Opposition Brief — Haller v. Borror

> FILED

No. 90-1031 JAN 2

eel — im

In The

Supreme Court of the United States

October Term, 1990

JACK HALLER,

Petitioner,

DONALD BORROR, ET AL.,

Respondents.

—

v

Petition For Writ Of Certiorari To The

United States Court Of Appeals For The

Sixth Circuit

,

i

BRIEF IN OPPOSITION

BY RESPONDENTS THE CITY OF COLUMBUS, OHIO,

MONTGOMERY, JOSEPH, DAILEY, SNYDER,

MATCO, REED AND SEE

y%

od

GLENN B. ReEpick

Assistant City Attorney

City Hall

90 West Broad Street

Columbus, Ohio 43215

(614) 645-7385

Counsel of Record For Respondents The

City of Columbus, Ohio, Alphonso Mont-

gomery, Dwight Joseph, David A. Dailey,

Robert Snyder, Dennis Matco, O’Reeta

Reed, and Michael See

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION FOR REVIEW

Did the United States Court of Appeals for the Sixth

Circuit err in affirming the determination of the District

Court that Ohio Revised Code Section 2305.10 is Ohio’s

general or residual statute of limitations for personal

injury actions?

il

TABLE OF CONTENTS

Page

eee eB 6B er er eT i

ee BE G5 vo co's sect cedescnvasece iii

SUMMARY OF ARGUMENT.....................-. 1

ARGUMENT |

NO SPECIAL OR IMPORTANT REASON EXISTS

TO GRANT A WRIT OF CERTIORARI........... 2

ARGUMENT II

THE COURT OF APPEALS FOR THE SIXTH CIR-

CUIT PROPERLY DECIDED THAT REVISED

CODE SECTION 2305.10 IS OHIO’S GENERAL OR

RESIDUAL STATUTE OF LIMITATIONS FOR PER-

SPINAL, TUS PCT IIR owen cert veswcerccees 4

ARGUMENT II(A)

REVISED CODE SECTION 2305.10 IS OHIO’S

GENERAL OR RESIDUAL STATUTE OF LIMITA-

TIONS FOR PERSONAL INJURY ACTIONS...... 4

ARGUMENT II(B)

REVISED CODE SECTION 2305.09(D) IS NOT

OHIO’S GENERAL OR RESIDUAL STATUTE OF

LIMITATIONS FOR PERSONAL INJURY

Fs bik onan bens 00-4uxnnaaetas eee ees 5

ARGUMENT II(C)

UNDER OHIO LAW, “PERSONAL INJURY” DOES

NOT INCLUDE A LOSS OF CONSORTIUM OR

AN INFLICTION OF SERIOUS EMOTIONAL DIS-

SE G6e bo bk knesekesnsundebboe eer kee 8

iil

TABLE OF AUTHORITIES

Page

Cases Citep:

Adrianos v. Community Traction Co., 155 Ohio St. 47

ae ReR Leah e cad cence weess siete ven 0s dene 10

Amer v. Akron City Hospital, 47 Ohio St. 2d 85

UL cach a cuwedeehncd ss 604460400000 s aes 6, 7,8

Bassett v. Bassett, 20 Ill. App. 543 (1886).............. 3

Berghoff v. R.J. Frisby, Manufacturing Co., 720

ee 3

Brown*7g v. Pendleton, 869 F.2d 989 (6th Cir. 1989)

On RES, SE eS se ee ee.

Corpman v. Boyer, 171 Ohio St. 233 (1960) ....... 6, 7, 8

Dean v. Angelas, 24 Ohio St, 2d 99 (1970)........ 6, 7, 8

Emmons v. McLaughlin, 874 F.2d 351 (6th Cir. 1989)..... 5

Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989)............ 3

Holzwart v. Wehman, 1 Ohio St. 3d 26 (1982) ......... 6

Investors REIT One v. Jacobs, 46 Ohio St. 3d 176

EES ee ee 10

Kalimara v. Illinois, Department of Corrections, 879

I OU ihre kc carr abernsaesbeens 3

Kraut v. Cleveland Ry. Co., 132 Ohio St. 125 (1936) 6, 8, 9

Lee v. Wright Tool & Forge Co., 48 Ohio App. 2d 148

EE ESD Se ey ae 11

Levin v. Bourne, 117 Ohio App. 269 (1962)........... 11

Owens v. Okure, 488 U.S. 235, 102 L.Ed. 2d 594

SE Ee re ee 29

Paugh v. Hanks, 6 Ohio St. 3d 72 (1983)............ 6, 8

iv

TABLE OF AUTHORITIES - Continued

Page

Schultz v. Barberton Glass Co., 4 Ohio St. 3d 131

PG kann eek khaMead wn kw hkewenebnews esos ees 6, 8

Segall v. Hurwitz, 114 Wis. 2d 471 (Wis. App. 1983) ..... 3

Seguin v. Gallo, 21 Ohio App. 3d 163 (1985)..... 6, 7, 8

Smith v. Buck, 119 Ohio St. 101 (1928).............. 4,9

Thomas v. Shipka, 872 F.2d 772 (6th Cir. 1989)......... 5

Whitehead v. General Telephone Co., 20 Ohio St. 2d

ETE SRI SRE ree mmeennee coer e Br ane ena 6, 7, 8

Wilson v. Garcia, 471 U.S. 261, 85 L.Ed.2d 254

SG aca SU ADA OCL WOES RUS ORR EEN ee A bees 4

Yeager v. Local Union 20, 6 Ohio St. 3d 369 (1983) 6, 8, 9

STATUTES:

42 United States Code Section 1983................ 4,5

Ohio Revised Code Section 2305.09(D) .......... passim

Ohio Revised Code Section 2305.10 ........ _. passim

Ohio Revised Code Section 2305.11 .................. 9

Ohio Revised Code Section 2305.111 .............. 9, 10

Ohio Revised Code Section 4507.07 ................. 11

Ohio General Code Section 11224-1 ................. 10

Wisconsin Statutes Annotated Section 893.53 ......... 3

OTHER:

United States Supreme Court Rule 10.1.............. 2

SUMMARY OF ARGUMENT

I. THE EXERCISE OF SOUND DISCRETION

REQUIRES DENIAL OF WRIT OF CERTIORARI.

Petitioner wrongly asserts the existence of a conflict

among the circuits as no other circuit has addressed

which Ohio statute of limitation should be borrowed to

carry out the directives of Owens v. Okure, 488 U.S. 235,

102 L.Ed 2d 594 (1989). Cases cited by Petitioner followed

the Browning v. Pendleton, 869 F.2d 989 (6th Cir., 1989) (en

banc) rationale and, in Illinois, a close counterpart of

O.R.C. § 2305.10 was borrowed. The Wisconsin statutory

scheme is different given the judicial gloss previously

applied to various statutes of that state.

The selection of Ohio’s general or residual statute of

limitation for personal injury actions is guided by Ohio’s

definition of “personal injury.” This definition,

unchanged for mcre than sixty years, ought not to be

revised and then applied as revised to compel the selec-

tion of some statute other than O.R.C. § 2305.10.

Il. OHIO REVISED CODE SECTION 2305.10 IS

OHIO’S GENERAL OR RESIDUAL STATUTE OF

LIMITATIONS FOR PERSONAL INJURY

ACTIONS.

“Personal injury” has a specific meaning under Ohio

Law. Ohio Revised Code § 2305.10 governs all personal

injury actions under Ohio law except libel, slander, and

battery which have other more specific statutes of limita-

tion. General tort claims such as loss of consortium and

infliction of emotional distress are governed by O.R.C.

§ 2305.09(D) only because such claims are not personal

|

injury claims under the law of Ohio. O.R.C. § 2305.09(D)

does not govern any personal injury actions in Ohio since

it does not govern any action for bodily injury nor does it

govern libel, slander, and battery.

,%

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ARGUMENT

I. NO SPECIAL OR IMPORTANT REASON

EXISTS TO GRANT A WRIT OF CERTIORARI.

Respondent City of Columbus!, Alphonso Montgom-

ery, Dwight Joseph, David A. Dailey, Robert Snyder,

Dennis Matco, O’Reeta Reed, and Michael See (hereinaf-

ter referred to collectively as the “Municipal Respon-

dents”) respectfully submit that, in the exercise of the

sound discretion called for by Supreme Court Rule 10.1,

this Court ought to deny the writ of certiorari.

