438 N.E.2d 881 (Ohio 1982), 81-1659, Viers v. Dunlap

Docket Nº81-1659.
Citation438 N.E.2d 881, 1 Ohio St.3d 173
Opinion JudgePALMER, J., of the First Appellate District, sitting for KRUPANSKY, J. LOCHER, J.
Party NameVIERS et al., Appellees, v. DUNLAP et al., Appellants.
AttorneyRobert W. Heydorn, Cuyahoga Falls, for appellees. Mr. Robert W. Heydorn, for appellees., Mr. Marvin A. Shapiro, for appellant J. C. Penney Cas. Ins. Co.
Judge PanelWILLIAM B. BROWN and PALMER, JJ., concur. FRANK D. CELEBREZZE, C. J., and SWEENEY and CLIFFORD F. BROWN, JJ., dissent. HOLMES, Justice, concurring. CLIFFORD F. BROWN, Justice, dissenting.
Case DateAugust 11, 1982
CourtSupreme Court of Ohio

Page 881

438 N.E.2d 881 (Ohio 1982)

1 Ohio St.3d 173

VIERS et al., Appellees,

v.

DUNLAP et al., Appellants.

No. 81-1659.

Supreme Court of Ohio.

August 11, 1982

Syllabus by the Court

O.Jur. 2d Negligence § 84.5

R.C. 2315.19 affects rights and applies prospectively to causes of action arising after June 20, 1980, the effective date of the statute.

On November 13, 1976, at approximately 3:30 a. m., Carlos Dunlap was operating a vehicle owned by James Portis in an easterly direction on I-76 in Portage County. In a statement rendered to a police officer, Dunlap related that he had attained a speed in excess of 100 miles an hour when he lost control of the car. After skidding into the median strip separating the eastbound and westbound lanes of I-76 and rolling over several times, the car came to a rest on its roof and apparently unlit in the westbound passing lane.

At approximately the same time, appellee Robert Viers was driving in a westerly direction in the right lane of I-76. As he approached the area where the car lay overturned, Viers, observing lights emanating from two other vehicles parked on the right side of the highway, moved into the passing lane where he subsequently collided with the prostrate Dunlap-operated vehicle.

Viers and his wife later initiated this action against Portis and appellants Dunlap and J. C. Penney Casualty Insurance Company. As Dunlap was not insured, appellees joined J. C. Penney as a defendant in the action as they sought recovery under the uninsured motorist provision of their insurance policy. Thereafter, Portis was

Page 882

dismissed as a party. Dunlap neither filed an answer nor otherwise entered an appearance.

On August 4, 1980, trial commenced. At the close of the evidence, the court charged the jury, inter alia, that a finding of Viers' contributory negligence would bar recovery. Appellees objected both to the court's refusal to instruct the jury on comparative negligence and to the court's instruction on proximate cause. Upon deliberating, the jury found for appellants.

Appellees subsequently appealed the decision to the Court of Appeals for Summit County. The appellate court reversed the trial court's judgment, holding that the requested instruction on comparative negligence was improperly withheld and that the instruction on proximate cause was improperly rendered.

The Court of Appeals certified the record of the case to this court for review and final determination as it found its decision to be in conflict with the judgments of the Court of Appeals for Cuyahoga County in Balcerzak v. Page (July 30, 1981, No. 42864), unreported; of the Court of Appeals for Franklin [1 Ohio St.3d 174] County in Wirth v. South Central Power (March 24, 1981, No. 80AP-713), unreported; and of the Court of Appeals for Ottawa County in Musgrove v. Phil's Inn (May 15, 1981, No. OT-80-22), unreported.

Robert W. Heydorn, Cuyahoga Falls, for appellees.

Marvin A. Shapiro, Akron, for appellant J. C. Penney Cas. Ins. Co.

LOCHER, Justice.

The Court of Appeals, in certifying the herein action to this court, divided the issue to be considered into three discrete queries: "(1) whether R.C. 2315.19, effective June 20, 1980, is substantive or procedural and remedial in nature; (2) if procedural and remedial, should R.C. 2315.19 be applied retrospectively or prospectively; and (3) would prospective application include application to negligence cases arising prior to the effective date of the statute, but tried after the effective date." We find our determination that R.C. 2315.19 1 affects substantive rights and must be applied prospectively dispositive of the questions which the appellate court has raised.

