Mitchell v. Lawson Milk Co., 532 N.E.2d 753 (Ohio 1988). · Go Syfert
Mitchell v. Lawson Milk Co., 532 N.E.2d 753 (Ohio 1988). Cases Citing This Book View Copy Cite
“n construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party”
1,733 citation events (1,348 in the last 25 years) across 17 distinct courts.
Strongest positive: Gibbs v. Burley (ohioctapp, 2020-01-09)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) Gibbs v. Burley
Ohio Ct. App. · 2020 · quote attribution · 1 verbatim quote · confidence high
unsupported conclusions that appellant committed an intentional tort are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion
discussed Cited as authority (verbatim quote) Pugh v. Sloan (2×) also: Cited as authority (rule)
Ohio Ct. App. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
unsupported conclusions are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion
examined Cited as authority (quoted) Magby v. Sloan, Warden (2×)
Ohio Ct. App. · 2019 · quote attribution · 2 verbatim quotes · confidence low
n construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party
examined Cited as authority (quoted) Kennedy v. Specht (2×)
Ohio Ct. App. · 2018 · quote attribution · 2 verbatim quotes · confidence low
n construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true
cited Cited as authority (rule) State ex rel. Yost v. Orrville Tobacco & Vape Shop, L.L.C.
Ohio Ct. App. · 2026 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Hansbrough v. Marshall Dennehey, P.C.
Ohio Ct. App. · 2026 · confidence medium
Community College, 2024-Ohio-3113, ¶ 20 (8th Dist.), quoting Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) State ex rel. Ames v. Kinsman Twp. Bd. of Trustees (2×) also: Cited "see"
Ohio Ct. App. · 2026 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) Fast Tract Title Servs., Inc. v. Barry
Ohio Ct. App. · 2026 · confidence medium
In considering a Civ.R. 12(B)(6) motion to dismiss, “[t]he factual allegations of the complaint and items properly incorporated therein must be accepted as true.” Vail v. Plain Dealer Publishing Co., 1995-Ohio-187, ¶ 5 , citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Talib v. Perkins Restaurant
Ohio Ct. App. · 2026 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) State ex rel. Johnson v. Hoying
Ohio Ct. App. · 2026 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) SER Liquidation Dealz, L.L.C. v. Hummer
Ohio Ct. App. · 2026 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Wu v. Reproductive Gynecology, L.L.C.
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk 4 Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) State ex rel. Reigert v. State Med. Bd. of Ohio
Ohio Ct. App. · 2025 · confidence medium
“When ruling on a Civ.R. 12(B)(6) motion to dismiss, the trial court must presume all factual allegations in the complaint are true, construe the complaint in a light most favorable to the plaintiff, and make all reasonable inferences in favor of the plaintiff.” Collins at ¶ 21 , citing Brown v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-4012 , ¶ 6 (10th Dist.), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Haery v. Spaeth
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Edwards v. Ohio State Univ. Wexner Med. Ctr.
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) State ex rel. Koger Kidd v. Earley
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Martin v. James
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) Gales v. Ohio Lottery Comm.
Ohio Ct. Cl. · 2025 · confidence medium
Moreover, “[t]he mere fact that claims in a complaint are couched in certain legal terms is insufficient to confer jurisdiction upon a court.” Id. {¶6} When a court has subject-matter jurisdiction and must determine whether dismissal is appropriate under Civ.R. 12(B)(6), a court must “presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Damron v. Ohio Parole Bd.
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Collins v. State
Ohio Ct. App. · 2025 · confidence medium
Brown v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-4012 , ¶ 6 (10th Dist.), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) State ex rel. Feathers v. Pittman
Ohio Ct. App. · 2025 · confidence medium
Assn. v. State, 2016-Ohio-478, ¶ 21 (a legal conclusion is “not an allegation of fact that a court must accept as true for purposes of Civ.R. 12(B)(6).”); Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193 (1988) (unsupported conclusions are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion.).
cited Cited as authority (rule) Sumner v. Roofing Co.
unknown court · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988); Cleveland Elec.
cited Cited as authority (rule) State ex rel. Gordon v. Summit Cty. Court of Common Pleas
Ohio · 2025 · confidence medium
Martre v. Reed, 2020-Ohio-4777, ¶ 12 , citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193 (1988).
cited Cited as authority (rule) Galloro v. SAR Hospitality, L.L.C.
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Primal Life Holdings, L.L.C. v. Society Brands, Inc.
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Jessica v. Ohio Dept. of Job & Family Servs.
unknown court · 2025 · confidence medium
Brown v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-4012 , ¶ 6 (10th Dist.), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Rutkowski v. United States Practical Shooting Assn.
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) Hill v. Hikel
unknown court · 2025 · confidence medium
