I concur in the decision reached by the majority. I write separately to clarify my reason for doing so.

The majority opinion states, "Appellants concede they filed beyond the [statute of] limitation . . ." (Majority Opinion at 2). I disagree with the majority's characterization of appellant's position. Although appellants concede they filed their complaint more than two years after the accident, appellants contend it was filed within the statute of limitations because of application of the discovery rule.

There is no doubt the O'Stricker Court's analysis of R.C.2305.10 involved a latent disease case, carcinoma caused by exposure to asbestos. As noted in O'Stricker, an amendment to R.C. 2305.10 added a proviso specifically addressing asbestos related injury. In O'Stricker, the Ohio Supreme Court statedbefore they could determine whether the amended version of the statute (which included the legislatively created discovery rule for asbestos cases) applied, they must first determine whether the action was extinguished under the pre-existing, unamended statute of limitations. They concluded it was not extinguished thereunder.

In O'Stricker, the Ohio Supreme Court stated, ". . . inlatent disease cases, this Court believes a liberal interpretation of the time of accrual is appropriate in this and all actions alleging the infliction of bodily injury which only manifests itself at a point subsequent to the alleged negligent conduct of defendant." Id. at 87. (Emphasis added). However, the syllabus adopted by the Ohio Supreme Court in O'Stricker does not limit its applicability to "latent disease cases". Because the syllabus language in O'Stricker appears to go beyond that which was necessary to decide the precise issue before it, it can be argued the broad language of the syllabus should be consideredobiter dictum.

It is well established the syllabus of an opinion states the law of the case. DeLozier v. Sommer (1974), 38 Ohio St.2d 268,271. All lower courts in the state are bound to adhere to the principles set forth therein. Merrick v. Ditzler (1915), 91 Ohio St. 256,264. The Ohio Supreme Court has held when obiter dictum appears in the syllabus of a Ohio Supreme Court opinion, recognition of it as such is a function reserved exclusively to the Ohio Supreme Court. Until such determination is made by the Ohio Supreme Court, the syllabus is presumed to be the law of the case and all lower courts are bound to adhere to the principles set forth therein. Smith v. Klem (1983), 6 Ohio St.3d 16, 18.

Effective March 1, 1983, the Ohio Supreme Court adopted the Supreme Court Rules For The Reporting Of Opinions. Rule 1(B) of those rules provides:

The syllabus of a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the facts of the specific case before the Court for adjudication.

Despite the Smith court's specific instruction to inferior courts not to consider whether a supreme court syllabus can be consideredobiter dictum,² several courts have addressed this issue subsequent to enactment of the rule.

In Fenner v. Parkinson (1990), 69 Ohio App.3d 210, the appellate court held the syllabus of an Ohio Supreme Court decision must be read in the context of the facts of the particular case upon which it is premised, and it is not to be regarded as absolutely controlling authority in other cases where the material facts are different.

In Grange Mut. Cas. Co. v. Smith (1992), 80 App.3d 426, the appellate court noted that while it is generally improper for a lower court to determine a syllabus of an Ohio Supreme Court opinion is obiter dictum, S.Ct. R. Rep. Op. 1(B) provides the "syllabus of a Supreme Court opinion states the controlling point or points of law decided in and necessarily arising from the facts of this specific case before the Court for adjudication."

Finally, and most significantly, the Ohio Supreme Court inState ex. rel. Heck v. Kessler (1995), 72 Ohio St.3d 98, while paying lip service to the principle it enunciated in Smith, retreated from the total prohibition announced in Smith by acknowledging there may be occasions when a lower court can determine a syllabus of the Ohio Supreme Court is obiter dictum. In so doing, the Heck court emphasized the "decided in and necessarily arising from the facts of the specific case" language contained within the rule.

In applying these principles, I believe the case sub judice presents a situation in which we, an inferior court, are permitted to determine whether the syllabus of the Ohio Supreme Court inO'Stricker is obiter dictum as it relates to the case before us. When so doing, because of the clearly stated rational inO'Stricker the application of the discovery rule therein was equitable because it involved a latent disease case, and because this case does not involve a latent disease nor one in which the injury would not be expected to manifest itself beyond two years from the date of the accident, I believe application of theO'Stricker syllabus is inappropriate as a matter of law.

Accordingly, I join in the majority's decision to affirm the trial court.³

JUDGE WILLIAM B. HOFFMAN.