Section 28 of Article II of the Ohio Constitution, in stating that "[t]he general assembly shall have no power to pass retroactive laws * * *," expressly forbids retrospective legislation. R.C. 1.48 provides that: "A statute is presumed to be prospective in its operation unless expressly made retrospective." The General Assembly has thusly codified the time-honored common law principle that statutes are to be prospectively applied. 2 In construing R.C. 1.48, however, this court has consistently held that the application of a statute, which affects procedural rather than substantive rights, to causes arising prior to the statute's effective date but tried thereafter is not an impermissible retroactive application. Denicola v. Providence Hospital (1979), 57 Ohio St.2d 115, 387 N.E.2d 231 [11 O.O.3d 290]; Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, 242 N.E.2d 658 [45 O.O.2d 370]. Indeed, the application of statutes affecting procedural rights to all causes tried after the effective date of the statute constitutes prospective operation as, in such instances, the date of the trial is the reference point from which prospectivity and retroactivity are measured.

Page 883

As R.C. 2315.19 contains no explicit language permitting retroactive application, the statute must be presumed to operate prospectively. Appellees argue that this presumption has been overcome as the General Assembly in enacting the statute wished to give immediate effect to the more lenient, at least as it relates to plaintiffs, comparative negligence standard. However, this naked, unsupported assertion does nothing to evidence the legislative intent [1 Ohio St.3d 175] required to rebut the presumption of prospectivity. In fact, the retroactive application of R.C. 2315.19 would reward the plaintiff who waited until after the effective date of the statute while punishing the party who more expeditiously commenced his action. It can hardly be inferred that the General Assembly intended such disparate treatment of parties, both of whose claims may have arisen on the same day. As no evidence exists of legislative intent to give R.C. 2315.19 retroactive operation, whether the statute may be applied to actions ripening before but tried after the statute's effective date rests upon the proper characterization of the statute as either procedural or substantive.

In delineating the scope of procedural and substantive statutes, this court has formulated an eminently effective distinction. As we stated in State, ex rel. Holdridge, v. Indus. Comm. (1976), 11 Ohio St.2d 175, 178, 228 N.E.2d 621 [40 O.O.2d 162]:

"It is doubtful if a perfect definition of 'substantive law' or 'procedural or remedial law' could be devised. However, the authorities agree that, in general terms, substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress. * * *"

Appellees contend that this court's analysis in Denicola v. Providence Hospital, supra, compels a finding that R.C. 2315.19 affects the litigant's procedural rights and, therefore, may be applied to causes tried subsequent to the effective date of the statute. According to appellees, R.C. 2315.19 implicates only procedural rights. In support of their assertion, appellees cite the fact that the statute is placed in the "Trial Procedure" chapter of the Revised Code and argue that the statute affects only remedies and not the actual or expected rights of the defendant by permitting a contributorily negligent plaintiff to recover where formerly he could not.

First, the location of R.C. 2315.19 in the Code offers no guidance in determining the nature, substantive or procedural, of the statute. R.C. 1.01 provides, in pertinent part, that "Title, Chapter, and section headings and marginal General Code section numbers do not constitute any part of the law as contained in the 'Revised Code.' " The General Assembly has, thus, quite explicitly stated that the substance of a statute is not to be gleaned from its appellation.

Similarly groundless is appellees' argument that R.C. 2315.19 is merely remedial. Although semantic formulations can be devised to understate the obvious, it is patently clear that the statute markedly affects substantive rights. Where before a defendant was shielded from liability by a plaintiff's contributory negligence, this defendant no longer enjoys such protection. Where before a plaintiff who was contributorily negligent was denied recovery, he is now--as long as his misfeasance is not the predominant cause of his injury--entitled to damages. To characterize, as appellees do, such a fundamental change in the law as affecting only trial procedure and the mode by which a remedy is effected defies logic. The application of R.C. 2315.19 to [1 Ohio St.3d 176] causes arising before its effective date would change the legal character of rights and responsibilities arising out of past transactions in complete derogation of R.C. 1.48.

Appellees also argue that appellants' substantive rights are undisturbed by the statutory introduction of the doctrine of comparative negligence since both Dunlap and his de facto insurer, J. C. Penney, could not realistically have relied on the later availability of the complete defense of contributory negligence in calculating their actions. Several state courts, in determining that

Page 884

statutes codifying the doctrine of comparative negligence affect substantive rights, have addressed the identical contention. Costa v. Lair (1976), 241 Pa.Super. 517, 363 A.2d 1313; Joseph v. Lowery (1972), 261 Or. 545, 495 P.2d 273. In this respect we find the Oregon Supreme Court's pronouncement in its landmark Lowery decision persuasive. In holding that the Oregon comparative negligence statute could only legitimately be applied to causes arising after its effective date, the court stated:

"Certainly, no one has an accident upon the faith of the then existing law. However, it would come as a shock to someone who has estimated his probable liability arising from a past...

