Doug Shevelow | Bricker & Eckler LLP | September 30, 2015
Ohio Revised Code 2305.09(D) establishes the time limitation for suing somebody for most types of negligence (i.e. “tort”) as four years. That raises the question: Four years from when? The answer is four years from when the cause of action accrues, which, of course, leads to more questions about what constitutes an “accrual.” Sometimes the cause of action accrues long after the occurrence of a negligent act, such as when defective construction is discovered years after the work is completed. That is known as “delayed damages” or the “discovery rule.”
For professional negligence, a specific type of negligence committed by engineers, architects, accountants, and other certain licensed professionals (as opposed to “malpractice,” which is limited to attorneys and medical professionals) R.C. 2305.09(D) still applies. Professional negligence is generally defined as failing to meet the standard of care established by similar professionals in the same area and at the same time. It typically requires expert testimony to prove.
For some time now, Ohio courts have not given plaintiffs suing for professional negligence the advantage of the delayed damages theory, ruling that the cause of action accrues when the negligent act is committed. For engineers and architects, this usually means that the cause of action accrues when the drawings or report are issued. This creates problems for plaintiffs in negligence because it could be a while before a contractor gets around to building the design (and even longer for a defective design to be discovered), leaving a plaintiff with a negligence claim with a very short window to file suit, or perhaps none at all.
For someone with a contract with an engineer or architect, this is usually not a problem, because that person can sue in contract, which has an eight-year statute of limitations in Ohio. However, a complication often lies in determining what term in the contract has been breached when the construction project does not perform as desired. That can be hard to nail down. Many form contracts, including those published by the American Institute of Architects and the Engineers Joint Contract Document Committee, address this problem by incorporating the standard of care as an express “catch all” contract term.
That raises the question of how the courts in Ohio would treat the standard of care being used in a contract. Would they hold that a tort is a tort and should not be considered as an action in contract, applying the four year statute of limitations with no delayed damages for accrual of the cause of action? Or would they hold for freedom of contract and allow a tort concept to be enforced by contract, if the parties had agreed to it previously?