor had to act reasonably. In order to encourage medical professionals to assist in an emergency without fear of being sued, state legislatures, beginning with California in the late 1950s, began enacting Good Samaritan statutes. Since that time, the majority of states have extended immunity to lay people. The court reviewed many of those statutes and their specific language and determined that the Ohio statute applies to anyone, medical and non-medical personnel alike, that administers emergency care at the scene of an emergency, not just emergency medical care. Based on that ruling, it determined that Reese had administered emergency care and that his actions were not willful or wanton and therefore, he was entitled to immunity, thereby affirming the appeals court’s ruling.

This interpretation of the statute should be welcomed by anyone having to defend a non-medical professional whose attempts to assist in an emergency end with unfortunate consequences due solely to negligence.


On May 11, 2016, President Obama signed into law, the Defend Trade Secrets Act of 2016 (“DTSA”), which amended the federal Economic Espionage Act (“EEA”) to, among other things, allow companies to file civil lawsuits in federal court for the theft of trade secrets. However, it also imposed a new disclosure obligation regarding whistleblower immunity which must be included in all trade secret and confidentiality agreements, an obligation that employers should address immediately by redrafting those agreements. The law was unanimously passed in the Senate and passed the House by a 410-2 vote. It took effect immediately and applies to all misappropriations on or after May 11th.

Until now, protection of trade secrets fell exclusively under state law and all states have some statutory protection of them, with 48 of 50 having enacted the Uniform Trade Secrets Act (“UTSA”) in some form and the DTSA does not preempt or replace those laws. In fact, the definitions of “trade secret” and “misappropriation” in the DTSA more or less track the definitions in the UTSA. However, there are still some subtle differences between those laws from state to state and they are often applied differently. One of the goals of the DTSA was to allow for a more predictable nationwide application of the law and it gives employers seeking to protect their trade secrets some additional enforcement options.


First, the law now allows employers to sue a former employee in federal court and seek injunctive relief, damages and attorney fees and, under some circumstances, imposition of royalties, punitive damages and seizure, without regard to the amount at issue since it creates a federal question and allows courts to exercise supplemental jurisdiction of related state-law claims.  As such, while it does not preempt state trade secret or non-compete laws, it allows employers to make a strategic decision about whether to sue in state or federal court.


As noted, the law allows for injunctive relief and damages. However, it also contains two remedies that are not necessarily available under state law: seizure and an injunction against working for a competitor, even in the absence of a non-compete agreement. The seizure provision allows the plaintiff to seek a court order, without a hearing, to allow law enforcement to seize “any property to prevent the propagation or dissemination of a trade secret.” The law seems to require a very narrow set of circumstances where seizure will be permitted and the seizure order has many of the properties of a traditional temporary restraining order in that the plaintiff must provide adequate security for damages that may result if the seizure is later found to have been wrongful – for example a surety bond – a hearing must take place within seven days and none of the parties may have access to the seized property until the hearing takes place. It remains to be seen however, how narrowly courts will construe this provision.

As to the injunction to prevent a former employer from working for a competitor, the DTSA requires that the plaintiff demonstrate that a trade secret disclosure is actually threatened as opposed to the “inevitable disclosure doctrine” that developed in state law over the years, that allowed relief if the former employer could demonstrate that disclosure was inevitable simply because the former employee had access to a trade secret that he or she would naturally disclose to the new employer for competitive reasons. As with the seizure provision, it remains to be seen how courts will interpret the “threatened” requirement.


One provision that affects all employers utilizing agreements regarding trade secret and confidentiality agreements is the law’s safe harbor provision that protects individuals who turn over trade secrets to the government to investigate alleged illegal activity. Importantly, it requires employers to include a statement, either in the agreement itself or in a handbook or other employment policies specifically cross-referenced in the agreements, that notifies the employee that they cannot be held criminally or civilly liable for disclosure of a trade secret made in confidence to a government official or to an attorney for the sole purpose of reporting or investigating a suspected legal violation. Failure to provide such notice prevents the employer from seeking exemplary damages and attorneys’ fees.


While the law should be seen as a positive by those businesses seeking to protect their trade secrets and will likely lead to more trade secrets cases being filed in federal court, it is imperative that all employers who currently utilize trade secret and/or confidentiality agreements, even if they are included in non-compete agreements, redraft those agreements as soon as is practical to include the required DTSA language.


