[Cite as Kruzer v. Cleveland, 2012-Ohio-1197.]



                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97168



                             ALAN E. KRUZER, ET AL.

                                                       PLAINTIFFS-APPELLANTS

                                                 vs.

                        CITY OF CLEVELAND, ET AL.

                                                           DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-737054

        BEFORE: Stewart, P.J., Sweeney, J., and Cooney, J.
      RELEASED AND JOURNALIZED:          March 22, 2012


ATTORNEYS FOR APPELLANT

Brendan Delay
24500 Center Ridge Road, Suite 175
Westlake, OH 44145

Sharon L. McDowell
P.O. Box 40103
Bay Village, OH 44140-0103


ATTORNEYS FOR APPELLEE

Thomas J. Connick
Anthony J. Trzaska
Dubyak, Connick, Thompson & Bloom, LLC
3401 Enterprise Parkway, Suite 205
Cleveland, OH 44122
MELODY J. STEWART, P.J.:

       {¶1} Plaintiff-appellant Alan Kruzer, as the legal guardian of his brother, Thomas

Kruzer, brought this action against defendant-appellee city of Cleveland, alleging that

Thomas contracted legionellosis, commonly known as “Legionnaire’s disease,” while

working for a rental car company that leased space in a building owned by the city. The

city sought summary judgment on grounds that Kruzer failed to offer any evidence to show

that Thomas contracted the disease from the building. Kruzer complained that the city

thwarted his attempts at discovery and argued that he did not need to produce expert

opinion as to whether legionellosis existed because the doctrine of res ipsa loquitur applied

to bar judgment as a matter of law. The court held that Kruzer failed to establish two

essential causation facts: (1) that the legionella bacterium was present at the city property,

and (2) that Thomas contracted the disease while working at the city property.

                                              I

       {¶2} The first assignment of error complains that the court erred by refusing to

allow Kruzer to amend his complaint to replace two John Doe defendants with Gardiner

Trane Company, the contractor that performed heating, ventilation, and air conditioning

work on the building. The court refused to grant leave to amend the complaint because

Kruzer had voluntarily dismissed this action after the statute of limitations had expired and

before obtaining service on the John Doe defendants, so he “could not obtain the benefit of
the savings statute and relate the new case back to the filing of the original complaint in

order to add a new party.”

                                              A

       {¶3} In Griesmer v. Allstate Ins. Co., 8th Dist. No. 91194, 2009-Ohio-725, we

considered a similar fact pattern in which Griesmer named John Doe defendants but failed

to serve them before voluntarily dismissing the action. Griesmer then refiled the action

under the savings statute and sought to amend her complaint under Civ.R. 15(C) to name

an insurance company as a new defendant and assert new claims. Civ.R. 15(C) states:

       Whenever the claim or defense asserted in the amended pleading arose out of
       the conduct, transaction, or occurrence set forth or attempted to be set forth
       in the original pleading, the amendment relates back to the date of the
       original pleading. An amendment changing the party against whom a claim
       is asserted relates back if the foregoing provision is satisfied and, within the
       period provided by law for commencing the action against him, the party to
       be brought in by amendment (1) has received such notice of the institution of
       the action that he will not be prejudiced in maintaining his defense on the
       merits, and (2) knew or should have known that, but for a mistake concerning
       the identity of the proper party, the action would have been brought against
       him.

       {¶4} Griesmer asked that we read Civ.R. 15(C) in conjunction with Civ.R. 3(A)

which allows the plaintiff one year to perfect service. We stated:

       While the “relation back” theory of Civ.R. 15(C) may be employed when
       amendments concerning the pleadings or amendments concerning parties to
       the action must be made in order to correct an inadvertent omission, error, or
       in the case of a party, an inadvertent misnomer while the applicable statute of
       limitation has already passed, it cannot be used when a case was never
       “commenced” pursuant to Civ.R. 3(A) against a party before the statute
       expired. Id. at ¶ 35.
       {¶5} As the court below noted, Kruzer did not commence this action against the

John Doe defendants before voluntarily dismissing it. Kruzer could not rely on the

savings statute to assert claims against Gardiner Trane Company because the savings

statute only applied “‘when the original suit and the new action are substantially the

same.’” Id. at ¶ 39, quoting Dietrich v. Widmar, 8th Dist. No. 85069, 2005-Ohio-2004, ¶

11. Thus, “‘there is no authority to subject a party in whose favor the statute of limitations

has run to liability in a second lawsuit after dismissing an earlier lawsuit in which that party

was neither originally named as a party defendant nor made so by amendment.’” Id. at ¶ 38,

quoting Dietrich at ¶ 11.         See also Kilko v. Haverfield, 8th Dist. No. 94920,

2010-Ohio-6364, ¶ 19; Yates v. Hassell, 10th Dist. No. 11AP-588, 2012-Ohio-328, ¶ 11.

It follows that the court did not err by relying on Griesmer to deny the motion to amend the

complaint.

                                               B

       {¶6} Even if the court did err as a matter of law by relying on Griesmer, we would

nonetheless find that it did not abuse its discretion by denying leave to amend the

complaint because the motion for leave was so tardy as to be prejudicial to the city.

