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Feeney v. Eshack8/19/1998
REECE, Judge.
This action came before the Summit County Court of Common Pleas involving multiple parties. Pat Feeney, appellee and cross-appellant, brought a personal injury action against John Eshack, appellant and cross-appellee, and Louis Berrodin, Jr., d.b.a. the Bucket Shop, appellant and cross-appellee. After a trial by jury, a verdict was returned against both Eshack and the Bucket Shop. All parties appealed, and the cases have been consolidated for their disposition by this court. Eshack assigns four errors, the Bucket Shop raises one assignment of error, and Feeney asserts one cross-assignment of error. We will address each individually.
On April 18, 1992, Feeney and a friend went to the Bucket Shop, a bar in Akron, Ohio. In the early morning hours of April 19, 1992, Eshack approached Feeney near the rear entrance of the Bucket Shop. The two men were acquaintances from the bar. Esback shook Feeney's hand rather vigorously and then grabbed Feeney, and the two men began spinning. They eventually went out the rear entrance and onto the stoop. At that time, Feeney had hold of Eshack by his shirt, and Eshack held Feeney by his jacket. In an attempt to make Feeney let go, Eshack attempted a wrestling move known as the heel pick. As a result of this maneuver, Feeney suffered a serious injury to his right knee. Numerous surgeries and physical therapy sessions proved unsuccessful; Feeney's knee was permanently damaged.
On April 15, 1994, Feeney brought a personal injury action against Eshack and the Bucket Shop seeking damages for his injury. The complaint alleged that Feeney had been injured as a result of Eshack's intentional and/or negligent conduct and the Bucket Shop's negligence. The case proceeded to trial on a theory of negligence only. The jury returned a verdict against both Eshack and the Bucket Shop holding them jointly and severally liable. Feeney was awarded damages in the amount of $300,000. Feeney then sought an award of prejudgment interest, and his claims against Bucket Shop were submitted to arbitration. The trial court denied Feeney's motion for prejudgment interest. Eshack, the Bucket Shop, and Feeney all appealed; the three cases were later consolidated.
In the case sub judice, although Feeney pleaded an action in negligence, the true nature of Eshack's actions is battery. In Hunter v. Shenango Furnace Co. (1988), 38 Ohio St.3d 235, 527 N.E.2d 871, the Ohio Supreme Court stated that " person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results."' Id. at 237, 527 N.E.2d at 873, quoting Love, supra, 37 Ohio St.3d at 99, 524 N.E.2d at 167-168. A person must do some positive and affirmative act to be liable for a battery. Id. Eshack did an affirmative act by heel picking Feeney, an offensive contact that resulted in harm. Contrary to Feeney's argument, it is not necessary to intend the harmful result; it is sufficient to intend the offensive contact that causes the injury . Id. Eshack's liability lay in battery, not negligence. Thus, the statute of limitations set forth in R.C. 2305.111 governs.
Therefore, we find no genuine issue of material fact, and Eshack is entitled to a judgment as a matter of law because reasonable minds can come to but one conclusion: that this action was filed outside the statutory time limits. Eshack's first assignment of error is well taken.
Based on our disposition of Eshack's first assignment of error, the remaining assignments of error are moot and will not be considered pursuant to App.R. 12(A)(1)(c).
"Whether the trial c
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