Hocking Conservancy Dist. v. Dodson-Lindblom Associates, Inc., DODSON-LINDBLOM

• Decision Date: 14 May 1980
• Docket Number: DODSON-LINDBLOM,No. 79-1472,79-1472
• Citation: 62 Ohio St.2d 195,404 N.E.2d 164,16 O.O.3d 217
• Parties: , 16 O.O.3d 217 HOCKING CONSERVANCY DISTRICT, Appellee, v.ASSOCIATES, INC., et al., Appellants.
• Court: Ohio Supreme Court

Page 195

62 Ohio St.2d 195

404 N.E.2d 164, 16 O.O.3d 217

HOCKING CONSERVANCY DISTRICT, Appellee, v. DODSON-LINDBLOM ASSOCIATES, INC., et al., Appellants.

No. 79-1472.

Supreme Court of Ohio.

May 14, 1980.

Syllabus by the Court

The statute of limitations contained in R.C. 2305.11(A) is limited to the areas specifically enumerated therein and to the common-law definition of "malpractice."

On May 12, 1964, the Hocking Conservancy District (hereinafter appellee) employed what is now Dodson-Lindblom Associates, Inc., and its predecessors (hereinafter appellants), a professional engineering firm, to design and supervise construction of a storm drainage system. On September 8, 1970, construction contracts were awarded. Appellants were directed to supervise and inspect the work performed. The work was accepted by appellee's board of directors on November 12, 1971. Appellants' employment was terminated effective February 28, 1975, for reasons other than the matters which initiated this action.

On June 8, 1977, more than two years after the termination of the relationship between the parties and the discovery of the claimed defect, appellee filed suit against appellants, asserting that appellants were negligent in the design or supervision, or both, of construction of the storm sewer drain.

The Court of Common Pleas sustained appellants' motion for summary judgment on the sole ground that the action was barred by the one-year statute of limitations for "malpractice" in R.C. 2305.11(A).

The Court of Appeals reversed the judgment of the lower court, holding that the statute of limitations for "malpractice" contained in R.C. 2305.11 does not apply to actions initiated against a professional engineer.

The Court of Appeals certified the record of this cause to this court for review and final determination for the reason that its judgment was in conflict with the determination of the Court of Appeals for Franklin County in Avery v. Blind (1977), 7 Ohio Ops.3d 269.

James F. Shumaker, Nelsonville, for appellee.

Lane, Alton & Horst, Jeffrey W. Hutson and James K. Reuss, Columbus, for appellants.

LOCHER, Justice.

The sole issue in the instant cause is whether the one-year statute of limitations, under the purview of R.C. 2305.11(A), applies to negligence actions brought against a professional engineer. More precisely, the issue is whether negligence by a professional engineer constitutes "malpractice" within the meaning of R.C. 2305.11(A).

R.C. 2305.11(A) reads, in pertinent part, as follows:

"An action for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice, including an action for malpractice against a physician, podiatrist, or a hospital, or upon a statute for a penalty or forfeiture, shall be brought within one year after the cause thereof accrues * * *." (Emphasis added.)

Although reaching polar determinations as to the law, both the Court of Appeals for Franklin County and the Court of Appeals for Athens County rely on this court's opinion in Richardson v. Doe (1964), 176 Ohio St. 370, 199 N.E.2d 878. The court, in Richardson, refused to expand the meaning of "malpractice," as contained in R.C. 2305.11(A), to apply to nurses. Rather, the court limited the term "malpractice" to lawyers and physicians, in accordance with the common-law meaning.

In Matthews v. Walker (1973), 34 Ohio App.2d 128, 296 N.E.2d 569, the Court of Appeals for Franklin County extended the protection afforded by R.C. 2305.11(A) to podiatrists even though, at the time, such protection was not specifically enumerated in the statute. ¹

In Avery v. Blind, supra (7 Ohio Ops.3d 269), that same court emphasized the language employed in Richardson, supra, concerning the difference between the function of physicians and nurses. The court, in Richardson, did note that a nurse does not exercise any independent judgment, whereas a physician does exercise independent judgment. Judge Matthias stated in Richardson, supra, at page 373, 199 N.E.2d at page 880, as follows:

"There is no compelling reason for a nurse to be given the protection of a one-year statute of limitations. A nurse, although obviously skilled and well trained, is not in the same category as a physician who is required to exercise his independent judgment on matters which may mean the difference between life and death. * * * " (Emphasis added.)

Focusing on whether a professional exercises independent judgment, the court, in Avery, supra, expanded the one-year statute of limitations to accountants, because they exercise independent judgment in their profession.

The decisions of the Court of Appeals for Franklin County reflect the inclusion of professionals within R.C. 2305.11 if there is an exercise of independent judgment by the professional. Accordingly, that court expanded the term "malpractice" beyond its common-law meaning, which was restricted to only physicians and lawyers.

The Court of Appeals for Athens County neglected this "professional-independent judgment test" and properly limited the term "malpractice" to its common-law meaning.

The court, in Richardson, supra, at pages 372-373, 199 N.E.2d at page 880, notes that:

"At the time this statute was enacted, the common meaning and legal definition of the term, 'malpractice,' was limited to the professional misconduct of members of the medical profession and attorneys. See Long v. Bowersox, 8 N.P. (N.S.), 249, 254. Thus, when this amendment was enacted, it was not meant to apply to nurses.

"Today, the term malpractice, is sometimes used loosely to refer to the negligence of a member of any professional group. However, legally and technically, it is still subject to the limited common-law definition. It is well established that where a statute uses a word which has a definite meaning at common law, it will be presumed to be used in that sense and not in the loose popular sense. Grogan v. Garrison, 27 Ohio St. 50, 63." (Emphasis added.)

Furthermore, this court, in Richardson, supra, determined that any change in this area of the law should emanate from the General Assembly. Judge Matthias, in Richardson, invited the legislature to amend R.C. 2305.11 if it...