Chadwick v. Barba Lou, Inc.

Krupansky, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision to reverse the Court of Appeals’ affirmance of the judgment notwithstanding the verdict. There was sufficient evidence based on plaintiff’s testimony 10 for the jury to conclude plaintiff’s injuries resulted, not only from the ice and snow on the steps, but also from defects in the steps.

I dissent, however, from the part of the majority decision which overrules the Siegfried, line of cases. I disagree with the majority’s conclusion that the Siegfried doctrine is no longer necessary since the adoption of the Civil Rules.

The majority reasons the Siegfried doctrine is no longer necessary because Civ. R. 41 mitigates plaintiff abuse earlier feared by the court. The unfortunate effect, however, of the majority decision is it will actually encourage plaintiff abuse; it allows plaintiffs to voluntarily dismiss at least once even after the statute of limitations has run, and thereby provides them with a tactical advantage. Previously, under the Siegfried doctrine, the plaintiff who voluntarily dismissed after the statute of limitations had expired could find no relief in the savings statute unless the dismissal was prompted by adverse court rulings which would have prevented a trial on the merits. Beckner v. Stover (1969), 18 Ohio St. 2d 36 . Thus, previously *232 there was no incentive for plaintiffs to voluntarily dismiss once the statute of limitations had run because of the risk of being precluded, under Siegfried, from refiling. Under the majority’s decision, however, plaintiffs who initiate dismissals after the statute of limitations has run will be assured of the benefits of the saving statute. Plaintiffs may now dismiss, with or without good reason, disregarding the statute of limitations. Previously, the statute of limitations and the Siegfried line of cases acted to deter such dismissals; the result now is plaintiffs may include in their repertoire a new device, not available to defendants, which may be used arbitrarily for any reason, whether warranted or not.

The majority mistakenly assumes the policies underlying Civ. R. 41 and the policies underlying the narrow construction of the savings statute pursuant to Siegfried are identical. As noted by the majority, Civ. R. 41 does have the meritorious effect of lessening plaintiff abuse of the privilege to voluntarily dismiss. The Siegfried doctrine only partially prevented the abuse mitigated by Civ. R. 41 because prior to the adoption of Civ. R. 41, the plaintiff could voluntarily dismiss and refile as many times as desired so long as the statute of limitations had not expired. Siegfried prevented refiling only after the statute of limitations had run. Under Civ. R. 41(A)(1), the plaintiff who has once dismissed may not dismiss again and then claim the right to refile; dismissal at plaintiffs instance by court order, under Civ. R. 41(A)(2), is made subject to court supervision. The policies underlying Civ. R. 41 and Siegfried coincide only insofar as both lessen the possibility of plaintiff abuse of voluntary dismissals. Civ. R. 41, however, says nothing about the statutes of limitations and the policies underlying them.

The savings statute is an exception to the general bar of the applicable statute of limitations; it operates to extend the statute of limitations and to delay proceedings beyond the period of limitations for as long as one year. Pursuant to the Siegfried line of cases, the benefits of the savings statute were traditionally reserved for special cases, e.g., when the plaintiff’s suit was involuntarily dismissed by the court or when the plaintiff voluntarily dismissed after suffering a procedural defeat which would have prevented a trial on the merits. Cero Realty Corp. v. American Mfgs. Mutual Ins. Co. *233 (1960), 171 Ohio St. 82 . Under such circumstances, when the plaintiff had truly tried and failed otherwise than on the merits, a reprieve from the bar of the statute of limitations was viewed as warranted. When the plaintiff, however, voluntarily dismissed because of an unfavorable court ruling which did not prevent a trial on the merits, the delay created by the application of the savings statute was not justified. Beckner v. Stover, supra. The savings statute was construed narrowly to apply in those cases only when delay was justifiable and not brought about by plaintiffs own voluntary action.

In my opinion, plaintiffs dismissal in the instant case was truly voluntary. The case had already been called to trial when plaintiffs motion for a continuance was denied; plaintiff was offered the choice of either proceeeding with the trial and compelling the doctor’s attendance or dismissing. The trial court offered plaintiff the sheriffs assistance in securing his witness, but plaintiff freely elected to dismiss. It would be unfair to anticipate that the witness, a doctor who is a professional, would, while under oath, testify unfavorably to the prejudice of plaintiff. In any event, the court’s denial of plaintiff’s motion for a continuance on the day of trial was not so adverse to plaintiff as to prevent a trial on the merits of the case; plaintiff could have proceeded to trial had he desired. The facts of this case fall squarely within the ambit of a voluntary dismissal. The Siegfried doctrine, therefore, applies, and the judgment of the Court of Appeals should be affirmed.

Pursuant to the majority’s decision, plaintiffs may now, with indifference to the expiration of the limitations period, dismiss their cases and delay refiling as long as one year, even after the statute of limitations has expired. The Siegfried doctrine would preclude such a result and should, therefore, not be abandoned by this court.

Plaintiff testified as follows:

“Q. You indicated there was no railing?

“A. No, sir, there was no railing or nothing there.

“Q. When you actually put your foot on it, could you tell what was causing you—

“A. When I put my foot on it, it just shot — just went out like that. It was just so — you know, it was just at an angle. Like I say, the steps was leaning away from the building even from where you were standing just looking down. * * * ”