414 N.E.2d 445 | Ohio Ct. App. | 1979
Plaintiff-appellant appeals from a judgment of the Court of Common Pleas of Franklin County rendering summary judgment in favor of certain defendants and finding no just reason for delay in entering judgment with respect to part but not all of the defendants. In support of her appeal, plaintiff raises a single assignment of error, as follows:
"The plaintiff may not be barred from proceeding with her action against individual defendants in the Court of Common Pleas by §
By her complaint, plaintiff alleges that the seven defendant doctors treated plaintiff from approximately February 23, 1977, to April 4, 1977, for an abortion and complications thereof and were negligent in such treatment. Plaintiff alleges that defendants negligently released her from an unspecified hospital on February 26, 1977. The complaint was filed May 5, 1978, and service obtained. Defendants Essig and Copeland filed answers, and the case remains pending against them in the trial court.
Defendants Stempel, Warner, Iams, Hsueh and Stine filed a joint answer, setting forth several defenses, the third defense claiming that plaintiff waived her right to sue these defendants. Subsequently, these five defendants filed a motion for summary judgment contending that the action was not commenced within the time permitted by the applicable statute of limitations, to which was attached affidavits of these defendants, stating, inter alia, that each, at the time in question, was "a member of the medical staff of the Ohio State University Hospital." In response, plaintiff contended that the action was timely commenced because of compliance with the notice provisions of R. C.
The Court of Claims complaint reads essentially similar to the complaint herein, except that it refers to treatment by the Ohio State University Hospital and makes no specific reference to any of the defendants herein, except to allege that the state of Ohio acted through agents who remain unspecified and unnamed.
The trial court overruled the motion predicated upon the statute of limitations with respect to all defendants except Dr. Stine and sustained the motion as to Dr. Stine. As to defendants Stempel, Warner, Iams and Hsueh, the trial court sustained their motion for summary judgment upon the grounds that plaintiff had waived any claim against them by filing the complaint in the Court of Claims.
Plaintiff has raised no issue herein with respect to the dismissal of her claim as against Dr. Stine because it was not commenced within the time permitted by the statute of limitations.
Prior to the trial court's decision, plaintiff filed an additional memorandum in opposition to the motion for summary judgment, to which was attached an order of the Court of Claims dismissing the action in that court but granting leave to plaintiff to file an amended complaint. Since the trial court's decision makes no reference to the contentions made in this additional memorandum, the trial court apparently was unaware of this argument. At least, the trial court made no reference to this argument in the decision.
After plaintiff's cause of action arose, but prior to the filing of the complaints, R. C.
"The state hereby waives, in exchange for the complainant's waiver of his cause of action against state officers or employees, its immunity from liability and consents to be sued * * *.
"Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver *39 of any cause of action, based on the same act or omission, which the filing party has against any state officer or employee. The waiver shall be void if the court determines that the act or omission was not within the scope of the officer's or employee's office or employment."
Plaintiff contends that, pursuant to R. C.
"Prior to February 7, 1978, a claimant who sued the state in the Court of Claims and joined in that suit state employees alleged to be acting within the scope of their employment in both their official and individual capacities was entitled to a jury trial under R. C.
Torpey is not controlling, inasmuch as it is distinguishable.Torpey involved an action commenced prior to the effective date of the 1978 amendment to R. C.
R. C.
"(A) The reenactment, amendment, or repeal of a statute does not * * *:
"* * *
"(2) Affect any * * * liability previously acquired, accrued, accorded, or incurred thereunder;
"* * *
"(4) Affect any * * * remedy in respect of any such * * * liability * * * and the * * * remedy may be instituted * * * as if the statute had not been repealed or amended."
The trial court referred to the "doubtful applicability" of R. C.
In effect, the claimant had two remedies: one by a factual determination by the court with respect to the state's liability, and the other by a factual determination by a jury with respect to the state's employees, with the possibility of inconsistent factual determinations.
The 1978 amendment to R. C.
However, it is apparent that the action against the state was not commenced within the time permitted by R. C.
The Court of Common Pleas apparently felt that the filing of a complaint in the Court of Claims constituted an irrevocable waiver of any claim against state employees. R. C.
Although neither the filing nor the dismissal of the action in the Court of Claims has been evidenced in the manner *41 prescribed by Civ. R. 56(C), there is some question as to whether a claim be still pending in the Court of Claims, either at the time of the trial court's judgment or at the present time.
In addition, the copy of the order of the Court of Claims submitted by plaintiff indicates that an amended complaint had been filed in that court; however, the amended complaint was not submitted to the trial court herein.
Although the 1978 amendment to R. C.
Although the trial court may be correct in its statement that "to proceed with a trial in this case as to these defendants in the face of the asserted waiver and the doubtful applicability of [R. C.]
Accordingly, we must find the assignment of error to be well taken, inasmuch as R. C.
For the foregoing reasons, the assignment of error is sustained; and the judgment of the Court of Common Pleas of Franklin County is affirmed insofar as it dismissed the action as against defendant Stine and is reversed insofar as it dismissed the action with respect to defendants Stempel, Warner, Iams and Hsueh. This cause is remanded to that court for further proceedings in accordance with law consistent with this decision.
Judgment affirmed in part,and reversed in part,and cause remanded.
REILLY and McCORMAC, JJ., concur.