Preview
Motion No. 5079639
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
March 28,2023 17:52
By: ERIC M. LEVY 0084075
Confirmation Nbr. 2814603
DAWN M. ROSSI CV 22 961566
vs.
Judge: EMILY HAGAN
MICHAEL VIROSTEK
Pages Filed: 186
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
DAWN M. ROSSI ) CASE NO. CV-22-961566
)
Plaintiff ) JUDGE: EMILY HAGAN
)
vs. )
) DEFENDANT’S MOTION FOR
MICHAEL VIROSTEK ) SUMMARY JUDGMENT
)
Defendant )
Now comes the Defendant, MICHAEL VIROSTEK, by and through undersigned counsel,
and hereby moves this Honorable Court, pursuant to Civ. R. 56, Civ. R. 12(B)(6) and otherwise as
applicable at law, to grant Summary Judgment in his favor on all three (3) causes of action set
forth in Plaintiff’s Complaint. There is no genuine issue of material fact and when viewed in light
most favorable to Plaintiff summary judgment must be granted in favor of Defendant. Further,
pursuant to the Stipulation of the parties filed on March 27, 2023, Defendant herein respectfully
requests and reserves the right to supplement this Motion with any material produced by Plaintiff
in providing her responses to Defendant’s discovery requests.
Defendant is entitled to summary judgment on all claims in Plaintiff’s Complaint. With
regard to Plaintiff’ s first two causes of action for assault and battery and intentional infliction of
emotional distress Plaintiff cannot set forth any evidence necessary to establish each and every
element of the claims. In Plaintiff’s third cause of action pursuant to R.C. §2307.60, in addition
to Plaintiff not being able to set forth evidence to establish each and every element of the claim
the claim is barred pursuant to the applicable one-year statute of limitations.
The basis for this Motion is more fully set forth in the attached Memorandum of Law and
all Affidavits and Exhibits attached thereto which is fully incorporated herein.
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Respectfully submitted,
Eric M. Levy [0084075
Counsel far Defendant, Virostek
Law Office of Jaye M. Schlachet
55 Public Square, Suite 1600
Cleveland, Ohio 44113
P. (216) 456-2488
P. (216) 777-3032 (Direct)
F. (216) 456-2499
Email: Law@GetLevy.com
CERTIFICATE OF SERVICE
The foregoing Defendant’s Motion for Summary Judgment, attached
memorandum of Law and all Exhibits, has been filed electronically with the
Clerk of Courts, this 28th day of March, 2023. Notice of this filing will be sent to
all counsel through the Court’s electronic filing system. Parties, including those
referenced below, can access this document through the Court’s system.
Alan H. Kraus, Esq.
20133 Farnsleigh Road
Shaker Heights, Ohio 44122
Ahkesq1@aol.com
Eric M. Levy
Counsel for Defendant, Virostek
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MEMORANDUM OF LAW
STATEMENT OF FACTS:
Defendant has been alleged to have engaged in an act of sex with Plaintiff on or about
September 22, 2019. As a result, on September 18, 2020 Plaintiff filed a civil action before this
Court and upon which this Court may take notice in CV-20-937434. The case alleged two (2)
causes of action: (1) assault and battery for a violent sex act; and (2) intentional infliction of
emotional distress for a violent sex act. On April 08, 2021, Plaintiff filed a Civ. R. 41(A) Notice
of Dismissal. The Complaint was re-filed herein based upon the savings statute and alleged a new
third cause of action civil liability for a criminal offense upon different facts than a violent sexual
act, now alleging that Defendant engaged in sex with Plaintiff while she was substantially impaired
and unable to consent and Defendant was otherwise convicted in a criminal matter for such offense.
This offense does not require force or injury or violence of any kind and can actually be completed
even with consent.
The matter was indicted criminally in Cuyahoga County, Ohio in case number CR-20-
655504-A on January 21, 2021, with Defendant charged with one count of rape by force in
violation of R.C. 2907.02(A)(2), one count of rape by engaging in sexual conduct where the other
persons ability to resist or consent in substantially impaired in violation of R.C. 2907.02(A)(1)(c),
and one count of gross sexual imposition by force in violation of R.C. 2907.05(A)(1). The matter
proceeded to a jury trial and Appellant was found not guilty of the force offenses and guilty of
consensual sex where the victim was substantially impaired.
The matter proceeded forward to Appeal in Eighth District Court of Appeals case number
CA-21-110592. The conviction was affirmed. The Ohio Supreme Court did not accept
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jurisdiction for further review.
The attached documents are incorporated herein in support of this Motion for Summary
Judgment.
