[Cite as Thomas v. Progressive Cas. Ins. Co., Inc., 2011-Ohio-6712.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

CHARLOTTE THOMAS                                     :

        Plaintiff-Appellant                          :      C.A. CASE NO. 24519

vs.                                                  :      T.C. CASE NO. 10CV6955

PROGRESSIVE CASUALTY INSURANCE :                            (Civil Appeal from
COMPANY, INC.                                                Common Pleas Court)
     Defendant-Appellee        :

                                       . . . . . . . . .

                                           O P I N I O N

                 Rendered on the 23rd day of December, 2011.

                                       . . . . . . . . .

Richard Hempfling, Atty. Reg. No. 0029986, 15 West Fourth Street,
Suite 100, Dayton, OH 45402
     Attorney for Plaintiff-Appellant

Timothy L. Zix, Atty. Reg. No. 0055479; Jennifer Hann Harrison,
Atty. Reg. No. 0065819; Timothy G. Pepper, Atty. Reg. No. 0071076,
40 North Main Street, Suite 1700, Dayton, OH 45423
     Attorneys for Defendant-Appellee

                                       . . . . . . . . .

        GRADY, P.J.:

        {¶ 1} Plaintiff, Charlotte Thomas, appeals from a final order

of the court of common pleas granting a motion filed pursuant to

Civ.R. 12(B)(6) by Defendant, Progressive Casualty Insurance

Company, Inc. (“Progressive”), and dismissing an action Thomas
                                                                   2

filed on three claims for personal injuries, for failure to state

a claim upon which relief may be granted.

     {¶ 2} Thomas was employed by Progressive as a claims adjuster.

 On September 13, 2007, Progressive sent Thomas to a location in

Springfield, Ohio to evaluate damages to a vehicle.   While Thomas

was there, two pit bulls ran toward her in an aggressive manner.

 One of the dogs turned back before reaching Thomas.      The other

made contact of some sort with her, but caused Thomas no physical

harm.

     {¶ 3} In a complaint she filed on August 31, 2010, Thomas

alleged that her encounter with the two pit bulls caused her severe

emotional and psychological distress, and that she was subsequently

diagnosed with post-traumatic stress disorder (“PTSD”).         As a

result, Thomas’s normal life activities “were overwhelming to her.”

 Complaint, ¶39.   Thomas stated that she requires assistance “to

care for herself and tend to her basic needs.”     ¶40.

     {¶ 4} Thomas was unable to work as a result of her PTSD.    She

received disability benefits from Progressive.        After those

benefits were exhausted, Thomas applied for but was denied worker’s

compensation benefits because her psychiatric condition did not

arise from a physical injury Thomas had suffered.         See R.C.

4123.01(C)(1).

     {¶ 5} The complaint Thomas filed pled three claims for relief:
                                                                   3

intentional infliction of emotional distress; negligent infliction

of emotion distress; and, negligence.    Thomas’s theory    in each

instance was that Progressive breached a common law duty of care

it owed Thomas by failing to equip its claims adjusters, such as

Thomas, with protective training, equipment, and strategies on

how to deal with aggressive animals they encounter in the course

of their work.

     {¶ 6} Progressive filed a Civ.R. 12(B)(6) motion to dismiss

the action Thomas filed.     The trial court granted the motion.

Thomas filed a notice of appeal from that final order.

     ASSIGNMENT OF ERROR

     {¶ 7} “THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT’S MOTION

TO DISMISS.”

     {¶ 8} The function of a Civ.R. 12(B)(6) motion to dismiss for

failure to state a claim upon which relief may be granted is to

test the legal sufficiency of a claim, generally contained in the

complaint.     Ziegler v. Bove (Dec. 23, 1998), Richland App. No.

98CA65.   The defense of failure to state a claim on which relief

may be granted asserts that the pleader has failed to plead the

operative legal grounds relating to a claim.    Mitchell v. Lawson

Milk Co. (1988), 40 Ohio St.3d 190.   A. Civ.R. 12(B)motion cannot

be used to raise any of the Civ.R. 8(C) affirmative defenses.

State ex rel. Freeman v. Morris (1991), 62 Ohio St.3d 107.
                                                                     4

       {¶ 9} A trial court should only dismiss a complaint for failure

to state a claim on which relief can be granted pursuant to Civ.R.