Contrary to the position advanced by Petitioner,

there is no conflict between circuits that needs to be

addressed by this Court. The statutes involved, O.R.C.

§§ 2305.09(D) and 2305.10, have not been the subject of

review by any circuit court other than the Sixth Circuit.

No circuit court has addressed the issue of borrowing a

statute of limitations from the law of the State of Ohio

and come to a result contrary to the holding of Browning

v. Pendleton, 869 F.2d 989 (6th Cir. 1989) (en banc).

1 The City of Columbus is a municipal corporation orga-

nized and existing pursuant to its charter and the law of the

State of Ohio. It has no parent corporation and no subsidiaries.

Furthermore, the cases from the Seventh Circuit cited

by Petitioner either support the logic and result of Brown-

ing or interpret a different statutory scheme of limitations

of actions. Kalimara v. Illinois Department of Corrections,

879 F.2d 276 (7th Cir. 1989) applied Illinois’s two year

statute of limitations for damages for injury to the person

to Section 1983 actions arising in Illinois. Just as O.R.C.

§ 2305.10 applies to actions for “bodily injury,” the Illi-

nois statute selected in Kalimara, Ill. Rev. Stat. Chapter

110, paragraph. 13-202, applies only to “direct physical

injury.” Berghoff v. R.J. Frisby Manufacturing Co., 720

F.Supp. 649, 652 (N.D. Ill. 1989), citing Bassett v. Bassett,

20 ill.App. 543 (1886).

Another case cited by Petitioner, Gray v. Lacke, 885

F.2d 399 (7th Cir. 1989) addressed the borrowing of a

general or residual statute of limitations for personal

injury actions from the law of Wisconsin. Wisconsin’s

statutory scheme is markedly different from that of Ohio

in that Wisconsin has a specific statute of limitations for

claims such as loss of spousal consortium or other actions

for damages “for an injury to the character or rights of

another .. . ”. 885 F.2d at 407, citing Wisc. Stat. Ann.

Section 893.53 (West, 1983). This particular statute of

limitations, according to Gray, was earlier interpreted by

a Wisconsin Court of Appeals to be a general or residual

‘statute of limitations for personal injury actions as is

required by Owens v. Okure, 488 U.S. 235, 102 L.Ed.2d 594

(1989). Gray v. Lacke, 885 F2d at 408, citing Segall v.

Hurwitz, 114 Wis.2d 471 (Wis. App. 1983). Ohio Revised

Code § 2305.09(D) has never been so labelled as a general

or residual statute of limitations for personal injury

actions by any court, state or federal.

Furthermore, it would be unwise to review Ohio’s

scheme of statutes of limitation at this time. As will be

seen, infra, the selection of Ohio’s general or residual

statute of limitations for personal injury actions is guided

primarily by Ohio’s definition of personal injury. Peti-

tioner wrongfully expands on that definition to include

general tort claims which are not claims for personal

injury under the law of Ohio. Smith v. Buck, 119 Ohio St.

101 (1928). As the holding in Buck has not been overruled

or even questioned by the Supreme Court of Ohio in

more than 62 years, this Court should refrain from

accepting Petitioner’s invitation to redefine “personal

injury” under Ohio law and then, as a result of that

redefinition, undo the certainty that Browning has

afforded practitioners litigating Section 1983 claims aris-

ing in Ohio.

Il. THE COURT OF APPEALS FOR THE SIXTH

CIRCUIT PROPERLY DECIDED THAT

REVISED CODE SECTION 2305.10 IS OHIO’S

GENERAL OR RESIDUAL STATUTE OF LIM-

ITATIONS FOR PERSONAL INJURY

ACTIONS.

A. REVISED CODE SECTION 2305.10 IS

OHIO’S GENERAL OR RESIDUAL STAT-

UTE OF LIMITATIONS FOR PERSONAL

INJURY ACTIONS.

The Municipal Respondents agree that the decisions

in Wilson v. Garcia, 471 U.S. 261 (1985), and Owens v.

