Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Evans v. Akron General Medical Center

Court of Appeals of Ohio, Ninth District, Summit

August 1, 2018

MALIEKA EVANS Appellant
v.
AKRON GENERAL MEDICAL CENTER, et al. Appellees

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2014-11-5041

          KONRAD KIRCHER and RYAL MCGRAW, Attorneys at Law, for Appellant.

          STUART S. MERMELSTEIN, Attorney at Law, for Appellant.

          ANNA MOORE CARULAS and TAMMI J. LEES, Attorneys at Law, for Appellee.

          STEPHEN W. FUNK, Attorney at Law, for Appellee.

          MARTIN T. GALVIN and STEPHAN C. KREMER, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          JULIE A. SCHAFER, JUDGE.

         {¶1} Plaintiff-Appellant, Malieka Evans, appeals the judgment of the Summit County Court of Common Pleas granting in part the summary judgment motion of Defendant-Appellee, Akron General Medical Center ("AGMC") and granting the summary judgment motion of Defendant-Appellee, General Emergency Medical Specialists, Inc. ("GEMS").

         I.

         {¶2} On November 9, 2014, Evans filed a complaint against AGMC and several "Doe" defendants, whose identities were then unknown. The complaint alleged, inter alia, claims for negligent hiring and negligent supervision and/or retention. On January 7, 2015, Evans filed an amended complaint that substituted GEMS for one of the previously unnamed defendants. A summons and copy of the amended complaint was personally served upon the statutory agent for GEMS on April 7, 2015.

         {¶3} On May 20, 2015, GEMS filed a motion to dismiss, arguing that the amended complaint failed to state a claim upon which relief can be granted and that Evans had failed to effectuate proper service. The trial court denied GEMS' motion on June 5, 2015, and GEMS filed a timely answer thereafter and the matter proceeded through the pretrial process.

         {¶4} GEMS filed its first motion for summary judgment on December 22, 2015, and a second motion for summary judgment on January 25, 2015. The trial court granted GEMS' second motion for summary judgment on May 12, 2016.

         {¶5} AGMC filed its motion for summary judgment on February 17, 2016. The trial court granted AGMC's motion on July 21, 2016.

         {¶6} Evans filed this timely appeal, raising two assignments of error for our review. To facilitate review, we elect to consider the assignments of error out of order.

         II.

         Assignment of Error II

The trial court erred in finding that service of process on Defendant, General Emergency Medical Specialists, Inc. ("GEMS"), was insufficient where it was personally served with the Amended Complaint in a timely manner, failed to affirmatively allege insufficiency of service of process in its Answer, and fully participated in the litigation.

         {¶7} In her second assignment of error, Evans contends that the trial court erred by granting GEMS' motion for summary judgment on the basis that Evan's amended complaint naming GEMS in place of a previously identified by a fictitious name did not relate back to the original complaint.

         {¶8} Under Civ.R. 56(C), summary judgment is appropriate when:

(1)[no] genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The movant bears the initial burden of demonstrating the absence of genuine issues of material fact concerning the essential elements of the nonmoving party's case. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the moving party satisfies this burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 293. A review of a trial court's grant of summary judgment is considered de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Accordingly, we apply the same standard as the trial court, viewing the facts in the light most favorable to the non-moving party and resolving any doubt in the favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983); Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359 (1992).

         {¶9} In her complaint, Evans alleges that she was sexually assaulted by an employee of GEMS on November 9, 2012, and that as a result of GEMS' negligence she suffered psychological, emotional, and physical injuries, and emotional distress. It is undisputed in this case that the statute of limitations for a claim of negligent hiring and negligent supervision/retention is two years. See R.C. 2305.10. Evans' original complaint was filed November 9, 2014, exactly two years after the alleged incident. Evans' complaint listed as defendants AGMC and several "Doe" defendants, whose identities were then unknown. On January 7, 2015, Evans filed an amended complaint that substituted GEMS for one of the previously unnamed defendants. As Evans filed her amended complaint after the statute of limitations expired, her claims are barred unless the amended complaint relates back to the filing of Evans' original complaint.

         {¶10} Pursuant to Civ.R.3(A), a civil action is commenced if service of a complaint is obtained within one year from the filing of the complaint on a defendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D). Civ.R. 15(D) states,

When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words "name unknown," and a copy thereof must be served personally upon the defendant.

         "Assuming that a plaintiff meets the specific requirements of Civ.R. 15(D), the relation-back provisions of Civ.R. 15(C) are then considered." LaNeve v. Atlas Recycling, 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 11, citing Amerine v. Haughton Elevator Co., Div. of Reliance Electric Co.,42 Ohio St.3d 57, 58 (1989). That provision provides, in part, that "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.