Menorah Park Ctr. for Senior Living v. Rolston, 2020-Ohio-6658, ¶ 12 , citing Lunsford v. Sterilite of Ohio, LLC, 2020-Ohio-4193, ¶ 22 . “‘In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, we accept as true all factual allegations in the complaint.’” Id., quoting Lunsford at ¶ 22 , citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). “‘A complaint should not be dismissed unless it appears “beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.”’” Id., 8 OHIO FIRST…
discussed Cited as authority (rule) State ex rel. Thomas v. Dept. of Rehab. & Corr.
Ohio Ct. App. · 2025 · confidence medium
No. 11AP-518, 2012-Ohio-4409 , ¶ 31, citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). {¶ 13} Civ.R. 12(B)(1) provides a party may seek to dismiss a cause of action based on lack of jurisdiction over the subject matter of the litigation.
cited Cited as authority (rule) Chaganti v. Cincinnati Ins. Co.
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) State ex rel. Dodson v. Smith
Ohio · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988); see also State ex rel.
discussed Cited as authority (rule) Foster v. Toledo City School Dist. Bd. of Edn. (2×)
Ohio Ct. App. · 2025 · confidence medium
Curcio at ¶ 12 ; Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) 1116 Hudson, L.L.C. v. Drycreek Mtge., Inc.
Ohio Ct. App. · 2025 · confidence medium
Adams at ¶ 12 , citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Cirotto v. Am. Self Storage of Pickerington
9th Cir. · 2025 · confidence medium
Brown v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-4012 , ¶ 6 (10th Dist.), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) State ex rel. Nealey v. McAllister
Ohio Ct. App. · 2025 · confidence medium
Jones v. Greyhound Lines, Inc., No. 11AP- 518, 2012-Ohio-4409 , ¶ 31 (10th Dist.), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). {¶ 15} R.C. 2731.04 provides that an “[a]pplication for the writ of mandamus must be * * * in the name of the state on the relation of the person applying.” Although the failure to name the State of Ohio on the relation in a petition is grounds for dismissal, see Blankenship v. Blackwell, 2004-Ohio-5596 , ¶ 35-36, a relator may seek leave to amend the complaint to comply with R.C. 2731.04.
cited Cited as authority (rule) State ex rel. Davids v. Bur. of Sentence & Computation
Ohio Ct. App. · 2025 · confidence medium
No. 11AP-518, 2012-Ohio-4409 , ¶ 31, citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Tarahfields, L.L.C. v. Wilson
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988), citing O’Brien v. Univ.
discussed Cited as authority (rule) Faloba v. Ultium Cells LLC
N.D. Ohio · 2025 · confidence medium
A claim of intentional tort against an employer will be dismissed unless the “complaint alleges facts showing that the employer: (1) specifically desired to injure the employee; or (2) knew that injury to an employee was certain or substantially certain to result from the employer’s act and despite this knowledge, still proceeded.” Mitchell v. Lawson Milk Co., 532 N.E.2d 753, 756 (Ohio 1988).
cited Cited as authority (rule) Nationstar Mtge., L.L.C. v. Thompson
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Veller v. K.B.
D.C. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Grace v. Perkins Restaurant
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Knisley v. Knisley
Ohio Ct. App. · 2025 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Bruemmer v. Gilligan
Ohio Ct. App. · 2024 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988); Maas, 2020-Ohio- 5160, at ¶ 68 (1st Dist.).
cited Cited as authority (rule) InvesTek Mgt. Servs., Inc. v. Tate
Ohio Ct. App. · 2024 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) State ex rel. Conomy v. Fuller
Ohio Ct. App. · 2024 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) State ex rel. Brown v. Ohio Dept. of Rehab. & Corr.
unknown court · 2024 · confidence medium
No. 11AP-518, 2012-Ohio-4409 , ¶ 31, citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). “[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.” York v. Ohio State Hwy.
cited Cited as authority (rule) Dubovsky v. State Farm Mut. Auto. Ins. Co.
Ohio Ct. App. · 2024 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). {¶5} Section 3929.06(A) describes the process by which liability insurance is applied in satisfaction of a final judgment.
cited Cited as authority (rule) State ex rel. Parikh v. Berkowitz
Ohio Ct. App. · 2024 · confidence medium
Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
cited Cited as authority (rule) Randall v. JM Smucker Co.
Ohio Ct. App. · 2024 · confidence medium
Curcio at ¶ 12 ; Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
discussed Cited as authority (rule) Dunn v. W. Roofing Sys., Inc.
Ohio Ct. App. · 2024 · confidence medium
When reviewing a Civ.R. 12(B)(6) motion, “the court must accept the factual allegations contained in the complaint as true and draw all reasonable inferences from these facts in favor of the plaintiff.” Kimble, supra, at ¶ 11 , citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).
Mitchell, Admr.
v.
Lawson Milk Company
No. 87-2099.
Ohio Supreme Court.
Dec 30, 1988.
532 N.E.2d 753
Matan & Smith, James D. Coiner, Gallon, Kalniz & lorio Co., L.P.A., and Theodore A. Bowman, for appellee., Smith & Schnacke Co., L.P.A., James J. Gilvary and Scott A. King, for appellant.
Brown, Douglas, Holmes, Locher, Moyer, Sweeney, Syllabus, Wright.
Cited by 919 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 91%
Citer courts: Ohio Court of Appeals (4)

