[Cite as Brown v. Holiday Inn Express & Suites, 2018-Ohio-3281.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Lisa K. Brown, : 

 Plaintiff-Appellant, : 

 No. 17AP-477 

v. : (C.P.C. No. 15CV-10632)

Holiday Inn Express & Suites et al., : (ACCELERATED CALENDAR) 

 Defendants-Appellees. : 

 

 

D E C I S I O N 

Rendered on August 16, 2018 

 

On brief: Lynn Sfara Bruno and Charles A.J. Strader; 

DeSanto & McNichols, and Debra J. DeSanto, for appellant. 

Argued: Charles A.J. Strader. 

On brief: Reminger Co., LPA, and Matthew L. Schrader, for 

appellee. Argued: Matthew L. Schrader. 

 

APPEAL from the Franklin County Court of Common Pleas 

KLATT, J. 

{¶ 1} Plaintiff-appellant, Lisa K. Brown, appeals a judgment of the Franklin County 

Court of Common Pleas that granted defendant-appellee, P & S Hotel Group, Ltd. ("P & S"), 

judgment on the pleadings. For the following reasons, we affirm that judgment in part and 

reverse it in part. 

{¶ 2} On September 28, 2014, Brown was a guest of the Holiday Inn Express & 

Suites Columbus East, which P & S owns and operates. Brown took a shower and, 

afterwards, grabbed a towel off the rack to dry herself. While Brown was drying her face, 

she discovered that feces covered the towel she was using. As a result of this incident, 

Brown allegedly suffered physical injury and emotional distress. 
No. 17AP-477 2 

{¶ 3} Over a year later, on November 26, 2015, Brown filed suit against P & S, 

Holiday Inn Express & Suites, and an unknown employee of Holiday Inn Express & Suites. 

In the complaint, Brown purported to allege claims for battery, intentional infliction of 

emotional distress, negligence, and negligent supervision. 

{¶ 4} P & S answered the complaint and moved for judgment on the pleadings. 

P & S argued that the one-year statute of limitations governing claims for battery applied 

to all Brown's claims. Because Brown did not file her complaint within one year of the 

accrual of her claims, P & S maintained that the statute of limitations barred her action. In 

a judgment issued June 27, 2017, the trial court granted P & S' motion and entered 

judgment in P & S' favor. 

{¶ 5} Brown now appeals the June 27, 2017 judgment, and she assigns the 

following errors: 

[1.] The trial court erred in holding that based on the 

allegations in Plaintiff/Appellant's Complaint, the 

Plaintiff/Appellant could prove no set of facts entitling her to 

relief. 

[2.] The trial court erred in holding that Plaintiff/Appellant's 

claims were all barred by a one-year statute of limitations 

because the allegations sounded in battery. 

[3.] The trial court erred by failing to consider 

Plaintiff/Appellant's claims as pleaded in the alternative. 

[4.] The trial court erred in finding that Plaintiff/Appellant's 

claim for negligent supervision was barred by a one-year 

statute of limitations, as it is based on separate conduct. 

[5.] The trial court erred in failing to allow Plaintiff/Appellant 

to present evidence of negligence under the theory of res ipsa 

loquitur. 

{¶ 6} We will begin our review with Brown's second assignment of error. By that 

assignment of error, Brown argues that the trial court erred in granting P & S judgment on 

the pleadings on the basis that the one-year statute of limitations for battery barred Brown's 

claims. We agree with Brown with respect to her claims for negligence and negligent 

supervision, but we disagree with her with respect to her claims for battery and intentional 

infliction of emotional distress. 
No. 17AP-477 3 

{¶ 7} Civ.R. 12(C) permits parties to move for judgment on the pleadings. In 

reviewing such a motion, a trial court construes the material allegations of the complaint 

and all reasonable inferences drawn from those allegations in favor of the nonmoving party. 

Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-

Ohio-5676, ¶ 18. A trial court must grant the motion if it finds that, beyond a doubt, the 

nonmoving party can prove no set of facts in support of its claim or claims to relief. Id. " 

'Thus, Civ.R. 12(C) requires a determination that no material factual issues exist and that 

the movant is entitled to judgment as a matter of law.' " Id., quoting State ex rel. Midwest 

Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996). 

{¶ 8} A party may seek judgment on the pleadings where the running of the statute 

of limitations is apparent from the face of the complaint. Mitchell v. Holzer Med. Ctr., 4th 

Dist. No. 16CA20, 2017-Ohio-8244, ¶ 12. However, a trial court should only grant such a 

motion if the complaint conclusively demonstrates that the action is barred by the statute 

of limitations. Schisler v. Columbus Med. Equip., 10th Dist. No. 15AP-551, 2016-Ohio3302, ¶ 16. Appellate courts apply the de novo standard of review to decisions granting 

judgment on the pleadings. Rayess at ¶ 18. 

{¶ 9} In deciding which statute of limitations applies to a particular claim, courts 

must look to the true nature or subject matter of the acts giving rise to that claim. Doe v. 

First United Methodist Church, 68 Ohio St.3d 531, 536 (1994); Love v. Port Clinton, 37 

Ohio St.3d 98, 99 (1988). The grounds for bringing a claim, not the form in which a claim 

is pleaded, determines the applicable statute of limitations. Doe at 536; Love at 99. A 

plaintiff cannot use clever pleading to transform one cause of action into another type of 

action in order to take advantage of a longer statute of limitations. Doe at 537; Love at 100. 

{¶ 10} When a cause of action arises from an intentional, offensive touching, that 

cause of action is subject to the one-year period of limitations applicable to battery claims 

under R.C. 2305.111(B) regardless of the form the cause of action takes. Doe at 536-37; 

accord Love at 99 ("Where the essential character of an alleged tort is an intentional, 

offensive touching, the statute of limitations for assault and battery governs even if the 

touching is pled as an act of negligence."). A plaintiff cannot mask the fundamental nature 

of a cause of action for battery by instead pleading claims for negligence and/or intentional 

infliction of emotional distress. Doe at 537. 
No. 17AP-477 4 

{¶ 11} Based upon the above-stated law, the Supreme Court of Ohio has applied the 

one-year statute of limitations for battery to claims arising out of sexual abuse and the 

subduing and handcuffing of an arrestee. Doe at 536-37 (sexual abuse); Love at 100 

(subduing and handcuffing the plaintiff). In each of those cases, the alleged wrongdoing 

could only be construed as an intentional act as it is impossible for a person to accidentally 

sexually abuse, subdue, or handcuff another. Doe at 536 ("sexual abuse is not something 

that occurs by accident"); Love at 99 ("The contact involved is plainly intentional; one 

cannot accidentally handcuff or subdue another."). However, where the contact at issue 

could be construed as either intentional or negligent, a court errs in applying the one-year 

battery statute of limitations to bar a plaintiff's negligence claim. Walker v. Bunch, 7th Dist. 

No. 05-MA-144, 2006-Ohio-4680, ¶ 41 (reversing the grant of a summary judgment motion 

made on the basis that the plaintiff's negligence claim was barred by the one-year battery 

statute of limitations because a question of fact existed as to whether the contact at issue 

was intentional or negligent); Forsythe v. Conatser, 2d Dist. No. CA 19989, 2004-Ohio2606, ¶ 12 (same). 

{¶ 12} In the case at bar, all of Brown's claims relate to her use of the feces-covered 

towel. Brown's complaint alleged that the unknown hotel employee intentionally and 

negligently provided her with the soiled towel. In the "General Allegations" section of her 

complaint, Brown averred: 

[As] a sole and proximate result of the intentional actions of the 

Defendant, Unknown Employee of Holiday Inn Express and 

Suites, and the negligence, carelessness, and willful and 

wanton disregard of safety by the Defendants, Holiday Inn 

Express and Suites, P & S Hotel Group, LTD, and Unknown 

Employee of Holiday Inn Express and Suites, the Plaintiff, 

Lisa K. Brown, was caused to incur mental, and physical, 

injuries. 

(Compl. at ¶ 16.) In the sections of complaint entitled "Count I: Battery" and "Count II: 

Intentional Infliction of Emotional Distress," Brown repeatedly stated that defendants 

engaged in intentional conduct. However, in the sections entitled "Count III: Negligence" 

and "Count IV: Negligent Supervision," Brown alleged instead that defendants engaged in 

negligent conduct. 

{¶ 13} By definition, negligent contact is not intentional contact, and vice versa. 

Blanton v. Alley, 4th Dist. No. 02CA685, 2003-Ohio-2594, ¶ 35. However, "Civ.R. 8(E)(2) 
No. 17AP-477 5 

permits alternative or hypothetical pleading, or even the use of inconsistent claims." 

Iacono v. Anderson Concrete Corp., 42 Ohio St.2d 88, 92 (1975). We, therefore, interpret 

Brown's complaint as pleading alternatively (1) claims based on the intentional touching of 

Brown with a dirty towel, or (2) claims based on the negligent touching of Brown with a 

dirty towel. 