To continue reading

Request your trial
26 practice notes
  • 536 A.2d 1214 (Md.App. 1988), 496, Government Employees Ins. Co. v. Ropka
    • United States
    • Maryland Court of Special Appeals of Maryland
    • February 11, 1988
    ...Court in reversing itself within one year is certainly an unusual occurrence. Had that court reached the decision in Viers [v. Dunlap, [1 Ohio St.3d 173] 438 N.E.2d 881 (1982) ] that it ultimately reached in Wilfong [v. Batdorf, [6 Ohio St.3d 100] 451 N.E.2d 1185 (1983) ], plaintiffs would ......
  • 438 N.E.2d 890 (Ohio 1982), 81-1903, Crawford v. Halkovics
    • United States
    • Ohio Supreme Court of Ohio
    • August 11, 1982
    ...or nothing" rule. See my dissents in Straub v. Voss (1982), 1 Ohio St.3d 182 at 183 and Viers v. J. C. Penney Cas. Co. (1982), 1 Ohio St.3d 173 at 179. Therefore, I dissent. Page 897 FRANK D. CELEBREZZE, C. J., and LOCHER, J., concur in the foregoing dissenting opinion. Notes: [1] R.C.......
  • 566 N.E.2d 154 (Ohio 1991), 89-1662, Vogel v. Wells
    • United States
    • Ohio Supreme Court of Ohio
    • January 30, 1991
    ...& Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraphs one and three of the syllabus. See also, Viers v. Dunlap (1982), 1 Ohio St.3d 173, 1 OBR 203, 438 N.E.2d 881, overruled to the extent inconsistent therewith in Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, 6 OBR 162, [57 ......
  • 451 N.E.2d 1185 (Ohio 1983), 82-944, Wilfong v. Batdorf
    • United States
    • Ohio Supreme Court of Ohio
    • August 3, 1983
    ...actions tried after June 20, 1980, irrespective when the cause of action arose, as part of the common law of Ohio. (Viers v. Dunlap, 1 Ohio St.3d 173, 438 N.E.2d 881, and Straub v. Voss, 1 Ohio St.3d 182, 438 N.E.2d 888, to the extent inconsistent herewith, overruled.) The two cases involve......
  • Request a trial to view additional results
26 cases
  • 536 A.2d 1214 (Md.App. 1988), 496, Government Employees Ins. Co. v. Ropka
    • United States
    • Maryland Court of Special Appeals of Maryland
    • February 11, 1988
    ...Court in reversing itself within one year is certainly an unusual occurrence. Had that court reached the decision in Viers [v. Dunlap, [1 Ohio St.3d 173] 438 N.E.2d 881 (1982) ] that it ultimately reached in Wilfong [v. Batdorf, [6 Ohio St.3d 100] 451 N.E.2d 1185 (1983) ], plaintiffs would ......
  • 438 N.E.2d 890 (Ohio 1982), 81-1903, Crawford v. Halkovics
    • United States
    • Ohio Supreme Court of Ohio
    • August 11, 1982
    ...or nothing" rule. See my dissents in Straub v. Voss (1982), 1 Ohio St.3d 182 at 183 and Viers v. J. C. Penney Cas. Co. (1982), 1 Ohio St.3d 173 at 179. Therefore, I dissent. Page 897 FRANK D. CELEBREZZE, C. J., and LOCHER, J., concur in the foregoing dissenting opinion. Notes: [1] R.C.......
  • 566 N.E.2d 154 (Ohio 1991), 89-1662, Vogel v. Wells
    • United States
    • Ohio Supreme Court of Ohio
    • January 30, 1991
    ...& Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraphs one and three of the syllabus. See also, Viers v. Dunlap (1982), 1 Ohio St.3d 173, 1 OBR 203, 438 N.E.2d 881, overruled to the extent inconsistent therewith in Wilfong v. Batdorf (1983), 6 Ohio St.3d 100, 6 OBR 162, [57 ......
  • 451 N.E.2d 1185 (Ohio 1983), 82-944, Wilfong v. Batdorf
    • United States
    • Ohio Supreme Court of Ohio
    • August 3, 1983
    ...actions tried after June 20, 1980, irrespective when the cause of action arose, as part of the common law of Ohio. (Viers v. Dunlap, 1 Ohio St.3d 173, 438 N.E.2d 881, and Straub v. Voss, 1 Ohio St.3d 182, 438 N.E.2d 888, to the extent inconsistent herewith, overruled.) The two cases involve......
  • Request a trial to view additional results