Koncsol v. Niles, 95-T-5192

Decision Date07 August 1995
Docket NumberNo. 95-T-5192,95-T-5192
Citation664 N.E.2d 616,105 Ohio App.3d 535
PartiesKONCSOL et al., Appellants, v. CITY OF NILES, Appellee.
CourtOhio Court of Appeals

McLaughlin, McNally & Carlin, and John A. McNally III, Youngstown, for appellants.

Gian M. De Caris, Independence, for appellee.

CHRISTLEY, Judge.

This is an accelerated calendar appeal from the Trumbull County Court of Common Pleas wherein the judge granted defendant-appellee's motion to dismiss pursuant to R.C. 2744.02.

On or about April 3, 1990, Tracy and DeWayne Koncsol, appellants, were driving their car on North Main Street, a two-lane public street in Niles, Ohio, when an accident occurred. Appellants filed a complaint on February 28, 1994. Count 1 alleged that Tracy's injury was due to the negligence of the city of Niles, appellee, in failing to keep Main Street open, in good repair, and free of nuisance due to a manhole protruding out of the street. Appellant Tracy Koncsol suffered physical injuries and incurred $25,000 in medical expenses and $5,000 in additional expenses.

Count 2 of the complaint alleged a claim for loss of services on behalf of DeWayne Koncsol.

Appellee's answer denied the allegations of negligence and set up five affirmative defenses, including that appellant's action was barred by the applicable statute of limitations.

On December 18, 1994, appellee filed a motion to dismiss pursuant to R.C. 2744.02(A), claiming that appellants were barred from making a claim brought later than two years after the cause of action arose. To that end, it argued that the complaint was filed one year and eleven months too late.

Appellants subsequently filed a motion in opposition to appellee's motion to dismiss, stating that the applicable statute of limitations for the case was six years or, in the alternative, four years. Appellants argued that R.C. 2744.04(A) was but one statute of limitations for a political subdivision and that the court also needed to consider the others, namely, R.C. 2305.05 and 2305.09.

The trial court granted appellee's motion to dismiss under R.C. 2744.04(A), indicating that the action had been brought outside of the applicable statute of limitations. The court held that the controlling statute was R.C. 2744.04 because the claim was one of negligence based on the omission of a city to keep the street in good repair. Therefore, the two-year statute of limitations applied, and the case was dismissed as being untimely filed.

Appellants timely appeal the granting of appellee's motion to dismiss and assert the following as error:

"The trial court erred to the prejudice of Plaintiffs-Appellants by granting Defendant-Appellee's Motion to Dismiss the claim as not having been brought within the two (2) year negligence statute of limitations as found at Section 2744.04(A) of the Ohio Revised Code."

Appellants contend that the applicable statute of limitations was either six years, pursuant to R.C. 2305.07, or, in the alternative, four years, pursuant to R.C. 2305.09(D).

R.C. 2305.07 states:

"Except as provided in section[§ 126.301 and] 1302.98 of the Revised Code, an action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued." (Emphasis added.)

Appellants claim that, because their cause of action was created by statute in R.C. 723.01, 1 the six-year statute of limitations expressed in R.C. 2305.07 should apply. They claim that this statute creates an exception due to sovereign immunity and, therefore, any resulting cause of action arises by statute.

Under this same theory, they alternatively assert that appellee's liability was created by statute in R.C. 2744.02(B)(3). 2

However, it is clear to this court that R.C. 2305.07 pertains to contracts not in writing, not tort claims.

Next, appellants argue that if this court finds that the six-year statute of limitations for breach of statutory duty does not apply, then the minimum appropriate period of limitations should be four years for nuisance under R.C. 2305.09(D). 3

Appellants' argument is that under R.C. 723.01 and 2744.02(B)(3), appellee, as a municipal corporation, had a duty to keep its public streets open, in repair, and free from nuisance.

However, R.C. 2305.09(D) clearly states that the four-year statute of limitations is inapplicable to a case which is enumerated in R.C. 2305.10.

R.C. 2305.10 states, in part, "An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose." (Emphasis added.) Appellants' case clearly falls within this section since it involves bodily injury. See Bojac Corp. v. Kutevac (Oct. 29, 1990), 64 Ohio App.3d 368, 370, 581 N.E.2d 625, 626-627.

Thus, neither R.C. 2305.07 nor 2305.09(D) applies to this case, and the cause of action is governed by R.C. Chapter 2744, which reads at R.C. 2744.04(A):

"An action against a political subdivision to recover damages for injury, * * * allegedly caused by an act or omission in connection with a governmental or proprietary function, * * * shall be brought within two (2) years after the cause of action arose * * *."

As was previously discussed, a duty does exist for the municipal corporation to keep public streets open, in repair, and free from nuisance, under R.C. 723.01. Once that duty has been breached, R.C. 2744.02(B)(3) deals with a city's liability, stating that "[p]olitical subdivisions are liable for injury * * * to persons or property caused by their failure to keep public roads, highways, [and] streets * * * open, in repair, and free from nuisance."

This court has held that "the statute of limitations for suing a political subdivision is two years [under] R.C. 2744.04(A)." Bojac Corp., at 371, 581 N.E.2d at 627. See, also, Harvey v. Shoup (Sept. 30, 1994), Portage App. No. 93-P-0118, unreported, 1994 WL 587818; and Jurgle v. Howland Local Schools (June 23, 1995), Trumbull App. No. 94-T-5110, unreported, at 3, 1995 WL 411840.

It is well established that specific statutory provisions prevail over conflicting general statutes. See, e.g., State v. Chippendale (1990), 52 Ohio St.3d 118, 120, 556 N.E.2d 1134, 1136-1137; Shoup.

R.C. 1.51 states:

"If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the...

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  • Gillispie v. Miami Twp.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 1 d3 Maio d3 2019
    ...subdivisions and it prevails over the general statutes of limitations contained in R.C. Chapter 2305.") (citing Koncsol v. Niles (1995), 105 Ohio App.3d 535, 664 N.E.2d 616.); see Cummins v. Madison Corr. Inst., 2011-Ohio-1608, 2011 WL 1225556 (10th Dist. March 31, 2011) (citations omitted)......
  • Range v. Douglas
    • United States
    • U.S. District Court — Southern District of Ohio
    • 13 d5 Julho d5 2012
    ...prevails over the general statutes of limitations contained in Ohio Revised Code Chapter 2305) ( citing Koncsol v. Niles, 105 Ohio App.3d 535, 664 N.E.2d 616, 618 (Ohio Ct.App.1995)).21 Regardless of whether the two-year statute of limitation under Ohio Revised Code § 2744.04(A) or the four......
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    • 30 d1 Outubro d1 2000
    ...prevail is clear. R.C. 1.51; State v. Volpe (1988), 38 Ohio St.3d 191, 527 N.E.2d 818, paragraph one of syllabus; Koncsol v. Niles (1995), 105 Ohio App.3d 535, 664 N.E.2d 616; Lynch, supra. Even though appellants' contract claim can be partially characterized as a common-law breach-of-contr......
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    ...some claims brought under the act be limited by the one-year limitations period found in R.C. 733.60. See also Koncsol v. Niles (1995), 105 Ohio App.3d 535, 538, 664 N.E.2d 616 (explaining that the placement of the statute of limitations in the same code chapter as the right to sue a politi......
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