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David v. Matter

Court of Appeals of Ohio, Sixth District, Sandusky

August 25, 2017

Jim David, Jr. as Administrator of the Estate of James David, Sr., et al. Appellee
Jeffrey Matter, et al. Appellants

         Trial Court No. 16 CV 635

          Alphonse A. Gerhardstein, Adam Gerhardstein, Jennifer L. Routte and C. Christopher Alley, for appellee.

          John T. McLandrich, Frank H. Scialdone, and Tami Z. Hannon, for appellants.


          PIETRYKOWSKI, J.

         {¶ 1} Appellants, Jeffrey Matter and Erik Lawson, appeal from the December 30, 2016 judgment of the Sandusky County Court of Common Pleas, which denied appellants' motion for partial judgment on the pleadings regarding the claim of appellee, Karen David, for negligent infliction of emotional distress. For the reasons which follow, we affirm.

         {¶ 2} Jim David, Jr., Administrator of the Estate of Jim David, Sr., deceased, and appellee, the decedent's spouse, brought a wrongful death action against appellants, two city of Bellevue police officers who shot and killed James David, Sr. in 2010 while they were responding to a call about a man with a gun. Appellee also alleged a claim of negligent infliction of emotional distress, which is the subject of this appeal.

         {¶ 3} Appellants moved for partial judgment on the pleadings, pursuant to Civ.R. 12(C), seeking judgment in their favor on the negligent infliction of emotional distress claim because, on its face, it is a negligence claim and appellants are protected against negligence claims by statutory immunity under R.C. 2744.03(A)(6). Appellee opposed the motion on the ground that she had also alleged that appellants had acted recklessly, which would preclude statutory immunity.

         {¶ 4} The trial court found that while appellee did not include allegations of reckless conduct within the negligence claim, there were such allegations elsewhere in the general allegations of the complaint. Therefore, the court concluded that appellee had made a claim of negligent infliction of emotional distress based on alleged reckless behavior, which would overcome the immunity granted to appellants by statute. Therefore, the trial court denied appellants' motion.

         {¶ 5} On appeal, appellants assert the following single assignment of error:


         {¶ 6} Ordinarily, the denial of a motion to dismiss is not a final, appealable order. Meyer v. Daniel, 147 Ohio St. 27, 67 N.E.2d 789 (1946); State v. Hartman, 9th Dist. Medina No. 15CA0090-M, 2017-Ohio-1089, ¶ 11; Lakewood v. Pfeifer, 83 Ohio App.3d 47, 49-50, 613 N.E.2d 1079 (8th Dist.1992). However, it is a final order when the motion to dismiss involves the determination of whether sovereign immunity under R.C. Chapter 2744 applies. R.C. 2744.02(C).

         {¶ 7} Civ.R. 12(C) permits the trial court to award judgment based solely on the pleadings after the time for filing the pleadings has closed if the court: "(1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief." State ex rel Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), citing Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 (8th Dist.1992); Tuleta v. Med. Mut. of Ohio, 2014-Ohio-396, 6 N.E.3d 106, ¶ 13-14, 31 (8th Dist.). The trial court must consider only the allegations in the complaint and presume the truth of the facts set forth in the pleadings. Peterson v. Teodosio, 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113 (1973). There must be no material question of fact and the movant must be entitled to judgment as a matter of law. Pontious at 570, citing Burnside v. Leimbach, 71 Ohio App.3d 399, 403, 594 N.E.2d 60 (10th Dist. 1991) and Peterson. Therefore, we apply a de novo standard of review on appeal. McMullian v. Borean, 167 Ohio App.3d 777, 2006-Ohio-3867, 857 N.E.2d 180, ¶ 8 (6th Dist).

         {¶ 8} In consideration of the motion, "the principles of notice pleading apply and 'a plaintiff is not required to prove his or her case at the pleading stage.'" Piispanen v. Carter, 11th Dist. Lake No. 2005-L-133, 2006-Ohio-2382, ¶ 10, quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144, 573 N.E.2d 1063 (1991). If the plaintiff has alleged "a set of facts, consistent with the plaintiffs complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." Id. at 145. While the plaintiff must plead the operative facts with particularity in some cases, Byrd v. Faber, 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991), the plaintiff in sovereign immunity case does not. York; Gomez v. Noble Cty. Children Servs., 7th Dist. Noble No. 09 NO 361, 2010-Ohio-1538, ¶ 18.

         {¶ 9} Appellants argue the trial court erred as a matter of law by denying their partial motion to dismiss. Appellants argue that an allegation of reckless conduct supports only a cause of action for intentional or reckless infliction of emotional distress, which was not asserted ...

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