Stewart v. Haughton Elevator Co.

Kerns, Judge. The plaintiffs, Michael C. and Patricia Stewart, commenced this action in the Court of Common Pleas of Franklin County claiming damages for injuries sustained by Mr. Stewart at Ohio State University Hospital when he was a passenger on an elevator designed, manufactured and installed by the defendants, Haughton Elevator Company et al., which was alleged to have been malfunctioning at the time of the accident. Subsequently, the defendants filed a motion for the dismissal of the action or for a summary judgment claiming that the cause was time-barred by R.C. *124 2305.131, and the sustaining of such motion by the trial court provides the basis for the present appeal to this court. In the appeal, the appellants have set forth two assignments of error, the second of which has been stated as follows: “II. The trial court erred in ruling that defendant-appellee is a ‘contractor’ as defined by the case law interpreting O.R.C. § 2305.131.” In this regard, the applicable statute provides, in pertinent part, that: “No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction. * * *” In its decision, the trial court concluded from the evidence that the defendants were “contractors,” as distinguished from “materialmen,” in determining that R.C. 2305.131 was applicable to these proceedings, and nothing appears in the record to refute this determination of the common pleas court. However, the basic and controlling issue presented was essentially one of statutory construction, and the particular question raised was whether an elevator constituted “an improvement to real property” within the contemplation of the applicable statute. In Jones v. Ohio Bldg. Co. (1982), 4 Ohio Misc.2d 10, 4 OBR 329, 447 N.E.2d 776, the court dwelled at some length upon a similar query, citing both text and case authority, before deciding that “[t]he construction and installation of a service elevator constitutes an ‘improvement to real property’ within the meaning of R.C. 2305.131.” Id. at paragraph two of the syllabus. Likewise, in Fritz v. Otis Elevator Co. (1988), 48 Ohio App.3d 240, 549 N.E.2d 205, the court followed a similar pattern before concluding that an elevator was an improvement to real property as that phrase is used in R.C. 2305.131. As we see it, the argument of the plaintiffs that the defendants were “material-men” has no sound basis in common understanding and no support from the record in this case, and it otherwise appearing that the elevator was an improvement to real property, the second assignment of error is overruled. Reverting then to the first assignment of error, which poses a nicer problem, the plaintiffs argue as follows: *125 “I. The trial court erred in ruling that O.R.C. § 2305.131 is constitutional when applied to a products liability action that accrued nine years and seven months after an elevator was manufactured and installed.” According to the facts, Michael Stewart was injured on December 6, 1988, and filed a complaint in the common pleas court on November 29, 1990, thus tolling the two-year time limitation imposed by R.C. 2305.10 for personal injury actions. However, the facts show further that the elevator was installed by Haughton on April 16, 1979, or approximately nine years and seven months before Stewart sustained his injuries, but over ten years prior to the filing of the complaint in this action. Thus, the issue which surfaces is whether the ten-year statute of repose was fatal to the cause of action. In Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, 551 N.E.2d 938, the Supreme Court upheld the constitutionality of R.C. 2305.131 in its application to a cause of action which accrued after the expiration of the ten-year period of repose, but the court specifically noted therein that its conclusion did not cover a situation where the plaintiffs were denied a reasonable time in which to pursue their cause of action. More applicable here, in our opinion, is Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 514 N.E.2d 709, which varies factually to some extent, but bears many legal characteristics similar to those of the present case. In Gaines, the plaintiffs had one year to file a medical malpractice action, but they were otherwise limited to six and one-half months to file the action by a separate four-year statute of repose. In declaring the four-year statute unconstitutional in its application to the plaintiffs in the Gaines case, the Supreme Court determined, among other things, that the statute of repose violated Section 16, Article I, of the Ohio Constitution, by unreasonably limiting the time in which the plaintiffs could pursue their vested legal right to a remedy. Then, the court proceeded in the Gaines case to apply the one-year statute of limitations. Likewise, in the present case, the plaintiffs were stripped of their legal rights, and victimized in a constitutional sense, by nothing more than the “fortuity of timing,” and the Stewarts had a right, therefore, to turn to the two-year statute of limitations which the legislature, in its quest for reasonableness, has established for personal injury actions. In Sette v. Benham, Blair & Affiliates (1991), 70 Ohio App.3d 651, 591 N.E.2d 871, this court recognized that a statute of repose (R.C. 2305.131) may shorten the period in which a claimant can bring an action for personal injuries (R.C. 2305.10), but the court also pointed out with considerable clarity that the limitations imposed by the statute of repose must be meaningful and reasonable. See, also, Adams v. Sherk (1983), 4 Ohio St.3d 37, 4 OBR 82, 446 N.E.2d 165. *126 Here, the injury occurred, and the attending rights accrued, only five months before the ten-year period expired, and for this reason, we are of the opinion that R.C. 2305.131 is unconstitutional in its application to the particular cause of action alleged herein. Accordingly, the first assignment of error must be sustained. Hence, the first assignment of error is sustained, the second assignment of error is overruled, and the judgment of the trial court is reversed and the cause is remanded to the common pleas court for further proceedings according to law. Judgment reversed and cause remanded. Tyack, J., concurs. Whiteside, J., dissents. Joseph D. Kerns, J., retired, of the Second Appellate District, was assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.