Durham v. Anka Research Ltd.

• Decision Date: 25 October 1978
• Citation: 60 Ohio App.2d 239,396 N.E.2d 799,14 O.O.3d 222
• Parties: , 14 O.O.3d 222 DURHAM, Appellant, v. ANKA RESEARCH LIMITED, Appellee; Burket. 1
• Court: Ohio Court of Appeals

Page 239

60 Ohio App.2d 239

396 N.E.2d 799, 14 O.O.3d 222

DURHAM, Appellant, v. ANKA RESEARCH LIMITED, Appellee; Burket. ¹

Court of Appeals of Ohio, First District, Hamilton County.

Oct. 25, 1978.

Syllabus by the Court

1. The amendment to R.C. 3109.01 changing the age of majority from 21 years to 18 years is constitutional and applies to an injured person who is 18 years of age on the effective date of the amendment.

2. Under R.C. 2305.15, the statute of limitations is tolled as against a foreign corporation by its absence from the state, despite its amenability to long-arm service under Civ.R. 4.3.

3. A motion to dismiss a complaint under Civ.R. 12(B)(6) based upon the bar of the statute of limitations is erroneously granted where the bar is not conclusively demonstrated on the face of the complaint.

Richard L. Katz, Cincinnati, for appellant.

Rendigs, Fry, Kiely & Dennis, and Frederick Brockmeier, Cincinnati, for appellee.

BLACK, Judge.

This appeal raises several questions about the statute of limitations for personal injury (R.C. 2305.10), the "saving clause" applicable when a person is out of state (R.C. 2305.15), and the suspension of the statute of limitations during the disability of an "infant" (R.C. 2305.16) whose age of majority is reduced by legislative action (R.C. 3109.01).

Plaintiff brought suit against Anka Research Limited (Anka), the manufacturer of an intrauterine device which she claims was the cause of personal injuries. Her suit was dismissed on defendant's motion and on appeal she assigns three errors. The important dates are as herein set forth.

August 20, 1954, is the date of appellant's birth. She would become 18 years of age on her birthday in 1972, and 21 years of age on her birthday in 1975.

On December 1, 1971, appellant discovered that an intrauterine device, earlier inserted by Robert Burket, M.D., had become embedded and lodged in the wall of her uterus, causing pain and suffering and permanent injuries including loss of reproductive organs. The doctor had inserted the device in 1969, and he "removed" the device early in 1972. (The dismissal of the doctor as a defendant is not contested in this appeal.)

On January 1, 1974, the amendment to R.C. 3109.01, reducing the age of majority from 21 years of age to 18 years of age, became effective. Appellant was then 19 years, 4 months of age.

On December 18, 1975, appellant discovered that the device had not been fully removed and that 1.5 centimeters of it remained lodged in her uterus. (It was presumably later removed.)

On August 12, 1976, appellant filed her complaint against Anka, alleging (1) negligence in the manufacture and design of the device and failure to warn, (2) breach of expressed and implied warranties of safety, merchantable quality and fitness for warranted use, and (3) the inherent defectiveness and unreasonable dangerousness of the device. The complaint was twice amended and while new causes of action were alleged against Dr. Burket (later dismissed with consent of appellant), the only changes in the allegations of the second amended complaint against Anka were the insertion of certain dates omitted earlier and the inclusion of a claim of joint liability with Dr. Burket (in Count Five). The later allegations did not change the nature of the claim against Anka. Grooms v. Greyhound Corp. (C.A.6, 1961), 287 F.2d 95; Brown v. Cleveland Baseball Co. (1952), 158 Ohio St. 1, 106 N.E.2d 632; Kyes v. Pennsylvania R. R. Co. (1952), 158 Ohio St. 362, 109 N.E.2d 503. The date on which the action was brought was, therefore, August 12, 1976.

On August 18, 1976, six days after the filing of the complaint, Anka was served by certified mail at its office in the state of New York, in conformity with the address listed for Anka in the complaint.

We conclude that the dismissal of the suit against Anka was in error for the reason set forth below.

Appellant's first assignment of error is not well taken. She claims that the reduction of the age of majority from 21 to 18 years is not applicable to her. We disagree because we concur with the conclusion of the Court of Appeals for the Fifth District as found in Dickerson v. Ferrell (1976), 53 Ohio App.2d 160, 372 N.E.2d 619. That court held that a plaintiff who was underage at the time of a personal injury, but more than 18 years of age on January 1, 1974, must litigate his claim within two years after the effective date of the amendment to R.C. 3109.01. In the instant case, the cause of action arose on December 1, 1971, when appellant discovered the device had lodged in the uterine wall, but the statute was tolled from that moment until two years after she reached majority, under R.C. 2305.16.

Traditionally, the legislature has had the constitutional power to change the age of majority and to change the applicability of various statutes of limitation, provided that a person whose right to sue is thereby affected has a reasonable time within which to enforce the right. Appellant had a reasonable time in this case. We hold that she reached majority on January 1, 1974. Accordingly, unless the "saving clause" of R.C. 2305.15 applies in this case, appellant's right to enforce her personal injury claims terminated on January 1, 1976.

We find no merit in the second claim error which is that the lower court was wrong in ruling that appellant's cause of action arose more than two years prior to the commencement of her action. Appellant's causes of action accrued December 1, 1971, (the first discovery) and on December 18, 1975, (the second discovery). Melnyk v. Cleveland Clinic (1972), 32 Ohio St.2d 198, 290 N.E.2d 916. The court below was correct insofar as it reached this conclusion. However, the applicability of the two-year statute on personal injuries is deferred by both the "disability" statute (R.C. 2305.16, discussed in the preceding paragraph) and by the "saving" statute (R.C. 2305.15, discussed below).

The court erred, as appellant claims in her third assignment, in concluding that under R.C. 2305.15 a corporation is legally different from an individual and that the statute of limitations is not tolled by the absence of Anka from the state. Our conclusions are that the "saving" statute tolled the statute of limitations for the enforcement of claims against Anka so long as Anka had not "come into the state," that appellant's suit was commenced while the statute was tolled, that the action was not prohibited by the personal injury statute of limitations, and that Anka is now in the jurisdiction of the court for the purposes of this suit.

These conclusions are founded on several bases, the most important of which is our interpretation of Seeley v. Expert, Inc. (1971), 26 Ohio St.2d 61, 269 N.E.2d 121, and its relationship to "long arm" service under Civ.R. 4.3. In that case, the Supreme Court ruled, in the third paragraph of the syllabus, that R.C. 2305.15 tolls the statute of limitations during the time an individual defendant is absent from the state despite the fact that substituted service could have been obtained on that defendant as a nonresident operator of a motor vehicle under R.C. 2703.20. The court reviewed the history of the judicial interpretation of R.C. 2305.15 and concluded that it must abide by the plain language used by the General Assembly and never amended. That language states, briefly, that:

"(W)hen a cause of action accrues against a person, if he is out of the state * * * the period of limitation * * * does not begin to run until he comes into the state * * *."

The fact that he is amenable to service because the court can acquire jurisdiction by substituted service does not change the clear legislative intent that the statute of limitations is tolled so long as he does not come into the state in person. As the Supreme Court said in Seeley, an opposite result would not have been illogical; that is, that the saving statute and the procedures for service could be deemed so...