Dean Spriestersbach v. Ohio Edison Co.

• Decision Date: 01 November 1995
• Docket Number: 95-LW-4570,95CA006026
• Parties: DEAN SPRIESTERSBACH, et al., Appellants v. OHIO EDISON COMPANY, Appellee C.A.
• Court: Ohio Court of Appeals

DEAN SPRIESTERSBACH, et al., Appellants v. OHIO EDISON COMPANY, Appellee

No. 95CA006026.

95-LW-4570 (9th)

Court of Appeals of Ohio, Ninth District Lorain

November 1, 1995

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF LORAIN, OHIO CASE NO. 93CV110004.

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DECISION

SLABY Judge.

Appellants, Dean and Georgeanna Spriestersbach, appeal from the Lorain County Court of Common Pleas' entry of summary judgment against them in their action against Appellee, Ohio Edison Company. We affirm.

Appellants owned and operated a dairy farm in Lorain County from 1973 through 1990. Appellee provided electrical power to the farm during that period. Beginning in the late 1970s Appellants and their cattle began to experience electrical shocks on the farm. In the early 1980s, the intensity and frequency of the shocks increased so greatly that, at least three or four times a month, an electrical discharge knocked down all eight cows and any people in the milking parlor. The farm experienced other electrical malfunctions. During the same period of time, the health of the dairy herd suffered dramatically and milk production levels plummeted. In 1984, three of Appellee's transformers that had serviced the farm were replaced. Appellants' electrical problems disappeared, and with time, the health of the dairy herd improved.

One February 16, 1993, Appellants sued, alleging that stray voltage from Appellee's system caused damage to their farming operation and their cattle. The trial court bifurcated the statute of limitations issue from the remaining issues and ordered Appellee to file a dispositive motion. Appellee moved for summary judgment; the court granted the motion. Appellants appeal from that judgment and assign three errors. We address the first two together.

Assignments of Error

"[I.] The trial court committed reversible error in determining that Plaintiffs-Appellants' cause of action began to accrue when they 'should have known' that the herd health problems were related to stray voltage prior to 1989 when they were never informed by competent medical authority, or other expert opinion, that the injuries were caused by or even

related to stray voltage and their exercise of reasonable diligence did not reveal to [Appellants] such relation.

"[II.] The trial court committed reversible error in granting [Appellee]'s motion for summary judgment when genuine issues of material fact remained as to when [Appellants] knew or should have know[n] that herd health problems were caused by stray voltage."

The issue here is whether the trial court properly granted summary judgment because Appellants' claims were time-barred. In reviewing a trial court's entry of summary judgment, an appellate court applies the same standard used by the trial court. McConville v. Jackson Comfort Sys., Inc. (1994), 95 Ohio App.3d 297, 301. In order to grant summary judgment pursuant to Civ.R. 56(C), a trial court must first decide that:

"(1) [N]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party."

State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589; see, also, Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

To determine whether a cause of action is time-barred, the court asks three questions: (1) what is the nature of the claim being asserted; (2) what statute of limitations applies to the claim; and (3) when did the cause of action accrue. See, generally, Browning v. Burt (1993), 66 Ohio St. 3d 244, 566-58, certiorari denied (1994), __ U.S. __, 127 L.Ed.2d 375. In this case, the trial court applied a four-year limitation period, apparently because the court found four years to be the longest applicable period. The court further applied the discovery rule, as formulated by this court in St. Paul Fire & Marine Ins. Co. v. R. V. World (1989), 62 Ohio App.3d 535, 543, and decided that Appellants' action accrued prior to February, 1989, more than four years before the complaint was filed.

The first two questions in our inquiry are questions of law. The actual nature or subject matter of the complaint, and not the form pleaded, determines the applicable statute of limitations. Hunter v. Shenango Furnace Co. (1988), 38 Ohio St.3d 235, 237. We look to the grounds for the action and the nature of the demand to help in our determination. Ohio Cas. Ins. Co. v. Ford Motor Co. (C.A. 6, 1974), 502 F.2d 138, 139, quoting State ex rel. Lien v. House (1944), 144 Ohio St. 238, paragraph one of the syllabus. In this case, the basis for the action is the harm to Appellants' dairy operation that was caused by stray voltage from Appellee's electrical equipment. All claims stem from Appellee's duty to supply electricity safely. These allegations all sound in negligence.

