[Cite as David v. Matter, 2017-Ohio-7351.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


Jim David, Jr. as Administrator of               Court of Appeals No. S-17-006
the Estate of James David, Sr., et al.
                                                 Trial Court No. 16 CV 635
        Appellee

v.

Jeffrey Matter, et al.                           DECISION AND JUDGMENT

        Appellants                               Decided: August 25, 2017

                                             *****

        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.




2.
       {¶ 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. 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




3.
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 plaintiff’s 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,




4.
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).




5.
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




6.
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 negligence per se are insufficient to defeat the

defense of statutory immunity); Tuleta v. Med. Mut. of Ohio, 8th Dist. Cuyahoga No.

100050, 2014-Ohio-396, 6 N.E.3d 106, ¶ 50, 58 (plaintiff failed to allege operative facts

of malice, bad faith, or wanton or reckless conduct); Coen v. Village of Dennison, 5th

Dist. Tuscarawas No. 2013 AP 08 0036, 2014-Ohio-3094, ¶ 3, 13 (summary judgment

granted to defendant because plaintiff asserted a claim of negligent infliction of




7.
emotional distress without any allegations of malicious purpose, bad faith, or wanton or

reckless conduct); Kravetz v. Streetsboro Bd. of Edn., 11th Dist. Portage No. 2011-P-

0025, 2012-Ohio-1455, ¶ 42 (negligent infliction of emotional distress claim not

dismissed because the facts were unclear whether the claim arose out of the employment

relationship).

       {¶ 16} Appellants correctly note, however, that recklessness is associated with the

tort of intentional infliction of emotional distress, a claim appellee did not assert. The

prima facie elements of a claim for intentional or reckless infliction of emotional distress

are: (1) the defendant intended to or recklessly caused the plaintiff serious emotional

distress; (2) the defendant’s conduct was extreme and outrageous; and (3) the defendant’s

conduct was the proximate cause of plaintiff’s serious emotional distress. Phung v.

Waste Mgt., Inc., 71 Ohio St.3d 408, 410, 644 N.E.2d 286 (1994). Generally, this tort is

asserted by the victim of the defendant’s conduct, not a bystander.

       {¶ 17} The issue in this case is whether appellee was required to allege an

intentional tort or a negligent tort with the added allegation of recklessness. We think the

latter is appropriate. Appellee must assert that appellants acted recklessly in order to

overcome the general grant of immunity. In one sense, the heightened intent allegation

converts the negligence-based tort into an intentional/reckless tort. But that result does

not place a burden on the plaintiff to allege an intentional/reckless tort in the first place.

An “employee’s entitlement to statutory immunity is a separate question from the

plaintiff’s ability to establish the elements of his or her claim.” Argabrite v. Neer, 149




8.
Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 10. See also Webb v. Edwards, 165

Ohio App.3d 158, 2005-Ohio-6379, 845 N.E.2d 530, ¶ 31 (4th Dist.). The negligent tort

claim still remains viable, although at a higher level of intent than what would normally

be required because of the status of the defendant. Bowman v. Downs, 8th Dist.

Cuyahoga No. 104880, 2017-Ohio-1287, ¶ 20, quoting Yonkings v. Piwinski, 10th Dist.

Franklin Nos. 11AP-07, 11AP-09, 2011-Ohio-6232, ¶ 8, 43.

       {¶ 18} However, there are a number of cases where a claim of negligent infliction

of emotional distress was dismissed on the basis that it is only a negligence claim. Piro

v. Franklin Twp., 102 Ohio App.3d 130, 143, 656 N.E.2d 1035 (9th Dist.1995) (negligent

infliction of emotional distress claim dismissed even though a question of fact existed as

to whether the defendant acted maliciously, recklessly, or in bad faith); Hunt v. City of

Toledo Law Dept., 881 F.Supp.2d 854, 885-886 (N.D.Ohio 2012) (while the allegations

of negligent, reckless, or intentional conduct were unclear, the court dismissed the claim

of negligent infliction of emotional distress because Ohio law does not allow a

negligence claim against a governmental employee and dismissed the claim of intentional

or reckless infliction of emotional distress because there were no allegations of actual

physical injury or a severe and disabling emotional distress); Ward v. Cty. of Cuyahoga,

721 F.Supp.2d 677, 695 (N.D.Ohio 2010) (an argument that the “conduct which caused

the emotional distress was reckless and wanton” was inconsistent with plaintiffs’ claim of

negligent infliction of emotional distress).




9.
       {¶ 19} In other cases, the courts look beyond the name of the cause of action to the

operative facts alleged to determine if an exception to immunity has been asserted or

evidence of an exception had been presented. See Stoll v. Gardner, 182 Ohio App.3d

214, 2009-Ohio-1865, 912 N.E.2d 165, ¶ 14 (9th Dist.) (summary judgment warranted as

to claims of defamation, malicious prosecution, false arrest and false imprisonment,

intentional and negligent infliction of emotional distress, and negligent training and

supervision, because plaintiff did not submit sufficient evidence to create a material

question of fact as to whether one of the exceptions to immunity under R.C.

2744.03(A)(6) applied); Piispanen v. Carter, 11th Dist. Lake No. 2005-L-133, 2006-

Ohio-2382, ¶ 29 (although the claims were “presented in terms of negligence,” appellees

also alleged “willful and wanton misconduct on the part of [the political subdivision

employee],” which led to injury and appellees “may be able to prove some set of facts

which would warrant recovery” against the political subdivision employee); Gomez v.

