Hobbs v. Lopez6/30/1994
ting Rockey v. 84 Lumber Co. , 66 Ohio St.3d 221, 611 N.E.2d 789, paragraph two of the syllabus). See, also, Hodge v. Cheek (1989), 64 Ohio App.3d 296, 581 N.E.2d 581. The Supreme Court went on to find that where the pleading requirements of a statute are in conflict with the rules of civil procedure on a procedural matter, such statute is invalid. Id.
Thus, on the authority of Hiatt, supra, Hobbs's third assignment of error is found to be well taken and is sustained.
Based on the foregoing, the judgment of the trial court as it relates to the dismissal of the second and seventh claims for relief is affirmed, and as it relates to all other claims is reversed. This cause is remanded to the trial court for further proceedings.
Judgment accordingly.
PETER B. ABELE, J., concurs.
HARSHA, Presiding Judge, concurring separately.
In order for a court to dismiss a complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted, it must appear beyonsdoubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144, 573 N.E.2d 1063, 1064, citing O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 224, 327 N.E.2d 753, 754. In construing a complaint upon a motion to dismiss for failure to state a claim, the court must presume all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. York, supra. In resolving a Civ.R. 12(B)(6) motion, a court is confined to the averments set forth in the complaint. See, e.g., State ex rel. Alford v. Willoughby Civil Serv. Comm. (1979), 58 Ohio St.2d 221, 223, 12 O.O.3d 229, 230, 390 N. E.2d 782, 784. Appellate review of a ruling on such a motion presents a question of law which we determine independently of the trial court's decision. Accordingly, I concur in judgment and opinion with the principal opinion's resolution of the first assignment of error.
I also concur in the principal opinion's resolution regarding the seventh and eighth causes of action, intentional infliction of emotional distress and negligent infliction of emotional distress, respectively. Ohio courts have limited recovery for negligent infliction of emotional distress to situations where the plaintiff was a bystander to an accident or was in fear of physical danger to herself or another. High v. Howard (1992), 64 Ohio St.3d 82, 85, 592 N.E.2d 818, 820; King v. Bogner (1993), 88 Ohio App.3d 564, 569, 624 N.E.2d 364, 367. Appellant's claim does not arise out of such circumstances; therefore the trial court properly granted the motion to dismiss Count Eight for failure to state a claim upon which relief could be granted. Strawser v. Wright (1992), 80 Ohio App.3d 751, 754, 610 N.E.2d 610, 612.
I further concur in the judgment and opinion sustaining appellant's second assignment of error, but concur in judgment only sustaining appellant's third assignment of error.
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