Schmitz v. Nat'l Collegiate Athletic Ass'n

• Decision Date: 31 October 2018
• Docket Number: No. 2017-0098,2017-0098
• Parties: SCHMITZ et al., Appellees, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al., Appellants.
• Court: Ohio Supreme Court

155 Ohio St.3d 389

122 N.E.3d 80

2018 Ohio 4391

SCHMITZ et al., Appellees,

v.NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al., Appellants.

No. 2017-0098

Supreme Court of Ohio.

Submitted April 11, 2018

Decided October 31, 2018

Barkan Meizlish Handelman Goodin DeRose Wentz, L.L.P., Sanford A. Meizlish, and Robert E. DeRose ; Columbus, Locks Law Firm, David D. Langfitt, and Melanie J. Garner ; and Hausfeld, L.L.C., and Richard S. Lewis, for appellees.

Squire Patton Boggs, L.L.P., Frederick R. Nance, Steven A. Friedman, and Sean L. McGrane, Cleveland, for appellant National Collegiate Athletic Association.

Jones Day, Matthew A. Kairis, Yvette McGee Brown, Aaron Michael Healey, Benjamin M. Flowers, and M. Ryan Harmanis, Columbus, for appellant University of Notre Dame du Lac.

Rourke & Blumenthal, L.L.P., and Jonathan R. Stoudt, Columbus, urging affirmance for amicus curiae Ohio Association for Justice.

Bricker & Eckler, L.L.P., Anne Marie Sferra, and Noorjahan Rahman, Columbus, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

French, J.{¶ 1} Steven Schmitz sustained repetitive concussive and subconcussive brain impacts while playing college football for appellant University of Notre Dame du Lac ("Notre Dame") in the mid-1970s. In December 2012, Schmitz was diagnosed with chronic traumatic encephalopathy

("CTE"), a degenerative brain disease. By 2014, at age 58, he had been additionally diagnosed with severe memory loss, cognitive decline, Alzheimer's disease, and dementia, all of which he claimed were caused, aggravated, and/or magnified by the repetitive head impacts he sustained while playing football for Notre Dame. Schmitz died in February 2015.

{¶ 2} In October 2014, just months before his death, Schmitz and his wife, Yvette Schmitz, filed this action against Notre Dame and the other appellant, the National Collegiate Athletic Association ("NCAA"), alleging that appellants failed to notify, educate, and protect Schmitz from the long-term dangers of repeated concussive and subconcussive head impacts. Following Schmitz's death, his estate was substituted as a plaintiff in this action. Appellees are (1) the Estate of Steven T. Schmitz and (2) Yvette Schmitz, individually and as fiduciary of the Estate of Steven T. Schmitz.

{¶ 3} This appeal asks us to consider when appellees' claims for negligence, constructive fraud, and fraudulent concealment accrued and whether they are time-barred. Because the trial court dismissed those claims pursuant to Civ.R. 12(B)(6), we look only to the amended complaint to determine whether the allegations are legally sufficient to state each claim.

Loveland Edn. Assn. v. Loveland City School Dist. Bd. of Edn. , 58 Ohio St.2d 31, 32, 387 N.E.2d 1374 (1979). In doing so, we presume that all factual allegations in the amended complaint are true and make all reasonable inferences in appellees' favor. Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). After accepting appellees' factual allegations as true and making all reasonable inferences in favor of appellees, we conclude that the amended complaint does not show conclusively that appellees' claims are time-barred; therefore, Civ.R. 12(B)(6) does not warrant their dismissal. Contrary to the Eighth District Court of Appeals' determination of which statute of limitations applies to appellees' fraud-related claims, however, we hold that those claims are subject to the same two-year statute of limitations as appellees' negligence claim.

Factual allegations and procedural background

{¶ 4} From 1974 through 1978, Schmitz played football for Notre Dame, a member institution of the NCAA—the governing body of collegiate athletics. Schmitz participated in full-contact tackling drills, practices, scrimmages, and games during his college football career, and he sustained "repetitive subconcussive and concussive brain impacts." On "many occasions," he "experienced concussion symptoms, including but not limited to being substantially disoriented as to time and place." Yet, neither Schmitz nor Notre Dame's coaching staff recognized that Schmitz suffered from any injury that required monitoring, treatment, therapy or rest. Notre Dame's coaching staff praised tackling and blocking techniques that involved a player's use of his helmeted head and aggravated the risk of head injuries

, and the coaching staff ordered players to continue participating in practices and games following a head impact. Schmitz was neither tested nor examined for concussive symptoms, nor was he advised or educated about concussions while playing football for Notre Dame.

{¶ 5} Schmitz alleged that until December 2012, he did not know, and had no grounds to believe, that he had suffered a latent brain injury

. Rather, he alleged that his December 2012 diagnosis of CTE at the Cleveland Clinic was the first time a "competent medical authority" informed him that he "had suffered a brain injury

related to playing football." Schmitz described CTE as a "latent disease" that "involves the slow build-up of the Tau protein within the brain tissue that causes diminished brain function, progressive cognitive decline," and other neurological symptoms.

{¶ 6} In October 2014, Schmitz and his wife filed this action against appellants; their amended complaint, filed in January 2015, alleged claims of negligence, fraudulent concealment, constructive fraud, breach of express and implied contract, and loss of consortium against appellants. The amended complaint alleges that appellants knew or should have known that college football players are at greater risk for chronic brain injury

, both during their football careers and later in life, and that appellants "ignored the medical risks," acted so as to "aggravate[ ] and enhance[ ] the medical risks," "failed to educate" players about the links between football head impacts and chronic neurological damage

, and "failed to implement or enforce any system that would reasonably have mitigated, prevented, or addressed concussive and sub-concussive impacts."

{¶ 7} Appellants filed motions to dismiss appellees' claims pursuant to Civ.R. 12(B)(6) as time-barred; the NCAA alternatively moved to dismiss appellees' claims for failure to state a claim upon which relief could be granted. The trial court granted the motions to dismiss without opinion, and appellees appealed.

{¶ 8} The Eighth District Court of Appeals affirmed in part and reversed in part the trial court's judgment and remanded the case to that court for further proceedings. It affirmed the dismissal of appellees' contract claims as time-barred and affirmed the dismissal of appellees' constructive-fraud claim against the NCAA for failure to state a claim upon which relief could be granted. As to the remaining claims, however, the court of appeals reversed the trial court's dismissal. It held that the amended complaint does not allege facts that would allow the court to conclude as a matter of law that appellees' remaining claims accrued prior to December 2012, when Schmitz was diagnosed with CTE. The court characterized the amended complaint as alleging a "latent injury" that "did not manifest until decades after Schmitz stopped playing football." 2016-Ohio-8041, 67 N.E.3d 852, ¶ 25. The court stated, "[W]ithout more facts or evidence in the record, we cannot say as a matter of law that [appellees' remaining] claims are time-barred." Id. at ¶ 39.

{¶ 9} This court accepted appellants' discretionary appeal, which asserts two propositions of law:

(1) A diagnosis for the long-term effects of an injury a plaintiff already knew about does not revive a time-barred claim.

(2) Plaintiffs' fraudulent-concealment and constructive-fraud claims are subject to the [sic] R.C. 2305.10(A)'s two-year statute of limitations.

See 150 Ohio St.3d 1442, 2017-Ohio-7843, 82 N.E.3d 1175.

Analysis

Standard of review

{¶ 10} We review a dismissal pursuant to Civ.R. 12(B)(6) de novo. Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. We limit our review to the allegations in the amended complaint.

Loveland Edn. Assn. , 58 Ohio St.2d at 32, 387 N.E.2d 1374. Before a court may dismiss a complaint under Civ.R. 12(B)(6), it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. O'Brien v. Univ. Community Tenants Union, Inc. , 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).

{¶ 11} Application of a statute of limitations presents a mixed question of law and fact; when a cause of action accrues is a question of fact, but in the absence of a factual issue, application of the limitations period is a question of law. Wells v. C.J. Mahan Constr. Co. , 10th Dist. Franklin Nos. 05AP-180 and 05AP-183, 2006-Ohio-1831, 2006 WL 951444, ¶ 25, citing Cyrus v. Henes , 89 Ohio App.3d 172, 175, 623 N.E.2d 1256 (9th Dist.1993), rev'd on other grounds , 70 Ohio St.3d 640, 640 N.E.2d 810 (1994). A court may dismiss a complaint as untimely under Civ.R. 12(B)(6) only when, after accepting the factual allegations as true and making all reasonable inferences in favor of the plaintiff, the complaint shows conclusively on its face that the action is time-barred. Maitland v. Ford Motor Co. , 103 Ohio St.3d 463, 2004-Ohio-5717, 816 N.E.2d 1061, ¶ 11 ; Velotta v. Leo Petronzio Landscaping, Inc. , 69 Ohio St.2d 376, 379, 433 N.E.2d 147 (1982).

Statute of limitations for bodily-injury claims and the discovery rule

{¶ 12} Appellees' remaining claims—including, as we discuss later, their fraudulent-concealment and constructive-fraud claims—are subject to the limitations period contained in R.C. 2305.10(A), which states, "[A]n action for bodily injury * * * shall be brought within two years after the cause of action accrues." The dispositive question, then, becomes when appellees' causes of action accrued. If, as appellants contend, the claims accrued by 1978 when Schmitz concluded his college football career, then the claims were...