COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73373 JASON PETERS, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION THEODORE MABINI, M.D., ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 13, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CV-308184 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: DEBRA J. DIXON (#0060090) JAMES L. DEESE (#0024699) Dixon & Ours 700 West St. Clair Ave. Suite 216 Cleveland, Ohio 44113 For Defendant-Appellee, BRIAN D. SULLIVAN (#0063536) Theodore Mabini, M.D.: P.J. MOONEY (#0058663) Reminger & Reminger Co., L.P.A. 113 St. Clair Avenue Cleveland, Ohio 44114 (CONTINUED ON NEXT PAGE) For Defendants-Appellees, WILLIAM F. SCULLY JR. (#0016431) Cleveland Therapy Center, ROGER H. WILLIAMS (#0016430) Inc. and CTC Great Northern Williams & Sennett Co., L.P.A. The 113 St. Clair Building, -ii- #430 Cleveland, Ohio 44114 SPELLACY, J.: Plaintiffs-appellants Jason Peters and his wife, Susan Kinzer, appeal from the trial court's order granting summary judgment in favor of defendants-appellees Cleveland Therapy Center, Inc. and -2- CTC Great Northern (collectively referred to as CTC ). Appellants also appeal from the trial court's order granting the motion to dismiss filed by defendant-appellee Theodore Mabini M.D. Appellants assign the following error for our review: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT GRANTED THE MOTION TO DISMISS OF DEFENDANT THEODORE MABINI, M.D. AND WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CLEVELAND THERAPY CENTER, INC. AND CLEVELAND THERAPY CENTER GREAT NORTHERN. Finding appellants' assignment of error to lack merit, we affirm the judgment of the trial court. I. On or about October 26, 1990, plaintiff-appellant Jason Peters sought medical treatment at CTC for injuries he sustained in a motor vehicle accident. While a patient of CTC, Peters' medical care was under the direction of Theodore Mabini, M.D. At the time, Dr. Mabini was an employee of CTC. Peters alleges that, throughout the course of his treatment at CTC, Dr. Mabini made numerous sexual comments to him. Peters further alleges that Dr. Mabini made non-consensual sexual contact with him during a physical examination on December 14, 1990. On August 22, 1995, appellants filed a complaint against Dr. Mabini and CTC. Appellants voluntarily dismissed their original complaint on May 2, 1996. On May 7, 1996, appellants refiled the instant lawsuit. In their complaint, appellants, in effect, asserted a cause of action for common battery based on Dr. Mabini's alleged non-consensual sexual contact with Peters. Appellants also alleged that Dr. Mabini was liable under R.C. 2307.60 for civil -3- liability for a criminal act. Appellants' claims against CTC were based on vicarious liability, as well as a claim for negligent hiring and supervision. Dr. Mabini filed a motion to dismiss, asserting that appellants' claims against him were time-barred. On November 22, 1996, the trial court granted Dr. Mabini's motion to dismiss. On April 2, 1997, CTC filed a motion for summary judgment based on the applicable statute of limitations. On October 2, 1997, the trial court granted summary judgment in favor of CTC. II. In their sole assignment of error, appellants claim that the trial court erred in granting Dr. Mabini's motion to dismiss and CTC's motion for summary judgment. Both dispositive motions were based on the fact that appellants' underlying claims were barred by the applicable statutes of limitations. Appellants concede that their cause of action for common law battery was barred by the one-year statute of limitations in R.C. 2305.111. Appellants further acknowledge that their negligence claim was also barred pursuant to the two-year limitations period in R.C. 2305.10. However, in count seven of their complaint, appellants aver a claim under R.C. 2307.601 for civil liability for 1 R.C. 2307.60, in effect at the relevant time herein, stated in part: Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, * * *. -4- a criminal act (sexual imposition). Appellants argue that this statutory claim was subject to the six-year limitations period in R.C. 2305.07. R.C. 2305.07 provides that an action upon a liability created by statute shall be brought within six years after the cause thereof accrued. The Supreme Court of Ohio has interpreted the phrase a liability created by statute to mean a liability which would not exist but for the statute. McAuliffe v. W. States Import Co. (1995), 72 Ohio St.3d 534, 537-538. The court stated: *** In order for a statutory cause of action to be "an action * * * upon a liability created by statute" under R.C. 2305.07, that cause of action must be one that would not exist but for the statute. Any statutory "modification, alteration or conditioning" of a common-law cause of action which falls short of creating a previously unavailable cause of action does not transform that cause of action into "an action * * * upon a liability created by statute. McAuliffe, 72 Ohio St.3d at 538. In the instant case, appellants argue that R.C. 2307.60 creates a previously unavailable cause of action2 based on the criminal prohibition against sexual imposition in R.C. 2907.06. We disagree. Appellants' complaint was based upon the allegation that Dr. Mabini made harmful and offensive contact with Jason Peters. Obviously, even without the statutory proscription against sexual 2We note that several Ohio courts have held that R.C. 2307.60 (formerly R.C. 1.16) does not create a separate cause of action. See Peterson v. Scott Constr. Co. (1982), 5 Ohio App.3d 203, 204; Schmidt v. Statistics, Inc. (1978), 62 Ohio App.2d 48, 49; Edwards v. Madison Tp. (Nov. 25, 1997), Franklin App. No. 97APE06-819, unreported. -5- imposition, appellants would have been able to file, and pursue if timely, a lawsuit based on this alleged conduct under the common law tort of battery. Therefore, we will not allow appellants to use R.C. 2307.60 to circumvent the applicable limitations periods of their underlying claims. Accordingly, appellants' sole assignment of error is without merit, and their appeal is overruled. Judgment affirmed. It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. and MICHAEL J. CORRIGAN, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. -6- 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .