Barile v. University of Virginia

Decision Date09 May 1986
Docket NumberNo. 50524,50524
Citation30 OBR 333,507 N.E.2d 448,30 Ohio App.3d 190
Parties, 39 Ed. Law Rep. 288, 30 O.B.R. 333 BARILE, Appellant, v. UNIVERSITY OF VIRGINIA, Appellee. *
CourtOhio Court of Appeals

Syllabus by the Court

1. The Civil Rules do not prohibit the filing of successive motions to dismiss, although certain defenses may be waived if not timely asserted in a pre-answer motion. (Civ.R.12[G], applied.)

2. Supporting evidentiary documentation is not required for a motion for

judgment on the pleadings or for a motion to dismiss for failure to state a claim upon which relief can be granted.

3. The traditional rule of lex loci delicti (law of the place of the injury) is still viable in Ohio, but is no longer used to automatically determine the prevailing state law.

4. An action is governed by the statute of limitations of the forum state.

5. The tolling provisions of R.C. 2305.15 apply to a defendant who is absent from the state even though he is amenable to process under R.C. 2703.20, the "long-arm" statute.

Mancino, Mancino & Mancino and Paul Mancino, Jr., Cleveland, for appellant.

Frank L. Soldat, Cleveland, for appellee.

STILLMAN, Judge.

This appeal arises from the trial court's ruling dismissing the plaintiff's complaint pursuant to the defendant's motion. The plaintiff, Carl Barile, filed the complaint on December 18, 1979 alleging that the defendant, University of Virginia, had breached a contract to provide proper medical care if Barile was injured during the course of playing football or engaging in any athletic competition on behalf of the University of Virginia. He alleged that this contract was entered into after he had been recruited by the university's athletic staff and had signed a letter of intent on April 8, 1979. 1 He further alleged that in 1973 while playing for the university he broke his wrist. He contends that the university's medical staff provided no medical treatment but merely taped the wrist up. Thereafter, he continued to play for the university. He was operated on at the university in 1975. He contends the operation was improperly performed by university physicians.

In response to the complaint, the defendant filed a motion to dismiss on the ground that the court had no personal jurisdiction over the defendant because its contacts with the state of Ohio did not meet the minimum contacts requirement under Ohio's long-arm statute. The motion was granted and the plaintiff appealed. This court reversed and remanded finding that the recruitment and signing of the letter of intent provided sufficient basis for personal jurisdiction. Barile v. Univ. of Virginia (1981), 2 Ohio App.3d 233, 2 OBR 254, 441 N.E.2d 608.

Upon remand, the defendant filed its answer, asserting certain affirmative defenses including contributory negligence, assumption of the risk, statute of limitations, and sovereign immunity. The defendant then filed a motion to dismiss the complaint on the ground that the cause was barred by the statute of limitations and, further, that the university was protected by sovereign immunity. The plaintiff responded with a brief in opposition. The court granted the motion without specifying the grounds (see Civ.R. 52) and the plaintiff appeals assigning three errors for our review:

"I. The court committed prejudicial error in granting the motion of the defendant to dismiss for the reason that it was a second motion to dismiss and was not supported by any evidentiary material.

"II. The court committed prejudicial error in granting the motion to dismiss filed by the defendant on the basis that the defendant was entitled to the protection of the doctrine of sovereign immunity.

"III. The court committed prejudicial error in dismissing the complaint based upon the defense of the statute of limitations."

I

In his first assignment, the appellant argues that the Civil Rules prohibit successive motions to dismiss; therefore, the trial court erred in considering the appellee's second motion. In support he cites Civ.R. 12(B). That rule provides in pertinent part:

"(B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. * * * "

Under the rule, the appellee properly asserted the defense of lack of personal jurisdiction by pre-answer motion. While Civ.R. 12(G) provides that the failure to assert certain defenses results in waiver, thus prohibiting the further assertion of such defenses, that rule does not apply here. The defenses asserted herein are not those which would be subject to waiver for failure to assert them in a pre-answer motion. They were properly asserted as affirmative defenses in the answer. Since the "motion to dismiss" filed here was filed after the answer, it was more in the nature of a motion for judgment on the pleadings and may therefore be treated as such. Cf. Lawreszuk v. Nationwide Ins. Co. (1977), 59 Ohio App.2d 111, 13 O.O.3d 165, 392 N.E.2d 1094.

The appellant's second argument is that the motion should have been denied since no supporting evidentiary documents were submitted. The Civil Rules nowhere require such supporting documentation for a motion for judgment on the pleadings or for a motion to dismiss for failure to state a claim upon which relief can be granted. This assignment is overruled.

II

In his second assignment of error, the appellant contends that the trial court erred in granting the motion to dismiss as the appellee is not protected by sovereign immunity. This argument requires two threshold determinations for its resolution. First, we must determine the nature of the action; and second, we must determine which state's law applies, Ohio's or Virginia's.