The Fifth Circuit recently ruled, in Tesoro Refining and Marketing Company, L.L.C. v. National Union Fire Company of Pittsburgh, Pennsylvania, No. 15-50405, 2016 U.S. App. LEXIS 13838 (5th Cir. July 29, 2016), that National Union was not obligated to cover losses caused by the alleged act of forgery committed by a Tesoro employee when no “unlawful taking” occurred as a result of the forgeries.

In 2003, Tesoro, an independent refiner and marketer of petroleum products, began selling fuel to Enmex Corporation on unsecured credit with a $25 million credit limit. By December 2007, the balance had grown to approximately $45 million and Deloitte and Touche, Tesoro’s auditors, spoke to Calvin Leavell, Tesoro’s credit director, about the $45 million balance and he indicated that Enmex’s account was secured by a $12 million letter of credit and soon thereafter, the auditor requested documentation of the letter of credit. Leavell was apparently confused about the accessibility of password-protected documents on a company server as forensic evidence later showed that a document purporting to be a $12 million letter of credit was created that day on a password-protected part of Tesoro’s server which stored Leavell’s documents, although he denied creating the false document. In January 2008, a Tesoro consultant asked Leavell about the Enmex account and a day later Leavell produced a document purporting to modify the $12 million letter of credit into a $24 million letter of credit that was also created on a password-protected part of the company server storing Leavell’s documents.

By March 2008 Enmex’s balance had increased to $59 million and Ernst and Young, Tesoro’s new auditors, discussed the account with Leavell and other employees and in May, a document purporting to be a security agreement signed in January 2008 was created — wait for it — on a password-protected part of the company server storing Leavell’s documents. Ernst and Young’s reports referenced both the $24 million letter of credit and the security agreement.

In September 2008, as the Enmex balance continued to grow, a new $24 million letter of credit was created on the same password-protected part of the company server as the other documents, although the PDF version of that document that was added to the credit department’s file share folder also contained a Bank of America logo and the forged signature of a BOA representative. At around the same time, Leavell also emailed Tesoro’s risk management vice president to let him know that Tesoro held the $24 million letter of credit. By December 2008, Enmex’s balance had risen to $90 million and Tesoro presented the letter of credit to BOA, which rejected it as invalid and Tesoro then stopped selling fuel to Enmex and sued the company for breach of contract and fraud, a case which eventually settled.

Tesoro then submitted a proof of loss to National Union under its commercial crime policy, a standard industry policy that consisted of several “insuring agreements,” including agreements covering “forgery or alteration,” which Tesoro claimed covered the loss and National Union denied coverage. Tesoro then filed an amended proof of loss under an “employee theft” provision, which National Union also denied. Tesoro then sued in federal court in California seeking a declaratory judgment under claims for breach of contract and bad faith but the case was transferred to the Western District of Texas, which eventually granted summary judgment to National Union because it determined that the “employee theft” provision did not cover losses due to forgeries that did not also include an unlawful taking, notwithstanding Tesoro’s argument that in order to trigger coverage it only needed to prove that a forgery took place.

On appeal, the Fifth Circuit noted that the insuring agreement stated that it covered “loss of . . . ‘other property’ resulting directly from ‘theft’ committed by an ‘employee’. . .” but that it also stated “[f]or purposes of this Insuring Agreement, ‘theft’ shall also include forgery.” The policy defined “theft” to mean “the unlawful taking of property to the deprivation of the insured.” Tesoro first argued that in order to have a covered claim, it only had to establish a “forgery,” and did not have to establish a “theft” through forgery. The appeals court rejected this argument, holding that when read in context, the employee theft provision unambiguously required a forgery leading to theft to trigger coverage.

Tesoro also alternatively argued that Leavell’s alleged forgeries constituted theft by deception, and thus was a covered “unlawful taking.” The court noted that under Texas law, theft by deception required 1) that a deceptive representation be a substantial or material factor in inducing the property owner to transfer the property, and 2) that if he’d been aware of the truth, he would have acted differently. As to the first prong, the court held that Tesoro did not produce any evidence that Leavell’s actions “affected its decision to continue selling fuel to Enmex.” As to the second prong, the court held that Tesoro failed to offer any evidence that it would have acted differently had it known that the Enmex account was actually not secured since it continued to sell fuel to Enmex when it knew the account was unsecured. As such, the court affirmed the trial court’s determination that no coverage was available.