Court of Appeals of Ohio, Sixth District, Sandusky
Jim David, Jr. as Administrator of the Estate of James David, Sr., et al. Appellee
Jeffrey Matter, et al. Appellants
Court No. 16 CV 635
Alphonse A. Gerhardstein, Adam Gerhardstein, Jennifer L.
Routte and C. Christopher Alley, for appellee.
T. McLandrich, Frank H. Scialdone, and Tami Z. Hannon, for
DECISION AND JUDGMENT
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
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:
THE TRIAL COURT DENIED DEFENDANTS/APPELLANTS JEFFREY MATTER
AND ERIK LAWSON THE BENEFIT OF IMMUNITY UNDER OHIO REVISED
CODE CHAPTER 2744 (T.D. 12, RULING ON DEF.S' MOT. FOR
PARTIAL JUDGMENT ON THE PLEADINGS: (APX. 1)).
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.
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 ...