Veller v. K.B.

2025 Ohio 687

• Court: Ohio Court of Appeals
• Decided: February 28, 2025
• Docket: WD-24-026
• Status: Published

Opinion

[Cite as Veller v. K.B., 2025-Ohio-687.]

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

Giselle Veller, Administrator of the Court of Appeals No. WD-24-026 Estate of Ashton Copeland, et al.

Appellees Trial Court No. 2022 CV 0320

v.

K.B., a minor, et al. DECISION AND JUDGMENT

Defendants Decided: February 28, 2025

[Wood County Board of Commissioners – Appellant]

*****

Paul A. Dobson, Wood County Prosecuting Attorney, Linda F. Holmes, and Joyce Nowak, assistant prosecuting Attorneys, and Teresa L. Grigsby and Jennifer A. McHugh, For appellant, Wood County Board of Commissioners.

Anthony J. Glase, for appellees.

***** MAYLE, J.

{¶ 1} Appellant, the Wood County Board of Commissioners, appeals the April 17,

2024 judgment of the Wood County Court of Common Pleas denying its motion to

dismiss the third amended complaint filed by appellee, Giselle Veller, individually and as administrator of the estate of Ashton Copeland. Because Veller failed to sufficiently

plead some of her claims, we affirm in part and reverse in part.

I. Background and Facts

{¶ 2} This case arose from a fatal car accident in which K.B., who was 16 years

old, was the driver, and Copeland, who was 15 years old, was the front-seat passenger

and victim. Veller, Copeland’s mother, filed this lawsuit against K.B., his guardian, and

numerous entities. This appeal concerns only one of the defendants, the Wood County

Board of Commissioners.

{¶ 3} According to Veller’s third amended complaint, Copeland, her 15-year-old

son, was killed in a single-vehicle accident on September 25, 2021. She alleged that K.B.

was driving a Chevrolet Cruze eastbound on King Road in the village of Haskins, which

is located in Middleton Township, Wood County, Ohio. When K.B. drove over a set of

railroad tracks, he failed to maintain control of the vehicle, drove off the right side of the

road “at a high rate of speed . . .[,]” hit a utility pole, and “crashed into a roadside ditch.”

Copeland was K.B.’s front-seat passenger. He died at the scene of the accident as a result

of blunt force trauma before he received any emergency medical care. The Wood County

Sheriff’s Department found K.B. at fault for the accident and issued him a citation.

{¶ 4} Veller also alleged that “[t]he road and surrounding conditions in Middleton

Township, Village of Haskins, and Wood County were dangerous and/or defective[,

which] caused or contributed to the accident and death.” Specifically, she claimed that

seven “dangerous land conditions and/or hazards and/or nuisance[s] that caused and/or

2. contributed to Ashton Copeland’s death . . .” existed at or near the site of the crash,

including

the utility pole immediately next to the road, the road ingress/egress/slope to the railroad tracks that created a “ramp”, the lack of signage and/or clear view of the railroad tracks, the unnecessary steep embankment (ditch) immediately next to the road (without a guardrail), the dangerous terrain embedding the railroad tracks, the lack or required/mandatory traffic devices, and the excessive posted speed limit.

Veller claimed that the board was responsible for each of these defects, and that some of

the defects are present on other roads in the county with ramped grade crossings, which

violates state law. Because there had been several accidents on King Road and near the

railroad tracks in the “recent past,” Veller alleged that the board knew or should have

known about the dangerous conditions, and that the conditions would cause severe injury

and death, but it intentionally or negligently ignored or failed to address them, failed to

provide mandatory traffic-control devices, and failed to keep King Road in repair. From

all of these issues, the board knew or should have known “that it was not possible to drive

down King Road in a safe manner” and that the road posed “unreasonable risks to new

drivers.”

{¶ 5} Additionally, Veller claimed that the dangerous conditions near the accident

site exist throughout Wood County and, despite knowing about them, the board

consciously disregarded the dangers, which created unreasonable risks to new drivers,

including K.B., and caused Copeland’s death. Consequently, the board’s actions, along

with the other defendants’ actions, were the direct and proximate cause of Copeland’s

death.

3. {¶ 6} Based on these facts, Veller alleged one count each of negligence,

recklessness, and premises liability based on the commissioners’ failure to keep King

Road in repair, provide mandatory traffic-control devices, and remediate known hazards

(count two); wrongful death and survival claims based on negligence due to the

dangerous land and road conditions (count three); spoliation of evidence for removing the

utility pole immediately after the accident knowing that it would be the subject of

criminal or civil lawsuits (count four); and intentional and negligent infliction of

emotional distress (count five).1 She also included a count asking for a permanent

injunction to remediate the “dangerous road condition and/or public nuisance” on King

Road and anywhere else similar conditions exist in Wood County (count six). Her final

claim (count seven) alleged, in its entirety, that the facts in the complaint “through notice

pleading, amount to other related causes of action, including, but not limited to, vicarious

liability, loss of consortium, recklessness, bad faith, [and] other violation of other State

laws.”

{¶ 7} The commissioners filed a Civ.R. 12(B)(6) motion to dismiss Veller’s

complaint. In it, they made four arguments in favor of dismissing the board from the

case: (1) the complaint against it was time barred; (2) it did not have statutory duties to

install or maintain a guardrail at the accident site, generally maintain roads or railroad

crossings, or ensure “safe” roads and land; (3) based on information that was not in

Veller’s complaint, it was entitled to political subdivision immunity under R.C. Ch. 2744;

1 Count one of the complaint alleged claims only against K.B. and his guardian.

4. and (4) Veller’s request for a permanent injunction was a remedy and could not exist as a

standalone claim.

{¶ 8} In response, Veller argued that (1) her claims were not time barred; (2) she

had stated valid claims against the board and was entitled to conduct discovery to

determine exactly which entity was responsible for the land and road conditions at the

accident site and could correct the defects that she alleged existed at railroad crossings

throughout the county—something she had not yet been able to do because it appeared

that several entities had overlapping statutory duties in this regard; (3) her complaint

alleged valid claims against the board because King Road is a public road in Wood

County, so it falls within the commissioners’ jurisdiction, and it had not been established

in the case that King Road was not a county road; (4) her request for injunctive relief was

valid under Ohio law, the board could provide the type of relief she was seeking, and the

commissioners’ motion should be denied as a matter of public policy; (5) the board was

not entitled to immunity because the complaint alleged that it had negligently failed to

keep King Road in repair, so the immunity exception in R.C. 2744.02(B)(3) applied; (6)

the board was not entitled to immunity for discretionary planning powers under R.C.

2744.03(A)(3) because it failed to provide mandatory signs, road markings, and safety

equipment; and (7) the board was not entitled to immunity under R.C. 2744.03(A)(5)

because its failure to use county resources to correct dangerous road conditions was

reckless.

5. {¶ 9} In their reply, the commissioners reiterated that the statute of limitations had

run on Veller’s claims and the complaint did not relate back to her original filing.

Regarding immunity, the commissioners argued that the complaint did not sufficiently

plead facts showing that they failed to install a traffic device mandated by the Ohio

Manual of Uniform Traffic Control Devices (“traffic manual”), which is necessary to

show that the immunity exception in R.C. 2744.02(B)(3), relating to keeping King Road

in repair, applied because they failed to keep a road in repair by not installing a traffic-

control device. And because Veller could not overcome the board’s immunity, the trial

court did not need to reach the question of whether its immunity could be reinstated

under R.C. 2744.03(A)(3). The commissioners also argued that Veller failed to allege

that the board had any duty to repair King Road and without a duty, it could not have

acted negligently. Finally, regarding Veller’s request for injunctive relief, the

commissioners pointed out that she did not offer any response to the merits of their

argument and reiterated that an injunction is a form of relief, not a standalone claim.

{¶ 10} The trial court denied the commissioners’ motion. In its decision, the court

first found that the complaint was not time barred.

{¶ 11} Next, the court found that many of the commissioners’ arguments “hinge

primarily on whether [King Road] is a ‘county road[,]’” but Veller’s complaint did not

“conclusively designate the type of road involved, . . .” so it did not “establish for

purposes of the Commissioners’ Motion to Dismiss that King Road is not or cannot be

6. considered a ‘county road.’” Because of that, the court found that the commissioners

were unable to show that Veller could prove no set of facts entitling her to relief.

{¶ 12} Regarding the board’s political-subdivision immunity, the court found that

Veller’s complaint “satisfied the requisites of notice pleading by apprising the

Commissioners of the nature of the claims asserted and that an exception to immunity

may apply[,]” so “the Court cannot say that [Veller] can prove no set of facts establishing

an exception to immunity . . . .”

{¶ 13} Finally, the court rejected the commissioners’ request to dismiss Veller’s

permanent injunction count, finding that “while it is true that generally injunctive relief is

a remedy rather than a cause of action, the Court cannot say from the Third Amended

Complaint alone that such relief is unavailable to [Veller].”

{¶ 14} The commissioners now appeal, raising two assignments of error:

1. The Trial Court erred in failing to dismiss the claims against the Wood County Board of Commissioners on the Board’s Ohio Civ. R. 12(B)(6) Motion and in failing to apply the Board’s statutory entitlement to immunity under Ohio Rev. Code §2744.02(A).

2. The Trial Court erred in determining that the absence of an allegation in Plaintiff’s Complaint (one which is essential to the triggering an immunity exception) required denial of the Commissioners’ Motion to Dismiss. This ruling wrongly inverted the parties’ respective pleading burdens in a case involving political subdivision tort immunity under Ohio Rev. Code Chapter 2744.

II. Law and Analysis

A. The parties’ arguments

{¶ 15} In their brief, the commissioners argue that the trial court erred by denying

their motion to dismiss because Veller’s third amended complaint does not allege facts

7. that, if true, trigger an immunity exception in R.C. 2744.02(B). Specifically, they focus

on the immunity exception in R.C. 2744.02(B)(3), which states in relevant part that

“political subdivisions are liable for injury, death, or loss to person or property caused by

their negligent failure to keep public roads in repair and other negligent failure to remove

obstructions from public roads . . . .” They argue that the board is only legally

responsible for maintaining “county roads”; Veller did not allege that King Road is a

county road, so she did not show that the board owed a duty to keep King Road in repair,

install guardrails along the embankment on King Road, or remove obstructions from

King Road; and without a duty, the board could not have been negligent.

{¶ 16} In response, Veller argues that she sufficiently pleaded facts showing that

the immunity exception applies because she alleged that King Road did not have required

warning signs and pavement markings, and the absence of those meant that the road was

not “in repair.” She also argues that she pleaded facts showing that the immunity

exception in R.C. 2744.02(B)(5), which relates to liability for guardrails along certain

embankments connected to county roads, applies. Although she did not “use[] certain

‘magic words’” in her third amended complaint, she was not required to do so, and when

the allegations in her complaint are construed liberally, her claims are sufficient to

survive a Civ.R. 12(B)(6) motion. Finally, she argues that she properly alleged a cause of

action for injunctive relief against the board and immunity does not apply to that claim.

{¶ 17} In their reply, the commissioners contend that Veller has asserted legal

conclusions, not factual allegations, which are insufficient to survive a motion to dismiss.

8. Beyond that, they contend that Veller’s claim that King Road was missing “required”

warnings and pavement markings is insufficient to show that these are traffic-control

devices mandated by the traffic manual, which is necessary for a traffic-control device to

be considered a “public road.” They also point out that Veller did not argue the

applicability of the R.C. 2744.02(B)(5) exception in the trial court, and she is not

permitted to raise it for the first time on appeal. If we do consider her (B)(5) argument,

the commissioners again argue that she has failed to plead facts showing that King Road

is a county road, which is necessary for the board to be liable under that exception.

Finally, the commissioners argue that an injunction is a remedy, not an independent claim

for relief; the board has not committed any wrongful acts that would entitle Veller to

injunctive relief; and Veller has an adequate remedy through the availability of money

damages, so she is not entitled to an injunction.

B. Civ.R. 12(B)(6) standard

{¶ 18} We review a trial court’s decision to dismiss a complaint under Civ.R.

12(B)(6) de novo. Perrysburg Twp. v. Rossford, 2004-Ohio-4362, ¶ 5. To dismiss a

complaint for failure to state a claim, “it must appear beyond doubt that the plaintiff can

prove no set of facts in support of the claim that would entitle the plaintiff to the relief

sought.” Ohio Bur. of Workers’ Comp. v. McKinley, 2011-Ohio-4432, ¶ 12, citing

O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975). Put

another way, “as long as there is 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

9. to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991). We cannot

consider allegations or evidence from outside of the complaint in making this

determination. Buckley v. Croghan Colonial Bank, 2022-Ohio-3684, ¶ 16 (6th Dist.),

citing State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997).

{¶ 19} In reviewing a Civ.R. 12(B)(6) motion, we presume that the complaint’s

factual allegations are true and make all reasonable inferences in the nonmoving party’s

favor. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). Although we

“assume the facts alleged in the complaint are true, we do not assume the legal

conclusions alleged to be drawn from those facts are also true and disregard any

unsupported conclusions included among the facts alleged in the complaint.” STE

Invests., LLC v. Macprep, Ltd., 2022-Ohio-2614, ¶ 14 (6th Dist.).

{¶ 20} Ohio is a notice-pleading state. Maternal Grandmother v. Hamilton Cty.

Dept. of Job and Family Servs., 2021-Ohio-4096, ¶ 10. This means that a plaintiff is not

expected to plead a claim with particularity outside of a few specific circumstances. Id.

Instead, a “short and plain statement of the claim” is usually sufficient. Id., citing Civ.R.

8(A). Notice pleading is designed to “simplify statements of the relief demanded . . . to

the end that the adverse party will receive fair notice of the claim and an opportunity to

prepare his response thereto.” (Internal quotations omitted.) Wells Fargo Bank, N.A. v.

Horn, 2015-Ohio-1484, ¶ 13, citing Anderson v. BancOhio Natl. Bank, 1985 WL 8844,

*1 (1st Dist. Nov. 27, 1985).

10. {¶ 21} Because that is the case, a complaint is not fatally defective “simply

because it does not set forth each element of a cause of action ‘with crystalline

specificity.’” Bethel Oil & Gas, LLC v. Redbird Dev., LLC, 2024-Ohio-5285, ¶ 39 (4th

Dist.), quoting Border City S. & L. Assn. v. Moan, 15 Ohio St.3d 65, 66 (1984). Indeed,

“a pleader is ordinarily not required to allege in the complaint every fact he or she intends

to prove . . . .” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545,

549 (1992), citing York at 144-145. Instead, the complaint must “‘contain allegations

from which an inference fairly may be drawn that evidence on these material points will

be introduced at trial.’” Schlenker Ents., L.P. v. Reese, 2010-Ohio-5308, ¶ 29 (3d Dist.),

quoting Fancher v. Fancher, 8 Ohio App.3d 79, 83 (1st Dist. 1982). Consequently, “‘as

long as there is 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.’”

Cincinnati v. Beretta U.S.A. Corp., 2002-Ohio-2480, ¶ 29, quoting York at 145. But

“neither the defendants nor the court is required to research or discover every possible

legal claim that may be supported by the facts.” Kramer v. Angel’s Path, LLC, 2007-

Ohio-7099, ¶ 14 (6th Dist.).

C. Political-subdivision immunity

{¶ 22} Political subdivisions in Ohio are generally immune from civil liability

under R.C. 2744.02(A)(1). Specifically, the statute states that “[e]xcept as provided in

[R.C. 2744.02(B)], a political subdivision is not liable in damages in a civil action for

injury, death, or loss to person or property allegedly caused by any act or omission of the

11. political subdivision . . . in connection with a governmental or proprietary function.” Id.

The maintenance and repair of roads is a governmental function. R.C. 2744.01(C)(2)(e).

One of the exceptions to the general grant of immunity makes political subdivisions

“liable for injury, death, or loss to person or property caused by their negligent failure to

keep public roads in repair and other negligent failure to remove obstructions from public

roads . . . .” R.C. 2744.02(B)(3).2 When an exception to immunity applies, there are

circumstances, found in R.C. 2744.03(A), that can reinstate the political subdivision’s

immunity.

{¶ 23} Determining whether a political subdivision is immune from liability

involves a three-tiered analysis. Pelletier v. Campbell, 2018-Ohio-2121, ¶ 15. The first

tier is “the general rule that a political subdivision is immune from liability incurred in

performing either a governmental function or proprietary function.” (Internal quotations

omitted.) Id. The second tier involves determining if any of the five exceptions in R.C.

2744.02(B) apply “to expose the political subdivision to liability.” (Internal quotations

2 In her brief, Veller argues that the exception to immunity in R.C. 2744.02(B)(5), which cites to R.C. 5591.37 to impose liability for a board of county commissioners’ negligent failure to put guardrails along certain embankments that are immediately connected to county roads, also applies to remove the board’s immunity in this case. However, as the commissioners point out, Veller did not make any arguments related to this exception in the trial court, and arguments a party raises for the first time on appeal are generally barred. Angotti v. Jones, 2024-Ohio-3222, ¶ 16 (6th Dist.), citing Dana Ltd. v. TACS Automation, LLC, 2021-Ohio-2555, ¶ 50 (6th Dist.); Independence v. Office of the Cuyahoga Cty. Executive, 2014-Ohio-4650, ¶ 30 (“[A]n appellant generally may not raise an argument on appeal that the appellant has not raised in the lower courts . . . .”). Because Veller did not argue this exception in the trial court, she has waived it on appeal, and we will not consider it. Angotti at ¶ 16.

12. omitted.) Id. The plaintiff has the burden of demonstrating that an exception to the

general grant of immunity applies. Nonprasit v. Ohio Teaching Family Assn., 2022-

Ohio-3685, ¶ 43 (6th Dist.). If an exception applies, the third tier requires the court to

determine if immunity may be reinstated under one of the defenses in R.C.

2744.03. Pelletier at ¶ 15.

D. The board is entitled to partial dismissal of Veller’s third amended complaint.

{¶ 24} Turning to the commissioners’ arguments, they contend that the trial court

erred by “failing to apply the Board’s statutory entitlement to immunity under . . .” R.C.

2744.02(A) and, consequently, failing to grant their motion to dismiss Veller’s complaint.

They also argue that Veller failed to allege that King Road is a county road, which is a

fact necessary to overcome the board’s presumed immunity. Our review of the complaint

and the case law shows that the trial court correctly denied the board’s motion to dismiss

count two, count three, and the loss of consortium claim in count seven, but it should

have granted the board’s motion to dismiss the remaining claims.

1. The trial court properly denied the board’s motion to dismiss counts two and three of Veller’s third amended complaint.

{¶ 25} The claims in counts two and three of Veller’s complaint sound in

negligence. To plead a negligence claim, Veller was required to allege facts showing that

the board owed a duty to Copeland, it breached that duty, and the breach proximately

caused Copeland’s injuries and death. See Estate of Ridley v. Hamilton Cty. Bd. of

Mental Retardation & Dev. Disabilities, 2004-Ohio-2629, ¶ 14; Mussivand v. David, 45

13. Ohio St.3d 314, 318 (1989). At this point, Veller has alleged sufficient facts to support

her negligence-based claims.

{¶ 26} Ohio has three types of roads: state roads, county roads, and township

roads. R.C. 5535.01. State roads are defined as “the roads and highways on the state

highway system.” R.C. 5535.01(A). County roads are all roads that are “established as a

part of the county system of roads as provided in [R.C.] 5541.01 to 5541.03 . . . .” R.C.

5535.01(B). Township roads “include all public highways other than state or county

roads.” R.C. 5535.01(C). Boards of county commissioners are responsible for

maintaining county roads. R.C. 5535.01(B), (C); R.C. 5535.08(A) (“The state, county,

and township shall each maintain its roads, as designated in [R.C.] 5535.01 . . . .”).

{¶ 27} The commissioners rely on these statutes to argue that the board does not

have a duty to maintain any roads that are not county roads, and based on other

information in the trial court record, they arrive at the conclusion that King Road is not a

county road, so the board does not have a duty to maintain it. The problem with the

commissioners’ logic is that it relies on information from outside the complaint, which a

court cannot use when deciding a Civ.R. 12(B)(6) motion. Buckley, 2022-Ohio-3684, at

¶ 16 (6th Dist.). According to their brief, the only way the commissioners know that

King Road is not a county road is from information in Middleton’s motion for summary

judgment, one of Veller’s motions to amend the complaint, and a deposition filed in the

trial court. None of this can properly be considered in a motion to dismiss a complaint

for failure to state a claim, and we must treat this information as if it does not exist. If the

14. commissioners wanted the trial court (and this court) to consider information outside of

the four corners of Veller’s third amended complaint, they were required to file a motion

for summary judgment under Civ.R. 56, not a motion to dismiss under Civ.R. 12(B)(6).

{¶ 28} Another problem with the commissioners’ arguments is that they ignore the

fact that political-subdivision immunity is an affirmative defense. Supportive Solutions,

LLC v. Electronic Classroom of Tomorrow, 2013-Ohio-2410, ¶ 17. Affirmative defenses

are difficult to raise successfully in a Civ.R. 12(B)(6) motion because proving them

generally involves information outside of the pleadings. Cristino v. Bur. of Workers’

Comp., 2012-Ohio-4420, ¶ 21 (10th Dist.). As Chief Justice Kennedy has recognized,

Ohio’s appellate courts have long recognized the difficulty of successfully asserting an affirmative defense in a Civ.R. 12(B)(6) motion to dismiss. Because affirmative defenses typically rely on matters outside the complaint, they normally cannot be raised successfully in a Civ.R. 12(B)(6) motion. . . . [T]he better procedure is to address affirmative defenses by way of a motion for summary judgment that will allow introduction of additional facts beyond the complaint[.]

(Internal quotations omitted.) Schmitz v. Natl. Collegiate Athletic Assn., 2018-Ohio-

4391, ¶ 41 (Kennedy, J., concurring), citing Main v. Lima, 2015-Ohio-2572, ¶ 14 (3d

Dist.) (lead opinion); and Savoy v. Univ. of Akron, 2012-Ohio-1962, ¶ 6-7 (10th Dist.).

{¶ 29} A trial court can grant a Civ.R. 12(B)(6) motion based on an affirmative

defense only “when the existence of the affirmative defense is obvious from the face of

the complaint.” (Internal quotations omitted.) Dart v. Katz, 2021-Ohio-1429, ¶ 20 (2d

Dist.), citing Reasoner v. City of Columbus, 2003-Ohio-670, ¶ 12 (10th Dist.); and

Mankins v. Paxton, 142 Ohio App.3d 1, 9 (10th Dist. 2001); Keller v. State, 1998 WL

290228, *2 (6th Dist. May 8, 1998). However, “a court must exercise caution because

15. complaints need not anticipate and attempt to plead around defenses.” (Internal

quotations omitted.) Cristino at ¶ 21, citing Savoy at ¶ 8; United States v. N. Trust Co.,

372 F.3d 886, 888 (7th Cir. 2004); and Owner Operator Indep. Drivers Assn., Inc. v.

Comerica Bank, 540 F.Supp.2d 925, 929 (S.D.Ohio 2008). In other words, “[t]here is no

‘heightened pleading requirement’ that would require [Veller] to allege specific

exceptions to immunity when bringing suit against a political subdivision.” Carswell v.

City of Akron, 2019-Ohio-4444, ¶ 14 (9th Dist.). As the Supreme Court explained in a

case involving a defense to immunity under R.C. 2744.03, at the pleading stage, a

complaint need only “rais[e] the possibility that the exception to [the defendants’]

statutory immunity . . . might apply.” (Emphasis added.) Maternal Grandmother, 2021-

Ohio-4096, at ¶ 15.

{¶ 30} Here, as we will discuss, when we construe the allegations in the complaint

in Veller’s favor and do not consider any outside information, she has met her burden of

pleading short, plain statements alleging claims of negligence, wrongful death, and

survival. She was not required to “plead around” the possibility that the board would

raise the defense of political-subdivision immunity. Cristino at ¶ 21. As one judge has

put it, “[r]equiring [a plaintiff] to affirmatively demonstrate an exception to immunity at

this stage of the proceedings would be tantamount to overcoming a motion for summary

judgment at the pleadings stage.” Ohio Bell Tel. Co. v. Leon Riley, Inc., 2010-Ohio-

5371, ¶ 35 (8th Dist.) (Kilbane, J., dissenting). This would defeat the purpose of a Civ.R.

12(B)(6) motion, which is solely to test the sufficiency of the complaint—i.e., it is not

16. related to the merits of the complaint. Slife v. Kundtz Props., Inc., 40 Ohio App.2d 179

(8th Dist. 1974), paragraphs one and four of the syllabus (Civil Rule 12(B)(6) motions

“test the sufficiency of the complaint and are not to be used to terminate litigation on its

merits. . . . Whether the plaintiff can prevail is a matter properly determined by the proof

and not by the pleadings.”); Fletcher v. Univ. Hosps. of Cleveland, 2008-Ohio-5379, ¶

17, quoting Collins v. Natl. City Bank, 2003-Ohio-6893, ¶ 51 (2d Dist.) (“‘An order of

dismissal entered pursuant to Civ.R. 12(B)(6) is an adjudication on the merits of the issue

the rule presents, which is whether a pleading put before the court states a claim for

relief. It does not adjudicate the merits of the claim itself . . . .’”).

{¶ 31} As it stands, based on Veller’s allegations that King Road is located in

Wood County and that the defendants collectively “maintained ownership and control of

the subject property . . .[,]” we can reasonably infer that King Road is a county road that

the board is statutorily responsible for maintaining. This means that the board owed a

duty to Copeland to maintain King Road. Ray v. City of Warren, 2019-Ohio-4654, ¶ 33

(11th Dist.) (A board of county commissioners “has a legal duty to adequately maintain

any street or highway that lies within its system of roads.”). Veller’s “‘brief and sketchy

allegations of fact’” regarding the board’s duty are sufficient to survive a Civ.R. 12(B)(6)

motion. Ohio Neighborhood Preservation Assn. v. Alaura, 2023-Ohio-1281, ¶ 10 (10th

Dist.), quoting York, 60 Ohio St.3d at 146 (Moyer, C.J., concurring).

{¶ 32} Similarly, Veller sufficiently alleged that the board breached its duty to

maintain King Road by claiming that King Road “lack[ed] required/mandatory traffic

17. devices . . . .” Generally, a “public road” does not include traffic-control devices. R.C.

2744.01(H) (“‘Public roads’ means public roads, highways, streets, avenues, alleys, and

bridges within a political subdivision. ‘Public roads’ does not include . . . traffic control

devices unless the traffic control devices are mandated by the Ohio manual of uniform

traffic control devices.”). But, when the traffic-control device is “mandated by the Ohio

manual of uniform traffic control devices[,]” it is considered a “public road” and falls

within the immunity exception in R.C. 2744.02(B)(3). R.C. 2744.01(H); see also Bibler

v. Stevenson, 2016-Ohio-8449, ¶ 15-17 (plurality opinion) (traffic-control devices that are

required under the Revised Code, but not mandated by the traffic manual, fall within the

definition of “public road”).

{¶ 33} Although the commissioners complain that “the Third Amended Complaint

makes no allegation that some traffic control device mandated by the Ohio manual of

uniform traffic control devices was missing in this case[,]” Veller was not required to

plead every element of her claims “‘with crystalline specificity.’” Bethel Oil & Gas,

2024-Ohio-5285, at ¶ 39 (4th Dist.), quoting Border City S. & L., 15 Ohio St.3d at 66.

The “‘brief and sketchy allegation[]’” that “required/mandatory” traffic-control devices

were missing from King Road is enough to put the board on notice of the way that Veller

claims it breached its duty to maintain King Road. Ohio Neighborhood Preservation

Assn. at ¶ 10, quoting York at 146 (Moyer, C.J., concurring). The fact that the complaint

does not mention the traffic manual by name is not dispositive.

18. {¶ 34} Finally, Veller has sufficiently alleged that King Road was not “in repair”

within the meaning of R.C. 2744.02(B)(3) by alleging that King Road is missing

mandatory traffic-control devices. See Shope v. Portsmouth, 2012-Ohio-1605, ¶ 26 (4th

Dist.).3 The Ohio Supreme Court has explicitly held that “[w]here the installation of

traffic control devices by a municipality is discretionary pursuant to the [traffic manual],

the municipality is immune from tort liability for damages allegedly resulting from the

absence of such devices.” (Emphasis added.) Winwood v. City of Dayton, 37 Ohio St.3d

282 (1988), syllabus. But it has not made the same pronouncement related to the

installation of mandatory traffic-control devices, which local authorities are required by

R.C. 4511.11(A) to “place and maintain.” This makes sense because a political

subdivision’s immunity under R.C. 2744.02(A) can be restored—despite an exception to

immunity in R.C. 2744.02(B) applying—when the underlying action involves the

exercise of discretion. R.C. 2744.03(A)(3), (5). Political subdivisions have discretion to

place traffic-control devices that are not mandated by the traffic manual, but do not have

discretion regarding the placement of mandatory traffic-control devices.

{¶ 35} The commissioners cite to Cerri v. Clemson Excavating, Inc., 2019-Ohio-

1161 (11th Dist.), and Bartchak v. Columbia Twp., 2018-Ohio-2991 (9th Dist.), to

3 We recognize that the Ohio Supreme Court has determined that whether an existing mandatory traffic-control device is “in repair depends on its physical condition, . . .” i.e., whether the sign itself is “in good or sound condition” or “otherwise deteriorated or disassembled.” Pelletier, 2018-Ohio-2121, at ¶ 20-21. But applying this definition to a mandatory traffic-control device that does not exist is illogical; a nonexistent sign does not have a “physical condition” that would demonstrate whether it is “in good or sound condition” or “otherwise deteriorated or disassembled.”

19. support their argument that “lack of signage” does not equate to a “failure[] to keep a

public road ‘in repair.’” Those cases are distinguishable. First, nothing in Cerri (an

appeal from a summary judgment decision) indicates that the missing traffic-control

devices were mandatory under the traffic manual, and the cases the Eleventh District cites

to support its conclusion that sign placement does not fall under “in repair” as it is used in

R.C. 2744.02(B)(3) either involve traffic-control devices that were actually in place or

the failure to place discretionary traffic-control devices. Id. at ¶ 17.

{¶ 36} Additionally, although Bartchak (another summary judgment case)

involves remarkably similar facts and allegations, as Veller points out, the Ninth District

decided the signage issue based on lack of causation. Id. at ¶ 16-19. The court found that

the missing mandatory traffic-control devices near the railroad crossing did not cause the

accident because the surviving passenger testified that the teenagers set out to jump their

car over the railroad tracks, so the presence of the mandatory signs would not have

prevented the accident, and the plaintiffs’ expert opined that a discretionary traffic-

control device, had it been in place, might have prevented the teens from intentionally

jumping the car over the tracks. Id. at ¶ 18-19. The court concluded that “the teens’

parents did not demonstrate that there is a genuine issue of material fact as to whether the

absence of mandatory traffic-control devices contributed to the teen driver’s loss of

control. The trial court, therefore, incorrectly denied summary judgment . . . on the

parents[’] ‘in repair’ claim.” (Emphasis added.) Id. at ¶ 19. That is not the case here,

where Veller has pleaded both that the missing traffic-control devices were mandatory

20. and that the lack of signage caused Copeland’s death, which is all that is required at this

stage of the case.

{¶ 37} Ultimately, the merits of Veller’s allegations—i.e., whether they are true—

is not currently at issue, and because there is a set of facts consistent with Veller’s

complaint that would allow her to recover damages from the board for a breach of its

duty to maintain King Road, her claims sounding in negligence cannot be dismissed

under Civ.R. 12(B)(6). York at 144-145 (“[A]s long as there is 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.”); see also Bethel Oil & Gas, 2024-Ohio-5285,

at ¶ 36 (4th Dist.), quoting Bono v. McCutcheon, 2005-Ohio-299, ¶ 8 (2nd Dist.) (A court

“may not grant a motion to dismiss for failure to state a claim simply because the court

‘doubts the plaintiff will prevail.’”).

{¶ 38} In summary, as it relates to counts two and three, Veller did all that she was

required to do under Civ.R. 8(A) by pleading a “short and plain statement” of each

“claim” against the board; she was not required to also plead facts to counter each

possible defense the defendants might raise. The allegations in Veller’s third amended

complaint are sufficient to put the board on notice of the claims against it in counts two

and three and survive a motion to dismiss. Whether these claims have merit is an issue

for a summary-judgment motion or a trial, not a Civ.R. 12(B)(6) motion.

21. {¶ 39} Because Veller sufficiently pleaded her claims in counts two and three, and

was not required to rebut possible defenses, the trial court correctly denied the

commissioners’ motion to dismiss those counts of Veller’s third amended complaint.

2. The board is entitled to dismissal of counts four, five, and six of Veller’s third amended complaint.

{¶ 40} Counts four, five, and six of Veller’s complaint allege claims that cannot

survive the board’s Civ.R. 12(B)(6) motion. We address each in turn.

a. Spoliation of evidence and intentional infliction of emotional distress

{¶ 41} In count four, Veller alleges that “Wood County” removed the utility pole

that K.B. hit “immediately after” the accident, despite knowing that there would be an

investigation and legal proceedings. She also claims that the pole was “evidence of a

dangerous land condition” and its removal prevented her from being able to “investigate

or observe the dangerous land condition of the utility pole after the accident.” In count

five of the complaint, Veller alleges that the board’s “actions and inactions were both

intentional and negligent which caused severe emotional distress.” These claims must be

dismissed because there are no exceptions to political-subdivision immunity for the

intentional torts of spoliation and intentional infliction of emotional distress. Hubbard v.

Canton City School Bd. of Edn., 2002-Ohio-6718, ¶ 8, citing Wilson v. Stark Cty. Dept. of

Human Servs., 70 Ohio St.3d 450, 452 (1994) (intentional infliction of emotional

distress); Fried v. Friends of Breakthrough Schools, 2020-Ohio-4215, ¶ 23-24 (8th Dist.)

(spoliation and intentional infliction of emotional distress); R.K. v. Little Miami Golf Ctr.,

2013-Ohio-4939, ¶ 49 (1st Dist.) (spoliation).

22. b. Negligent infliction of emotional distress

{¶ 42} Veller also alleges negligent infliction of emotional distress in count five of

her complaint. She refers to “Plaintiff’s” emotional distress but does not clarify whether

“Plaintiff” is Veller as administrator of Copeland’s estate or Veller on her own behalf.

Either way, count five fails to state a claim upon which relief can be granted.

{¶ 43} “In the absence of statutory provision therefor, Ohio courts have limited

recovery for negligent infliction of emotional distress to such instances as where one was

a bystander to an accident or was in fear of physical consequences to his own person.”

High v. Howard, 64 Ohio St.3d 82, 85-86 (1992), overruled on other grounds, Gallimore

v. Children’s Hosp. Med. Ctr., 67 Ohio St.3d 244 (1993). Specifically, a negligent

infliction of emotional distress claim requires a plaintiff to show that “(1) the plaintiff

was a bystander, (2) the plaintiff reasonably appreciated the peril that took place, whether

or not the victim suffered actual physical harm, and (3) the plaintiff suffered serious

emotional distress as a result of this cognizance or fear of peril.” (Emphasis added.)

Walker v. Firelands Community Hosp., 2007-Ohio-871, ¶ 59 (6th Dist.), citing Paugh v.

Hanks, 6 Ohio St.3d 72, 80 (1983). There is an exception to the requirement that the

person claiming emotional injuries must see the event when the claim is based on the

mishandling of a dead body. Id. at ¶ 44.

{¶ 44} As to Veller individually, the complaint does not allege that she witnessed

the accident or feared physical consequences to herself, or that the board mishandled

Copeland’s body, and “[t]he distress caused from merely learning of another’s injury or

23. death caused by a negligent third party is insufficient to impose liability upon that third

party for the emotional distress caused.” Burris v. Estate of Burris, 1988 WL 37569, *2

(6th Dist. Apr. 15, 1988) (finding that a mother who was not physically near the accident

failed to state a claim for negligent infliction of emotional distress based on emotional

injury she suffered from learning of her son’s death after the accident). Thus, Veller has

not stated a personal claim for negligent infliction of emotional distress.

{¶ 45} The complaint also fails to state a claim for negligent infliction of

emotional distress on behalf of Copeland’s estate because Copeland was not a

“bystander” to the accident; he was a victim who was directly involved. Any damages

for emotional injuries that Copeland received because of the accident are compensable as

part of the estate’s negligence claim. Loudin v. Radiology & Imaging Servs., Inc., 2011-

Ohio-1817, ¶ 19-20, citing Schultz v. Barberton Glass Co., 4 Ohio St.3d 131, 134, fn. 3

(1983) (“Courts have allowed recovery for emotional distress accompanied by the

slightest injury. When there is evidence of any injury, no matter how slight, the mental

anguish suffered by plaintiff becomes an important element in estimating the damages

sustained.” (Internal quotations omitted.)).

c. Injunction

{¶ 46} In count six of her complaint, Veller alleges that (1) the board intentionally,

negligently, and recklessly “created a dangerous road condition and/or public nuisance on

King Road and similar roadways in Wood County . . .”; (2) the public, “including teenage

(new/first-time/early) drivers,” cannot appreciate the dangers of driving on King Road

24. and similar roads, which “directly affects new/teenage driver’s [sic] right to travel safely

down a public road”; (3) she has “serious safety concerns” for teen drivers and drivers

unfamiliar with King Road; and (4) she is “requesting some form of permanent injunction

to address the nuisance of these ramp/road grade-crossings along steep embankments

without guardrails along King Road and throughout Wood County in order to provide

safety to the public and teenage drivers and to avoid any future deaths.” This claim must

also be dismissed.

{¶ 47} The commissioners argue that count six should be dismissed because an

injunction is a remedy, not an independent cause of action. They are correct; in general,

injunctive relief is a remedy, not a cause of action. Carstensen v. Bd. of Trustees of Allen

Twp., 2024-Ohio-870, ¶ 13 (6th Dist.), citing Woods v. Sharkin, 2022-Ohio-1949, ¶ 70

(8th Dist.); and Bresler v. Rock, 2018-Ohio-5138, ¶ 45 (10th Dist.).

{¶ 48} This does not end our examination of count six, however, because Civ.R.

8(F) requires us to construe the complaint “to do substantial justice,” we must look at the

wording of the claim (not just its heading) to see if it complies with the notice pleading

standard of Civ.R. 8(A), and we can only dismiss count six under Civ.R. 12(B)(6) if there

is no set of facts that would entitle Veller to the relief she is seeking (i.e., a permanent

injunction). Crosby v. Beam, 47 Ohio St.3d 105, 110 (1989), quoting Staff Note, Civ.R.

8(F) (“The rule ‘. . . emphasizes the fact that pleadings shall be construed liberally . . . .’”

(Ellipses in original.)); Ogle v. Ohio Power Co., 2008-Ohio-7042, ¶ 9 (4th Dist.) (“The

object [of notice pleading] is . . . simply to see whether the plaintiffs’ wording provides

25. the defendants with notice of the claim and the opportunity to defend it.”); Kramer, 2007-

Ohio-7099, at ¶ 13 (6th Dist.) (“[T]he labels used in a particular cause of action do not

control the nature of the cause of action.”); McKinley, 2011-Ohio-4432, at ¶ 12.

{¶ 49} As pleaded, count six sounds like a public nuisance claim. A public

nuisance is something that unreasonably interferes with a right common to the general

public. Kramer at ¶ 15. A private individual generally does not have standing to bring a

public nuisance claim. Becker v. Cardinal Health, Inc., 2021-Ohio-3804, ¶ 16 (10th

Dist.). There is an exception to this rule if the person can show that they have suffered an

injury not incurred by the general public, and that this special injury is different in type—

not just different in degree—from the harm suffered by the general public exercising the

same right. Id., citing Sommer v. Ohio Dept. of Transp., 2014-Ohio-5663, ¶ 29 (10th

Dist.).

{¶ 50} In this case, Veller has not pleaded facts showing that the “dangerous road

conditions” have unreasonably interfered with a public right. Although she speculates

that certain drivers cannot appreciate the danger of King Road (and roads similar to it)

and “will certainly suffer injuries or damages while trying to drive and navigate the

nuisance . . . [,]” she does not allege any facts showing that the road conditions have

actually interfered with the public’s “right to travel safely down a public road” or that the

public has suffered any injury from the road conditions. Without some facts supporting

these elements of count six, Veller has failed to state a claim for public nuisance. See

Lombardo v. Best W. Hotels & Resorts, 2023-Ohio-2300, ¶ 17 (8th Dist.), quoting

26. Maternal Grandmother at ¶ 29 (DeWine, J., concurring) (“While a party is not normally

‘expected to plead a claim with particularity’ . . . even Ohio’s liberal notice-pleading

standard does not permit mere speculation.”). Therefore, the trial court should have

granted the board’s motion to dismiss on this count.

3. The board is entitled to partial dismissal of count seven of Veller’s third amended complaint.

{¶ 51} Finally, in count seven of her third amended complaint, Veller alleges that

the facts in the complaint “through notice pleading, amount to other related causes of

action, including, but not limited to, vicarious liability, loss of consortium, recklessness,

bad faith, [and] other violation of other State laws.” Under the notice pleading

requirement of Civ.R. 8(A), a plaintiff is not required to plead the legal theories of

recovery that she is relying on or clearly and exactly plead every element of every claim.

Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512, 525-526, (1994); Bethel Oil &

Gas, 2024-Ohio-5285, at ¶ 39 (4th Dist.). Instead, the complaint “must contain either

direct allegations on every material point necessary to sustain a recovery or contain

allegations from which an inference fairly may be drawn that evidence on these material

points will be introduced at trial.” Strahler v. Vessels, 2012-Ohio-4170, ¶ 10 (4th Dist.).

Our review of the facts in Veller’s complaint shows that she stated a claim only regarding

loss of consortium.

{¶ 52} To the extent that count seven alleges loss of consortium, the trial court did

not err in denying the commissioners’ motion to dismiss. A loss of consortium claim is

based on the uninjured party’s loss of the injured party’s “‘society, services, . . . and

27. conjugal affection which includes companionship, comfort, love and solace.’” Hutchings

v. Childress, 2008-Ohio-4568, ¶ 16, quoting Clouston v. Remlinger Oldsmobile Cadillac,

Inc., 22 Ohio St.2d 65 (1970), syllabus. Veller sufficiently alleged that she has lost

Copeland’s society, services, and affection as a result of the board’s negligence, and as

we have discussed, the board cannot at this point claim immunity from Veller’s

negligence claims. Thus, Veller has stated a claim for loss of consortium, and the

commissioners are not entitled to have that claim dismissed.

{¶ 53} However, Veller’s complaint does not contain facts supporting causes of

action for bad faith, recklessness, vicarious liability, or other unspecified violations of

state law.

{¶ 54} First, although a political subdivision’s bad faith or reckless conduct can be

relevant to the immunity defense in R.C. 2744.03(A)(5), we were unable to find any

authority for independent causes of action of bad faith or recklessness in this context. See

R.C. 2744.03(A)(5) (Political-subdivision immunity can be reinstated if the claim

“resulted from the exercise of judgment or discretion in determining whether to acquire,

or how to use, equipment, supplies, materials, personnel, facilities, and other resources

unless the judgment or discretion was exercised . . . in bad faith, or in a . . . reckless

manner.”); Scott Fetzer Co. v. Am. Home Assur. Co., Inc., 2023-Ohio-3921, ¶ 19, citing

Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272 (1983) (bad faith is an independent tort

that arises from the relationship between an insured and insurer); Temple v. Fence One,

Inc., 2005-Ohio-6628, ¶ 43 (8th Dist.) (recklessness is not a separate cause of action

28. outside of cases involving injuries at sporting events). Because these are not independent

causes of action, Veller cannot state claims based on them.

{¶ 55} Additionally, vicarious liability is inapplicable to this case. “Vicarious

liability is a form of indirect legal responsibility that operates to make a principal liable

for the acts of its agents.” Harmon v. GZK, Inc., 2002 WL 191598, *7 (2d Dist. Feb. 8,

2002). Veller has not alleged that any of the board’s agents were involved in this case or

named any Doe defendants that might be the board’s agents. Without allegations that an

agent was acting on the board’s behalf, Veller has not sufficiently pleaded any type of

vicarious liability claim. See Auer v. Paliath, 2014-Ohio-3632, ¶ 27, citing Comer v.

Risko, 2005-Ohio-4559, ¶ 20-22 (“Vicarious liability by its very terms attaches to the

principal through the agent’s actions, not through the principal’s own actions. . . . [The

principal’s] direct conduct is irrelevant to a vicarious-liability cause of action.”).

{¶ 56} Finally, Veller’s vague allegation that the board committed an unspecified

“other violation of other State laws” is patently insufficient to survive a Civ.R. 12(B)(6)

motion to dismiss.

{¶ 57} In sum, because Veller’s complaint sufficiently alleges a claim for loss of

consortium, the trial court correctly denied the board’s motion to dismiss that part of

count seven. However, because the complaint does not even minimally support separate

claims of bad faith, recklessness, vicarious liability, or “violation of other State laws,” the

trial court erred by denying the commissioners’ motion to dismiss count seven as to those

claims.

29. III. Conclusion

{¶ 58} After carefully considering Veller’s third amended complaint, we find that

the trial court correctly denied the board’s Civ.R. 12(B)(6) motion on count two, count

three, and the loss of consortium claim in count seven, but erred by failing to dismiss the

remaining claims against the board. As we extensively discussed, the complaint

adequately alleges facts that could support a finding that Veller is entitled to relief on the

negligence, wrongful death, and survival claims, and she was not required to plead

around the possibility that the board would raise the affirmative defense of political-

subdivision immunity. Veller’s allegations that that King Road is located in Wood

County and that the defendants collectively “maintained ownership and control of the

subject property . . .[,]” are sufficient to allow a reasonable inference that King Road is a

county road that the board is statutorily responsible for maintaining. The fact that the

complaint does not specifically and directly allege that King Road is a “county road” is

not dispositive. Because of that, we cannot say that the trial court’s finding that the

complaint “does not conclusively designate the type of road involved, and therefore does

not establish . . . that King Road is not or cannot be considered a ‘county road’” was

prejudicial to the board. For all of these reasons, the board’s first assignment of error is

well-taken, in part, and its second assignment of error is not well-taken.

{¶ 59} The April 17, 2024 judgment of the Wood County Court of Common Pleas

is affirmed in part, reversed in part, and remanded to the trial court. On remand, the trial

court shall dismiss all claims against the board except count two, count three, and the loss

30. of consortium claim in count seven. Veller and the board are ordered to divide the costs

of this appeal equally under App.R. 24.

Judgment affirmed, in part, reversed, in part, and remanded.

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

Thomas J. Osowik, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

31.