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| by Dennis R. Fogarty | | August 17, 2009 |
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Tort reform has always been a highly contested and controversial issue in the state of Ohio. The state legislature recently amended numerous pieces of tort legislation when it passed Senate Bill 80 (“SB 80”), commonly referred to as the Tort Reform Act. S.B. 180, 125th Gen. Assem. (2005). In an effort to prevent juries from awarding excessive punitive damages and to promote fairness, the legislature enacted numerous damage caps. Although these damage caps garner most of the public’s attention, the legislature’s recent reform has been highlighted by several amendments to the statutes of limitations and repose for various torts. The sweeping effects of these amended statutes cannot be overlooked, as some have already been challenged in the Ohio Supreme Court. See Groch v. General Motors Corp (2008), 117 Ohio St. 3d 192; 883 N.E.2d 377 (upholding the 10-year statute of repose for products liability). These statutory changes have considerably restricted plaintiffs in their ability to file claims and collect damages for certain causes of actions, while providing additional time and opportunities to file claims for other causes of actions that they could not have pursued previously. Despite the significant changes in several areas of tort law, the statutes of limitations and repose for several other tort claims have gone unchanged. Given the recent history and current sentiment of the Ohio legislature, however, the tort landscape may change dramatically once again in the near future.
Products liability cases have arguably been the most significantly affected by the altered statutes of limitations. Although the previous two-year limitation remains, several restrictions and specifications have been added to definitively determine when plaintiffs are permitted to institute a products liability claim. Generally, a plaintiff must file his/her claim within two years after the cause of action accrues (date of injury or loss). Ohio Rev. Code Ann. § 2305.10 (LexisNexis 2005). The addition of “accrues” provides a much clearer definition than the vague “after the cause of action occurs” language contained in the previous statutes.
However, Ohio law provides exceptions for products liability suits in the form of a discovery rule for: 1) plaintiffs exposed to ethical drugs, medical devices, non-specified hazardous chemicals, chromium, asbestos, diethylstilbestrol, other nonsteroidal synthetic estrogens; and 2) veterans exposed to herbicides, defoliants, agent orange, and other causative agents. The causes of actions that fall under each of these exceptions accrue when either: a) a competent medical authority informs the plaintiff that his injury is related to exposure or hazardous or toxic chemicals; or b) the date that the plaintiff should have known that the injury is related to his/her exposure. R.C. 2305.10. Thus, a plethora of plaintiffs now have the ability to file products liability suits after the two-year limitation that is applied in normal cases.
The legislature also included a 10-year statute of repose for products liability claims under this recent reform. Pursuant to this reform, a plaintiff is prohibited from filing a products liability action against a manufacturer or supplier later than 10 years from the date that the product was first placed into the stream of commerce. If the cause of action accrues less than two years prior to the expiration of the 10-year period of repose, however, a plaintiff has two additional years from when the cause of action accrued to file his/her claim. R.C. 2305.10. This statute of repose was challenged in Groch supra, but the Ohio Supreme Court upheld its constitutionality; explaining that, “Unlike a true statute of limitations, which limits the time in which a plaintiff may bring suit after the cause of action accrues, a statute of repose potentially bars a plaintiff's suit before the cause of action accrues." Id. at 211.
Therefore, “the constitutionality of any specific statute of repose should turn on the particular features of the statute at issue, and such a statute should be evaluated narrowly within its specific context.” Id. at 216.
When analyzing the statute in the narrow context of products liability, the court thus found the statute of repose constitutional. Thus, the ten-year repose statute restricts the discovery rule exception by prohibiting plaintiffs from filing products liability claims more than ten years after the product was first introduced into the stream of commerce. Still, the repose statute has “certain exceptions,” which leaves the door open for special cases that involve unique circumstances. R.C. 2305.10.
Wrongful death suits have also been affected by SB 80, as a two-year statute of limitations after the cause of action accrues (date of injury) now restricts a plaintiff’s suit. R.C. 2125.02. If the wrongful death suit involves some sort of product liability, however, the applicable product liability limitations apply (exceptions in the form of a discovery rule for plaintiffs exposed to aforementioned drugs, statute of repose for claims against manufacturer or supplier later than 10 years from the date the product was first placed into the stream of commerce). Thus, plaintiffs may now pursue wrongful death suits related to products liability that were barred by Ohio’s previous statute of limitations.
Similarly, the slightly-altered statute of limitations for actions concerning damages for bodily injury or injury to personal property has provided plaintiffs a larger window of opportunity to pursue claims. Although the two-year time limit remains, the duration is now measured from the date that the cause of action accrues (date of injury), R.C. 2305.10, unlike the previous limitation that measured the two years from the time that the cause of action arose, which may or may not have been the date of the injury occurrence. Additionally, the two-year window may be extended if the claim involves product liability and/or eventual wrongful death. In each of those cases, the statute of limitations for products liability (exceptions in the form of a discovery rule for plaintiffs exposed to aforementioned drugs, statute of repose for claims against manufacturer or supplier later than 10 years from the date the product was first placed into the stream of commerce) or wrongful death (two years after the cause of actions accrues (date of death)) will subsequently apply.
Although intentional torts committed by employers clearly overlap and may include bodily injuries, personal property injuries, and wrongful death, Ohio law previously imposed a one-year limitation on employer-related intentional tort claims. However, the legislature recently repealed this statute of limitations in an effort to provide consistency and logic in its tort legislation. Prior to the official repeal, the Ohio Supreme Court rendered the one-year limitation ineffective. Funk v. Rent-All Mart, Inc. (2001), 91 Ohio St. 3d 78; 2001 Ohio 270; 742 N.E.2d 127, citing Johnson v. BP Chemicals, Inc. (1999), 85 Ohio St. 3d 298, 707 N.E.2d 1107 (the enabling statute which permitted the one-year statute of limitations (R.C. 2745.01) was unconstitutional). As a result of the recent reform, causes of action regarding an employer’s intentional torts now fall under the same two-year statute of limitations imposed for bodily injury and wrongful death, a significant change that grants plaintiffs an additional year to file their claims against employers. R.C. 2125.02; R.C. 2305.10.
SB 80 restricted claims regarding defective and unsafe conditions in improvements to new property. Unlike the previous legislation which did not include a statute of limitations governing these claims and thus allowed a plaintiff to file a claim at any time, the recently enacted reform imposes a 10-year statute of repose for improvements to real property, relative to designer professions, construction contractors, and subcontractors, unless fraud is involved. R.C. 2305.131. Still, it should be noted that a claimant who discovers a defective and unsafe condition of an improvement to real property during the ten-year period but less than two years prior to the expiration of that period may commence a civil action to recover damages as described in that division within two years from the date of the discovery of that defective and unsafe condition. R.C. 2305.10.
Despite the significant changes in several types of tort claims, the statutes of limitations for other causes of action remain the same. Breaches of oral and written contracts, for example, continue to contain a 15-year and six-year statute of limitations, respectively. In the commercial sector, claims arising under the Consumer Sales Practices Act continue to be restricted by a two-year statute of limitations. R.C. 1345.10.
Intentional tort claims have largely gone unchanged as well. The limitation for assault and battery claims remains one year, while the limitation for assault and battery by a mental health professional; sexual contact or conduct continues to be two years. R.C. 2305.111; R.C. 2305.115. Further, intentional acts of sexual abuse or other acts continue to carry the same one-year statute of limitations for adult victims. R.C. 2305.11. The legislature has also maintained the statute of limitations established in Doe v. First United Methodist Church (1994), 68 Ohio St.3d 531, when the victim of intentional sexual abuse or other acts is a minor. Pursuant to Doe, a minor has one year from the age of the majority where the victim knows the identity of the perpetrator and is fully aware a battery has occurred to file a claim. Additionally, the four-year statute of limitations for trespass, recovery of personal property, conversion, fraud and other torts not covered by R.C. 2305.10 to R.C. 2305.12 remains unchanged. And rounding outing the unchanged statutes of limitations for intentional torts is the one-year window to file libel, slander, malicious prosecution, false imprisonment, and abuse of process claims. R.C. 2305.11.
Although the legislature has instituted several somewhat complicated damage caps regarding malpractice claims, the statute of limitations for these causes of action have also gone unchanged. Pursuant to R.C. 2305.11, plaintiffs are given one year to file malpractice claims against lawyers, psychologists, social workers, or clinical counselors. A similar one-year statute of limitations exists for medical malpractice claims; but this limitation is subject to a 180-day extension.
The passing of Senate Bill 80 marked the state’s first significant tort reform legislation in several years. The amended statutes of limitations and repose have vastly altered the tort claims landscape, restricting numerous claims while expanding the opportunity to file several others. Still, several statutes of limitations and repose for several other tort actions have gone unchanged. Given the current sentiment of the legislature, however, these statutes may change in the near future if the circumstances call for such reform. |
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