# Spitler v. K & C Service Station Maintenance Co.

> Ohio Court of Appeals · August 24, 1993 · 90 Ohio App. 3d 49

URL: https://www.frixlaw.com/law-library/cases/3738096

## Case

- **Full name:** SPITLER, Appellant, v. K AND C SERVICE STATION MAINTENANCE COMPANY, INC., Appellee, Et Al.
- **Court:** Ohio Court of Appeals
- **Decided:** August 24, 1993
- **Citations:** 90 Ohio App. 3d 49; 627 N.E.2d 1073; 1993 Ohio App. LEXIS 4153
- **Precedential status:** Published
- **Opinion:** Dissent by Tyack
- **Judges:** Bowman, Young, Tyack
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3738096

## Opinion text

Tyack, Judge,
dissenting.
Since I believe that the complaint and amended complaint set forth a claim for relief, I dissent.
I note initially that the validity of the pleading requirements of
Mitchell v. Lawson Milk Co.
(1988), 40 Ohio St.3d 190 , 532 N.E.2d 753 , is open to serious question in light of the recent Supreme Court of Ohio opinion in
Rockey v. 84 Lumber Co.
(1993), 66 Ohio St.3d 221 , 611 N.E.2d 789 . The
Mitchell
case was
*54
decided in response to legislative enactments limiting suit for intentional torts.
Rockey ,
at paragraph two of the syllabus, indicated:
“The Ohio Rules of Civil Procedure, which were promulgated by the Supreme Court pursuant to Section 5(B), Article IV of the Ohio Constitution, must control over subsequently enacted inconsistent statutes purporting to govern procedural matters.”
If the Rules of Civil Procedure take precedence over statute, then the detailed pleading requirements of
Mitchell
no longer are necessary to accommodate the legislative enactments involving intentional torts. Further, Civ.R. 9 has not been amended to make a claim of intentional tort one of the claims which require special pleading, so the
Mitchell
requirements are in tension with the Rules of Civil Procedure.
Even if the detailed pleading requirements of
Mitchell
are still in effect, I believe that the complaints here sufficiently allege a claim for relief. I believe that sending a worker into a deep excavation which is already experiencing sloughing of the walls is to place the worker in a situation which makes at least some injury substantially certain. Therefore, I would sustain the assignment of error and remand the case for further proceedings.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3738096. Public record. Not legal advice.