COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68174 SHAWN COLE : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION JOHN G. JOHNSON & SONS, : ET AL. : : Defendant-Appellees : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE BEDFORD MUNICIPAL COURT CASE NO. 94-CVE-2063 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JAY A. COLE (#0059206) 12 HUNTING HOLLOW PEPPER PIKE, OHIO 44124-5247 For Defendant-Appellee, John G. Johnson & Sons: TODD M. HAEMMERLE (#0062328) GALLAGHER, SHARP, FULTON & NORMAN BULKLEY BUILDING, SEVENTH FLOOR 1501 EUCLID AVENUE CLEVELAND, OHIO 44115 For Appellee, Orange Village: STEPHEN L. BRYON (#0055657) INTERSTATE SQUARE BLDG. I, #240 4230 STATE ROUTE 306 WILLOUGHBY, OHIO 44094 SPELLACY, P.J.: Plaintiff-appellant Shawn C. Cole ("appellant") appeals the dismissal of his suit against defendants-appellees The Village of Orange and John G. Johnson & Sons for failure to state a claim upon which relief may be granted pursuant to Civ.R. 12(B)(6). Appellant assigns the following errors upon appeal: I. THE TRIAL COURT ERRED BY GRANTING DEFENDANT- APPELLEE VILLAGE OF ORANGE'S 12(B)(6) MOTION TO DISMISS. (MOTION TO DISMISS P. 8). II. THE TRIAL COURT ERRED BY GRANTING DEFENDANT- APPELLEE JOHN G. JOHNSON & SONS' 12(B)(6) MOTION TO DISMISS. (MOTION TO DISMISS P. 13). Finding the appeal to have merit, the judgment of the trial court is reversed. I. Appellant filed a small claims action in Bedford Municipal Court. His complaint stated: Deer crossed road and accident occurred in Orange on Lander Rd. Man-made ditch next to road caused damage to my vehicle. Ditch as a result of construction for new town hall. Appellant claimed damages in the amount of $l,500.00. Orange filed a motion to transfer the case to the court's regular docket. Orange requested the transfer so that it could file a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim. The trial court granted the motion. Orange then filed its motion to dismiss arguing there was nothing in the complaint suggesting Orange had done anything to - 3 - 3 cause appellant harm. Further, appellant did not cite any exception to political subdivision tort immunity under R.C. 2744.02(A)(1). The trial court granted the Civ.R. 12(B)(6) motion to dismiss. John G. Johnson & Sons filed its motion to dismiss for failure to state a claim. Johnson argued it had breached no duty of care owed to appellant. Johnson stated damages incurred by appellant when he drove into the construction ditch were caused by appel- lant's own negligence. The trial court granted the motion the same day it was filed. II. Appellant's assignments of error will be addressed together. In both assignments of error, appellant contends the trial court erred by dismissing his case against the defendants for failure to state a claim upon which relief may be granted. In order to grant a dismissal pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts entitling him to relief. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 245. All factual allegations stated in the complaint must be presumed to be true and all reasonable inferences in favor of the nonmoving party be made. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190. A plaintiff is not required to prove his case at the pleading stage. The court may not grant a motion to dismiss if there is a set of facts - 4 - 4 consistent with the complaint which would allow the plaintiff to recover. York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 145. Motions to dismiss are viewed with disfavor by Ohio courts and rarely are granted. Roe v. Hamilton Cty. Dept. of Human Serv. (1988), 53 Ohio App.3d 120. In assessing a trial court's dismissal of a complaint, a reviewing court examines only the allegations of the complaint. Assuming those allegations to be true, the dismissal is affirmed only if no set of facts exists which would entitle the plaintiff to relief under the allegations of the complaint. Rogers v. Targot Telemarketing Services (1990), 70 Ohio App.3d 689. The purpose of Ohio notice pleading provisions is to notify a defendant of the allegations against him so that he might prepare a proper defense. Konicki v. Salvaco, Inc. (1984), 16 Ohio App.3d 40, 44. Civ.R. 8(A) requires only that a pleading set forth a short, plain state- ment of the claim showing that the plaintiff is entitled to relief and a demand for judgment for the relief to which the pleader deems himself entitled. Forbis v. Springfield Township Trustees (1978), 56 Ohio App.2d 249. A party is not required to plead the legal theory of recovery or the consequences which naturally flow by operation of law from the legal relationship of the parties. Illinois Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, paragraph six of the syllabus. Appellant's complaint averred the accident occurred when a deer crossed the road causing him to leave the road's surface. A - 5 - 5 man-made ditch next to the road damaged his vehicle and the ditch was part of the construction for the new town hall. In Stipanovich v. Applin (1991), 74 Ohio App.3d 506, this court stated: A pleading which sets forth a claim for relief need not state with precision all the elements that give rise to a legal basis for recovery as long as fair notice of the action is provided; however, the pleading must con- tain either direct allegations on every mater- ial point necessary to sustain a recovery on any legal theory, even though it may not be on the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial. Fancher v. Fancher (1982), 8 Ohio App.3d 79, 8 OBR 111, 455 N.E.2d 1344. All pleadings shall be so construed as to do substantial justice. Civ.R. 8(F). Id., 510. Appellant's complaint infers the Village of Orange and John G. Johnson & Sons were negligent in placing a ditch close to the roadway. To establish actionable negligence, a plaintiff must show the existence of a duty, breach of that duty, and an injury proximately resulting from that breach. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285. In Shiflet v. Segovia (1974), 40 Ohio App.2d 244, the court held a complaint which stated a plain- tiff was injured when a minor threw a rock which struck her in the head was sufficient to state a claim for relief. Similarly, appel- lant avers the placement of the ditch caused damages to his car. It could be inferred from the complaint that the defendants should not have placed a ditch close to the road when constructing the building. Because there is a set of facts which could exist which - 6 - 6 would entitle appellant to relief, under the allegations set forth in the complaint, Civ.R. 12(B)(6) dismissal was not appropriate. The record is not such that a determination regarding the applica- bility of the political subdivision immunity of R.C. Chapter 2744 can be made. Whether immunity may be invoked is a determination which is made preferably on a motion for summary judgment. See Roe v. Hamilton Cty. Dept. of Human Serv. (1988), 53 Ohio App.3d 120. The trial court erred in dismissing the case pursuant to Civ.R. 12(B)(6). Appellant's first and second assignments of error have merit. Judgment reversed and remanded. - 7 - 7 This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATRICIA BLACKMON, J. and DIANE KARPINSKI, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .