Two Years Means Two Years: Ohio's Injury Deadline Applies Even to PTSD

Published January 10, 2012 · Ohio Appeals Courts

Imagine being sent to a stranger's property for work, having two dogs charge you, and spending the next three years unable to function. You are diagnosed with post-traumatic stress disorder. You cannot work. You need help with daily life. Then, when you finally file a lawsuit, a court tells you that you waited too long. That is what happened to a Montgomery County woman in a decision the Second District Court of Appeals released on December 23, 2011, and it is a lesson every injured person in the Dayton area should hear.

What happened in Thomas v. Progressive

In Thomas v. Progressive Cas. Ins. Co., 2011-Ohio-6712 (2d Dist.), Charlotte Thomas worked as a claims adjuster. On September 13, 2007, her employer sent her to a location in Springfield to look at a damaged vehicle. While she was there, two pit bulls ran at her aggressively. One turned back. The other made some kind of contact with her but did not physically injure her.

The psychological injury was another matter. According to her complaint, Ms. Thomas was later diagnosed with PTSD. Ordinary activities became overwhelming. She needed help caring for herself and tending to her basic needs. She could not work, used up her disability benefits, and was denied workers' compensation because her psychiatric condition did not arise from a physical injury.

On August 31, 2010, almost three years after the attack, she sued her employer. Her theory was that the company had failed to train and equip its adjusters to deal with aggressive animals they encounter on the job. The trial court dismissed the case, and the Second District affirmed.

The two-year rule

Ohio's basic deadline for injury claims is found in R.C. 2305.10. An action for bodily injury must be brought within two years after the cause of action accrues, which for most injuries means the day the injury happens. Lawyers call this deadline the "statute of limitations." I explained the rule in an earlier post on Ohio's two-year deadline for injury claims, and nothing about the Thomas decision changes the basic math: the clock started on September 13, 2007, and ran out on September 13, 2009. A complaint filed in August 2010 was almost a year late.

The court treated Ms. Thomas's negligence claims as claims for bodily injury even though her harm was psychological. That is worth noting. If you are hoping a claim for emotional or psychological injury gets a longer deadline than a claim for a broken bone, the answer in the Second District is no.

The "unsound mind" argument, and why it failed

Ms. Thomas argued that her deadline should have been paused, or "tolled," under R.C. 2305.16. That statute stops the clock for a person who is "of unsound mind" at the time the cause of action accrues, until the disability is removed. It also pauses the clock for someone who becomes of unsound mind later, but only if that person is adjudicated incompetent by a court or confined in an institution or hospital because of the condition.

She supported her argument with an affidavit from a licensed psychologist who first saw her in December 2009. He diagnosed PTSD triggered by the dog attack and opined that from the day of the attack she was so incapacitated that she could not look out for her own interests in a court of law, and that her limitations ended around August 19, 2010, less than two weeks before she filed suit.

The court was not persuaded. It pointed to R.C. 1.02(C), which defines "of unsound mind" to include all forms of mental retardation or derangement, and to a line of Ohio Supreme Court cases holding that emotional distress, standing alone, does not meet that definition. The court acknowledged that Ms. Thomas's PTSD was a real, diagnosed condition and not a vague claim of upset. But it concluded that nothing in the psychologist's affidavit suggested the kind of profound disturbance the statute requires. In the court's words, a condition "of unsound mind" implies "a much more profound disturbance of mental faculties" than moderate to serious deficits in social and occupational functioning.

The court also noted that it was not the first Ohio court to hold that PTSD, by itself, does not satisfy the "unsound mind" requirement.

Why this matters even more for dog-bite victims

Ms. Thomas sued her employer, not the dog owner. But the lesson applies with full force to anyone bitten or attacked by a dog in Ohio. As I explained in my post on Ohio's dog-bite statute, R.C. 955.28 makes a dog's owner, keeper, or harborer strictly liable for the injuries the dog causes. Strict liability is a powerful tool. It does not help you if the case is filed too late.

Dog attacks are also uniquely likely to produce the kind of psychological injury Ms. Thomas suffered. Children who are mauled often develop lasting fear, nightmares, and anxiety. Adults who are attacked may avoid walking in their own neighborhoods. Those injuries are real, they are compensable, and they deserve to be documented by a mental-health professional. But under Thomas, they will almost never extend the deadline to sue.

What this means for you

The practical takeaways from this decision are simple, and they apply to car crashes, falls, and workplace injuries just as much as dog attacks:

• The two-year clock starts on the day you are hurt. It does not start when you realize how serious the injury is, when you finish treatment, or when you feel well enough to deal with lawyers.
• Psychological injury rarely stops the clock. Unless you have been declared incompetent by a court or confined to a hospital or institution because of your condition, do not count on R.C. 2305.16 to save a late claim.
• A real diagnosis is still not enough. Ms. Thomas had a licensed psychologist's affidavit. The court still found it insufficient. If a diagnosed case of PTSD cannot meet the standard, a less-documented claim of distress certainly will not.
• Get treatment and be candid with your providers. The psychological harm from an attack is part of your damages. As I wrote in a post on honesty with your doctor, the medical record is the backbone of an injury claim. Tell your doctor and your counselor what you are experiencing so it is documented, and so your lawyer can prove it.
• Call a lawyer early, especially if you are struggling. The hardest cases to file on time are the ones where the injured person is too overwhelmed to deal with the claim. That is exactly when having someone else handle the deadlines, the insurance company, and the paperwork matters most.

I spent nineteen years as a Dayton police officer before I practiced law, and I have seen what a serious dog attack does to a person long after the wounds close. Those injuries are worth pursuing. They simply have to be pursued on time.