Six Days Too Late: A Dayton Appeals Court Enforces Ohio's Two-Year Wrongful Death Deadline

Published November 14, 2023 · Ohio Court Decisions

Some court decisions are hard to write about because the outcome is so final. Kraft v. Volunteers of America Dayton Residential Reentry Program, 2023-Ohio-3912, decided by the Second District Court of Appeals in Dayton on October 27, 2023, is one of them. A family's wrongful death case was dismissed because it was filed six days after Ohio's two-year deadline.

We share it not to fault anyone, but because it shows, in the plainest way, how strict the deadline is and why families should not let it come close.

What happened

According to the court's opinion, Brandon Moneyham was shot and killed outside a bar on October 11, 2020. The family's complaint alleged that the man who shot him was on post-release control under the supervision of a state parole officer, had been a resident of a Dayton reentry program subject to a curfew, and was being monitored with an ankle bracelet.

On October 17, 2022, the administrator of Mr. Moneyham's estate and a family member filed suit against the reentry program, the parole officer, the company that provided the monitoring, and one of the monitoring staff. The complaint included wrongful death claims and several related claims.

The trial court dismissed the claims against the parole officer and entered judgment for the reentry program and its employee because the case was filed too late. The Second District affirmed.

The two-year deadline

Under R.C. 2125.02(F)(1), "a civil action for wrongful death shall be commenced within two years after the decedent's death," with limited exceptions for certain product liability claims. Mr. Moneyham died on October 11, 2020. The deadline was October 11, 2022. The complaint was filed on October 17, 2022.

The family argued that another statute, R.C. 2305.15(A), paused the deadline while a defendant was out of Ohio, and that they should be allowed discovery to find out whether one of the defendants had left the state. The court disagreed. That statute, by its own terms, applies only to the limitation periods in R.C. 2305.04 to 2305.14 and two other listed sections. The wrongful death deadline is in a different chapter, R.C. 2125.02. Following earlier decisions from other Ohio appeals courts, the Second District held that R.C. 2305.15(A) "could not toll" the wrongful death deadline even if a defendant had left Ohio.

The court also noted that the family's other claims, such as negligent entrustment and infliction of emotional distress, were either part of the late wrongful death claim or time-barred on their own, and that a loss of consortium claim cannot stand alone.

Claims against a state employee start in the Court of Claims

The case had a second lesson. The parole officer was a state employee. Under R.C. 9.86, a state employee is not liable in a civil action unless the employee acted outside the scope of employment or with malicious purpose, in bad faith, or in a wanton or reckless manner. And under R.C. 2743.02(F), a claim alleging that kind of conduct "shall first be filed against the state in the court of claims," which decides whether the employee is immune.

Because that step had not happened, the Second District held that the county common pleas court did not have jurisdiction over the claims against the parole officer. When state employees may be involved, the path runs through the Court of Claims first. Our page on government wrongful death claims explains more.

What families should take from this

Count two years from the date of death, and then plan to file well before it. There is no grace period. Some exceptions people hope for, like a defendant leaving the state, do not apply to wrongful death claims. Our chapter on deadlines explains the rule and the few exceptions.

Open the estate early. A wrongful death case must be brought by the personal representative of the estate. Getting appointed takes time, and it should not be left to the last weeks. Our probate chapter on opening an estate walks through the steps.

Do not wait for the criminal case to end. Criminal prosecutions can take a long time. The civil deadline keeps running regardless. We explained how families participate in the criminal case in our post on victim impact statements and Marsy's Law, but the civil claim needs its own attention.

Cases involving supervision failures are complex. Claims that a facility, program, or agency failed to supervise or monitor a dangerous person can involve private companies, state employees, and local governments, each with different rules. Our page on negligent security wrongful death describes related claims.

A word to families

If you are reading this and the two-year date is approaching, please call a lawyer now. If it has already passed, do not assume nothing can be done without asking, because there are some narrow exceptions. But the safest course is always to act early.