Lead Opinion

H. Brown, J.

The central issue is whether the complaint sets forth a claim of intentional tort showing that appellee is entitled to relief, sufficient to survive a Civ. R. 12(B)(6) motion to dismiss. For the reasons that follow, we hold that it does not.

A

Subsequent to the court of appeals’ decision in the case herein, we announced a series of decisions involving allegations of intentional torts committed by employers and the applicability of R.C. 4121.80(G)(1) to such causes of action. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489; Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St. 3d 124, 522 N.E. 2d 511; and Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St. 3d 135, 522 N.E. 2d 477. We determined that Section 28, Article II of the Ohio Constitution precludes the retroactive application of R.C. 4121.80(G)(1) to intentional tort causes of action arising prior to August 22, 1986, the effective date of the statute. Kunkler, supra, at 138, 522 N.E. 2d at 480; Van Fossen, supra, at 109, 522 N.E. 2d at 498. The cause of action in the case herein arose on or about January 16, 1985. Thus, we measure the sufficiency of appellee’s claim of intentional tort against the standard first set forth in Blankenship and Jones and explained in Van Fossen, Pariseau and Kunkler.

B

In Van Fossen, supra, at paragraph five of the syllabus, and Kunkler, supra, we implicitly adopted, for purposes of defining an intentional tort in Ohio, the definition of “intent” contained in 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A (“Restatement”). That section states:

“The word ‘intent’ is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”

We noted the difference between causes of action sounding in negligence, recklessness and intentional tort. Van Fossen, supra, at 114-117, 522 N.E. 2d at 502-504; Kunkler, supra, at 138-139, 522 N.E. 2d at 481. In order to establish an intentional tort, a plaintiff must show proof beyond that required to establish negligence and beyond that required to establish recklessness. When the employer acts despite the knowledge of some risk, the employer’s conduct may be negligent. When the risk is great and the probability increases that certain consequences may follow, the employer’s conduct may be reckless. As the probability that certain consequences will follow further increases and the employer knows that injury to employees is certain, or substantially certain, to result from his act, and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. Mere knowledge and appreciation of a risk, however, falls short of substantial certainty and does not by itself establish intent. Van [*192] Fossen, swpra, at paragraph six of the syllabus; Kunkler, supra, at 139, 522 N.E. 2d at 481; Comment b to Section 8A of the Restatement. With this in mind, we turn to the facts of the case before us to determine whether the complaint alleges a claim showing that appellee is entitled to relief.