12(B)(6) when it appears “beyond doubt . . . that the plaintiff

can prove no set of facts warranting relief.”          State ex rel.

Crabtree v. Franklin County Board of Health, 77 Ohio St.3d 247,

1997-Ohio-274, ¶2.      The court may look only to the complaint

itself, and no evidence or allegation outside the complaint, when

ruling on a Civ.R. 12(B)(6) motion.         State ex rel. Fuqua v.

Alexander, 79 Ohio St.3d 206, 1997-Ohio-169.       Nevertheless, the

court may consider material incorporated in the complaint as part

of the complaint.     State ex rel. Crabtree; State ex rel. Keller

v. Cox, 85 Ohio St.3d 279, 1999-Ohio-264.      Even so, because Ohio

has rejected “fact pleading” in favor of “notice pleading,” a

plaintiff is not required to prove his or her case through the

pleadings in the complaint, since the plaintiff’s lack of access

to relevant evidence at that stage of the proceedings would allow

dismissal of many valid claims.    York v. Ohio State Highway Patrol

(1991), 60 Ohio St.3d 143.

       {¶ 10} When a trial court construes a complaint for purposes

of a motion to dismiss for failure to state a claim, the court

must assume that “all factual allegations in the complaint are

true.”    Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541,

544.     The court is also required to construe all reasonable
                                                                         5

inferences in favor of the nonmoving party.          Mitchell v. Lawson

Milk Co.   “Since all factual allegations in the complaint are

presumed true, only legal issues are presented and an entry of

dismissal will be reviewed de novo.”         Hunt v. Marksman Products

(1995), 101 Ohio App.3d 760, 762.

     Intentional Infliction of Emotional Distress

     {¶ 11} “One who by extreme and outrageous conduct intentionally

or recklessly causes serious emotional distress to another is

subject to liability for such emotional distress, and if bodily

harm to the other results from it, for such bodily harm.”          Yeager

v. Local Union 20 (1983), 6 Ohio St.3d 369, Syllabus.

     {¶ 12} “In   order   to   recover   damages   for   the   intentional

infliction of serious emotional distress four elements must be

proved: a) that the actor either intended to cause emotional

distress or knew or should have known that actions taken would

result in serious emotional distress to the plaintiff; b) that

the actor's conduct was extreme and outrageous, that it went beyond

all possible bounds of decency and that it can be considered as

utterly intolerable in a civilized community; c) that the actor's

actions were the proximate cause of the plaintiff's psychic injury;

and d) that the mental anguish suffered by plaintiff is serious

and of a nature that no reasonable person could be expected to

endure it.”
                                                                 6

     {¶ 13} Pyle v. Pyle (1983), 11 Ohio App.3d 31, paragraph two

of the syllabus.

     {¶ 14} We adopted the Pyle test in Hale v. City of Dayton,

Montgomery App. No. 18800, 2002-Ohio-542, adding the following

quote from Yeager, at ¶12:

     {¶ 15} “* * * It has not been enough that the defendant has

acted with an intent which is tortious or even criminal, or that

he has intended to inflict emotional distress, or even that his

conduct has been characterized by ‘malice,’ or a degree of

aggravation which would entitle the plaintiff to punitive damages

for another tort. Liability has been found only where the conduct

has been so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded

as atrocious, and utterly intolerable in a civilized community.

Generally, the case is one in which the recitation of the facts

to an average member of the community would arouse his resentment

against the actor, and lead him to exclaim, ‘Outrageous!’”

     {¶ 16} In granting Progressive’s motion to dismiss Thomas’s

claim for intentional infliction of emotional distress, the trial

court wrote:

     {¶ 17} “In her Complaint, Plaintiff alleges that Defendants

failed to provide education regarding aggressive animals, failed

to provide claims adjusters with protective clothing and tools,
                                                                   7

failed to conduct a risk assessment to examine dangers aggressive

animals may pose to claims adjusters, failed to utilize feasible

and effective methods of mitigating such risk, and that ‘despite

the knowledge of the high potential of danger triggered by

aggressive animals confronting its claims adjusters, Defendant

required Plaintiff to perform her work assignments under these

hazardous conditions without taking any steps to minimize the known

risks.’ The Court finds that these allegations fail to properly

allege a claim for intentional infliction of emotional distress.

