DocketNumber: No. 08AP-767.
Citation Numbers: 2009 Ohio 1558
Judges: TYACK, J.
Filed Date: 3/31/2009
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On September 5, 2003, Jarrod Payne, a pedestrian, was killed when he was struck by a car driven by defendant-appellee, Janette Fraley. Plaintiff-appellant, Sharma Presley is the administratrix of the decedent's estate. Presley filed a wrongful death action against Fraley on June 14, 2004, well within the two year statute of limitations for wrongful death actions. Presley voluntarily dismissed the action pursuant to Civ. R. 41(A) on May 31, 2005. She re-filed her complaint on May 26, 2006. Eventually, the case was tried to a jury who found that Fraley negligently caused the death of Jarrod Payne. The verdict was filed on April 24, 2008.
{¶ 3} Fraley filed a motion for judgment notwithstanding the verdict on May 7, 2008. Fraley argued that Presley had failed to prove an essential element of her wrongful death action, specifically, that her re-filed complaint was not timely filed within the two year statute of limitations.
{¶ 4} The trial court granted the motion citing a 1947 Supreme Court of Ohio case that held that commencing a wrongful death action within the prescribed time is a necessary element of the right to bring it, and that the statute of limitations is not a defense, but, rather, an essential part of the action. Sabol v. Pekoc (1947),
{¶ 5} On appeal, Presley assigns the following as error:
THE TRIAL COURT ERRED IN ITS AUGUST 24, 2008 JUDGMENT ENTRY GRANTING DEFENDANT'S MOTION FOR JUDGMENT N.O.V. AND SETTING ASIDE THE JUDGMENT ENTRY OF APRIL 30, 2008, ENTERED FOR PLAINTIFF UPON JURY VERDICT.
{¶ 6} Presley first argues that Fraley's motion for judgment notwithstanding the verdict was not well-taken because the defense of failure to state a claim is waived if not raised prior to or during trial. Therefore, Presley argues, any defense or objection that Fraley could have made as to the applicability of the saving statute or the untimeliness of the wrongful death action was waived after the trial was concluded and the judgment was rendered.
{¶ 7} A motion for judgment notwithstanding the verdict should be granted where the evidence is legally insufficient to support the verdict. Aldahan v. Tansky Sales, Inc. (June 20, 2000), 10th Dist. No. 99AP-651, citing County Savings Bank v. Sain (Apr. 21, 1992), 10th Dist. No. 91AP-380. Our standard of review for a judgment notwithstanding the verdict is de novo as it involves questions of law, not fact.Stonehenge Land Co. v. Beazer Homes Invests., L.L.C.,
{¶ 8} The question here is whether the trial court correctly determined that Presley failed to prove an essential element of her wrongful death claim. The time limitation for a wrongful death action set forth in R.C.
{¶ 9} Because the motion for judgment notwithstanding the verdict was based upon a failure of proof of an essential element of the wrongful death claim, Presley's waiver argument is not well-taken.
{¶ 10} Presley next argues that the savings statute for wrongful death actions violates her right to equal protection under the law. Section
{¶ 11} No suspect class or fundamental right is involved in this action. Therefore, the court must apply the rational basis test. Under this test, a challenged statute will be upheld if the classifications it creates bear a rational relationship to a legitimate government interest or are grounded on a reasonable justification, even if the classifications are not precise. Groch v. Gen. Motors Corp.,
{¶ 12} Civ. R. 41(A) allows a plaintiff to voluntarily dismiss her claims against a defendant, without approval of the court or any adverse party, by filing a notice of dismissal prior to trial. Presley availed herself of this rule and then sought to use the Ohio savings statute to re-file her claim. Prior to March 2, 2004, Ohio's general savings statute, R.C.
In an action commenced * * * if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date.
(Emphasis added.)
{¶ 13} The statute was amended effective March 2, 2004, to eliminate the concern that similarly situated plaintiffs were treated differently depending on whether they filed their motion before the statute of limitations had run or after.
{¶ 14} The amended statute provides, in pertinent part, that:
In any action that is commenced * * * if in due time a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits, the plaintiff * * * may commence a new action within one year after the date of the reversal of the judgment or the plaintiff's failure otherwise *Page 6 than upon the merits or within the original statute of limitations, whichever occurs later. * * *
(Emphasis added.)
{¶ 15} This court recently discussed that amendment as follows:
In [Dargart v. Ohio Dept. of Transp.,
171 Ohio App. 3d 439 ,2006-Ohio-6179 ], the court observed that the legislature amended R.C.2305.19 (A) for the single purpose of remedying the legislature's belief that the former statute may have treated similarly situated plaintiffs differently. Dargart, at ¶ 20. The legislature's concern was `predicated upon the fact that a plaintiff who filed a Civ. R. 41(A)(1) dismissal of a claim without prejudice would have one year to refile, while a plaintiff who dismissed a claim before the statute ran would possibly have only one or two days to refile.' Id., citing 4 Anderson, Ohio Civil Practice (2004), 148.13, citing Bill Analysis of Sub. H.B. No. 161, 125th General Assembly.
Bailey v. Ohio State Dept. of Transp., 10th Dist. No. 07AP-849,
(Bill Analysis available at www.lsc.state.oh.us.)
{¶ 16} The wrongful death savings statute, R.C.
{¶ 17} Prior to the amendment of the general savings statute, a number of courts held that the wrongful death savings statute, R.C.
{¶ 18} In Eppley v. Tri-Valley Loc. Sch. Dist. (5th Dist. No. CT2007-0022),
{¶ 19} The Eppley court then acknowledged that a wrongful death claim is a statutory claim, unlike most claims for personal injury, which are based on common law. But the court noted that the Supreme Court of Ohio has applied R.C.
{¶ 20} The court then noted the argument that wrongful death claims are derivative in nature as opposed to personal injury claims which are direct claims. Additionally, the Ohio Constitution provides that damages recoverable in wrongful death claims cannot be limited by law, although damages for personal injury can and have been limited. Section
{¶ 21} Finally the court stated that closing the so-called "malpractice gap" in wrongful death actions would not impair a fair and predictable system of justice preserving the rights of those who have been harmed by negligent behavior while curbing frivolous lawsuits. The court concluded that: "[p]reserving our justice system has not required any other claim be subject to the malpractice gap." We agree. As a practical matter, it appears as though the savings provisions of R.C.
{¶ 22} The Ohio Supreme Court has accepted this case for review. Until we receive a definitive answer from that judicial body, we are persuaded that the Eppley analysis is sound. The Ohio General Assembly has clearly indicated a desire to close the *Page 9
malpractice gap in civil actions by amending R.C.
{¶ 23} Accordingly, we find that the challenged provision of R.C.
Judgment reversed with instructions.