Presley v. Fraley, 08ap-767 (3-31-2009) , 2009 Ohio 1558 ( 2009 )

{¶ 24} I concur with the majority in that the analysis of the issue boils down to the application of the rational basis test for justifying the constitutionality of the wrongful death savings statute. However, I would disagree with the majority's suggestion that the defendant bears a burden of proof with regard to establishing a rational basis. The statute of limitations (and its savings provisions) remain an element of the statutory cause of action and, thus, the burden is on the plaintiff to prove no rational basis exists. Nevertheless, since no rational basis is apparent to distinguish wrongful death actions from all other torts for purposes of savings clause issues, and since bearing a burden to prove a negative seems an insurmountable task, I would concur in the majority's result and sustain the single assignment of error.