 Plaintiff wholly fails to allege that Defendant had intent to

injure her.   Moreover, the conduct alleged on the part of Defendant

does not rise to the level of ‘extreme’ and ‘outrageous.’       The

Court finds that Plaintiff failed to state a claim Intentional

Infliction of Emotional Distress upon which relief can be granted.

 There is no set of facts, consistent with Plaintiff’s complaint,

that would entitle Plaintiff to relief under Count I.    Therefore,

Defendant’s Motion to Dismiss is hereby Sustained as to Count I.”

 (Dkt. 23, p. 7).

     {¶ 18} Thomas argues that the trial court erred because the

facts pleaded in her complaint, coupled with her allegations

therein that Progressive’s conduct was both extreme and outrageous,

are sufficient to withstand a Civ.R. 12(B)(6) challenge, because

together they plead the elements of a claim for intentional
                                                                     8

infliction of emotional distress.     We do not agree.

     {¶ 19} In order to withstand a Civ.R. 12(B)(6) challenge, a

complaint must plead the “operative grounds” relating to a claim

for relief.   Mitchell v. Lawson Milk Co.   A court is bound to assume

that the facts pleaded in the complaint are true, but the same

does not apply to conclusions of law which the pleader contends

are proved by those facts.    The court must evaluate those legal

conclusions against the facts pleaded in order to determine whether

the standard of proof applicable to a particular claim can be

satisfied at trial.    The court may grant a motion to dismiss a

claim pursuant to Civ.R. 12(B)(6) when the facts concerned fail

to provide that support, but only when it appears “beyond doubt

. . . that the plaintiff can prove no set of facts warranting

relief.”   State ex rel. Crabtree.

     {¶ 20} We agree with the trial court that Thomas’s complaint

fails to plead conduct on the part of Progressive in not training

or equipping its claims adjustors in dealing with aggressive

animals that rises to the level of conduct “so outrageous in

character, or so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.”      Yeager.   The trial court

did not err when it dismissed Thomas’s claim for intentional

infliction of emotional distress, pursuant to Civ.R. 12(B)(6).
                                                                   9

     Negligent Infliction of Emotional Distress and Negligence

     {¶ 21} The trial court correctly held that these two claims

for bodily injury are subject to the two-year statute of limitations

in R.C. 2305.10.    The court then granted Progressive’s Civ.R.

12(B)(6) motion and dismissed the two claims on a finding that

they are barred by R.C. 2305.10 because the action on those claims

was brought more than two years after the claims accrued.

     {¶ 22} The incident involving the two pit bull dogs occurred

on September 13, 2007.     Thomas’s causes of action on her two

negligence claims then accrued.     Thomas filed her complaint on

August 31, 2010, more than two years later.   Absent a circumstance

that tolled the two-year statue of limitations for a sufficient

period of time, Thomas’s negligence claims are barred pursuant

to R.C. 2305.10.

     {¶ 23} Thomas argues, as she did in the trial court, that the

two-year statute was tolled pursuant to R.C. 2305.16.   That section

provides:

     {¶ 24} “Unless otherwise provided in sections 1302.98, 1304.35,

and 2305.04 to 2305.14 of the Revised Code, if a person entitled

to bring any action mentioned in those sections, unless for penalty

or forfeiture, is, at the time the cause of action accrues, within

the age of minority or of unsound mind, the person may bring it

within the respective times limited by those sections, after the
                                                                   10

disability is removed. When the interests of two or more parties

are joint and inseparable, the disability of one shall inure to

the benefit of all.

     {¶ 25} “After the cause of action accrues, if the person

entitled to bring the action becomes of unsound mind and is

adjudicated as such by a court of competent jurisdiction or is

confined in an institution or hospital under a diagnosed condition

or disease which renders the person of unsound mind, the time during

which the person is of unsound mind and so adjudicated or so confined

shall not be computed as any part of the period within which the

action must be brought.”

     {¶ 26} The trial court rejected Thomas’s reliance on R.C.

