Opinion
No. 91-12601.
Decided April 15, 1993.
James T. Murray, for plaintiffs.
Lee Fisher, Attorney General, Susan M. Sullivan and Odella Lampkin, Assistant Attorneys General, for defendant.
In the early 1960s, the state of Ohio undertook to remedy certain vehicular and pedestrian difficulties posed by the numerous railroad crossings in Ohio. Pursuant to this goal, the state targeted the Erie County intersection of State Route 250 and railroad tracks owned by the New York Central Railroad Company. This railroad crossing was located inside the city of Sandusky, Ohio, a political subdivision. At that time, state officials decided to reroute the state highway over the tracks via an elevated overpass which would accommodate both vehicular and pedestrian traffic.
The topographical circumstances apparently required the relocation of the existing course of Route 250 onto what was then Milan Road. An immediate difficulty was posed by the restrictive nature of the new state controlled-access highway in that, unlike Milan Road, the new state route could not be entered from the surrounding properties. In order to provide the needed access for the properties and businesses located on adjacent land, the state, in conjunction with the city, designed and constructed certain frontage roads that became extensions of Milan Road and that ran parallel to the state route. All of the road designs and constructions were completed sometime in 1969, and thereafter turned over to Sandusky. The roads have remained city streets since that time.
On October 31, 1981, at approximately 10:17 p.m., an accident occurred on Frontage Road E when the driver of a vehicle exited the private driveway of an adjacent business and entered the path of a vehicle driven by Bruce A. Miller. At the time, Miller was proceeding north on the frontage road. His vehicle struck the exiting vehicle broadside. Among those injured were Miller's wife and their unborn daughter, Kristine A. Miller. The child was born on November 25, 1981, at which time it was discovered that she was blind, apparently as a result of the accident.
Kristine Miller and her parents filed suit against Sandusky in the Court of Common Pleas of Erie County and on May 6, 1991, a jury awarded plaintiffs $7.8 million for the injuries they sustained. The parties thereafter negotiated a settlement, by the terms of which plaintiffs received $3.5 million and became subrogated to all rights to contribution that Sandusky might have against the state of Ohio. The Millers stand now as subrogees in the instant action against defendant Ohio Department of Transportation ("ODOT"). Plaintiffs' principal assertion is that ODOT negligently designed and constructed the area of the accident such that oncoming vehicles could not have a clear view of each other. The matter was set for trial on February 8, 1993.
On December 30, 1992, defendant filed a motion for leave to file a motion for summary judgment. The summary judgment motion was filed and raised various legal issues. Because defendant's motion was untimely, the court denied the motion for leave.
On February 5, 1993, the court sua sponte convened a telephone conference among the parties and inquired as to their views on the legal issues raised by defendant in the attempted summary judgment motion. The court also inquired whether there was jurisdiction in the Court of Claims to entertain actions premised upon events occurring prior to the effective date of the Court of Claims Act, R.C. Chapter 2743.
On the day of trial, the parties argued their respective positions upon the issues raised, all of which were considered by the court both within the framework of defendant's motion for summary judgment as well as a motion to dismiss for lack of jurisdiction. See Kinney v. Ohio Dept. of Adm. Serv. (1986), 30 Ohio App.3d 123, 30 OBR 240, 507 N.E.2d 402. Additionally, the parties made certain stipulations of fact, including the foregoing recitation. After considering the parties' arguments and stipulations, in light of the applicable law, the court hereby grants defendant's motion to dismiss.
At the hearing on the present motion, counsel for both parties thoroughly argued the issues, each relying upon express language in particular cases issued from this court as well as the Tenth District Court of Appeals. In fact, a review of these cases reveals an apparent contradiction on the issue of the jurisdiction of this court.
It is axiomatic that no cause of action could be maintained against the state prior to the enactment of the Court of Claims Act, the effective date of which was January 1, 1975, except to the extent the state had previously permitted itself to be sued. See, e.g., Krause v. State (1972), 31 Ohio St.2d 132, 60 O.O.2d 100, 285 N.E.2d 736. Prior to that date, sovereign immunity was applicable to shield the state from liability for its acts and omissions. However, the issue has arisen whether a cause of action accrues if an act or omission of the state that occurs prior to the Court of Claims Act gives rise to an injury sometime well after the effective date of the Act.
The principal case upon this issue is Jones v. Ohio Dept. of Health (1990), 69 Ohio App.3d 480, 591 N.E.2d 245. That case was tried in the Court of Claims and was based upon an asserted failure to diagnose a newborn's hereditary condition through the standardized testing procedures performed upon him. The test was performed in 1971, and plaintiff was put on notice that the results were erroneous in 1972. All of the elements of the cause of action then being present, it was concluded that the cause accrued in 1972. Jones v. Ohio Dept. of Health (Jan. 11, 1990), Ct. of Cl. No. 87-10356, unreported.
