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Treese v. Delaware6/21/1994
tion 3 of the Court of Claims Act, Am.Sub.H.B. No. 800. R.C. 2305.131 provides as follows:
"No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction. This limitation does not apply to actions against any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought." (Emphasis added.)
The statute of repose bars any claim after ten years regardless of when it arose. A statute of repose bars the claim itself while a statute of limitations bars an action to seek relief for a claim. The statute begins to run when the improvement to the real estate is constructed. See Cincinnati Ins. Co. v. Wylie (1988), 48 Ohio App.3d 289, 549 N.E.2d 1198. The construction in this case was completed no later than November 25, 1968. Since more than ten years have passed since construction of the guardrail, Delaware's action for indemnity is barred unless ODOT was in possession and control as owner at the time of plaintiff s accident.
ODOT argues that, since Delaware is responsible for maintenance, ODOT is relieved of responsibility. However, maintenance alone does not determine possession or control. ODOT also argues that it is relieved of responsibility, since the trial court found that the accident occurred in the city of Delaware. The trial court stated:
"Additionally, any decision of ODOT to upgrade the guardrail system within a municipal corporation is a planning discretionary decision which is immune from liability." (Entry, Sept. 22, 1993, at 2.)
However, the trial court did not make any specific findings of fact, and this sentence is not indicative of such a finding, nor indicative that ODOT was not iscontrol. Consequently, unless the state was in control as owner, the statute of repose bars this action. This is a determination the trial court must make upon remand.
By the third assignment of error, Delaware contends that the Court of Claims erred in sustaining the summary judgment motion of third-party defendant and remanding the case to Delaware County Common Pleas Court for trial upon the issues between the other parties. In light of our conclusion in the first assignment of error that the trial court erred in sustaining the summary judgment motion, it is inappropriate to remand the case to the Delaware County Court of Common Pleas at this time. Consequently, Delaware's third assignment of error is well taken.
For the foregoing reasons, all three assignments of error are sustained, the judgment of the Ohio Court of Claims is reversed, and this cause is remanded to that court for further proceedings in accordance with law and consistent with this opinion.
Judgment reversed and cause remanded.
PEGGY L. BRYANT and REILLY, JJ., concur.
ARCHER E. REILLY, J., retired, of the Tenth Appellate District, was assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.
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