A. Affidavit of Eric M. Levy;
B. Docket in CV-20-937434;
C. Complaint in CV-20-937434
D. Notice of Dismissal in CV-20-937434;
E. Docket in CA-21-110592;
F. Appellant’s Brief in CA-21-110592;
G. Appellee’s Response Brief in CA-21-110592;
H. Appellant’s Reply Brief in CA-21-110592; and
I. Opinion of Court of Appeals in CA-21-110592, State v. Virostek, (Cuyahoga Cty.,
2022), 2022-Ohio-1397.
LAW AND ARGUMENT:
The standard applicable to a trial court’s review of a motion for summary judgment is as
follows:
Under Civ.R. 56(C), summary judgment is proper “if the pleading, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence in
the pending case, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” The party
seeking summary judgment always bears the initial responsibility of informing the
trial court of the basis for its motion and identifying those evidentiary materials
which it believes demonstrate an absence of a genuine issue of material
fact. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323, 106 S.Ct. 2548, 2552
2553, 91 L.Ed.2d 265, 273-274. Although the moving party does not have to
support the motion for summary judgment with evidentiary materials, it does bear
the initial burden of establishing that the material facts are not in dispute and there
is no genuine issue of material fact. Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115,
120, 570 N.E.2d 1108, 1113-1114.
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McNeil v. Case W. Res. Univ., (Cuyahoga Cty., 1995), 105 Ohio App. 3d 588, 592.
{*40} We review summary judgment rulings de novo, applying the same standard
as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d
241 (1996). Under Civ.R. 56, summary judgment is appropriate when no genuine
issue exists as to any material fact and, in viewing the evidence most strongly in
favor of the nonmoving party, reasonable minds can reach only one conclusion that
is adverse to the nonmoving party, entitling the moving party to judgment as a
matter of law.
{*41} In a motion for summary judgment, the moving party carries an initial burden
of identifying specific facts in the record that demonstrate their entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264
(1996). If the moving party fails to meet this burden, summary judgment is not
appropriate; if the moving party meets this burden, the nonmoving party has the
reciprocal burden to point to evidence of specific facts in the record demonstrating
the existence of a genuine issue of material fact for trial. Id. at 293. Summary
judgment is appropriate if the nonmoving party fails to meet this burden. Id.
Bostick v. Salvation Army, Et al., (Cuyahoga Cty., 2023), 2023-Ohio-933, **’s 40-41.
Here, Defendant establishes that Plaintiff cannot meet its prima facia case on any of its
three (3) causes of action and that no genuine issue of material fact exists entitling Defendant to
an award of summary judgment on all claims.
First Cause of Action - Assault and Battery:
In her first cause of action Plaintiff alleges assault and battery by means of a violent sexual
assault. Plaintiff cannot maintain all of the elements of the cause of action. There is no genuine
issue of material fact and summary judgment must be awarded in favor of Defendant.
As an initial matter is must be presumed that Defendant’s claim lies in battery and not
assault. To establish a claim for civil assault one must demonstrate a willful threat or attempt to
harm or touch another offensively, which threat reasonably places the other in fear of such contact.
Brooks v. Lady Foot Locker, (9th Dist., 2005), 2005-Ohio-2394, * 18. Here, Plaintiff is alleging a
violent sex act which is not a threat or attempt to touch but rather an actual touching of the person.
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Therefore, Plaintiff's cause of action must only be reviewed for battery.
To establish a claim for civil battery, a plaintiff must demonstrate that the defendant acted
intending to cause a harmful or offensive contact and, in fact, a harmful or offense contact results.
Id, * 63.
A claim of battery, which is an intentional, nonconsensual touching, requires that
causation and damages also be shown. Anderson v. St. Francis-St. George
Hosp. (1996), 77 Ohio St.3d 82, 84, 671 N.E.2d 225, 227, citing Love v. Port
Clinton (1988), 37 Ohio St.3d 98, 524 N.E.2d 166.
Watkins v. Cleveland Clinic Found., (Cuyahoga Cty., 1998), 130 Ohio App. 3d 262, 279.
Here, Plaintiff cannot establish and there was no intent to cause harmful or offensive
touching; there was no nonconsensual touching; no injury or damages and no link between any
touching, injury or damages. In its Response Brief in the criminal Appeal, the state of Ohio makes
certain to acknowledge at page 18 that “the jury probably determined that D.R. didn’t physically
resist or say no.” and at page 32, “[t]he jury clearly thought D.R. consented but was substantially
impaired...”
Text messages were exchanged between Plaintiff and Defendant around the time of the
alleged offense where Defendant set forth that he did not cause Plaintiff any injury or bruising.
See, attached Opinion of Eighth District Court of Appeals.
i* 22} D.R. eventually spoke with appellant on the phone. She asked him if he
knew what he did to her the other night. She described to him the bruises left on
her body and how the skin of her elbows was peeled off.
{* 23} After the phone call, appellant sent D.R. the following text message:
[D.R.] We really need to talk. There is absolutely no way I could have put
20 bruises on you. If you had any bruises, it would have been on the inside
of your thighs from my hands. And I know you did not have any scrapes on
your elbows when I dropped you off.
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State v. Virostek, (Cuyahoga Cty., 2022), 2022-Ohio-1397, 22-23. The documents attached
hereto also establish that prior to this alleged incident Plaintiff had been engaged in substantial
yard work and home improvement which could be the cause of any injury alleged.
Defendant’s conviction is under R.C. 2907.02(A)(1)(c) which is conduct when the victim’s
ability to resist or consent is substantially impaired by a mental or physical condition and the other
individual is aware of the substantial impairment by mental or physical condition. Neither consent
nor force are at issue in the offense. Further, per R.C. 2907.02(A)(1) no person shall engage in
sexual conduct.... This is a strict liability offense. No intent is necessary. The issue of knowledge
only comes into play with regard to knowledge of substantial impairment.
Here, Defendant did not intent to cause harmful or offensive touching. He intended to
engage in consensual sex which the Plaintiff and Defendant had a history of. The touching was
not absent consent, which is both an element of the action and a civil affirmative defense. Belcher
v. Carter, (10th Dist., 1967), 13 Ohio App.2d 113. Further, Plaintiff cannot prove that she was
injured by any touching of Defendant or a proximate cause between conduct of the Defendant and
injury/damages. The criminal offense under R.C. 2907.02(A)(1)(c) does not require any injury or
harm.
Any injuries alleged by Plaintiff in her complaint including physical and emotional pain
and any injury to her body require proof by an expert as said injuries go beyond common
knowledge and an expert must verify the injury and opine that it was linked to the offense. Argie
v. Three Little Pigs, Ltd., (10th Dist., 2012), 2012-Ohio-667, 15. Further law on the issue is set
forth infra including the requirement of independent proof of injury and not merely a self-serving
Affidavit. Further, here, Plaintiff was allegedly substantially impaired/intoxicated at the time of
the alleged offense and would not know what was happening to her.
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Plaintiff will be unable to show any intent, non-consensual touching, injury or link of any
injury to the touching. There is no genuine issue of material fact and Defendant is entitled to
summary judgment.
Second Cause of Action - Intentional Infliction of Emotional Distress:
Plaintiff cannot meet its burden to establish a prima facia cause of action for intentional
infliction of emotional distress and Defendant is entitled to summary judgment as a matter of law.
Defendant did not intent to cause emotional distress. Plaintiff has not obtained an expert witness
on this issue and the expert witness deadline established by this Court has passed. Further Plaintiff
has not established that she suffered emotional distress, that severe and outrageous conduct took
place and that any such conduct was the proximate cause of any severe emotional distress.
The elements and requirements to establish a claim of intentional infliction of emotional
distress are as follows:
46} In order to establish
a claim of intentional infliction of emotional distress, Mendlovic must show
(1) that Life Line either intended to cause emotional distress or knew or should
have known that actions taken would result in serious emotional distress to her, (2)
that Life Line's conduct was so extreme and outrageous as to go beyond all possible
bounds of decency and was such that it can be considered as utterly intolerable in a
civilized community, (3) that Life Line's actions were the proximate cause of
Mendlovic's psychic injury, and (4) that the mental anguish suffered by Mendlovic
is serious and of a nature that no reasonable person could be expected to endure
it. Burkes v. Stidham (1995), 107 Ohio App.3d 363, 375, 668 N.E.2d 982. Serious
emotional distress requires an emotional injury that is both severe and debilitating.
Id.
17 {* 47} To recover for intentional infliction of emotional distress in Ohio, it is
not enough that the defendant has acted with an intent that is tortious or even
criminal, or that he has intended to inflict emotional distress, or even that his
conduct has been characterized by malice, or a degree of aggravation that would
entitle the plaintiff to punitive damages for another tort. Liability is found only
where the conduct is so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency and to be regarded as atrocious
and utterly intolerable in a civilized community. Yeager v. Local Union
20 (1983), 6 Ohio St.3d 369, 374-375, 6 OBR 421, 453 N.E.2d 666.
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Mendlovic v. Life Line Screening of Am., Ltd., (Cuyahoga Cty., 2007), 2007-Ohio-4674, 46
47, (emphasis added).
Here, Plaintiff and Defendant were close friends with a history of engaging in sexual
relations and exchanging explicit text messages. State v. Virostek, (Cuyahoga Cty., 2022), 2022-
Ohio-1397, 2. Throughout the entire day in question, on or about September 22, 2019 Plaintiff
had two to three beers and two plastic cups of wine. Id., 3. Plaintiff and Defendant engaged in sex
and, thereafter, Plaintiff went to the hospital for the purpose of a Sexual Assault Nurse Examiner (“SANE”)
examination. Id., 18, 26. Defendant sent text messages to Plaintiff describing what took place and
testified regarding the sexual encounter as follows:
{* 24} Appellant then asked D.R. if she went back outside after he dropped her off.
He told her that he was really upset and said that he knew exactly what they had
done on Saturday night. He maintained that he was coherent, or he would not have
driven. Appellant then set forth his recollection of the events:
We went over to Michelle's through her service door. You went pee in
Michelle's downstairs bathroom & came out & laid on the floor. I lifted your
shirt & removed your bra & sucked on your nipples. I kissed your body and
started to remove your pants from your waist. You lifted your butt & you
pulled your pants below your butt & I removed your pants.
I went back up & sucked your nipples and fingered you for about 30
seconds. Then I got on top of you & we had sex for a few minutes. I came
on your stomach. Then you went into the bathroom & pee'd again.
You went to my truck while I locked up. You were obviously pissed at me
for some reason because you did not talk to me on the way home. I dropped
you off at your house & I watched you open the garage.
I would never do anything to hurt you. I thought you were pissed at me
because I figured that I took advantage of you by having sex with you
because you were pretty drunk. I would of never had sex with you if I
thought you were totally out of it. The only reason I went forward & had
sex with you, was because you lifted your a[**] and you pulled your pants
down below your butt. So, I figured you were willing.
[D.R.], I honestly do not know what else you think happened.
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{* 31} Appellant testified that stating that he “took advantage” referred simply to
the drinking and inviting D.R. to his sister's house and that did not relate to sex.
With regard to appellant's text where he said he was “so sorry” if he had hurt and
disrespected D.R., he again stated that it related to the drinking and had nothing to
do with sex.
State v. Virostek, 24, 31.
The testimony of Defendant, Virostek, establishes that he engaged in a sex act with
Plaintiff, an individual who he had a prior sexual relationship. The sex act was not done with
intent or knowledge that extreme emotional distress would occur. Defendant testified and texted
Plaintiff that he was not intending to harm her and her actions caused him to believe she was a
willing participant in the sex act. Plaintiff has never established intent.
Plaintiff is required to establish that she suffered severe emotional distress due to extreme
and outrageous conduct of Defendant and that there is a proximate cause link between the sex act
and the emotional distress suffered. This is generally proven by expert testimony. However, here,
the expert deadline has come and gone and Plaintiff has produced no expert report and none of the
necessary elements have been established.
In fact, the only mention Plaintiff makes to any psychological injury is in Exhibit “1,”
attached to her Motion for Summary Judgment an Affidavit of Dawn Marie Rossi where in
Paragraph 3 she makes a self-serving claim that “[a]s a result of the attack by the Defendant, I
suffered psychological injuries for which I sought treatment.” A self-serving affidavit is
insufficient to overcome summary judgment for a plaintiff on a claim of intentional infliction of
emotional distress. Nikooyi v. Nikooyi, (Cuyahoga Cty., 2022), 2022-Ohio-3239, 13, 17.
Plaintiff has offered no diagnosis of any injuries, no record of any treatment and no information
which could establish extreme or outrageous conduct or a link between such and any injuries.
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Plaintiff herein was required to produce expert testimony and has failed to do so and cannot
otherwise establish outrageous conduct, suffering of emotional distress, a link between conduct
and emotional distress or damages.
A plaintiff cannot rely on unspecific allegations of “harassment” in order to defeat
a motion for summary judgment. When a motion for summary judgment is made
and supported as provided for in Civ.R. 56(C), the nonmoving party “must set
forth specific facts showing that there is a genuine issue for trial.” (Emphasis
added.) Civ.R. 56(E); Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2553,
91 L.Ed.2d at 274.
We also find that the estate failed to present evidence of severe emotional distress
resulting from the alleged harassment. At best, the affidavits showed that McNeil
was “upset,” “angry,” and had “feelings of distress, anxiety and fear.” None of these
complaints is sufficient to rise to the level necessary to constitute the type of serious
emotional injury contemplated by the tort
of intentional infliction of emotional distress. Putka v. First Catholic Slovak
Union (1991), 75 Ohio App.3d 741, 751, 600 N.E.2d 797, 803-804.
15 Even were we to find the above complaints sufficient to satisfy the element of
outrageous behavior, we would find that that behavior did not result in serious
stress. Serious emotional stress describes emotional injury which is both severe and
debilitating. Paugh, supra. Although the complaint alleged that the stress continued
for a period of five years, McNeil did continue to work without any interruptions
caused by stress. In fact, the unrebutted evidence shows that moments before she
suffered her heart attack, McNeil spoke with one of the defendant-employees. That
employee stated McNeil “appeared to be calm and in good spirits. There was no
indication whatsoever she had had any sort of confrontation with anyone.” Another
defendant-employee stated that McNeil appeared to be in a good mood and did not
appear emotionally distressed on the day of her death.
The estate's medical expert submitted a report and concluded, to a reasonable
degree of medical certainty, that the psychological stresses detailed in the estate's
answers to interrogatories, precipitated McNeil's death. The expert did state,
however, that “McNeil was at high risk for sudden cardiac death secondary to
hypertensive heart disease, severe 3-vessel coronary artery disease, and an old
posterior wall myocardial infarction.” The coroner listed McNeil's cause of death
as “hyperintensive coronary sclerotic heart disease with remote myocardial
infarct.”
Significantly, the expert did not specifically tie the outrageousness of the alleged
acts of harassment to McNeil's death. He simply concluded that
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“psychosocial *596 stress has been implicated in the provocation of ventricular
arrhythmias and sudden death. All these factors were multi-factorial in the cause of
Ms. McNeil's demise.” Although defendants' acts may have caused McNeil stress,
there is no indication that the stress alone caused her death.
It follows that the estate, as a matter of law, has failed to establish a claim
of intentional infliction of emotional distress. The trial court did not err by
granting summary judgment. The assignments of error are overruled.
McNeil v. Case W. Res. Univ., (Cuyahoga Cty., 1995), 105 Ohio App. 3d 588, 594-96.
12} Absent an actual, contemporary physical injury, plaintiffs must establish
that defendant intentionally, recklessly, or negligently caused them “serious”
emotional distress for plaintiffs to sustain a claim for tortious infliction of emotional
distress. *6 Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 136, 4 OBR
376, 447 N.E.2d 109 (involving negligent infliction of serious emotional
distress); Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759,
paragraphs one and two of the syllabus (concerning negligent infliction of serious
emotional distress); Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374, 6
OBR 421, 453 N.E.2d 666 (adopting for intentional infliction of serious emotional
distress the standard established in Paugh that emotional injury be serious). The
Supreme Court in Paugh explained the standard of “serious” emotional distress
as follows:
**878 13} “* * * By the term ‘serious,’ we of course go beyond trifling mental
disturbance, mere upset or hurt feelings. We believe that serious emotional
distress describes emotional injury which is both severe and debilitating. Thus,
serious emotional distress may be found where a reasonable person, normally
constituted, would be unable to cope adequately with the mental distress
engendered by the circumstances of the case.
14} “A non-exhaustive litany of some examples of serious emotional distress
should include traumatically induced neurosis, psychosis, chronic depression,
or phobia.” Paugh, supra, at 78, 6 OBR 114, 451 N.E.2d 759. (Emphasis added;
citations omitted.)
{* 15} A plaintiff claiming severe and debilitating emotional distress must present
some “guarantee of genuineness” in support of his or her claim to prevent
summary judgment in favor of the defendant. Paugh, supra, at 76, 6 OBR 114, 451
N.E.2d 759, Schultz, supra, at 134-135, 4 OBR 376, 447 N.E.2d 109; Knief v.
Minnich (1995), 103 Ohio App.3d 103, 658 N.E.2d 1072; Grote v. J.S. Mayer &
Co. (1990), 59 Ohio App.3d 44, 47-48, 570 N.E.2d 1146. Expert opinion
frequently is helpful in proving the genuineness of a plaintiff's claim. As the
Supreme Court has observed, in a case involving the tortious infliction of emotional
distress, “expert medical testimony can assist the judicial process in
determining whether the emotional injury is indeed, serious,” Paugh, supra, at
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80, 6 OBR 114, 451 N.E.2d 759, and “[i]n most instances, expert medical
testimony will help establish the validity of the claim of serious emotional
distress.” (Emphasis added.) Schultz, supra, at 135, 447 N.E.2d 109.
5678 {* 16} Nonetheless, expert medical testimony is not indispensable to a claim
of serious emotional distress. Uebelacker v. Cincom Sys., Inc. (1988), 48 Ohio
App.3d 268, 276, 549 N.E.2d 1210; see, also, Dobbs, 2 Law of Torts (2001), 832,
Section 306 (noting medical testimony is not ordinarily required to demonstrate the
severity of the distress or its cause, but severe distress must be demonstrated and
must be caused in fact by the defendant's tortious conduct). More particularly, as
an alternative and in lieu of expert testimony, a plaintiff may submit the testimony
of lay witnesses who are acquainted with the plaintiff as to any “marked changes
in the emotional or habitual makeup” of the plaintiff *7 following a defendant's
allegedly culpable conduct. Paugh, supra, at 80, 6 OBR 114, 451 N.E.2d 759. A
plaintiff claiming mental distress further must establish a “substantial causal
relationship” between the cause alleged, as distinguished from other possible
causes, and the claimed emotional injury suffered by the plaintiff. Grote, supra, at
47, 570 N.E.2d 1146, citing Ryan v. Connor (1986), 28 Ohio St.3d 406, 28 OBR
462, 503 N.E.2d 1379. A court may decide whether a plaintiff has stated a cause of
action for tortious infliction of emotional distress by ruling whether the emotional
injury alleged is “serious” as a matter of law. Paugh, supra. The “seriousness” of
the emotional distress is decided on a case-by-case basis. Paugh, supra, at 80, 6
OBR 114, 451 N.E.2d 759.