{¶ 14} Because Brown did not bring her battery claim within one year after her cause 

of action accrued, her claim is time barred. See Love, 37 Ohio St.3d at 98 (holding that 

"when bodily injury results from [a] * * * battery, the one-year statute of limitations, R.C. 

2305.111, is applicable"). Likewise, Brown's claim for intentional infliction of emotional 

distress is also time barred. As pled in the complaint, that claim is premised on the 

allegation that an unknown hotel employee intentionally caused Brown harm when he left 

the soiled towel for Brown's use. Consequently, like Brown's claim for battery, her claim 

for intentional infliction of emotional distress arises from an intentional, offensive 

touching. In such a circumstance, the one-year statute of limitations for battery governs a 

claim for intentional infliction of emotional distress. Doe, 68 Ohio St.3d at 537; Stafford v. 

Clever Investigations, Inc., 10th Dist. No. 06AP-1204, 2007-Ohio-5086, ¶ 8-9. 

{¶ 15} We reach a different conclusion with regard to Brown's negligence-based 

claims. Conceivably, providing a feces-soiled towel for a hotel guest's use could constitute 

either an intentional or negligent act. Nothing in the nature of the act itself renders the act 

inherently intentional. This case, therefore, is distinguishable from Doe and Love. Because 

the essential nature of the conduct underlying Brown's lawsuit is not necessarily an 

intentional touching, the one-year statute of limitations for battery does not apply to 

Brown's negligence claim. 

{¶ 16} Moreover, the one-year statute of limitations for battery does not apply to a 

claim for negligent supervision. Such a claim seeks to hold an employer directly liable for 

its own conduct in negligently supervising an employee whose tortious conduct injured the 

plaintiff. Simpkins v. Grace Brethren Church, 5th Dist. No. 13 CAE 10 0073, 2014-Ohio3465, ¶ 49, quoting Abraham, The Forms and Functions of Tort Law 166 (2d Ed.2002) 

(" 'An employer whose employee commits a tort may be liable in his own right for 

negligence in hiring or supervising the employee * * * [b]ut that is not vicarious liability.' "). 

Consequently, even if a claim for negligent supervision stems from injury sustained during 

an employee's battery of the plaintiff, the statute of limitations for negligence, not battery, 
No. 17AP-477 6 

governs the claim. Primmer v. Vrable, 10th Dist. No. 95APE07-936 (Mar. 19, 1996); accord

Doe at 537 (applying the two-year statute of limitations for actions for bodily injury to the 

plaintiff's claim against the tortfeasor's employers for failing to protect the plaintiff from 

the tortfeasor's sexual abuse). To the extent that Brown pleaded a claim for negligent 

supervision, therefore, her claim is not barred by the one-year statute of limitations for 

battery. 

{¶ 17} In arguing that it deserves judgment on all Brown's claims, P & S maintains 

that Brown cannot challenge the application of the one-year statute of limitations due to 

her silence on that issue before the trial court. We are not persuaded. P & S, as the moving 

party, bore the burden of showing that it was entitled to judgment as a matter of law on the 

affirmative defense that the statute of limitations had expired. Amadasu v. O'Neal, 176 

Ohio App.3d 217, 2008-Ohio-1730, ¶ 16 (1st Dist.). Given the allegations contained in the 

complaint, P & S cannot establish that the one-year statute of limitations applies to Brown's 

negligence-based claims. P & S, therefore, failed to carry its burden, regardless of whether 

Brown raised or failed to raise any counterarguments. 

{¶ 18} In sum, we conclude that the trial court erred in granting P & S judgment on 

Brown's claims for negligence and negligent supervision. However, the trial court properly 

applied the one-year statute of limitations to Brown's claims for battery and intentional 

infliction of emotional distress, and, thus, it did not err in entering judgment in P & S' favor 

on those claims. Accordingly, we sustain Brown's second assignment of error in part and 

overrule it in part. 

{¶ 19} Our ruling on Brown's second assignment of error moots her remaining 

assignments of error. We, therefore, do not address those assignments of error. 

{¶ 20} For the foregoing reasons, we sustain in part and overrule in part the second 

assignment of error, which moots the first, third, fourth, and fifth assignments of error. We 

affirm in part and reverse in part the judgment of the Franklin County Court of Common 

Pleas, and we remand this case to that court for further proceedings consistent with law 

and this decision. 

Judgment affirmed in part; reversed in part; 

case remanded.

SADLER and LUPER SCHUSTER, JJ., concur. 

 
No. 17AP-477 7