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Shelton v. LTC Management Services2/2/2004
. The second step is "to determine whether the cause or causes of action asserted * were available at common law." Id. Before the enactment of R.C. 3721.10 - .17 in 1979, a person that received bodily injury proximately caused by the negligence of a nursing home could bring a negligence action against the facility. See, e.g., Morris v. Monterey Yorkshire Nursing Inn, Inc. (1971), 29 Ohio App.2d 98 (Nursing home failed to notify doctors after decedent was injured.). The failure to act in Morris and the failure to act in this case both involve alleged negligence that proximately caused bodily injury. As a result, R.C. 3721.13(A)(1,2,3,5) does not provide a cause of action that would not have existed but for the statute because the same action existed at common law. Therefore, we find that Shelton's claim is not an action created by statute, and consequently, the six-year statute of limitations in R.C. 2305.07 does not apply.
. Shelton argues that if R.C. 2305.07 does not apply, then the four-year statute of limitations in R.C. 2305.09(D) does. However, Edgewood claims that Shelton waived this argument when she failed to argue it in the trial court. We disagree with Shelton and Edgewood.
. "Where the issue of the statute of limitations has been raised in the trial court, the fact that a party asserts the applicability of a different statute of limitations on appeal shall not bar this court from considering the issue." Lawyers Cooperative Publishing Co. v. Muething (1992), 65 Ohio St.3d 273, paragraph one of the syllabus.
. Here, Shelton responded to Edgewood's two-year statute of limitations argument in the trial court with the six-year statute of limitations argument discussed earlier. Thus, pursuant to Muething, she may now argue a different statute of limitations.
. "An action * shall be brought within four years after the cause thereof accrued * or an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 2305.10 to 2305.12, 2305.14 and 1304.35 of the Revised Code." R.C. 2305.09(D). The pertinent part of R.C. 2305.10 provides: "An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."
. Here, as we stated earlier, Shelton's claim in Count I of her complaint is an action for bodily injury , and thus, is enumerated in R.C. 2305.10. Hence, we find that the four-year statute of limitations in R.C. 2305.09(D) does not apply, and consequently, the two-year statute of limitations contained in R.C. 2305.10 time bars Shelton's action.
. Accordingly, we overrule Shelton's assignment of error and affirm the decision of the trial court.
JUDGMENT AFFIRMED.
Harsha, J. and Evans, J.: Concur in Judgment Only.
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