Hunter v. Shenango Furnace Co.

• Decision Date: 24 August 1988
• Docket Number: No. 87-1205,87-1205
• Citation: 38 Ohio St.3d 235,527 N.E.2d 871
• Parties: HUNTER et al., Appellants, v. SHENANGO FURNACE COMPANY, Appellee, et al.
• Court: Ohio Supreme Court

Page 235

38 Ohio St.3d 235

527 N.E.2d 871

HUNTER et al., Appellants, v. SHENANGO FURNACE COMPANY, Appellee, et al.

No. 87-1205.

Supreme Court of Ohio.

Submitted April 6, 1988.

Decided Aug. 24, 1988.

Syllabus by the Court

Unless the circumstances of an action clearly indicate a battery or any other enumerated intentional tort in the Revised Code, a cause of action alleging bodily injury as a result of an intentional tort by an employer arising prior to the effective date of R.C. 4121.80 will be governed by the two-year statute of limitations established in R.C. 2305.10.

On September 16, 1983, plaintiff-appellant, Lewis C. Hunter, sustained injuries while working for his employer, defendant-appellee, Shenango Furnace Company ("Shenango").

On August 29, 1985, Hunter and his wife, Janet, commenced this action in the court of common pleas against defendant ¹ alleging, inter alia, the following:

"3. * * * [W]hile the Plaintiff was so employed, the Plaintiff was trapped and his legs were crushed between two molds.

"4. That the Defendant SHENANGO FURNACE COMPANY intentionally caused Plaintiff's injuries in that they allowed a condition to exist regarding the molds that was substantially likely to cause injury to the Plaintiff.

"5. As a direct and proximate result, Plaintiff, LEWIS C. HUNTER has sustained permanent personal injury, pain and suffering, medical bills and expenses and lost wages, to his damage which will continue into the future."

The plaintiff-wife also alleged damages due to lost services and consortium of her husband.

Upon a motion for summary judgment filed by Shenango, the trial court granted the motion on the ground that the action was time-barred under R.C. 4121.80 as an action "pending in any court" on the effective date of the statute (August 22, 1986). ²

The court of appeals subsequently affirmed the trial court's decision but on a different ground. The appellate court held the evidence submitted on behalf of plaintiffs indicated a cause of action for battery which is governed by the one-year statute of limitations of R.C. 2305.111. Since plaintiffs' action was filed more than one year after the cause of action accrued, the court of appeals opined that the trial court correctly dismissed the case regardless of whether R.C. 4121.80 applied to the action.

The cause is now before this court pursuant to the allowance of a motion to certify the record. ³

Nukes & Perantinides Co., L.P.A., Linda Tucci Teodosio and Samuel G. Casolari, Jr., Akron, for appellants.

Vogelgesand, Howes, Lindamood & Brunn and John B. Lindamood, Canton, for appellee.

SWEENEY, Justice.

Defendant-appellee contends that the one-year statute of limitations governing battery actions, as set forth in R.C. 2305.111, ^{4 4} applies to all intentional tort actions brought against employers prior to the effective date of R.C. 4121.80. Defendant submits that under Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, this court defined intentional act in terms that are clearly in the nature of a claim for battery. Defendant asserts that the intentional tort alleged here by plaintiffs is the interference with the legally protected right to be free from unwanted bodily contact, i.e., battery. It is the defendant's contention that since the tort alleged herein is specific, it is governed by the shorter, more precisely defined statute of limitations applicable to battery (R.C. 2305.111), rather than the broader statute of limitations governing causes of action involving bodily injury (R.C. 2305.10 )⁵.

The plaintiffs-appellants argue that an employer's intentional conduct is not always a battery, and that this court in Blankenship, supra, and Jones, supra, did not narrow the intentional tort definition to one that is grounded solely in battery. Plaintiffs submit that intentional conduct can include a variety of causes of action such as battery, assault, deceit, false imprisonment, intentional infliction of emotional distress, etc., but that a clear reading of the underlying action pleaded herein is not one sounding in battery; rather, it is one for personal injury alleging a condition which the employer failed to correct and which caused injury. Plaintiffs contend that the tort of battery requires the doing of an act, but that the instant cause alleges an omission, i.e., that the employer failed to correct certain conditions that could and did cause bodily injury. Thus, plaintiffs argue that intentional conduct alleged on the part of the employer cannot be characterized as a battery where the intentional conduct alleged is in the form of an omission by the employer, rather than an act.

In determining the applicable statute of limitations in a given action, this court has held that the crucial consideration is the actual nature or subject matter of the cause, rather than the form in which the complaint is styled or pleaded. See Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183, 12 OBR 246, 249, 465 N.E.2d 1298, 1302; Kunz v. Buckeye Union Ins. Co. (1982), 1 Ohio St.3d 79, 81, 1 OBR 117, 118, 437 N.E.2d 1194, 1196.

Recently, in Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167, this court cited the Restatement of the Law 2d, Torts (1965) 25, Section 13, for the proposition that " * * * [a] person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results."

However, in the cause sub judice, a review of the nature or subject matter of the intentional tort alleged reveals that the elements of an act are lacking in order to characterize the tort alleged in the complaint as a battery. The Restatement of the Law 2d, Torts, supra, at 26, Section 14, states:

"To make the actor liable for a battery, the harmful bodily contact must be caused by an act done by the person whose liability is in question." (Emphasis added.)

Moreover, " * * * in order to be liable for battery, the defendant must have done some positive and affirmative act * * *." Prosser & Keeton, Law of Torts (5 Ed.1984) 41, Section 9.

In our view, the court of appeals below erred in classifying plaintiffs' action as one sounding in battery, because the actual nature of the action does not claim an overt, positive or affirmative act on the part of the defendant-employer. Similarly, we reject defendant's argument that R.C. 2305.111 governs all intentional tort actions by employees against employers for causes of action accruing prior to the effective date of R.C. 4121.80. A review of the instant pleadings and arguments clearly indicates that either an omission by the employer or an intentional failure to act or create a safe working environment is alleged.

While a Blankenship or Jones intentional tort may take the form of a battery, and thus make the shorter limitations period of ...