The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Norah McCann King
This matter is before the Court for consideration of a motion for summary judgment (Doc. # 101) filed by A.M. Kinney, Inc., a memorandum in opposition (Doc. # 107) filed by General Mills Operations, Inc., and a reply memorandum (Doc. # 120) filed by A.M. Kinney, Inc. For the reasons that follow, the Court finds the motion not well taken.
On August 3, 2003, Anthony J. Smith, was working for General Mills in its Wellston, Ohio plant when he was showered by an eruption of hot oil from storage tanks for fryers used to make pizza rolls. Smith sustained injuries and subsequently filed this action on August 4, 2004. One of the defendants named in that action is General Mills Operations, Inc. ("GMO").
On July 12, 2005, GMO filed four cross-claims against A.M. Kinney ("Kinney"). (Doc. # 62.) The first two causes of action are for breach of contract and negligent design stemming from engineering services Kinney performed beginning in 1997 related to a second pizza roll fryer.*fn1 This design apparently included modifications to an oil-transfer system, the installation of which was completed by at least August 1998.
Kinney has moved for summary judgment on both counts on the grounds that the statutes of limitations have run. (Doc. # 101.) The parties have completed their briefing, and Kinney's motion is now ripe for disposition.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must therefore grant a motion for summary judgment here if Plaintiff, the nonmoving party who has the burden of proof at trial, fails to make a showing sufficient to establish the existence of an element that is essential to his case. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In viewing the evidence, the Court must draw all reasonable inferences in favor of Plaintiff, who must set forth specific facts showing that there is a genuine issue of material fact for trial. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52.)
As noted, GMO has asserted a claim for breach of contract and a claim for negligent design. Kinney argues that the Count One breach of contract claim is in truth a disguised professional negligence/malpractice claim subject to a preclusive one-year statute of limitations. The company also argues that the Count Two negligent design claim is in fact a claim for professional negligence/malpractice subject to the same statute of limitations set forth in Ohio Rev. Code § 2305.11. That statute provides that "an action for malpractice other than an action upon a medical, dental, optometric, or chiropractic claim ... be commenced within one year after the cause of action accrued." Ohio Rev. Code § 2305.11(A). Although the statute does not specify when the cause of action accrues, Kinney argues that § 2305.11(A) is analogous to Ohio Rev. Code § 2305.09(D), a professional negligence statute that the Ohio Supreme Court has held is exempt from the discovery rule and which begins to run when a negligent act is committed. Investors REIT One v. Jacobs, 46 Ohio St. 3d 176, 180, 546 N.E.2d 206, 210 (1989).
Arguing in the alternative, Kinney asserts that even if § 2305.11(A) does not apply here, Counts One and Two are nonetheless subject to § 2305.09(D)'s then-applicable four-year statute of limitations. This statute provides that "[a]n action ... shall be brought within four years after the cause thereof accrued ... [f]or an injury to the rights of the plaintiff not arising on contract nor enumerated in ...