Kneisley v. Lattimer-Stevens Co., LATTIMER-STEVENS

• Court: United States State Supreme Court of Ohio
• Citation: 40 Ohio St.3d 354,533 N.E.2d 743
• Docket Number: 88-397,LATTIMER-STEVENS,MAST-LEPLEY,Nos. 87-1678,s. 87-1678
• Parties: KNEISLEY, Appellee, v.COMPANY, Appellant. SCHMIDT et al., Appellees, v.SILO, INC., Appellant.
• Decision Date: 30 December 1988

Page 354

40 Ohio St.3d 354 533 N.E.2d 743 KNEISLEY, Appellee,
v.
LATTIMER-STEVENS COMPANY, Appellant.
SCHMIDT et al., Appellees,
v.
MAST-LEPLEY SILO, INC., Appellant. Nos. 87-1678, 88-397. Supreme Court of Ohio. Submitted Nov. 14, 1988.
Decided Dec. 30, 1988. ^*

Steven J. Edwards, Grove City, for appellee in case No. 87-1678, Kneisley.

Timothy P. McCarthy, Columbus, for appellant in case No. 87-1678, Lattimer-Stevens Co.

Cross & Rose Co., L.P.A., and James O. Cross, Canton, for appellees in case No. 88-397, Schmidt, et al.

Duvin, Cahn & Barnard, Thomas H. Barnard and Thomas J. Wiencek, Cleveland, for appellant in case No. 88-397, Mast-Lepley Silo, Inc.

PER CURIAM.

In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, we addressed the constitutionality of the retroactive application of R.C. 4121.80(G). Having determined therein that such application violated the ban on retroactivity of Section 28, Article II of the Ohio Constitution, we now turn to R.C. 4121.80(D) and make a similar holding.

Van Fossen set forth a two-step

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analysis which first addressed legislative intent. Referring to R.C. 1.48, the decision stated that absent a clear indication of legislative intent to the contrary, a statute may only be applied prospectively. See, also, Kiser v. Coleman (1986), 28 Ohio St.3d 259, 28 OBR 337, 503 N.E.2d 753. R.C. 4121.80(H) applies R.C. 4121.80, as a whole, to causes of action "pending in any court on the effective date of this section." In Van Fossen, supra, we construed this language as evincing a "clearly expressed legislative intent that R.C. 4121.80 could be applied retrospectively." Id. 36 Ohio St.3d at 106, 522 N.E.2d at 496.

Having so concluded, we must next determine whether R.C. 4121.80(D) is substantive or remedial. While a remedial law is exempt from the constitutional prohibition on retroactivity, a substantive law is not. Gregory v. Flowers (1972), 32 Ohio St.2d 48, 52-53, 61 O.O.2d 295, 297, 290 N.E.2d 181, 184. Examples of statutes which are considered substantive are those which do any of the following:

"[I]mpairs or takes away vested rights, * * * affects an accrued substantive right, * * * imposes new or additional burdens, duties, obligations or liabilities as to a past transaction * * * creates a new right out of an act which gave no right and imposed no obligation when it occurred, * * * creates a new right, * * * or gives rise to or takes away the right to sue or defend actions at law. * * * " (Citations omitted.) Van Fossen, supra, 36 Ohio St.3d at 107, 522 N.E.2d at 497.

In successfully challenging retroactivity below, the appellees argued that R.C. 4121.80(D) eliminated their right to a jury trial, thus affecting an accrued substantive right. Appellants collectively attack both the nature and existence of the right as [533 N.E.2d 746] well as the statute's effect upon it. Appellants' challenges are not well-taken.

The right to a jury trial, where it exists, is substantive, not procedural. Cleveland Railway Co. v. Halliday (1933), 127 Ohio St. 278, 188 N.E. 1, paragraph one of the syllabus. There is no right to a jury trial, however, unless that right is extended by statute or existed at common law prior to the adoption of our state Constitution. Belding v. State, ex rel. Heifner (1929), 121 Ohio St. 393, 169 N.E. 301.

The modern concept of intentional tort evolved from the common-law action of trespass. 1 Restatement of the Law 2d, Torts (1965) 25, Section 13. Blackstone, in 3 Commentaries on the Laws of England (1778) 207, Chapter 12, defines "trespass" as:

" * * * [A]ny transgression or offense against the law of nature, of society, or of the country in which we live; whether it relates to a man's person, or his property. * * * [A]ny misfeasance or act of one man whereby another is injuriously treated and damnified, is a transgression or trespass * * *." "The action in trespass from its origin has been intended to provide a remedy for an injury to property or to the person. In modern terminology it is an action for damages." Deiser, The Development of Principle in Trespass (1917), 27 Yale L.J. 220, 221.

Commentators generally acknowledge the longstanding and increasingly significant role of the jury in trespass actions at common law. As noted by Deiser, "[t]he assessment of damages plays a great part in the development of the action of trespass. And as the jury later became the machinery by which this task was performed, * * * [w]ithout the jury, there might have been no common law * * *." Id. at 223. See, also, Woodbine, The Origins of the Action of Trespass (1924), 33 Yale L.J. 799, at 806, fn. 32 at 807, and...