Okure, 488 U.S. 235, 102 L.Ed. 2d 594 (1989), require that

the trial court apply, as the statute of limitations for an

action pursuant to 42 U.S.C. § 1983, the “general or

residual statute for personal injury action” in Ohio.

Owens v. Okure, 102 L.Ed. 2d at 606. However, the Munici-

pal Respondents contend that O.R.C. § 2305.10 rather

than O.R.C. § 2305.09(D) is that “general or residual

statute.”

In Browning v. Pendleton, 869 F.2d 989 (1989), the

United States Court of Appeals for the Sixth Circuit,

sitting en banc, held:

.... the appropriate statute of limitations for 42

U.S.C. § 1983 civil rights actions arising in Ohio

is contained in Ohio Rev. Code Ann. § 2305.10,

which requires that actions for bodily injury be

filed within two years after their accrual. 869

F.2d, at 992.

This holding has been followed in two decisions

reported subsequently. Thomas v. Shipka, 872 F.2d 772 (6th

Cir., 1989), vacating 829 F.2d 570 (6th Cir., 1987). Emmons

v. McLaughlin, 874 F.2d 351, 354 (6th Cir., 1989). Accord-

ingly, the law in the Sixth Circuit Court of Appeals has

been established for nearly two years that O.R.C.

§ 2305.10 governs the filing of civil actions arising in the

state of Ohio that allege violations of 42 U.S.C. § 1983.

B. REVISED CODE SECTION 2305.09(D) IS

NOT OHIO’S GENERAL OR RESIDUAL

STATUTE OF LIMITATIONS FOR PER-

SONAL INJURY ACTIONS.

Petitioner wrongly asserts that O.R.C. § 2305.09(D) is

that general or residual statute of limitations for personal

injury actions. That error results from a misunderstand-

ing of the types of civil actions to which O.R.C.

§ 2305.09(D) has been applied as the appropriate statute

of limitations.

While the Municipal Respondents agree that O.R.C.

§ 2305.09(D) governs actions for loss of spousal consor-

tium and services [Kraut v. Cleveland Ry. Co., 132 Ohio St.

125 (1936); Corpman v. Boyer, 171 Ohio St. 233 (1960); Dean

v. Angelas, 24 Ohio St. 2d 99 (1970); Amer v. Akron City

Hospital, 47 Ohio St. 2d 85 (1976); and Polzwart v. Weh-

man, 1 Ohio St. 3d 26 (1982)], loss of a child’s services and

attendant medical expenses [Whitehead v. General Tele-

phone Co., 20 Ohio St. 2d 108 (1969); and Seguin v. Gallo, 21

Ohio App. 3d 163 (1985)], and infliction of serious emo-

tional distress [Schultz v. Barberton Glass Co., 4 Ohio St. 3d

131 (1983); Paugh v. Hanks, 6 Ohio St. 3d 72 (1983); and

Yeager v. Local Union 20, 6 Ohio St. 3d 369 (1983)], none of

those cases ever held, let alone suggested, that the actions

being adjudicated were ones for “personal injury” as

defined by Ohio law. The opinions uniformly abstain

from describing loss of consortium actions or actions for

infliction of emotional distress, intentional or negligent,

as personal injury actions.

On the contrary, the law of Ohio contrasts consor-

tium claims with other related claims that are, in law,

ones for personal injury. In Kraut v. Cleveland Ry. Co., 132

Ohio St. 2d 125 (1936), the Supreme Court of Ohio held:

Such an action by the husband (for loss of ser-

vices and for expenses for care and medical

attention growing out of his wife’s injury) is not

one for bodily injury within the meaning of

Section 11224-1, General Code, prescribing a

two-year limitation, but comes under Paragraph

four of Section 11224, General Code, providing

for a four-year limitation.

In Corpman v. Boyer, 171 Ohio St., 233 (1960), the Court

held:

A husband’s action for consequential damages

occasioned by malpractice of a physician upon

his wife is for an injury to his rights not arising

on contract or enumerated in the Revised Code

sections set forth in paragraph (D), Section

2305.09, Revised Code, and must be commenced

within the period prescribed thereby. (Emphasis

supplied.)

