Cline v. Tecumseh Local Bd. of Edn.Cline v. Tecumseh Local Bd. of Edn.
Rendered on the 16th day of April, 2021.
MARK M. FEINSTEIN, Atty. Reg. No. 0065183, P.O. Box 657, Urbana, Ohio 43078 Attorney for Plaintiffs-Appellants
BRIAN A. WILDERMUTH, Atty. Reg. No. 0066303, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440, and WILLIAM V. BEACH, Atty. Reg. No. 0040471, Four Seagate, 9th Floor, Toledo, Ohio 43604 Attorneys for Defendants-Appellees
I. Facts and Procedural History
{¶ 2} According to the Clines’ complaint, on December 20, 2018, Mrs. Cline called Medway Elementary School in New Carlisle to inform the school that she would be picking up her two children early that dаy (ages three and five at the time). She arrived a few minutes before the end of the school day to retrieve her children as scheduled but, when she got inside the school, she discovered that the children had already boarded the school bus and were en route to latchkey. Mrs. Cline contends that her children were not authorized to go to latchkey.
{¶ 3} About 20 minutes later, the Cline children arrived back at Medway Elementary with their bus driver, April Lovato. The complaint asserts that an argument ensued between Mrs. Cline and Ms. Lovato and that Ms. Lovato became belligerent. Further, the complaint states that the Clines had been unsucсessful in getting any satisfactory answers regarding the whereabouts of the children during the 20 minutes they were allegedly unaccounted for, such as who released them to the bus and who allowed them to leave school without Mrs. Cline‘s permission.
{¶ 5} In early 2020, both Tecumseh Schools and the Clark County Educational Service Center filed motions to dismiss on behalf of the respective organizations and their employees. The motions asserted that the defendants were all immune by statute and that, even in the alternative, the facts alleged could not support the tort claims. On July 16, 2020, the trial court granted the motions to dismiss, stating, “all named defendants are entitled to statutory immunity pursuant to
{¶ 6} The Clines have appealed and raise a single assignment of error: The trial court abused its discretion by granting the motions to dismiss and finding that all named defendants are entitled to statutory immunity.
II. Motions to Dismiss
{¶ 7} The Clines sued Tecumseh Schools, its school board president Corrine Scott, the Clark County Educational Service Center, and its superintendent Dan Bennett, for negligent hiring, training, and/or supervision, and respondeat supеrior. They responded with a motion to dismiss.
{¶ 8} “An order granting a
{¶ 9} To dismiss a complaint on
{¶ 10} In conducting the review, we must assume that the facts as pleaded are true, “but the same does not apply to conclusions of law that the pleader contends are proved by those facts.” Thomas v. Progressive Cas. Ins. Co., Inc., 2011-Ohio-6712, 969 N.E.2d 1284, ¶ 8 (2d Dist.).
{¶ 11} While we must assume the facts are true, at the complaint stage of the suit, the facts do not have to be fully fleshed out. “Ohio is a notice-pleading state, [and] Ohio
{¶ 12} While a plaintiff is not required to advance a specific legal theory to be successful, “the complaint must contain either direct allegations on every material point necеssary to sustain recovery or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.” Strahler v. Vessels, 4th Dist. Washington No. 11 CA 24, 2012-Ohio-4170, ¶ 10.
{¶ 13} At the outset, the Clines appear to have conceded that the government agencies and the individuals sued in their official capаcity were entitled to statutory immunity under
B. Claims against April Lоvato, John/Jane Doe #1 and John/Jane Doe #2
{¶ 14} In their sole assignment of error, the Clines allege that the trial court erred
{¶ 15} School districts are granted broad immunity from civil liability under the Political Subdivision Tort Liability Act.
{¶ 16} The Clines allege in their complaint that Ms. Lovato, John/Jane Doe #1, and John/Jane Doe #2 acted in ways that triggered the exception from
{¶ 17} The Clines’ intentional infliction of emotional distress claims fare no better. Again, the “buzz words” are there, but the allegations did not mаtch up with the facts that were pled in the complaint. The Clines’ fourth claim for relief reads almost like Ms. Lovato kidnapped the children (“[Lovato] unlawfully enter[ed] the school and remov[ed] the children without * * * approval or knowledge of the Plaintiffs, and [left] the school premises with the children after bеing directly informed that the Plaintiff had arrived“). The “factual background” section of the complaint, however, tells a different, less dramatic, story (“The children had been taken [to latchkey] by Defendant April Lovato, who drives a bus for the school.“). The Clines, thus, have not alleged any facts that would trigger any exceptions to the immunity of Ms. Lovato or John/Jane Doe #1 or #2.
