[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