In Dean v. Angelas, 24 Ohio St. 2d 99 (1970), the

- Supreme Court of Ohio followed Corpman and held that

an action for consortium is “an action for an injury to the

rights of the former spouse (i.e. the plaintiff) not arising

upon contract... ”. 24 Ohio St. 2d, at 100.

In Amer v. Akron City Hospital, 47 Ohio St. 2d 85, the

Supreme Court of Ohio described the action for loss of

consortium, loss of services and medical expenses as one

“for consequential damages arising from, or having its ori-

gin in, alleged acts of malpractice to a plaintiff's spouse.”

47 Ohio St. 2d at 87, emphasis supplied, fn. omitted.

In Whitehead v. General Telephone Co., 20 Ohio St. 2d

108 (1969), the Supreme Court of Ohio held:

Where a defendant negligently causes injury to

a minor child, that single wrong gives rise to

two separate and distinct causes of action: an

action by the minor child for his personal injuries

and a derivative action in favor of the parents of the

child for the loss of his services and his medical

expenses. (Emphasis supplied.)

In Seguin v. Gallo, 21 Ohio App. 3d 163 (1985), the

Court of Appeals for Cuyahoga County likewise labeled

the parents’ action as “derivative.”

In Schultz v. Barberton Glass, 4 Ohio St. 3d 131 (1983),

the Supreme Court recognized negligent infliction of

serious emotional distress without a contemporaneous

physical injury as a “cause of action.” The opinion never

identified this newly-recognized cause of action as one

for personal injuries.

In Paugh v. Hanks, 6 Ohio St. 3d 72 (1983), the

Supreme Court of Ohio followed and explained Schultz.

To be actionable, negligent infliction of serious emotional

distress must result in “emotional injuries” that are both

serious and reasonably foreseeable. 6 Ohio St. 3d at 72.

The opinion never identifies the cause of action as one for

personal injuries, nor describes the injuries as anything

but “emotional.”

In Yeager v. Local Union 20, 6 Ohio St. 3d 369 (1983),

the Supreme Court of Ohio recognized intentional and

reckless infliction of serious emotional distress as causes

of action. At no time are these causes of action labeled as

ones for “personal injury.”

“The language used in various opinion precludes any

thoughtful conclusion that these general tort actions are,

instead, actions for personal injury. On the contrary, these

are actions: “not one for bodily injury” (Kraut); “for con-

sequential damages” (Corpman and Amer); “for an injury

to rights. . . . not arising upon contract” (Dean), and

actions derivative from those of injured minor children

(Whitehead and Seguin).

C. UNDER OHIO LAW, “PERSONAL INJURY”

DOES NOT INCLUDE A LOSS OF CONSOR-

TIUM OR AN INFLICTION OF SERIOUS

EMOTIONAL DISTRESS.

This failure to use the label “personal injury” during

the forty-seven years between the publication of the

decision in Kraut and that in Yeager is no fluke or acci-

dent. Rather, the failure to use the label is consistent with,

and compelled by, the law of Ohio.

In Smith v. Buck, 119 Ohio St. 101 (1928), the Supreme

Court of Ohio authoritatively defined the phrase “per-

sonal injury.” The Court held:

The words “personal injury” as defined by lex-

icographers, jurists and text writers, and by

common acceptance, denote an injury either to

the physical body of a person or to the reputa-

tion of a person, or to both. 119 Ohio St. at 101.

The two kinds of personai injury in Ohio are injury to

the physical body of a person (i.e. bodily injury) and

injury to the reputation of a person (i.e. libel and

slander). Because libel and slander are governed by a

more specific statute of limitations (O.R.C. § 2305.11) and

the intentional causing of bodily injury is governed by a

more specific statute of limitations (O.R.C. Section

2305.111, for battery [App.-1]), O.R.C. § 2305.10 is, by

default, the general or residual statute of limitations for

all remaining personal injury actions. Stated another way,

O.R.C. § 2305.10 governs all personal injury actions as

defined in Buck, save libel, slander and battery.