2305.16 stating: “Because Plaintiff’s claims alleged that she

became mentally ill or unstable as a result of Defendant’s actions

or non-actions, it is axiomatic that she was not mentally unsound

at the time the incident occurred.   Therefore, she is not entitled

to the protection of R.C. 2305.16.”     (Dkt. 23, p. 8)

     {¶ 27} Thomas relied on an affidavit of George A. Kraus, a

licensed psychologist, who stated that he first saw Thomas on

December 8, 2009, and thereafter diagnosed a PTSD condition

“triggered by a dog attack in the summer of 2007 while on a service

call for her then employer, Progressive Insurance.”        Dr. Kraus

opined that Thomas was suffering from “moderate to serious deficits
                                                                11

in social and occupational functioning,” and that from the date

of her encounter with the two pit bulls, Thomas “was so seriously

incapacitated that she was incapable of adequately looking out

for her own best interests in a court of law.”   Dr. Kraus further

opined that Thomas’s limitations in that respect ended on or about

August 19, 2010.

     {¶ 28} R.C. 2305.16 tolls the statues of limitations to which

it applies in two alternative circumstances when the plaintiff

experiences the condition of an unsound mind.    If the plaintiff

becomes of unsound mind after the cause of action accrues, and

the plaintiff is adjudicated incompetent and/or confined in an

institution or hospital, the statute of limitations is tolled for

“the time during which the person is of unsound mind and so

adjudicated or confined.”   If the plaintiff is of unsound mind

“at the time the cause of action accrues,” the limitations period

is tolled from that date and does not resume until “after the

disability is removed.”   (Emphasis supplied).

     {¶ 29} It is undisputed that Thomas’s causes of action for

negligent infliction of emotional distress and negligence accrued

on September 13, 2007, when she was attacked by the two dogs.

Thomas was not adjudicated incompetent or confined because of a

mental illness.    Thomas argues that she is entitled to tolling

pursuant to R.C. 2305.16 because her PTSD condition occurred
                                                                       12

simultaneously with the attack, and therefore she was of unsound

mind “at the time” the cause of action accrued.           On that basis,

and relying on Dr. Kraus’s affidavit statement that Thomas’s PTSD

condition resolved on or about August 19, 2010, the action Thomas

commenced on August 31, 2010 would be timely filed for purposes

of R.C. 2305.16.

     {¶ 30} R.C. 1.02(C) provides: “‘Of unsound mind’ includes all

forms of mental retardation or derangement.”          Courts have held

that such conditions, when they occur simultaneously with accrual

of the cause of action concerned, may be found to have existed

“at the time the cause of action accrues” for purposes of R.C.

2305.16.    Bowman v. Lemon (1926), 115 Ohio St.326; Almanza v.

Kohlhorst (1992), 85 Ohio App.3d 135.     It is the plaintiff’s burden

at trial to prove that the condition from which he or she suffered

was “some species of mental deficiency or derangement [that caused

him] to be unable to look into his affairs, properly consult with

counsel, prepare and present his case and assert and protect his

rights in a court of justice.”      Lemon, at paragraph three of the

syllabus.    The mere fact that such disabilities existed is

insufficient to prove that R.C. 2305.16 applies, however.            The

plaintiff   must   also   show   that   the   condition   causing   those

disabilities rendered him was a condition “of unsound mind,” and

that the condition of unsound mind occurred simultaneously with
                                                                   13

the accrual of his cause of action.

     {¶ 31} In Bowman v. Lemon, the victim of an assault claimed

that he was entitled to tolling of the statue of limitations because

the assault rendered him “of unsound mind.”      In addition to the

testimony of people who knew him that the plaintiff’s behavior

was inconsistent and erratic, the plaintiff presented the testimony

of two physicians.   One physician opined that “the plaintiff was

not good for at least two years; that for probably a year he suffered

from hallucinations; that the witness would not put any faith or

credit in the imaginings of the plaintiff.”       Id., at 330.   The

other physician opined “that hemiplegia and aphasia resulted from

the injury sustained by the plaintiff; that the same were due to

an injury to the speech center of the brain; that he could not

call an object by its right name.”     Id.   The Supreme Court held

that “[o]n the whole record, . . . we cannot say that there is

no evidence entitling the plaintiff to go to the jury upon this

issue of unsoundness of mind.” Id., at 332.

