Rosemary Swope (lindberg), Administratrix of the Estate of Tanya Lindberg v. Cappas & Karas Trucking Co.

• Decision Date: 10 June 1982
• Docket Number: 82-LW-0118,44216
• Parties: Rosemary Swope (Lindberg), Administratrix of the Estate of Tanya Lindberg, et al. PLAINTIFF-APPELLANTS v. Cappas & Karas Trucking Company, et al. DEFENDANT-APPELLEES
• Court: Ohio Court of Appeals

Rosemary Swope (Lindberg), Administratrix of the Estate of Tanya Lindberg, et al PLAINTIFF-APPELLANTS v. Cappas & Karas Trucking Company, et al DEFENDANT-APPELLEES

No. 44216.

82-LW-0118 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

June 10, 1982

APPEAL FROM COMMON PLEAS COURT No. 016,308.

For plaintiff-appellants: John S. Thomay.

For defendant-appellees: Thomas E. Betz, William D. Bonezzi (Jay Clinton Rice).

JOURNAL ENTRY AND OPINION

PRYATEL C.J.

This cause came on to be heard upon the pleading and the ---------- transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof, the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Common Pleas Court is reversed in part and affirmed in part. Each assignment of error was reviewed by the court and upon review the following disposition made:

Plaintiff, Leslie E. Lindberg and plaintiff, Rosemary Swope (Lindberg) individually and as administratrix of the Estate of Tanya Lindberg (plaintiff's daughter) commenced this action in Cuyahoga County Common Pleas Court on August 14, 1980, for the child's injury and death occurring August 15, 1976. Plaintiff named as defendants Cappas & Karas Trucking Company and Al-Vin Corporation, c/o Vast Realty and Management.®1¯ Plaintiff averred that defendant Cappas & Karas Trucking Company was a corporation engaged in the business of collection of general refuse and garbage. In this capacity defendant Cappas & Karas Trucking Company serviced a certain residential apartment complex located at 20259 Lorain Road in the City of Fairview Park, Ohio which was owned and operated by defendant Al-Vin Corporation. Plaintiff alleged that during the morning of August 15, 1976, (nearly four years previous to the commencement of this action) plaintiff decedent, Tanya Lindberg, a minor, was playing alongside this apartment building wherein she lived with her family. Suddenly and without warning a refuse container overturned onto said child causing serious head injury. As "a direct result of defendants' wanton, negligent failure to provide a safe foundation and location for the aforementioned garbage dumpster; along with their failure to properly secure, maintain, inspect and service the container, or to comply with applicable government codes, regulations and standards, as well as negligent manufacture, design and testing of said bin, the decedent was caused to incur a severe skull fracture with lacerations and contusions of the brain and physical suffering leading to her eventual demise." In subsequent counts in the complaint, plaintiffs also prayed for damages for reasonable medical expenses and funeral expenses incurred as a result of the foregoing as well as for loss of services, and damages stemming from the nuisance created by defendants in their construction and knowing maintenance of the aforenoted condition. Plaintiffs prayed for judgment in the amount of $150,000 in compensatory damages and $150,000 in punitive damages. Defendants answered individually, denying the pertinent allegations, and cross-claimed against each other for judgment as to liability or alternatively for contribution. Both defendants also raised as an affirmative defense to the principal complaint the statute of limitations.

Footnote 1 Three John Doe defendants were also named but apparently never identified or served and hence not present parties.

On March 13, 1981, defendant, Cappas & Karas Trucking Company, moved for dismissal of the principal complaint asserting that the instant action is barred by the two year statute of limitations set forth in R.C. 2125.02 (the wrongful death statute) and 2305.10 (limitations for personal injury claims). Two weeks later®2¯ defendant Al-Vin Corporation moved for summary judgment in its favor likewise asserting that the instant action was time-barred. Defendant Al-Vin Corporation contended (a) that the first three counts of plaintiff's complaint (for negligence, funeral and medical expenses) all represented claims for injuries under Ohio's wrongful death statute and hence were properly barred under the two year limitation period set forth in that statute, and (b) that the claimed nuisance action herein as well as any possible survivorship action, as being claims for personal injuries were barred under the applicable two-year limitation period set forth in R.C. 2305.10.

Footnote 2 Viz., March 26, 1981.

Plaintiffs opposed these motions contending that plaintiff decedent's disability of infancy extended to all claimants (i.e., plaintiffs herein) standing in the minor's position. Plaintiffs also contended that the applicable period of limitation for the claimed actions in nuisance and for loss of services was four years as set forth in R.C. 2305.09.

By judgment entry journalized July 21, 1981, the trial court entered the following orders as to these cited motions:

"Motion for Summary Judgment of Defendant Al-Vin Corporation is hereby granted."

"Motion for Dismiss of the Defendant Cappas & Karas Trucking Company is treated as a motion for Summary Judgment is granted."

Plaintiffs, Rosemary Swope (Lindberg) individually and as administratrix of the estate of Tanya Lindberg, and Leslie E. Lindberg, hereinafter appellants, appeal this judgment citing the following assignments of error for review:

Assignment of error No. I:

I. THE TRIAL COURT ERRED IN DISMISSING TWO LEGIGIMATE SEPARATE AND DISTINCT CAUSE OF ACTION BY DECEASED CHILD'S PARENTS FOR "LOSS OF SERVICES" AND ALLEGATIONS OF "NUISANCE", BOTH OF WHICH ARE SUBJECT TO A FOUR YEAR STATUTE OF LIMITATIONS AND HEREIN DULY FILED.

Appellants' contention that their claim for "loss of services" is a tort action independent of the claim for wrongful death is well-taken in part. The issue of recovery for loss of services subsequent to the demise of appellant's decedent has been dispositively addressed by the legislature itself which provided at the time of the instant claimed death in actions for wrongful death timely brought within the two year limitation set forth in R.C. 2125.01 that

] 2125.02 Proceedings.

An action for wrongful death must be brought in the name of the personal representative of the deceased person, but shall be for the exclusive benefit of the surviving spouse, the children, and other next of kin of the decedent. The jury may give such damages as it thinks proportioned to the pecuniary injury resulting from such death to the persons, respectively, for whose benefit the action was brought, and the reasonable funeral expenses incurred as a result of the wrongful death. In its verdict the jury shall set forth separately the amount of damages, if any, awarded for reasonable funeral expenses. Except as otherwise provided by law, every such action must be commenced within two years after the death of such deceased person. Such personal representative, if he was appointed in this state, with the consent of the court making such appointment may, at any time before or after the commencement of the suit, settle with the defendant the amount to be paid. (emphasis added)

The emphasized portion of the above-cited statute was construed as according loss of services to a decedent. See Karr v. Sixt (1946), 146 Ohio St. 527. The construction was given further legislative approbation in the present codification of R.C. 2125.02 which provides

"(B) Compensatory damages may be awarded in an action for wrongful death and may include damages for the following:

"(1) Loss of support from the reasonably expected earning capacity of the decedent;

"(2) Loss of services of the decedent ;

"(3) Loss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving spouse, minor children, parents, or next of kin;

"(4) Loss of prospective inheritance, to the decedent's heirs at law at the time of his death;

"(5) The mental anguish incurred by the surviving spouse, minor children, parents, or next of kin." (emphasis added).

Manifestly, the categorization of loss of services of the decedent as compensable wrongful death damages by the legislature demonstrates the intent of the legislature to hold a claim for loss of services in situations involving a decedent to be within the ambit of the wrongful death statute.®3¯ In Keaton v. Ribbach (1979), 58 Ohio St. 2d 443, the Ohio Supreme Court reaffirmed the precept that the wrongful death statute

Footnote 3 We note in this respect that appellant's reliance on the case of Kraut v. Cleveland Ry. Co. (1936), 132 Ohio St. 125 for the proposition that the general four year statute of limitations set forth in R.C. 2305.09 applies to a claim for loss of services, is inapposite in that Kraut involved a claim for loss of services of a wife by a plaintiff where his wife during the claimed period of loss was alive.

"is an innovation to the principles of common law and affords the only civil remedy to compensate others for death resulting from injuries." at 446

Since the claimed loss of services herein is a claim for damages resulting from the wrongful death of plaintiffs' decedent herein, we find that appellants' instant claim for loss of services subsequent to the demise of appellant's decedent does not comprise a separate tort action but rather is merely an aspect of damages claimed to have resulted from Tanya Lindberg's alleged wrongful death. See also Jones v. Wittenberg University (1976), (C.A. 6, Ohio) 534 F. 2d 1203. As such, this claim for damages should properly have been brought within the two year...