Although actions for loss of consortium and for

infliction of serious emotional distress are governed by

O.R.C. § 2305.09(D), they are not actions for “personal

injury” as defined by the law of Ohio. Hence, as loss of

consortium and infliction of serious emotional distress

are not examples of personal injuries under the law of

Ohio, O.R.C. § 2305.09(D) does not govern any personal

injury actions in Ohio. Ohio’s approach, differentiating

between personal injuries and other general tort claims, is

10

buttressed by a recent decision in which the Supreme

Court of Ohio wrote: “General tort claims, including

those for negligence, are governed by R.C. § 2305.09(D).”

Investors REIT One v. Jacobs, 46 Ohio St. 3d 176, 179 (1489).

Loss of consortium claims and emotional distress claims

are governed by Section 2305.09(D) because they are gen-

eral tort claims and not because they are personal injury

claims governed by Section 2305.09(D) as a catchall stat-

ute of limitations for personal injury claims.

Although it is sometimes said that O.R.C. § 2305.10

governs only negligence actions alleging bodily injury as

damages, that is not the case. O.R.C. § 2305.10 governs all

actions alleging bodily injury as damages? and, for that

reason, is the general or residual statute of limitations for

personal injury actions in Ohio.

In Andrianos v. Community Traction Co., 155 Ohio St.

47 (1951), the Supreme Court of Ohio held that General

Code Section 11224-1, predecessor to O.R.C. § 2305.10,

.. . providing that an action for bodily injury

shall be brought within two years after the

cause thereof arose, governs all actions the real

purpose of which is to recover damages for

injury to the person and losses incident thereto

and it makes no difference whether such action

is for a breach of contract or strictly in tort. The

limitation is imposed on the cause of action and

the form in which the action is brought is imma-

terial.

2 Except battery R.C. § 2305.111 [App.-1].

This use of O.R.C. § 2305.10 and its General Code

predecessor as a general statute of limitations for per-

sonal injury actions, including actions other than negli-

gence, was followed in Lee v. Wright Tool & Forge Co. 48

Ohio App. 2d 148 (1975) motion to certify overruled,

1975. In Lee, O.R.C. § 2305.10 was applied to an action for

bodily injuries against the seller of a defective hand tool

for breach of implied warranty. The Plaintiff-Appellee

argued without success that the longer four year statute

of limitations for breach of implied warranty under the

Uniform Commercial Code as adopted in Ohio should

apply. In Levin v. Bourne, 117 Ohio App. 269 (1962), O.R.C.

§ 2305.10 was applied to an action against parents who

had signed the driver’s license application of their child

whose operation of a motor vehicle resulted in bodily

injury to the plaintiff. The child’s “negligence or willful

misconduct” was imputed to the parents by operation of

O.R.C. § 4507.07. In choosing the appropriate statute of

limitations, the court looked to the nature of the wrong

committed (personal injury) rather than the remedy to

redress that wrong (action pursuant to a statute creating

liability).

In short, O.R.C. § 2305.10 applies to all personal

injury actions as defined by Ohio law except for libel,

slander and battery which are, in turn, governed by other

more specific statutes of limitations for them as partic-

ularized types of personal injuries under the law of the

State of Ohio.

-t

*

12

CONCLUSION

For the reasons stated above, the Petition for Writ of

Certiorari ought to be denied. There is no special or

important reason to review the choice of O.R.C. § 2305.10

as Ohio’s general or residual statute of limitations for

personal injury actions.

Respectfully submitted,

GLENN B. Repick

Assistant City Attorney

City Hall, 90 West Proad Street

Columbus, Ohio 43215

Phone: (614) 645-7385

Counsel of Record for Respondents City of

Columbus, Alphonso Montgomery,

Dwight Joseph, David A. Dailey, Robert

Snyder, Dennis Matco, O’Reeta Reed, and

Michael See

App.-1

APPENDIX

OHIO REVISED CODE SECTION 2305.111

An action for assault or battery shall be brought

within one year after the cause of the action accrues. For

purposes of this section, a cause of action for assault or

battery accrues upon the later of the following:

(A) The date on which the alleged assault or battery

occurred;

(B) If the plaintiff did not know the identity of the

person who allegedly committed the assault or battery on

the date on which it allegedly occurred, the earlier of the

following dates:

(1) The date on which the plaintiff learns the iden-

tity of that person;

(2) The date on which, by the exercise of reasonable

diligence, he should have learned the identity of that

person.