C

The facts alleged in the complaint are[2] :

(1) While working alone at night in a Lawson convenience store, Mary was fatally shot by an assailant;

(2) the store contained no alarms, protective glass, cameras or other security devices; and'

(3) Lawson had provided no training or instruction in handling violent situations to Mary.

The complaint concludes that Lawson knew or should have known that its employees were subject to armed robberies and other violent acts and that by requiring Mary to work under the above conditions, Lawson “engaged in willful, wanton and intentional misconduct and * * * knew, or should have known, that injury was substantially certain to occur.”

In construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. 2A Moore, Federal Practice (1985) 12-63, Paragraph 12.07[2.-5]; accord 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, 785. Then, before we may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts warranting a recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753, syllabus.

Taking the facts of the complaint as true and construing them in appellee’s favor, those facts fail to establish a claim for intentional tort. The facts are easy to grasp and are undisputed: a death resulted from the hold-up of a convenience store. Even if[*193] Lawson failed to equip its stores with security devices or provide its employees with training in handling violent situations, it does not follow that Lawson knew that injury to its employees was certain, or substantially certain, to result. This is so, even if we assume that the Lawson store was in a high-crime-rate area.

Unsupported conclusions that appellant committed an intentional tort are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion. See Schulman v. Cleveland (1972), 30 Ohio St. 2d 196, 198, 59 O.O. 2d 196, 197, 283 N.E. 2d 175, 176. This principle is important in resolving claims of intentional tort against an employer. Virtually every injury in the workplace can be made the basis for a claim of intentional tort if the unsupported conclusion that the employer intended to injure the employee is allowed to prevail over factual allegations which preclude the possibility of intentional tort. We do not serve the interest of employees, employers or the administration of justice in the already over-docketed courts of Ohio if we permit claims to go forward which, on the face of the pleading, have no chance of success.[3]

We hold that a claim of intentional tort against an employer will be dismissed as failing to establish that the pleader is entitled to relief unless the complaint alleges facts showing that the employer: (1) specifically desired to injure the employee; or (2) knew that injury to an employee was certain or substantially certain to result from the employer’s act and despite this knowledge, still proceeded. Van Fossen v. Babcock & Wilcox Co., supra; Pariseau v. Wedge Products, Inc., supra; and Kunkler v. Goodyear Tire & Rubber Co., supra, construed.

Given the facts pleaded in the complaint, we believe that it is not possible for appellee to prove an intentional tort under the standard set forth in Van Fossen, Kunkler and Pariseau. Thus, the complaint must be dismissed. O’Brien, supra.

Accordingly, the judgment of the court of appeals is affirmed with respect to its ruling concerning R.C. 4121.80(G)(1). The judgment of the court of appeals is reversed with respect to its ruling that the complaint states a cause of action and, for the reasons stated herein, the trial court’s dismissal of the complaint is reinstated.

Judgment affirmed in part and reversed in part.

Moyer, C.J., Sweeney, Locher, Holmes and Wright, JJ., concur. Douglas, J., concurs in the judgment and syllabus.
2

Relevant paragraphs of appellee’s complaint state that:

“5. At roughly between 9:00 P.M. and 10:00 P.M. on or about January 16, 1985, while working alone at the Lawson store located at the above address, Mary A. Mitchell was repeatedly shot by a consumer or business invitee which resulted in her death.'

“6. No alarm system, motion detectors, cameras, silent alarm to police and regional manager, protective glass, one-way doors or any other adequate means of security was provided at Lawson’s store location thus creating a situation where injury to employees was substantially certain to occur.

“7. No training or instruction had been provided to Mary A. Mitchell by defendant Lawson as to procedures or methods of protections from physical violence or assailants.

“8. The defendant Lawson knew, or should have known, that its employees working in their convenience stores, including Mary A. Mitchell, are subject to armed robberies, assaults, and other acts of physical violence, especially so during the hours and under the conditions worked by Mary A. Mitchell.

“9. The defendant, in requiring Mary A. Mitchell to work in unsafe conditions, alone, and without any reasonable means of security and without any training or instruction ini handling violent situations at the defendant's convenience store, engaged in willful, wanton and intentional misconduct and the defendant knew, or should have known, that injury was substantially certain to occur.

