Kocisko v. Charles Shutrump & Sons Co.

Clifford F. Brown, J. R.C. 2305.131 is a ten-year statute of limitations which bars certain actions “* * * against any person performing services for or furnishing the design, planning, supervision of construction, or construction” of an improvement to real property. However, the actions which fall within the scope of R.C. 2305.131 are limited, by the terms of the statute, to actions for injury to real or personal property, bodily injury, or wrongful death, “arising out of the defective and unsafe condition of an improvement to real property * * *.” The language selected by the General Assembly is uniformly used to describe tortious conduct. For example, the statute’s use of the terms “defective” and “unsafe” to describe the improvements at issue distinguish the actions contemplated within the statute from warranty or other contractual claims. Thus, R.C. 2305.131 applies only to actions which sound in tort. Actions in contract continue to be governed by the fifteen-year statute of limitations found in R.C. 2305.06. As observed in Elizabeth Gamble Deaconess Home Assn. v. Turner Constr. Co. (1984), 14 Ohio App. 3d 281, 284, rights enforceable as torts differ from rights enforceable as contracts. “Tort actions are created to protect the interest in freedom from various kinds of harm. * * * Contract actions are created to protect the interest in having promises performed.” Prosser, Law of Torts (4 Ed. 1971) 613, Section 92. Torts arise from the breach of certain duties of conduct that are imposed by law for the protection of all persons within range of the harm or injury proximately resulting from such breach. Contractual duties, on the other hand, arise from the specific agreement of the parties to the contract. In the instant case, the parties entered into various contracts by which the defendants agreed to install a roof on plaintiff’s church building. Plaintiff claims that the roof, as installed, has leaked from the date of its installation. The complaint filed in the instant case alleges claims that arise out of those contracts among the various parties. No “injury” to person or property arising out of a defective and unsafe improvement to real property is alleged; rather, plaintiff seeks recovery for damages which flow from defendants’ installation of a leaky roof in breach of their various contracts. Of course, this court expresses no opinion as to the merit of any of plaintiff’s claims. Because this appeal was taken from the trial court’s grant of summary judgment to all defendants on the sole ground that R.C. 2305.131 barred the action, this court’s holding that R.C. 2305.131 does [100] not apply will permit the parties to litigate the remainder of their various contentions. Accordingly, we hereby affirm the judgment of the court of appeals and remand the cause to the trial court for further proceedings. Judgment affirmed and cause remanded. Celebrezze, C.J., Sweeney, Holmes and Douglas, JJ., concur. Locher and Wright, JJ., dissent.