 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Doe v. White9/23/1994
actice. Doe's claim would be time-barred under either of these statutes.
Prior to trial, White properly asserted his claim that Doe's action was time-barred in a 12(B)(6) motion to dismiss for failure to state a claim upon whicsrelief can be granted. Apparently, the trial court did not rule on White's motion until after the trial. In its decision, the trial court overruled White's motion to dismiss, holding that the four-year statute of limitations for negligence in R.C. 2305.09 was applicable to the case.
In reviewing a decision overruling a motion to dismiss for failure to state a claim, a reviewing court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 532 N.E.2d 753. Although the motion in this case was not ruled upon until after the trial, we must limit our review to the complaint for the first assignment of error.
In her complaint, Doe alleged essentially two causes of action against White: negligence and malpractice. The trial court found that the four-year statute of limitations found in R.C. 2305.09 governing general negligence claims was the correct statute of limitations to apply to this action. White claims, however, that R.C. 2305.09 is not the correct statute of limitations to apply to this action.
White appears to assert two alternative arguments. First, White argues that the one-year statute of limitations for battery should be applied to this case. Alternatively, White argues that if the statute of limitations for battery is not applicable, then the one-year statute of limitations for malpractice should be applied. We will address each argument in turn.
To determine which statute of limitations applies to Doe's claims against White, it is necessary to determine the actual nature or subject matter of the acts giving rise to the complaint. The Ohio Supreme Court has stated: " n determining which limitation period will apply, courts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors, the form is immaterial." Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183, 12 OBR 246, 249-250, 465 N.E.2d 1298, 1302. It is also well settled that: "A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable." Andrianos v. Community Traction Co. (1951),155 Ohio St. 47,44 O.O. 72, 97 N.E.2d 549, paragraph one of the syllabus.
White first argues that the subject matter of this action constitutes a battery, and thus the one-year statute of limitations for battery in R.C. 2305.111 should be applied to this case. We must examine whether the specific acts alleged in the complaint truly constitute a battery The Ohio Supreme Court has recognized: " hrough clever pleading or by utilizing another theory of law, the assault and battery cannot be [transformed] into another type of action subject tsa longer statute of limitations as it would circumvent the statute of limitations for assault and battery to allow that to be done." Love v. Port Clinton (1988), 37 Ohio St.3d 98, 100, 524 N.E.2d 166, 168, citing Grimm v. White (1980), 70 Ohio App.2d 201, 203, 24 O.O.3d 257, 258, 435 N.E.2d 1140, 1141-1142. Thus, regardless of how the action has been characterized in the complaint, if the actions complained of constitute a battery, then the statute of limitations for battery must be applied. See Andrianos, supra.
White claims that the actions compl
Page 1 2 3 4 5 6 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|