       {¶7} Civ.R. 15(A) allows a party to amend a pleading once as a matter of course at

any time before a responsive pleading is served; otherwise, the party may only amend a

pleading by leave of court or consent of the adverse party. Although leave of court should

be freely granted when justice so requires, the court’s decision to grant or deny a request

for leave to amend a complaint will be reviewed only for an abuse of discretion.
Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 121-122,

573 N.E.2d 622 (1991). “While the rule allows for liberal amendment, motions to amend

pleadings pursuant to Civ.R. 15(A) should be refused if there is a showing of bad faith,

undue delay, or undue prejudice to the opposing party.” Turner v. Cent. Local School

Dist., 85 Ohio St.3d 95, 99, 1999-Ohio-207, 706 N.E.2d 1261 (footnote and citation

omitted).

      {¶8} When Kruzer filed his complaint in September 2010, he named as John Doe

defendants the “business entit[ies] * * * hired to serve the heating and cooling and

ventilation equipment” at the city property during “the years 2005 & 2006 and later and

perhaps earlier.” In January 2011, in responses to Kruzer’s discovery requests, the city

identified “Gardiner-Trane Company” as the business that serviced the ventilation systems

in the building. The city filed its motion for summary judgment in April 2011. Kruzer

did not seek leave to amend his complaint until June 2011.

      {¶9} On the facts presented, it is difficult to conclude that the court abused its

discretion by refusing to grant Kruzer leave to amend his complaint. Kruzer did not seek

leave to amend his complaint until two months after the city filed its summary judgment

motion. On that basis alone, prejudice to the city would have been manifest and the court

would not have abused its discretion by denying leave. Moss v. Marra, 8th Dist. No.

82188, 2003-Ohio- 6853; White v. Connecticut Dept. of Children & Families, 330

Fed.Appx. 7 (2d Cir. 2009) (no error, much less an abuse of discretion, shown when court
denied motion for leave to amend a complaint that had been filed six weeks after the

deadline for filing dispositive motions had passed).

       {¶10} But the circumstances justifying the court’s refusal to grant leave was even

more compelling because the basis for Kruzer’s seeking to amend his complaint — the

substitution of Gardiner Trane Company for the John Doe defendants — had been known

to him for five months before he sought leave to amend the complaint. In his motion

seeking leave to file an amended complaint, Kruzer acknowledged that he learned in

January 2011 that Gardiner Trane Company serviced the ventilation systems in the

building, but appeared to justify the delay in seeking leave because the city’s answers to

certain interrogatories “were not complete,” suggesting that the city had caused his delay

in seeking the amendment. We reject this assertion because identification of Gardiner

Trane Company was completely unrelated to those discovery items that Kruzer claimed the

city had withheld (notably, whether the city had conducted any testing on the ventilation

system for the presence of legionellosis). When a party seeks leave to amend a complaint

after the opposing party has filed a dispositive motion, the “the proposed amendment must

be not only theoretically viable but also solidly grounded in the record [and] * * *

supported by substantial evidence.”    Watson IV v. Deaconess Waltham Hosp., 298 F.3d

102, 109 (1st Cir. 2002).     Kruzer offered nothing to indicate that Gardiner Trane

performed anything more than routine maintenance on the ventilation nor did he show that

routine maintenance on ventilation systems included the duty to test for legionella

bacterium.
                                              II

       {¶11} Kruzer next contends that the court erred by rejecting its res ipsa loquitur

arguments and granting the city’s motion for summary judgment.

       {¶12} To prove negligence, a party must establish a duty of care, a breach of the

duty of care, and injury resulting proximately from the breach of that duty of care.

Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981). The doctrine of

res ipsa loquitur allows a plaintiff to prevail in a negligence case by showing that, even if

there is no direct evidence of negligence, the circumstances of the accident indicate that it

probably would not have occurred had the defendant not been negligent. Jennings Buick,

Inc. v. Cincinnati, 63 Ohio St.2d 167, 170, 406 N.E.2d 1385 (1980). The doctrine is, in

essence, “a rule of evidence that allows, but does not require, the trier of fact to draw an

inference of negligence.” Schmidt v. Univ. of Cincinnati Med. Ctr., 117 Ohio App.3d 427,

431, 690 N.E.2d 946 (10th Dist. 1997).

       {¶13} Crucial to the doctrine of res ipsa loquitur is that the plaintiff must establish

that the instrumentality causing the injury was under the exclusive management and

control of the defendant and that the injury occurred under such circumstances that in the

ordinary course of events it would not have occurred if ordinary care had been observed.

Estate of Hall v. Akron Gen. Med. Ctr., 125 Ohio St.3d 300, 2010-Ohio-1041, 927 N.E.2d

1112, Hake v. George Wiedemann Brewing Co., 23 Ohio St.2d 65, 66-67, 262 N.E.2d 703

(1970).
      {¶14} The court found that Kruzer failed to offer any evidence to show that Thomas

contracted legionellosis from the city building. Kruzer does not contest the court’s

finding, arguing only that “[i]t is common knowledge that most outbreaks of Legionnaire’s

disease have occurred in large buildings.”       Appellant’s Brief at 11.        Although the

non-moving party is entitled to all reasonable inferences from the evidence, an inference

can only be made if it is based on established facts. Hurt v. Rogers Transp. Co., 164 Ohio

St. 329, 332, 130 N.E.2d 820 (1955). Kruzer did not offer evidence to prove his assertion

that legionellosis is found only in large buildings. Even if he had, he failed to offer

evidence to show that the only large building that Thomas ever occupied was the

city-owned building where he worked. But more fundamentally, Kruzer did not offer any

evidence to show the presence of legionella bacterium in the building. In short, he offered

no evidence of any kind from which the court could make an inference under the doctrine

of res ipsa loquitur. The court did not err by granting summary judgment for the city.

      {¶15} Judgment affirmed.

      It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
COLLEEN CONWAY COONEY, J., CONCUR
