APPEAL from the Court of Claims of Ohio Ct. of Cl. No. 2012-05428
William Coffman, pro se.
Michael DeWine, Attorney General, and Kristin S. Boggs, for appellee.
(¶ 1} William Coffman is appealing the dismissal of his lawsuit against the Ohio Department of Rehabilitation and Correction ("ODRC"). He assigns two errors for our consideration:
[I.] The Trial Court Abused Its Discretion Dismissing Plaintiffs Complaint Where The Law Clearly has been established That Plaintiffs Claims are To Be Tried To A Jury.
[II.] The Court of Claims Abused Its Discretion By Ruling That Appellant Did Not State [a claim] Upon Which Relief Could Be Sought.
(¶ 2} Coffman's first assignment of error has no merit. The mere attaching of a demand for a jury trial to a complaint does not preclude the dismissal of the complaint, either through invocation of Civ.R. 12(B)(6) or through the mechanism of summary judgment.
(¶ 3} The first assignment of error is overruled.
(¶ 4} The second assignment of error requires more analysis.
(¶ 5} The standard for dismissing a case under Civ.R. 12(B)(6) is high. Dismissal is appropriate only when a plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief See O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975). In addressing a motion to dismiss under Civ.R. 12(B)(6), the nonmoving party is entitled to the presumption that all factual allegations made in the complaint are true and all reasonable inferences to be drawn from those allegations are to be made in favor of the nonmoving party.
(¶ 6} The remaining issue, then, is whether Coffman sufficiently alleged a claim for negligent infliction of serious emotional distress or intentional infliction of emotional distress.
(¶ 7} Coffman alleged that he is suffering from compensable emotional distress because he is being forced to live in a building or buildings at CCI which contains asbestos. He does not claim to be suffering from asbestosis or from any other disease which can result from exposure to asbestos. However, he claims to being housed in the "most toxic dorms" at CCI based upon a study of the presence of asbestos at CCI. He also claims that, due to his prolonged incarceration at CCI, he has had prolonged exposure to asbestos and "suffers from CANCERPHOBIA, " presumably meaning a fear of getting cancer. Complaint, at 3.
(¶ 8} Coffman alleges several cogent facts about how he and other inmates are exposed to asbestos particles, especially from the areas surrounding the aging windows at CCI. H
e fears developing some sort of disease as a result of his exposure to asbestos is not irrational. The spiky particles of asbestos lodge in the lungs and the human body has no means of removing the particles once they have been inhaled. See Ins. Co. of N. Am. v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1214 (6th Cir.1980) ("The problem is that tiny asbestos particles can become airborne * * * when old buildings containing asbestos are demolished. When these asbestos particles become airborne, a number of them are inhaled by persons in the area. The asbestos particles are deposited in the lungs."). As older buildings deteriorate friable asbestos particles are released into the atmosphere if the buildings were insulated through the use of asbestos. See Abramovsky, Asbestos and Overcriminalization: A Pro-Compliance Solution, 18 Fordham Envtl.L.Rev. 67, 72 (2006) ...