In addition, most of the recovery sought is for harm to the dairy operation, including loss of milk production, lost business opportunity, lost profits, lost value of real property, and other economic loss. These losses all arise out of the injury to the dairy herd. Appellants also seek recovery for their increased herd replacement costs and veterinary expenses, which compensate directly for the injury to the cattle. All damages stem from the injury to Appellants' personal property. Accordingly, R.C. 2305.10 is the applicable statute of limitations for this negligence action.

Appellants also pleaded two intentional tort actions: fraud and intentional infliction of emotional distress. The only specific representation alleged in the complaint to have been made by Appellee is that "[Appellee] was not the cause of the electric shocks." Appellants otherwise refer only vaguely to representations that the electricity "would be effective and safe for [Appellant]s' intended use." In order for the four-year fraud provision, R.C. 2305.09(C), to apply, fraud must be the gist of the action. Baldridge v. Toombs (1962), 118 Ohio App. 229, 230, cited in Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 216. Denial of responsibility for the damages does not enlarge the time in which the core action may be brought. See Baldridge, 118 Ohio App. at 230. The gist of this action is negligence; therefore, R.C. 2305.99(C) does not apply.

The intentional infliction of emotional distress claim is based upon Appellee's "extreme and outrageous conduct" in "allowing stray voltage onto [Appellant]s' farm while knowing full well the deleterious effects of such stray voltage." Use of the "buzz words," "extreme and outrageous conduct," does not alter the essential nature and subject matter of the claim to trigger a different statute of limitations. Liability is sought for allowing an otherwise safe activity to cause harm to personal property. R.C. 2305.10 applies.

R.C. 2305.10 states that "[a]n action for *** injuring personal property shall be brought within two years after the cause thereof arose." R.C. 2305.10 does not define when a cause of action arises under the statute; that issue is left to the courts to decide. O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, paragraph one of the syllabus. The first judicial adoption of a discovery rule by the Ohio Supreme Court occurred in Melnyk v. Cleveland Clinic (1972), 32 Ohio St.2d 198. The Court held, without disturbing the rule regarding accrual of a malpractice action, that the statute of limitations is tolled until the "patient discovers, or by the exercise of reasonable diligence should have discovered, the negligent act." (Emphasis added). Id. at 201. In its original sense, the discovery rule did not determine when a cause of action accrued. It was an equitable rule that prevented the statute from barring an action before the plaintiff could have known of its existence.

Applying R.C. 2305.09, the Supreme Court held in Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, paragraph two of the syllabus, that a negligent construction action does not accrue until actual injury or damage ensues. In the same year, the Court decided Kunz v. Buckeye Union Ins. Co. (1982), 1 Ohio St.3d 79. The Court adopted a rule that delayed the running of the period of limitations under R.C. 2305.09 until a loss resulted from the wrongful conduct. Kunz, 1 Ohio St.3d at 81-82. Only then is a tort complete and actionable. Id. at 81, quoting Austin v. Fulton Ins. Co. (Alaska 1968), 444 P.2d 536, 539. The Court distinguished Squire v. Guardian Trust Co. (1947), 79 Ohio App. 371, which had rejected the same argument, because the harm to the plaintiff there was immediate. Logically, this rule of accrual should apply to all tort actions, not only actions to which R.C. 2305.09 applies.

In 1983, the Court decided O'Stricker. The Court used accrual language in deciding that a cause of action under R.C. 2305.10 for bodily injury from a latent disease did not "arise" until discovery of the injury and its cause. Significantly, the Court limited its holding to "injury which only manifests itself at a point subsequent to the alleged negligent conduct." O'Stricker, 4 Ohio St.3d at 89. O'Stricker may apply to conduct which immediately causes injury, but only if the injury does not manifest itself immediately.

Later in 1983, the Supreme Court extended "the discovery rule" to all medical and legal malpractice actions under R.C. 2305.11(A). Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, syllabus; Skidmore & Hall v. Rottman (1...