Love v. City of Port Clinton

• Court: Ohio Supreme Court
• Writing for the Court: HERBERT R. BROWN; MOYER
• Citation: Love v. City of Port Clinton, 37 Ohio St.3d 98, 524 N.E.2d 166 (Ohio 1988)
• Decision Date: 08 June 1988
• Docket Number: No. 87-434,87-434
• Parties: LOVE, Appellee, v. CITY OF PORT CLINTON et al., Appeal of HICKMAN.

Page 98

37 Ohio St.3d 98

524 N.E.2d 166

LOVE, Appellee, v. CITY OF PORT CLINTON et al. Appeal of HICKMAN.

No. 87-434.

Supreme Court of Ohio.

Submitted March 9, 1988.

Decided June 8, 1988.

Syllabus by the Court

Where the essential character of an alleged tort is an intentional, offensive touching, the statute of limitations for assault and battery governs even if the touching is pled as an act of negligence.

On September 17, 1983, the plaintiff-appellee, Terry Love, was arrested and handcuffed by Robert Hickman, a part-time police officer employed by the city of Port Clinton. In his complaint seeking damages, Love claims that he was negligently and recklessly subdued and handcuffed by defendant-appellant Hickman. Love alleged that Hickman used improper police procedures causing Love to sustain personal injuries, medical expenses, lost wages, diminished earning capacity, pain and suffering. Love's suit was filed on August 19, 1985. ¹

The trial court granted Hickman's Civ.R. 12(B)(6) motion to dismiss the allegations against him on the ground that the one-year statute of limitations for assault and battery actions (R.C. 2305.111) had expired.

The court of appeals, with one judge dissenting, reversed, holding that assault and battery was not necessarily the only tort committed by Hickman; and that further development of the facts could show that Hickman acted negligently in handcuffing Love. If such could be shown, the court of appeals reasoned, plaintiff should have received the benefit of the two-year statute of limitations for personal injury (R.C. 2305.10).

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

Stephen E. Cottrell, Genoa, for appellee.

Ward, Marein & Gillette, Leo R. Ward and Jose M. Gonzalez, Cleveland, for appellant.

HERBERT R. BROWN, Justice.

The issue is whether the action, as pled against Hickman, is barred by the statute of limitations for assault and battery claims. We find that it is.

When bodily injury results from negligence, the two-year statute of limitations, R.C. 2305.10, is the appropriate statute of limitations. However, when bodily injury results from an assault or battery, the one-year statute of limitations, R.C. 2305.111, is applicable. ² Dean v. Angelas (1970), 24 Ohio St.2d 99, 53 O.O.2d 282, 264 N.E.2d 911.

The complaint at bar alleges that Hickman "negligently and recklessly subdued and handcuffed * * * [Love], using improper police procedures and methods," which resulted in personal injuries to Love. "In ruling on a motion to dismiss under Civ.R. 12(B)(6), the material allegations of the complaint are taken as admitted," Phung v. Waste Management, Inc. (1986), 23 Ohio St.3d 100, 102, 23 OBR 260, 262, 491 N.E.2d 1114, 1116, and, in order to grant the motion, " * * * it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recover," O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus (following Conley v. Gibson [1957], 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80). Therefore, we accept the proposition that Hickman used improper police procedures to negligently subdue and handcuff Love and that such were a direct and proximate cause of Love's injuries. However, this does not resolve the statute of limitations question.

As we said in Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183, 12 OBR 246, 249, 465 N.E.2d 1298, 1302:

" * * * [I]n determining which limitation period will apply, courts must look to the actual nature or subject matter of the case, rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors, the form is immaterial."

Here, the specific acts of Officer Hickman--"subduing" and "handcuffing"--are acts of intentional contact which, unless privileged, constitute a battery. ³ 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. Restatement of the Law 2d, Torts (1965) 25, Section 13. Contact which is offensive to a reasonable sense of personal dignity is offensive contact. See Restatement of the Law 2d, Torts, supra, at 35, Section 19. The acts of "subduing" and "handcuffing" are undoubtedly offensive to a reasonable sense of personal dignity. The contact involved is plainly intentional; one cannot accidentally handcuff or subdue another.

In making the choice between two statutes of limitations applicable to the same conduct, it is settled law that: "A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable." Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47, 44 O.O. 72, 97 N.E.2d 549, paragraph one of the syllabus. Where the essential character of an alleged tort is an intentional, offensive touching, the statute of limitations for assault and battery governs even if the touching is pled as an act of negligence. To hold otherwise would defeat the assault and battery statute of limitations. Nearly any assault and battery can be pled as a claim in negligence. We agree with the court in Grimm v....