Cole v. Hibberd

1994 Ohio App. LEXIS 3545 (Ct. App. Aug. 15, 1994)



In choosing between two statutes of limitation applicable to the same conduct, a special statutory provision which relates to the specific subject matter at issue is controlling over a general statutory provision, which otherwise might be applicable. In determining which limitation period applies, courts must look to the actual nature or subject matter of the case rather than to the form in which the action is pleaded. The grounds for bringing the action are the determinative factors; the form is immaterial


The friend intentionally kicked the injured party, but on appeal, the injured party claimed that the court below erred in summarily dismissing her claim since an action in assault and battery must be brought within a year. She argued that the statute of limitations for bodily injury, which is two years, applied rather.


Does the one-year statute of limitations for assault and battery--which is more specific in scope--apply rather than the two-year general statutory provision on negligence?




In considering the appeal, the court ruled that when two statutes of limitations possibly applied to the same conduct, a special statutory provision relating to the specific subject matter controlled over a general statutory provision that otherwise might have been applicable. Courts had to look to the actual subject matter, and when the essential character of the act was an intentional, offensive touching, the statute of limitations for assault and battery governed even when the touching was pleaded as an act of negligence. Construing the facts most strongly in favor of the injured party, the court concluded that the complaint was grounded in the intentional tort of assault and battery, which was based on an intent to cause offensive contact. The friend's conduct would have been offensive to a reasonable sense of personal dignity, and it was irrelevant that she did not intend to cause injury.

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