{¶ 18} There was another problem with the claims against John/Jane Doe #1 and #2: the Clines failed to meet the requirements of
When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words “name unknown,” and a copy thereof must be served personally upon the defendant.
{¶ 19}
{¶ 20} In this case, the Clines do not know the identity of John/Jane Doе #1 or #2. The complaint‘s only description of John/Jane Doe #1 is that he/she was an employee/agent of Tecumseh Schools and was present at Medway Elementary on December 20, 2018. Likewise, John/Jane Doe #2 is described as an employee/agent of the Clark County Educational Service Center and was present at Medway Elementary on December 20, 2018. That is the description of literally dozens of people at the school on that day: a principal, secretary, teacher, office aid, school nurse, custodian, etc. The Clines simply did not know the identity of the party, and that was not enоugh to satisfy the Rule.
{¶ 21} Because Ms. Lovato and John/Jane Doe #1 and #2 had immunity under the Political Subdivision Tort Liability Act, and because John/Jane Doe #1 and #2 were not properly included in the suit, the trial court did not abuse its discretion when it dismissed the Clines’ case.
C. Allegations of the tort claims
{¶ 23} A claim for negligent infliсtion of emotional distress can be brought in very factually-specific circumstances where the plaintiff has either witnessed or experienced a dangerous accident such that the plaintiff was subject to actual physical peril. See Heiner v. Moretuzzo, 73 Ohio St.3d 80, 652 N.E.2d 664 (1995); Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759 (1983); accord Dillon v. Legg, 68 Cal.2d 728, 731, 441 P.2d 912 (1968) (where a mother, in close proximity, witnessed her infant daughter being struck and killed by a car).
{¶ 24} We have explained that a plaintiff may be successful in a negligent infliction of emotional distress action if he/she can demonstrate that: (1) the plaintiff was a bystander, or was personally subject to peril, (2) the plaintiff reasonably appreciated the peril which took place, whether or not the victim actually suffered physical harm, and (3) the plaintiff suffered serious emotional distress because of this cognizable fear of peril. Boesdorfer v. Travis, 2d Dist. Greene No. 91-CA-98, 1992 WL 317459, *1 (Nov. 5, 1992); Heiner. A “bystander” is someone at the scene and does not include a person without sensory perception of the еvents surrounding the incident. Burris v. Grange Mut. Co., 46 Ohio St.3d 84, 93, 545 N.E.2d 83 (1989), overruled on other grounds by Savoie v. Grange Mut. Ins. Co., 67 Ohio St.3d 500, 620 N.E.2d 809 (1993). The emotional distress must be substantial as well. The Ohio Supreme Court has promulgated a non-exhaustive list of examples of what “severe emotional distress” entails, and the examples include traumatically induced neurosis, psychosis, chronic depression, and phobia. Paugh at 78.
{¶ 26} The intentional infliction of emotional distress claim could not stand either. A claim for intentional infliction of emotional distress requires proof of the following elements: (1) that the defendant either intended to cause emotional distress to the plaintiff, or knew or should have known that the actions would result in serious emotional distress to the plaintiff, (2) that the defendant‘s conduct was so extreme and outrageous as to go beyond all bounds of decency and was such that it can be considered utterly intolerable in a civilized society, (3) that the defendant‘s actions were the proximate cause of the plaintiff‘s psychic injury, and (4) that the mental anguish suffered by the plaintiff is so serious that no reasonable person could be expected to endure it. Chaney v. Potsdam, 2d Dist. Miami No. 2004-CA-19, 2005-Ohio-603, ¶ 98.
{¶ 27} Only the most extreme wrongs, which do violence to the norms of a civilized society, will rise to the level of extreme and outrageous conduct. Brown v. Denny, 72 Ohio App.3d 417, 423, 594 N.E.2d 1009 (2d Dist.1997). “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!‘” Id. quoting 1 Restatement of the Law 2d, Torts, Section 46, Comment d (1965).
{¶ 28} Much like the negligent infliction of emotional distress claims, the Clines have not pled any facts that would conceivably reach the level of intentional infliction of emotional distress. We must assume that the facts in the complaint were true, but that
{¶ 29} The Clines could prove no set of facts warranting relief as to either tort claim against any of the parties. Because the causes of action failed, the trial court did not err in granting the motion to dismiss.
{¶ 30} The assignment of error is overruled.
III. Conclusion
{¶ 31} The trial court‘s judgment will be affirmed.
TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Mark M. Feinstein
Brian L. Wildermuth
William V. Beach
Hon. Douglas M. Rastatter