The trial court pointed out that the state of Ohio was immune from this sort of lawsuit at the time the cause of action accrued. Based upon the uncodified Section 3 of H.B. 800, it was concluded that the General Assembly intended all plaintiffs to have:
"[A] window of time for the filing of lawsuits premised upon assertedly wrongful conduct of the state which may have occurred prior to January 1, 1975. However, the ability to bring such a lawsuit was strictly circumscribed by the requirement that it be commenced against the state under this chapter prior to July 1, 1975." Id. at 8.
More precisely, the court concluded that:
"[B]y the Court of Claims Act, the state gave a generalized consent to be sued and also created the appropriate court where these suits could be tried. At all times prior, no such right or forum existed and these rights which arose to the plaintiff by virtue of the Act are defined and controlled thereby." Id. at 12.
Perhaps more significantly, so strong was the statutory rule that no cause of action could be brought based upon acts occurring prior to the Court of Claims Act, that even the tolling of a suit by a minor, pursuant to the otherwise applicable tolling statute, R.C. 2305.15, was found to be outside the Act's provisions. The Court of Appeals for Franklin County affirmed the judgment, adopting both the decision and its reasoning in Jones, supra.
Based upon this case, defendant contends that: "The state cannot be sued for negligent acts committed at a time when it could not be sued for negligence in the first place." Such acts "are not actionable because they fall outside the state's waiver of sovereign immunity." Defendant's Trial Brief at 2.
Plaintiffs point to Starkey v. Cho (1990), 69 Ohio App.3d 763, 591 N.E.2d 1271, and assert that this very argument had also been rejected by a different panel of the same court of appeals. This case also arose in the Court of Claims and involved, inter alia, claims for the negligent design, construction, and maintenance of certain features of a state park. These features, it was alleged, were the proximate cause of an auto accident that severely injured two children.
After a trial upon the merits, the trial court held, upon the issues of negligent design and construction, that: "The acts of DNR having occurred before the creation of this court and before the effective date of the state's abrogation of its sovereign immunity, there is no jurisdiction in this court by which plaintiffs may maintain that portion of their action." Allen v. Dept. of Natural Resources (Dec. 8, 1989), Ct. of Cl. No. 88-05143, unreported.
Upon a review of the matter, the court of appeals affirmed the judgment of the Court of Claims but found that "`a cause of action for damages arising from negligent construction [and design] does not accrue until actual injury or damage ensues.'" (Emphasis added.) Starkey v. Cho (1990), 69 Ohio App.3d 763, 768, 591 N.E.2d 1271, 1275, quoting Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 23 O.O.3d 346, 433 N.E.2d 147, paragraph two of the syllabus, and citing Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, 551 N.E.2d 938; Burns v. Ohio Dept. of Transp. (1987), 39 Ohio App.3d 126, 529 N.E.2d 1283. The court concluded that the claim accrued at the time of injury and, hence, the cause was properly asserted within the two-year statute of limitations.
An analysis of the court of appeals' decision in Starkey, supra, indicates that it is in strong contrast to the pronouncement of Jones, supra, not only upon the issues, but also in their treatment. In Jones, the court found that a cause of action must be based upon acts or omissions occurring within the purview of the Court of Claims Act. The reasoning in Starkey, supra, applies the reasoning and cases applicable to the running of statutes of limitations. In Velotta, supra, for example, the principal issue was whether the cause of action was based upon tort or contract law, each with its own particular statute of limitations. The Supreme Court concluded that the cause of action was based upon principles of negligence and so applied the four-year statute of limitations. The court made no inquiries applicable to jurisdictional questions. The Burns case does not appear to be truly applicable, exploring the issue of discretionary immunity under circumstances strongly suggestive of negligent maintenance. Furthermore, the Burns decision seems to have been overruled by the Ohio Supreme Court determination in Sedar v. Knowlton Constr. Co., supra, which was also relied upon in Starkey.
The question of accrual of a cause of action relates only to the application of the appropriate statute of limitations. Such questions are virtually irrelevant when the issue is whether the Court of Claims Act has vested this court with jurisdiction to consider the claim in the first place. In order to consider a cause of action, the Court of Claims must have jurisdiction over all of the elements of the cause. These would include a duty to protect another from foreseeable injury, a breach of, or failure to discharge, this duty, and an injury to such other proximately resulting from that failure or breach. Wellman v. E. Ohio Gas Co. (1953), 160 Ohio St. 103, 51 O.O. 27, 113 N.E.2d 629, paragraph three of the syllabus. No cause of action accrues unless the act or omission upon which it is premised is within the ambit of the Court of Claims Act, which is a jurisdictional prerequisite to bringing the cause of action. It being quite plain that the acts here complained of were well before the state abrogated its immunity from suit for such acts, and the Act's express terms limiting it to acts or omissions occurring after its effective date, no cause of action can possibly arise from the acts or omissions here at issue.
For all of the foregoing reasons, plaintiffs' cause of action is dismissed.
Cause dismissed.
DEAN STRAUSBAUGH, J., retired, of the Tenth Appellate District, sitting by assignment.