² Smith makes no mention of S.Ct. R. Rep. Op. 1(B). The rule was not in effect at the time the Smith case was decided at the trial court and appellate levels, although the rule was in effect at the time the Supreme Court announced its decision therein.

³ Unlike the majority, I find appellant's affidavit and her statement to the police at the scene (which was not a certified, authenticated copy) creates a dispute as to when her injury first manifested itself. It would be inappropriate to resolve that dispute at this juncture of the proceeding. Such issue is one for the trier-of-fact to resolve. However, because I find O'Stricker inapplicable as a matter of law, resolution of this issue is unnecessary.

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Canton Municipal Court of Stark County, Ohio is affirmed.

On April 15, 1995, appellee filed a motion to dismiss claiming lack of jurisdiction for failure to meet the applicable statute of limitations. By judgment entry filed May 15, 1998, the trial court granted said motion and dismissed the case.

Appellants filed a notice of appeal and this matter is now before this court for consideration. Assignment of error is as follows:

I

THE LOWER COURT ERRED, AS A MATTER OF LAW, IN DISMISSING THE PLAINTIFF'S PERSONAL INJURY COMPLAINT WHICH WAS FILED WITHIN TWO (2) YEARS AFTER THE DATE THAT PLAINTIFF DISCOVERED HER INJURY.

Pursuant to R.C. 2305.10, "an action for bodily injury or injuring personal property shall be brought within two years after the cause of action accrues." Appellants concede they filed beyond the limitation, but argues the date of discovering the injury is the date that switches on the two year statute of limitations.¹ In support, appellants cite the case ofO'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, paragraph two of the syllabus:

When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant, for purposes of the statute of limitations contained in R.C. 2305.10.

The O'Stricker opinion specifically addressed whether the "discovery rule" added to the 1980 amendment of R.C. 2305.10 applied retroactively to events prior to 1980. The pre-1980 statute stated "`[a]n action for bodily injury or injuring property shall be brought within two years after the cause thereof arose.'" O'Stricker at 86. The 1980 amendment added the following proviso:

`For purposes of this section, a cause of action for bodily injury caused by exposure to asbestos or to chromium in any of its chemical forms arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured by such exposure, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured by the exposure, whichever date occurs first.'

A reading of O'Stricker leads us to the conclusion the Supreme Court of Ohio was not extending the discovery rule to personal injury automobile cases. The dicta at 90 clearly analyzes previous decisions on the need to extend the discovery rule to asbestos cases:

Moreover, we are instructed by the General Assembly which in its 1980 amendment adopted a `discovery rule' defining a cause to arise at discovery of the injury and discovery of the cause thereof. In the interest of uniform treatment of all asbestos-related bodily injury claims, the rule we adopt today should contain equivalent standards.

In Melnyk, supra, this court adopted a `discovery rule' tolling the statute of limitations in medical malpractice cases where a patient discovers a surgeon has negligently left foreign bodies inside his body during surgery. Again, this is a two-part rule, requiring both discovery of the foreign body and the cause thereof. We find latent disease analogous to a hidden instrument left in the body of an unsuspecting patient, and believe a similar rule should apply to each.

The concurring opinion by Justice Locher sheds further light on the restriction of the discovery rule to asbestos cases as opposed to personal injury automobile cases.

Appellant sub judice knew she was involved in an automobile accident on March 20, 1995. In a police report written at the scene and filed in the record on April 30, 1998, appellant stated she felt "stiff and shaky." There can be no doubt that at the time of the accident, appellant knew "by the exercise of reasonable diligence" when the cause of action arose. To extend the discovery rule to all bodily injury claims other than products liability/exposure claims would thwart the purpose and spirit of the statute of limitations. Parties would never have an assurance of when the statute would be applicable. To accept appellant's argument would create a forever moving window for the accrual of a cause of action dependent solely on the plaintiff's acts.

Upon review, we find the trial court did not err in dismissing the case.

The sole assignment of error is denied.

The judgment of the Canton Municipal Court of Stark County, Ohio is hereby affirmed.

By Farmer, J., Wise, P.J. and Hoffman, J. concur.

¹ Appellants claim the injury was discovered on March 21, 1996, the day appellant's physician determined her neck and back pain were a direct result of the accident. Two years from that date was March 21, 1998, a Saturday. Appellants filed their complaint two days thereafter.