     {¶ 32} In Almanza v. Kohlhorst (1992), 85 Ohio App.3d 135, a

plaintiff who had been severely injured in an auto accident failed

to timely file her complaint.   She relied on the tolling provisions

of R.C. 2305.16.   The evidence showed that the plaintiff suffered

a severe closed head injury that left her comatose for approximately

three months and hospitalized for seven months.     The plaintiff’s
                                                                     14

treating physician testified that her head injury “resulted in

mental, physical, and emotional defects and those defects caused

[the plaintiff] to be ‘unable to care for herself and to properly

look into her business affairs for at least three years subsequent

to the accident.”     Id., at 138.      The Third District Court of

Appeals, relying on Bowman v. Lemon, held that the trial court

erred when it granted a summary judgment against the plaintiff

on her claim that she was of unsound mind for purposes of R.C.

2305.16.

     {¶ 33} In Fisher v. Ohio University (1992), 63 Ohio St.3d 484,

the plaintiff, a student, broke his neck while diving into a river

during a college-sponsored outing and suffered a spinal cord injury

that resulted in a permanent state of paralysis.         He commenced

an action for personal injuries after the statute of limitations

had run.    The plaintiff invoked the tolling provisions of R.C.

2305.16, claiming that emotional distress from his paralysis and

medication he was prescribed prevented him from understanding his

legal rights.   The Supreme Court rejected that argument, stating:

     {¶ 34} “Construed    most   favorably   for   Fisher's   position,

emotional distress is far from the required condition of mental

retardation or derangement. A ‘mentally retarded person’ is defined

by R.C. 5123.01(K) as ‘a person having significantly subaverage

general    intellectual   functioning   existing    concurrently   with
                                                                    15

deficiencies    in   adaptive   behavior,   manifested    during   the

developmental period.’ Although not defined in the Revised Code,

‘derangement’ has been equated with insanity. Webster's Third New

International Dictionary (1986) 607. Fisher also stated in his

answers to interrogatories that he was never diagnosed as being

of unsound mind. A nebulous assertion of emotional distress does

not create an issue of fact concerning unsound mind.”         Id., at

488-489.

     {¶ 35} In Fisher, the plaintiff relied on the alternative

circumstance in R.C. 2305.16 concerning a condition of unsound

mind that occurs after the cause of action accrues.      The necessary

condition of unsound mind is the same in both instances, however.

 In the present case, Thomas’s PTSD condition is more than a

nebulous assertion of emotional distress; it was diagnosed by Dr.

Kraus.   Nevertheless, nothing in Dr. Kraus’s affidavit suggests

that Thomas’s PTSD rose to the level of mental retardation or

derangement required by R.C. 1.02(C) and     the holding in Fisher.

 A condition “of unsound mind” implies a much more profound

disturbance of mental faculties than the “moderate to serious

deficits in social and occupational functioning” which Dr. Kraus

opined Thomas experienced.      We note that PTSD has been held to

be insufficient to satisfy the “of unsound mind” requirement in

R.C. 2305.16.   Livingston v. Diocese of Cleveland (1998), 126 Ohio
                                                                            16

App.3d 299, 313.

      {¶ 36} As a final matter, we do not endorse the procedure that

was   followed    here.      The    statute   of   limitations   bar   is   an

affirmative defense, Civ.R. 8(C), and is therefore not raised by

a motion to dismiss under Civ.R. 12(B).1             State ex rel. Freeman

v. Morris.       Plaintiff failed to object to Defendant’s Civ.R.

12(B)(6) motion on that basis, and instead filed an affidavit contra

the motion.       That submission presented an issue of fact not

resolved by the pleadings.         In that instance, Civ.R. 12(B) requires

the court to convert the motion to a motion for summary judgment

pursuant to Civ.R. 56.       The court failed to do that, and Plaintiff

made no objection.        Neither does Plaintiff complain of the matter

on appeal.    Therefore, we have decided the error assigned on the

limited record before us.

      {¶ 37} The assignment of error is overruled.         The judgment of

the trial court will be affirmed.




FAIN, J., And DONOVAN, J., concur.


         1
         A statute of limitations defense may be raised by a Civ.R.
   12(C) motion for a judgment on the pleadings, which is directed
   to all the pleadings, including the answer the defendant has
   filed setting out a statute of limitations affirmative defense
   as required by Civ.R. 8(C).
                               17




Copies mailed to:

Richard Hempfling, Esq.
Timothy L. Zix, Esq.
Jennifer Hann Harrison, Esq.
Timothy G. Pepper, Esq.
Hon. Dennis J. Adkins