“10. On January 16, 1985, as a direct and proximate result of the defendant’s willful, wanton and intentional misconduct, Mary A. Mitchell died.”

3

While the facts of this complaint permit a disposition under Civ. R. 12(B)(6), the more complete consideration afforded under Civ. R. 56 (summary judgment) would avoid problems which arise when it is difficult to distinguish “unsupported conclusions” from “facts” in a pleading.

Concurrence

Douglas, J.,

concurring in judgment and syllabus. I am pleased to have the majority, today, adopt the suggestion I made in my dissenting opinion in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489, regarding Civ. R. 12(B)(6) motions in intentional tort cases. I regret that we do not yet take the further step I suggested regarding Civ. R. 56 motions in intentional tort[*194] cases. This is especially so given fn. 3 of the majority opinion.

In my dissent in Van Fossm, I said, in part:

“This case and many like it have been filed alleging intentional torts when there is no legal or factual basis to support such claims. Some, obviously, have been filed to prevent future claims of legal malpractice. Some have been filed in the hope that the cost of defense will bring about some settlement. Some have been filed on the theory of ‘what can it hurt?’

“Well, it does hurt! To have a case like this reach this level entails substantial litigation costs — both to the parties and to the courts. This pattern is being followed over and over again. There should be a definitive answer from this court to terminate this practice. I have two suggestions that I would hope a majority of this court would adopt in some future case.

U* * *

“* * * [T]o place an employer in a position of having to extensively defend an ‘intentional tort’ case which is based upon nebulous theories and speculations is * * * not a just result. The cost of defense alone is enough to seriously damage some employers. This is especially so since this court, by a split vote, has decided that employers may not insure themselves against liability for intentional torts. * * * [Citation omitted.]

“To aid our trial and appellate courts in granting and upholding Civ. R. 12(B)(6) and 56 motions, in proper cases, I would hold that a pleading alleging an intentional tort must contain operative facts pled with particularity, much the same as is required by Civ. R. 9(B) for fraud. In the case of intentional tort pleadings, this would require (and permit) the trial court to make a more detailed examination than is required or permitted by O’Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St. 2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753, syllabus. Those cases that fall short on facts indicating that an intentional tort was committed could be dismissed without loss of further time or expense.

“For those cases which survive a Civ. R. 12(B)(6) motion under this standard, I would require a heightened review on summary judgment akin to that which we require in defamation cases. In cases of libel, courts, both trial and appellate, are required to construe all the evidence under a heightened standard of review. Grau v. Kleinschmidt (1987), 31 Ohio St. 3d 84, 31 OBR 250, 509 N.E. 2d 399; Varanese v. Gall (1988), 35 Ohio St. 3d 78, 80-81, 518 N.E. 2d 1177, 1180-1181. This would lend more credence to those cases where an intentional tort has, in fact, been committed and would better assure coherent appellate review.

“Finally, if either or both of these proposals were adopted, I would make them prospective only.” (Emphasis added.) Id. at 123-124, 522 N.E. 2d at 509-510.

The majority adopts the foregoing with regard to Civ. R. 12(B)(6) motions. Apparently, preferring to go slowly, we do not go the next step and provide for “heightened review” or scrutiny for Civ. R. 56 motions in such cases. I am confident that we will do so when next the opportunity presents itself, especially given the comments in fn. 3 of the majority opinion.

Finally, I think it is the better practice that when sweeping changes are made in substance or procedure, such changes be given only prospective effect. It appears highly unlikely that appellee could allege and plead facts that would meet the conditions that we[*195] set forth herein and in our other recent pronouncements on the subject. Nevertheless, we cannot be sure nor will the courts of appeals and the trial courts faced with the issue be certain that every pleader would be unable, by an amended pleading, to meet the standards we announce today. Therefore, the better procedure would be to allow an opportunity, where desired by a pleader, to amend pleadings in pending intentional tort cases and then test the amended pleadings by a Civ. R. 12 (B)(6) motion based upon the rule promulgated by today’s case. I think this would prevent much confusion and extensive appellate review that is certain to come, given this new rule, whether pending cases are dismissed or are allowed to proceed.