DocketNumber: Case No. 2-98-03.
Citation Numbers: 717 N.E.2d 1179, 129 Ohio App. 3d 448
Judges: <bold>EVANS, J.</bold>
Filed Date: 7/6/1998
Status: Precedential
Modified Date: 1/13/2023
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 450 This appeal is brought by Constance and Jeanne Schaffer, Appellants, on behalf of their minor children, Taaron and Leah Schaffer, from a judgment of the Court of Common Pleas of Auglaize County granting a motion for summary judgment in favor of Appellee, Gateway Harvestore, Inc., in Appellants' wrongful death action.
On June 26, 1989, David and Garry Schaffer, two brothers from Monroeville, Ohio, were found dead at the bottom of a pit of liquified cow manure located on their family farm. Both men were survived by a wife and minor child. On January 13, 1997, a wrongful death suit was filed on behalf of Appellants, Taaron and Leah Schaffer, against Gateway Harvestore, Inc. ("Gateway"), the company which apparently designed and constructed the manure handling system used on the Schaffer farm.1 The complaint claimed that Gateway caused the wrongful death of David and Garry Schaffer based on theories of negligence, strict liability, breach of warranty of merchantability, breach of warranty of fitness for a particular purpose, and respondeat superior. Gateway filed an answer on July 9, 1997, denying liability for the accident and asserting numerous defenses including the defense that Appellants' claims were barred by the statute of limitations.
On October 9, 1997, Gateway filed a motion for summary judgment. Among various arguments made by Gateway, the company alleged that no issue existed for trial on the wrongful death claims since Appellants failed to bring their claim within two years of their decedents' deaths, as required under the wrongful death statute, R.C.
Appellants appeal from the decision of the common pleas court, asserting three assignments of error.
The trial court erred as a matter of law in holding that Plaintiffs' claims are barred by the statute of limitations where the action was based upon the defective and unsafe condition of an improvement to real property and such actions are specifically tolled with respect to minors.
The manure pit from which the bodies of David and Garry Schaffer were extricated was a part of a larger manure handling system installed on the Schaffer farm by Gateway in 1979. Pursuant to R.C.
No action to recover for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction.
Furthermore, Appellants contend that the ten year statute of repose contained in R.C.
Unless otherwise provided in sections
2305.04 to2305.14 * * * of the Revised Code, if a person entitled to bring any action mentioned in such sections, * * * is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such person may bring it within the respective times limited by such sections, after such disability is removed.
Thus, Appellants believe that an action against a constructor of an improvement to real property for wrongful death arising out of the defective and *Page 452 unsafe condition to an improvement to real property, is specifically tolled for minors until they reach the age of majority. If tolling is allowed, Appellants allege that they have timely filed their wrongful death claims. We are not persuaded by this argument.
The defect in Appellants' argument becomes evident upon the recognition that the right to bring a wrongful death action is statutorily created, finding its basis solely in R.C. Chapter 2125. At common law, an action for wrongful death did not exist.Keaton v. Ribbeck (1979),
When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued, * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * *.
In conjunction with this right, R.C.
Id.[I]f an action is not brought within two years from the death of the decedent it must fail, not because a statute of limitations provides the time within which it must be brought but because the time limits is of the very essence of the action.
Appellants' argument on appeal mistakenly places undue emphasis on the act of negligence allegedly causing their decedents' deaths, thereby misconstruing the true nature *Page 453
of their claim. Clearly, this case is an action for wrongful death. The fact that David and Garry Schaffers' deaths may have been the result of a defective and unsafe condition to an improvement to real property by a contractor or builder is secondary to the issue of whether or not Appellants have qualified to bring a wrongful death action in the first instance. Whether the "wrongful act, neglect, or default" giving rise to an action for wrongful death pursuant to R.C.
We find the case of Klema v. St. Elizabeth's Hospital (1960),
It is, of course, provided by law that a cause of action based upon a contract must be brought within six years. But should an action be brought against a carrier for a claimed breach of contract to safely transport which resulted in death, such action certainly would be controlled by the wrongful death limitation rather than the statute of limitations on contracts. Andrianos v. Community Traction Co. ,
155 Ohio St. 47 ,97 N.E.2d 549 . There is no more reason for shortening the time within which a death action may be brought because of a shorter limitation imposed on a different action than there is for lengthening it because of a longer limitation allowed in another action. Id.
The wisdom behind this excerpt is applicable to this case. The time limits prescribed in the wrongful death statute cannot be diminished nor embellished based on the underlying "wrongful act" which caused the death of the decedent in a particular case. To do so, would be an abrogation of the statute since the two year time limit is a precondition to the very existence of the wrongful death cause of action. See Sabol, supra. Once the elements of R.C.
In this case, the deaths of the decedents triggered the start of the R.C.
The trial court erred as a matter of law in granting summary judgment because the limitation provision in the former Wrongful Death Act, R.C.2125.02 (D) is an unconstitutional violation of Plaintiffs' right to equal protection under the law.
Appellants claim that R.C.
Furthermore, Appellants contend that R.C.
When reviewing the constitutionality of former R.C.
"The limitations placed upon governmental action by the Equal Protection Clauses of the Ohio and United States constitutions are essentially identical." Kinney v. Kaiser Aluminum ChemicalCorp.(1975),
Contrary to Appellants' assertion, we find no violation of the equal protection clause in this case. Appellants' argument overlooks a critical but dispositive factor in wrongful death cases. A surviving child of a decedent wrongfully killed, whether a minor or adult at the time of the decedent's death, does not have standing to bring a wrongful death action. As R.C.
*Page 456Such a requirement eliminates the possibility that the defendant will face more than one lawsuit. It also allows for potential conflicts of interest to be revealed in advance of the filing of the action. And it ensures to some degree that the wrongful death action will be brought by a person who will act in the best interests of the beneficiaries, the real parties in interest.
Consequently, minors are represented through the personal representative of the decedent just as any other adult beneficiary to the action. The personal representative acts on behalf of all beneficiaries. Appellants have not demonstrated how those within the class of beneficiaries are not being treated equally through their common representation. Thus, we need not reach the question of whether the disparate treatment is rationally related to a government interest. We note that while Appellants argue that minors are unfairly disadvantaged because they have no authority to compel a representative to bring a wrongful death action, a failure on the part of a personal representative to file a legitimate wrongful death action on behalf of a minor or adult beneficiary is not without its own remedies.6 We find no merit in Appellants' second assignment of error.
The trial court erred as a matter of law in holding that the amended complaint now bars the minor Plaintiffs' cause of action.
In their third assignment of error, Appellants complain that the trial court erred in holding that an amended complaint, renaming the parties in this case to comply with R.C.
The record reveals that the trial court allowed the amendment of Appellants' complaint, thereby recognizing that the complaint was filed by Constance and Jeanne Schaffer, as the administrators of David and Garry's estates, in accordance with R.C.
In the event we found merit in any of Appellants complaints on appeal, Gateway offered a cross-assignment of error for the purpose of preventing a reversal of the trial court's decision granting Gateway's motion for summary judgment. Because we find no merit in Appellants' claims, Gateway's cross-assignment of error is moot. *Page 457
Having found no error prejudicial to Appellants herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed. SHAW, P.J., and HADLEY, J., concur.