David v. Matter

• Decision Date: 25 August 2017
• Docket Number: No. S–17–006,S–17–006
• Citation: 2017 Ohio 7351,96 N.E.3d 1012
• Parties: Jim DAVID, Jr. as Administrator of the Estate of James David, Sr., et al., Appellee v. Jeffrey MATTER, et al., Appellants
• Court: Ohio Court of Appeals

96 N.E.3d 1012

2017 Ohio 7351

Jim DAVID, Jr. as Administrator of the Estate of James David, Sr., et al., Appellee

v.Jeffrey MATTER, et al., Appellants

No. S–17–006

Court of Appeals of Ohio, Sixth District, Sandusky County.

Decided: August 25, 2017

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

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

DECISION AND JUDGMENT

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:

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, 2017 WL 1148609, ¶ 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, 664 N.E.2d 931, 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, 2006 WL 1313159, ¶ 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 plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." Id. at 145, 573 N.E.2d 1063. 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, 2010 WL 1316705, ¶ 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 by appellee. Russ v. TRW, Inc. , 59 Ohio St.3d 42, 48–49, 570 N.E.2d 1076 (1991).

{¶ 10} R.C. Chapter 2744 grants political subdivisions and their employees immunity from tort liability with certain exceptions. "R.C. Chapter 2744 does not create a right of action, [it] only addresses immunity from certain causes of action." Gomez at ¶ 16. The chapter "generally shields political subdivisions from tort liability in order to preserve their fiscal integrity." Riscatti v. Prime Properties Ltd. Partnership , 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 15.

{¶ 11} The "General Assembly set forth different degrees of care that impose liability * * * on an employee of a public subdivision." Anderson v. City of Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 23. They have absolute immunity from tort liability "unless the employee's actions or omissions are manifestly outside the scope of employment or the employee's official responsibilities, the employee's acts or omissions were malicious, in bad faith, or wanton or reckless, or liability is expressly imposed upon the employee by a section of the Revised Code." Cramer v. Auglaize Acres , 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17, citing R.C. 2744.03(A)(6). See also Lambert v. Clancy , 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 10 (apply R.C. 2744.03(A)(6) to determine whether a political subdivision employee can claim immunity from tort liability and not the three-tiered analysis used to determine whether a political subdivision is immune from liability). Because R.C. 2744.03(A)(6) gives rise to a presumption of immunity, the plaintiff must allege that one of the exceptions to immunity applies to overcome a Civ.R. 12(C) motion.

{¶ 12} Applicable to this case is R.C. 2744.03(A)(6)(b), which provides that an employee of a political subdivision forfeits his immunity if his "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." Reckless conduct is defined as "conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." Anderson at ¶ 34, citing Thompson v. McNeill , 53 Ohio St.3d 102, 104–105, 559 N.E.2d 705 (1990), modified in part on other grounds by Anderson at paragraph one of the syllabus, and 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965).

{¶ 13} The determination of whether immunity is available to a political subdivision employee is a question of law, but whether it is applicable to a given case is a factual issue. Conley v. Shearer , 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992) ; Nease v. Med. College Hosp. , 64 Ohio St.3d 396, 400, 596 N.E.2d 432 (1992) ; Gates v. Leonbruno , 2016-Ohio-5627, 70 N.E.3d 1110, ¶ 37 (8th Dist.) (question of whether an employee acted recklessly is a question of fact); Matter v. City of Athens , 2014-Ohio-4451, 21 N.E.3d 595, ¶ 31 (4th Dist.), citing Hall v. Fort Frye Local School Dist. Bd. of Edn. , 111 Ohio App.3d 690, 694, 676 N.E.2d 1241 (4th Dist. 1996).

{¶ 14} Appellees alleged a claim of negligent infliction of emotional distress. The prima facie elements of the tort are: (1) the plaintiff witnessed and/or experienced a real or impending danger to another, (2) the defendant's conduct negligently caused the dangerous incident, and (3) the defendant's conduct was the proximate cause of plaintiff's serious and reasonably foreseeable emotional distress. High v. Howard , 64 Ohio St.3d 82, 86, 592 N.E.2d 818 (1992), overruled on other grounds in Gallimore v. Children's Hosp. Med. Cent. , 67 Ohio St.3d 244, 255, 617 N.E.2d 1052 (1993) ; Paugh v. Hanks , 6 Ohio St.3d 72, 451 N.E.2d 759 (1983), paragraphs three and four of the syllabus; Walker v. Firelands Community. Hosp. , 170 Ohio App.3d 785, 2007-Ohio-871, 869 N.E.2d 66, ¶ 59 (6th Dist.). This tort is generally asserted by a bystander because she witnessed another person in danger and the defendant was unaware of the presence of the bystander.

{¶ 15} In order to proceed with her claim against an employee of a political subdivision, however, appellee was required to show appellants acted with malice, or in a wanton or reckless manner to satisfy R.C. 2744.03(A)(6)(b). An allegation of mere negligence in the exercise of an officer's official duties would not support a claim of personal liability. Fabrey v. McDonald Village Police Dept. , 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994) (allegations of...