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On vacation

It can happen to anybody, you tell yourself.  The secretary screwed up, or the law clerk did, or you did, but the bottom line is that you blew the statute of limitations on that personal injury case:  it expired last week.  Anything you can do?

Well, yes.  Welcome to the weird world of RC 2305.15(A), which provides:

When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action... does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person's absence or concealment shall not be computed as any part of a period within which the action must be brought.

If you interpret that to mean that the statute of limitations is tolled for the two weeks that the putative defendant loaded up the family in the minivan and went to visit Aunt Emma in Georgia, you're absolutely right.  You'll notice that the statute says "...is out of state, absconds, or conceals self."  It's in the conjunctive:  the defendant need not intend to avoid process.  He doesn't even have to be aware that there's a lawsuit in the offing.  As long as he's out of state, the time is tolled.

So all you have to do is file suit, take the defendant's deposition, and hope that he spent seven days in the past two years out of state.  In fact, it doesn't have to be seven whole days; there's case law to the effect that even a fraction of a day tolls the time.

That's almost exactly what happened to the defendant in Johnson v. Rhodes, the last case on the statute to reach the Ohio Supreme Court, back in 2000.  The plaintiffs had filed their complaint two days after the statute ran, but found out that the defendant had spent ten days vacationing in Kentucky during that time.  The court held the statute was tolled during that absence. 

There are some limits to the statute.  Back in 1988, the US Supreme Court held that 2305.15(A) was unconstitutional as applied to foreign corporations, because it constituted a burden on interstate commerce; unless a defendant corporation had a statutory agent here -- and thus subjected itself to the general jurisdiction of Ohio, waiving any claim of lack of personal jurisdiction -- it basically had no statute of limitations defense.  A couple of weeks back, the 2nd District in Grover v. Bartsch held that applying the statute to a non-resident individual also was an impermissible burden on interstate commerce.  The commerce argument was also presented in Johnson, but the Court rejected it, holding that leaving the state for non-employment reasons didn't implicate the commerce clause.

It's pretty likely that the statute will be limited to those situations.  There's case law out there saying that it doesn't apply if an Ohio resident moves out of state to obtain employment elsewhere, or stays in Ohio but leaves the state occasionally for business purposes.  And frankly, I wouldn't be surprised to see a Federal court in a diversity case strike down the statute even in situations where the defendant leaves for personal reasons. 

What's interesting is that just about everybody agrees the statute, which was passed 153 years ago and has remained virtually unchanged since then, has long outlived its purpose.  Back in the stagecoach days, the plaintiff had to get service within the statute of limitations, and only personal service was allowed.  Now, a plaintiff has a year after the statute to perfect service, and if he sends it by certified mail and it gets returned unclaimed because the defendant happens to be vacationing in the Great Smokies, the plaintiff can simply send it out by ordinary mail, and service is perfected at that point as long as the letter doesn't come back.

Still, the statute says what it says, and the Supreme Court has held that it's up to the legislature to change it.  Maybe they'll get around to it when they get done with the more important stuff, like designating the Official State Prehistoric Monument.  In the meantime, if you blow a statute, just hope that the defendant liked to take vacations.


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