Veller v. K.B.Veller v. K.B.
[Wood County Board of Commissioners – Appellant]
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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.
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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
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
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.
{¶ 7} The commissioners filed a
{¶ 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
{¶ 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
{¶ 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:
- 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 underOhio Rev. Code §2744.02(A) . - 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
{¶ 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
{¶ 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.
B. Civ.R. 12(B)(6) standard
{¶ 18} We review a trial court‘s decision to dismiss a complaint under
{¶ 19} In reviewing a
{¶ 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
C. Political-subdivision immunity
{¶ 22} Political subdivisions in Ohio are generally immune from civil liability under
{¶ 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
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 . . .”
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 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.
{¶ 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
{¶ 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
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 aCiv.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
{¶ 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
{¶ 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
{¶ 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
{¶ 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.
{¶ 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
{¶ 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
{¶ 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
{¶ 38} In summary, as it relates to counts two and three, Veller did all that she was required to do under
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
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).
{¶ 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
{¶ 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
{¶ 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
{¶ 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
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
{¶ 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
{¶ 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
{¶ 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
{¶ 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.
{¶ 58} After carefully considering Veller‘s third amended complaint, we find that the trial court correctly denied the board‘s
{¶ 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
Judgment affirmed, in part, reversed, in part, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J. ____________________________ JUDGE
Christine E. Mayle, J. ____________________________ JUDGE
Myron C. Duhart, J. 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/.