The appellant contends that his action sounds in contract rather than tort. While the complaint asserts an action for breach of contract, it seeks recovery for bodily injury. The Ohio Supreme Court has determined that no matter what form of action is adopted, the essence of the action is the wrongful injury, and the fact that it arose from the breach of an express or implied contract is immaterial. Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47, at 50-51, 44 O.O. 72, at 74, 97 N.E.2d 549, at 552. Thus, the appellant in actuality seeks recovery in tort, either for personal injury or malpractice.

We move now to the second determination: Which law applies? The Restatement of the Law 2d, Conflict of Laws (1971), Section 161 provides that in a tort action:

"s 161. Defenses

"The law selected by application of the rule of § 145 determines what defenses to the plaintiff's claim may be raised on the merits."

Section 145 of that treatise states:

"s 145. The General Principle

"(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.[ 2

"(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

"(a) the place where the injury occurred,

"(b) the place where the conduct causing the injury occurred,

"(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

"(d) the place where the relationship, if any, between the parties is centered.

"These contacts are to the evaluated according to their relative importance with respect to the particular issue."

The Restatement considerations involving the balancing of each state's interests is the approach taken by Ohio. In a recent case, Morgan v. Biro Mfg. Co. (1984), 15 Ohio St.3d 339, 15 OBR 463, 474 N.E.2d 286, the Ohio Supreme Court stated at 341, 15 OBR at 465, 474 N.E.2d at 288: "Based on this line of authority, it is apparent that the traditional rule of lex loci delicti [law of the place of the injury] is still viable in Ohio, but is no longer used to automatically determine the prevailing state law. Other interests of the states involved within the controversy must be thoroughly analyzed. * * * " The court then specifically adopted the factors enumerated in the Restatement.

In this case, the injury in both instances occurred in Virginia. The conduct causing the injury occurred in Virginia. Carl Barile is a resident and domiciliary of Ohio. The University of Virginia is a resident and domiciliary of Virginia. Its place of business is Virginia. Finally, while the letter of intent was signed and the plaintiff was recruited in Ohio, the place where the relationship between the parties was centered was Virginia. Given these considerations, Virginia has the most significant relationship to the occurrence and the parties; therefore, the law of Virginia is determinative.

The Virginia Supreme Court has stated: "The University of Virginia is controlled by 'the Rector and Visitors of the University of Virginia,' a public corporation created for that purpose. Code § 23-69. * * * [n]o one questions the fact that this agency of the Commonwealth of Virginia is entitled to the protection of the immunity of the state." James v. Jane (1980), 221 Vt. 43, 267 S.E.2d 108, 112. As the University of Virginia, under Virginia law, is cloaked in sovereign immunity, the motion was properly granted on that ground. This assignment is...

To continue reading

Request your trial
16 cases
  • In re Revco DS, Inc.
    • United States
    • U.S. Bankruptcy Court — Northern District of Ohio
    • July 24, 1990
    ...v. Newport Yellow Cab, Inc., 628 F.Supp. 293, 297 n. 2 (S.D.Ohio 1985) aff'd, 815 F.2d 704 (6th Cir.1987); Barile v. University of Va., 30 Ohio App.3d 190, 507 N.E.2d 448, 450 (1986). Set forth below is a discussion of the various choice of law rules under Ohio law, as the forum state, as w......
  • Charash v. Oberlin College, 92-3952
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 20, 1994
    ...the use of other substantive law. See Howard v. Allen, 30 Ohio St.2d 130, 133, 283 N.E.2d 167 (1972); Barile v. University of Virginia, 30 Ohio App.3d 190, 191, 507 N.E.2d 448, 449 (1986). See also Mackey v. Judy's Foods, Inc., 867 F.2d 325, 328 (6th Cir.1989) ("In deciding what substantive......
  • Muncie Power Products v. United Technologies Auto.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 15, 2003
    ...loci delicti); Lawson v. Valve-Trol Co., 81 Ohio App.3d 1, 4, 610 N.E.2d 425 (Ohio App.1991) (same); Barile v. Univ. of Va., 30 Ohio App.3d 190, 193, 507 N.E.2d 448 (Ohio App., 1986) (same). Therefore, in Ohio, a party may overcome the presumption that the law of the place where the injury ......
  • Lawson v. Valve-Trol Co.
    • United States
    • Ohio Court of Appeals
    • February 13, 1991
    ...of the forum state, including applicable statutes of limitations, are generally applied. See Barile v. Univ. of Virginia (1986), 30 Ohio App.3d 190, 194, 30 OBR 333, 336, 507 N.E.2d 448, 451; Howard v. Allen (1972), 30 Ohio St.2d 130, 59 O.O.2d 148, 283 N.E.2d 167. An Ohio forum court must,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT