Scheer v. Air-Shields, Inc., AIR-SHIELD

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: BLACK; PALMER, P. J., and BETTMAN
• Citation: 61 Ohio App.2d 205,401 N.E.2d 478
• Parties: , 15 O.O.3d 321 SCHEER, Appellant, v., Appellee. *
• Docket Number: AIR-SHIELD,INC
• Decision Date: 31 January 1979

Page 205

61 Ohio App.2d 205 401 N.E.2d 478, 15 O.O.3d 321 SCHEER, Appellant,
v.
AIR-SHIELDS, INC., Appellee. ^* Court of Appeals of Ohio, First District, Hamilton County. Jan. 31, 1979. Syllabus by the Court

1. The amendment to R.C. 3109.01 changing the age of majority from 21 years to 18 years is constitutional and applies to an injured person who reached 18 years of age after the effective date of the amendment.

2. Under R.C. 2305.15, the statute of limitations is tolled against a foreign corporation by its absence from the state, despite its amenability to long-arm service under Civ.R. 4.3.

3. A motion to dismiss a complaint under Civ.R. 12(B) which is based on the contention that the statute of limitations has run is erroneously granted where such contention is not conclusively supported by allegations in the complaint.

Lewis Froikin, Dayton, for appellant.

Estabrook, Finn & McKee, Robert P. Bartlett, Jr. and Thomas L. Czechowski, Dayton, for appellee.

[401 N.E.2d 479] BLACK, Judge.

This appeal raises several questions about the statute of limitations for personal injury (R.C. 2305.10), the "saving clause" applicable when a person is out-of-state (R.C. 2305.15), and the suspension of the statute of limitations during the disability of an "infant" (R.C. 2305.16) whose age of majority is reduced by legislative action (R.C.

Page 206

3109.01). Similar questions were raised and disposed of in Durham v. Anka Research Limited, unreported, No. C-77454, First Appellate District, decided October 25, 1978.

Appellant brought suit against appellee Air-Shields, Inc., manufacturer of an incubator in which appellant was placed as an infant and from the use of which he claims to have been permanently damaged. Appellee's motion to dismiss was granted on the express grounds that appellant's action was barred by the statute of limitations. We disagree.

The facts are similar but not identical to those of Durham v. Anka Research Limited, supra. Appellant herein was born on August 8, 1956, and was thereupon placed in the incubator where he was administered a supply of oxygen in what he claims were excessive amounts that allegedly rendered him blind. On January 1, 1974, the amendment of R.C. 3109.01 reducing the age of majority from 21 years of age to 18 years became effective. Appellant was then 17 years and 4 months of age; he reached his 18th birthday on August 8, 1974. He filed his Complaint herein on August 3, 1977.

The Complaint alleges that Air-Shields was a foreign corporation with its principal place of business at Hatboro, Pennsylvania. It is also alleged that Air-Shields was doing business in Ohio, but the Complaint fails to state how long Air-Shields had been authorized to do business in Ohio.

Consistent with the decision reached in Durham, we reach the following conclusions. The applicable statute of limitations is R.C. 2305.10, giving appellant two years to file his Complaint after his disability was removed, and the reduction of the age of majority from 21 years to 18 years by the amendment to R.C. 3109.01 was applicable to appellant, thus setting a deadline of August 8, 1976, for the filing of his Complaint, pursuant to R.C. 2305.16. However, the statute of limitations was tolled as to appellee for that period of time during which it was "out-of-state," because as we decided in Durham, under the plain and unequivocal wording of the "saving clause" (R.C. 2305.15), tolling is caused by the absence of the defendant from the state, not by its nonamenability to long-arm service. ¹

Page 207

The instant Complaint is ambiguous about the duration of Air-Shields' presence [401 N.E.2d 480] in the state. While the Complaint states that Air-Shields was doing business in Ohio at the time the Complaint was filed,...