Noble Cty. Children Servs., 7th Dist. Noble Nos. 09, 361, 2010-Ohio-1538, ¶ 19, 62

(pro se plaintiff adequately pled a tort cause of action for negligence simply by setting

forth the operative facts to support his claim, as well as allegations of malicious, reckless,

or wanton conduct by the defendant, but the allegation of recklessness was sufficient as a

matter of law to establish that one of the exceptions to sovereign immunity under R.C.

2744.03(A)(6) applied).

       {¶ 20} We find that the claim of negligent infliction of emotional distress by a

bystander can be asserted against a political subdivision employee so long as the




10.
bystander also alleges the employee actions met one of the higher standards of intent

identified in R.C. 2744.03(A)(6). We reject appellants’ argument that statutory immunity

automatically bars a negligent infliction of emotional distress claim.

       {¶ 21} Appellants also argue that while appellee alleged in her complaint

appellants acted recklessly in the manner in which they approached the decedent and

recklessly created a dangerous, threatening situation, appellee only asserted appellants

acted negligently in reference to her negligent infliction of emotional distress claim.

       {¶ 22} While appellee did not assert that appellants acted recklessly within the

body of appellee’s negligence claim, there were sufficient references to appellants’

reckless conduct in the general statements of the complaint. Civ.R. 8(A) only requires

notice pleading: “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 768 N.E.2d

1136, 2002-Ohio-2480, ¶ 5; State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65

Ohio St.3d 545, 548-549, 605 N.E.2d 378 (1992).

       {¶ 23} In this case, we find it is clear appellee asserted a negligence cause of

action against the two political subdivision employees and personal liability based on

their reckless conduct.

       {¶ 24} Therefore, appellants’ sole assignment of error is found not well-taken.

       {¶ 25} Having found that the trial court did not commit error prejudicial to

appellants and that substantial justice has been done, the judgment of the Sandusky




11.
County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of

this appeal pursuant to App.R. 24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
CONCUR.                                          _______________________________
                                                             JUDGE
James D. Jensen, P.J.,
DISSENTS.



       JENSEN, P.J., dissenting.

       {¶ 26} Because I would hold that the trial court erred in denying appellants’

motion for partial judgment on the pleadings concerning appellee’s claim for negligent

infliction of emotional distress, I respectfully dissent.

       {¶ 27} The issue in this case, as stated by the majority, is “whether appellee was

required to allege an intentional tort or a negligent tort with the added allegation of




12.
recklessness.” In finding that the latter of the two options is appropriate, the majority

holds that a claim of negligent infliction of emotional distress may be brought against a

political subdivision employee who would otherwise qualify for immunity under R.C.

2744.03 so long as the claim is accompanied by an allegation that the employee acted

with malicious purpose, in bad faith, or in a wanton or reckless manner. The majority

“reject[s] appellants’ argument that statutory immunity automatically bars a negligent

infliction of emotional distress claim.” Because I find that R.C. 2744.03 entitles an

employee of a political subdivision to immunity for claims premised upon negligent

conduct, I strongly disagree with the majority’s holding.

       {¶ 28} The tort of negligent infliction of emotional distress is, by definition,

premised upon negligent conduct and is therefore subject to dismissal under R.C. 2744.03

in this case. In Piro v. Franklin Twp., 102 Ohio App.3d 130, 143, 656 N.E.2d 1035 (9th

Dist.1995), the court found that a claim for negligent infliction of emotional distress was

subject to dismissal despite the existence of a question of fact as to whether the defendant

acted maliciously, recklessly, or in bad faith because “a tort claim grounded in negligence

is inconsistent with R.C. 2744.03(A)(6)(b), which requires a higher level of culpability in

order to remove the immunity of political subdivision employees.” Likewise, in Tuleta v.

Medical Mut. of Ohio, 2014-Ohio-396, 6 N.E.3d 106, ¶ 58 (8th Dist.), the court

summarily rejected a claim for negligent infliction of emotional distress brought against a

police officer based upon its recognition that “[a]n employee of a political subdivision is

immune from liability for negligent acts or omissions.”




13.
       {¶ 29} Notwithstanding the foregoing, the majority concludes that an allegation of

recklessness is sufficient to enable appellee to assert claims rooted in negligence against

appellants. Notably, a claim seeking damages for the infliction of emotional distress

premised upon reckless conduct is treated as a claim for intentional infliction of

emotional distress under Ohio law. See Russ v. TRW, Inc., 59 Ohio St.3d 42, 48-49, 570

N.E.2d 1076 (1991) (“This court has recognized the torts of intentional or reckless

infliction of emotional distress in Yeager v. Local Union 20, supra, and negligent

infliction of emotional distress in Schultz v. Barberton Glass Co., supra.”); see also

Reamsnyder v. Jaskolski, 10 Ohio St.3d 150, 152, 462 N.E.2d 392 (1984) (“The

intentional or reckless infliction of emotional distress is an independent tort which does

not require an underlying tort for an injured party to recover.”). Although appellee

alleges recklessness in her complaint, the fact remains that negligent infliction of

emotional distress is premised upon negligent conduct, not reckless conduct. Appellee’s

allegations of recklessness may give rise to a claim for intentional infliction of emotional

distress, but her claim for negligent infliction of emotional distress must be dismissed

because such claims are barred under the clear language of R.C. 2744.03. Therefore, I

must dissent.




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