17} Plaintiffs did not present expert medical testimony to support their claim of
serious emotional distress. Instead, in their depositions and affidavits presented to
the trial court in opposition to defendant's motion for summary judgment, plaintiffs
variously stated that after their mother died and they learned of the injuries to her
body, they were shocked, upset, angry, guilty, and/or sad. Several stated that they
felt grief. Some of the plaintiffs stated that they cried, felt empty or lost, **879 or
experienced uncertainty. Some could not eat, experienced loss of sleep, or had
nightmares. One of the plaintiffs, who was being treated for depression at the time
of his mother's death, stated that he maintained the same frequency of treatments
but the dosage of his anti-depressant medication was increased after his
mother's death.
18} Another plaintiff, whom the plaintiffs generally agree had the closest
emotional attachment to their mother, stated that she became severely depressed,
saw a mental health counselor three times, and saw her family physician, who
prescribed anti-depressant medication for her. The mental health counselor, a
licensed professional counselor who was not presented as a medical expert, stated
in a letter that plaintiff was “experiencing great difficulty coming to terms with
events surrounding the death of her mother.” (Letter, dated January 17, 2001.) Still
another plaintiff stated that he went from being a “social drinker” who drank once
a week before his mother's death to drinking at least three times a week after his
mother's death. (Campbell Depo., 9-10.)
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{* 19} The decedent's funeral director stated that the injuries to the decedent had
“visible effects” on plaintiffs “by not permitting them to properly say goodbye to
their mother and have closure in the grieving process.” A volunteer hospice worker
at defendant hospital stated that the decedent's family was not permitted to properly
grieve at her funeral and put closure to her death because “they were consumed by
the horrification of her injuries.” (Darling affidavit, paragraph 7.) In the hospice
worker's opinion, “the legal action instituted in this case can be a constructive,
effective and civil means of dealing with the anger the *8 family feels over the
disrespect shown to them during a time of grief and pain.” (Id., paragraph 11.)
{* 20} With the evidence construed most strongly in plaintiffs' favor, plaintiffs
failed to establish that the anger, grief, upset, and other emotional distress they
allegedly suffered were both severe and
debilitating. Paugh, supra; Schultz, supra. Even though expert medical testimony
generally is not indispensable to support some “guarantee of genuineness” that
plaintiffs suffered severe and debilitating emotional distress, here the alleged cause
of plaintiffs' emotional distress was inextricably related to the decedent's death.
Expert testimony was needed to establish a substantial causal relationship
between the postmortem injuries to the decedent's body, as distinguished from
the death of the decedent, and the serious emotional distress purportedly suffered
by plaintiffs. See Grote, supra, at 47, 570 N.E.2d 1146 (concluding that expert
medical testimony is required where possible causes of plaintiff's alleged
emotional injury are “inextricably related”); Frys v. Cleveland (1995), 107
Ohio App.3d 281, 668 N.E.2d 929 (determining that trial court should have granted
directed verdict against plaintiffs claims of tortious infliction of emotional distress
where plaintiff testified that she was tense and upset after alleged negligent burial
of her deceased mother, she experienced sleeplessness, and she saw a psychiatrist
one time, but plaintiff failed to present expert medical testimony that her
distress was severe and debilitating).
Powell v. Grant Med. Ctr., (10th Dist., 2002), 2002-Ohio-443, 12-20, (emphasis added).
Generally, injuries which are hidden and cannot ordinarily be observed require expert
testimony. Such would be the case with the psychological injuries alleged but not supported
herein.
{* 15} “[W]here subjective, soft-tissue injuries are alleged, the causal connection
between such injuries and the automobile accident alleged to have caused them is
beyond the scope of common knowledge, and that such causal connection must be
established by expert testimony.” Rogers v. Armstrong, 1st Dist. No. C-010287,
2002-Ohio-1131 (Mar. 15, 2002). “Soft-tissue injuries like neck and back strains
and sprains require expert testimony to establish a causal connection, because they
are injuries that are ‘internal and elusive, and are not sufficiently observable,
Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 9615664 Confirmation Nbr. 2814603 / CLAJB
understandable, and comprehensible by the trier of fact.’ “ Lane v. Bur. of Workers'
Comp., 2d Dist. No. 24618, 2012-Ohio-209, 60, citing, inter alia, Wright v.
Columbus, 10th Dist. No. 05AP-432, 2006-Ohio-759, 19; see also Maney v.
Jernejcic, 10th Dist. No. 00AP-483 (Nov. 16, 2000) (soft-tissue injuries sustained
in a rear-end collision are internal injuries that are usually unaccompanied by
observable external injuries and, therefore, require expert medical testimony of
causation).
Argie v. Three Little Pigs, Ltd., (10th Dist., 2012), 2012-Ohio-667, 15.
In just about all cases where intentional infliction of emotional distress is alleged the claim
must be supported by expert testimony to survive summary judgment.
10} An action for intentional infliction of emotional distress requires not only
outrageous conduct but a resulting emotional injury that is “both severe and
debilitating.”7 While the Dissidents assert that it is possible to prove a serious
emotional injury without resort to expert evidence,8 such evidence is necessary
in all but the most extraordinary cases.9 They admitted that they lacked expert
evidence to show the existence and cause of their emotional injuries, they made no
effort to proffer evidence showing that they could prove their claims without expert
testimony, and the record gives no indication that this case was so extraordinary
that expert evidence was unnecessary. Therefore, the grant of judgment on
these claims against the Dissidents was not error.
Shariff v. Rahman, (Cuyahoga Cty., 2003), 2003-Ohio-1336, 10, (emphasis added).
Even if this were an extreme case where intentional infliction of emotional distress could
be proven without the use of an expert and through a lay witness such is not the case in the instant
matter and Defendant is entitled to summary judgment as Plaintiff has presented no evidence of
outrageous conduct and a severe or debilitating injury. Even if such were produced, there is no
evidence linking it to any conduct of Defendant. As such Defendant is entitled to summary
judgment.
{* 16} Extreme and outrageous conduct is conduct that goes beyond all possible
bounds of decency and is so atrocious that it is “utterly intolerable in a civilized
community.” Yeager v. Local Union 20, 6 Ohio St.3d 369, 375, 453 N.E.2d 666
(1983). “Mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities” are insufficient to sustain a claim for relief. Lloyd v. Cleveland Clinic
Found., 8th Dist. Cuyahoga No. 107214, 2019-Ohio-1885, 14, quoting Yeager at
375, 453 N.E.2d 666.
Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB
{* 17} Moreover, to establish an intentional infliction of emotional distress claim,
the plaintiff bears the burden of proving that he sustained a severe emotional
injury. Allen v. Pirozzoli, 8th Dist. Cuyahoga No. 103632, 2016-Ohio-2645, * 11.
“A plaintiff can prove severe and debilitating emotional injury through the
testimony of an expert or lay witnesses acquainted with the plaintiff who have
observed significant changes in the emotional or habitual makeup of
the plaintiff.” Id., citing Burks v. Torbert, 8th Dist. Cuyahoga No. 91059, 2009-
Ohio-486, * 20. Self-serving statements, however, are not sufficient to establish this
element of intentional infliction of emotional distress. Id., citing Burks at * 20.
*4 {* 18} Nikooyi failed to present any evidence, expert or otherwise, to establish
that he suffered a severe emotional injury as a result of his parents’ conduct. The
trial court afforded Nikooyi the opportunity to provide sworn testimony
from experts and lay witnesses when it instructed him to file a motion
for summary judgment, but he failed to do so.
{* 19} Furthermore, the fact that Nikooyi is not a lawyer and represents himself
pro se does not change his burden to produce evidence in support of his claims.
The plaintiff in a civil case bears the burden of proof on each essential element of
any claim for relief set forth in the complaint. Winston v. Jake Sweeney Automotive,
Inc., 1st Dist. Hamilton No. C-910868, 1992 WL 356073, *--- , 1992 Ohio App.
LEXIS 6024, *4 (Dec. 2, 1992), citing Charles A. Burton, Inc. v. Durkee, 162 Ohio
St. 433, 123 N.E.2d 432 (1954); Schaffer v. Donegan, 66 Ohio App.3d 528, 585
N.E.2d 854 (2d Dist.1990). “Under Ohio law, pro se litigants are held to the same
standard as all other litigants.” Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312, 2008-
Ohio-3130, * 29, citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363,
676 N.E.2d 171 (8th Dist.1996). Therefore, the trial court correctly concluded that
Nikooyi’s intentional infliction of emotional distress claims fail due to lack of
evidence.
Nikooyi v. Nikooyi, 2022-Ohio-3239, ** 16-19.
Here, on the night of the alleged incident Plaintiff was seen by a SANE nurse for purpose
of police investigation and not treatment. Plaintiff has presented no evidence through initial
disclosures required by the Ohio Rules of Civil Procedure, in is Complaint or other pleadings, in
its Motion for Summary Judgment or otherwise to establish intent to cause severe emotional
distress, extreme or outrageous conduct, that the conduct was linked to serious and debilitating
psychological injury or that any such injury was ever suffered.
Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB
In fact, there is no genuine issue of material fact on this issue. Plaintiff and Defendant had
a prior sexual history, and, engaged in sexual conduct on the night in question consensually. While
Plaintiff might have had a few drinks throughout the day and, at best, might have been intoxicated
to some level, she had a sexual relationship with someone she was already in same relationship
with. There was and is no evidence of severe or outrageous conduct and even if there were the is
no evidence that the sexual act caused severe or debilitating injury or any injury for that matter.
Plaintiff has no presented any expert or other testimony and the deadline for such has passed.
There have been no medical records, bills, or any evidence that Plaintiff ever even sought medical
treatment. There is no set of facts upon which Plaintiff can prevail upon this case of action and
summary judgment to Defendant is required.
Finally, intentional infliction of emotional distress is a derivative cause of action in that, if
the underlying cause of action upon which it relies is dismissed, so to must the cause of action for
intentional infliction of emotional distress. Essentially, if Defendant receives summary judgment
on the first or third cause of action he must also be awarded summary judgment in this case of
action. Mcgee v. Simon & Schuster, Inc., 154 F. Supp. 2d 1308 (S.D. Ohio 2001) (applying Ohio
law).
Defendant is entitled to summary judgment on Plaintiff's claim of intentional infliction of
emotional distress.
Third Cause of Action - O.R.C. § 2307.60, Criminal Act Claim:
In her third cause of action, Plaintiff seeks to obtain a civil judgment pursuant to R.C.
Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 9615667 Confirmation Nbr. 2814603 / CLAJB
2907.05(A)(1) which creates a civil cause of action for the commission of a criminal act. This
cause of action has a one-year statute of limitations and, as it was not brought within one-year of
the alleged conduct is barred from being litigated herein. The savings statute is not applicable.
Plaintiff also cannot support this cause of action upon its elements. Defendant is entitled to
summary judgment on Plaintiff's third cause of action.
Civil causes of action under R.C. 2307.60(A)(1) a subject to a one-year statute of
limitations from the date of the alleged act. In Paragraph 10 of his Answer and Affirmative
Defenses filed herein Defendant raised the defense of statute of limitations.
{* 130} In its thirteenth and final count, the County asserts a claim against all
appellees for civil liability for criminal acts pursuant to R.C. 2307.60(A)(1), which
provides,
Anyone injured in person or property by a criminal act has, and may recover
full damages in, a civil action unless specifically excepted by law, may
recover the costs of maintaining the civil action and attorney's fees if
authorized by any provision of the Rules of Civil Procedure or another
section of the Revised Code or under the common law of this state, and may
recover punitive or exemplary damages if authorized by section 2315.21 or
another section of the Revised Code.
Here, the County alleged that all appellees engaged in criminal acts including,
bribery, in
Preview
Motion No. 5079639 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas March 28,2023 17:52 By: ERIC M. LEVY 0084075 Confirmation Nbr. 2814603 DAWN M. ROSSI CV 22 961566 vs. Judge: EMILY HAGAN MICHAEL VIROSTEK Pages Filed: 186 Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566 / Confirmation Nbr. 2814603 / CLAJB IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO DAWN M. ROSSI ) CASE NO. CV-22-961566 ) Plaintiff ) JUDGE: EMILY HAGAN ) vs. ) ) DEFENDANT’S MOTION FOR MICHAEL VIROSTEK ) SUMMARY JUDGMENT ) Defendant ) Now comes the Defendant, MICHAEL VIROSTEK, by and through undersigned counsel, and hereby moves this Honorable Court, pursuant to Civ. R. 56, Civ. R. 12(B)(6) and otherwise as applicable at law, to grant Summary Judgment in his favor on all three (3) causes of action set forth in Plaintiff’s Complaint. There is no genuine issue of material fact and when viewed in light most favorable to Plaintiff summary judgment must be granted in favor of Defendant. Further, pursuant to the Stipulation of the parties filed on March 27, 2023, Defendant herein respectfully requests and reserves the right to supplement this Motion with any material produced by Plaintiff in providing her responses to Defendant’s discovery requests. Defendant is entitled to summary judgment on all claims in Plaintiff’s Complaint. With regard to Plaintiff’ s first two causes of action for assault and battery and intentional infliction of emotional distress Plaintiff cannot set forth any evidence necessary to establish each and every element of the claims. In Plaintiff’s third cause of action pursuant to R.C. §2307.60, in addition to Plaintiff not being able to set forth evidence to establish each and every element of the claim the claim is barred pursuant to the applicable one-year statute of limitations. The basis for this Motion is more fully set forth in the attached Memorandum of Law and all Affidavits and Exhibits attached thereto which is fully incorporated herein. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566 / Confirmation Nbr. 2814603 / CLAJB Respectfully submitted, Eric M. Levy [0084075 Counsel far Defendant, Virostek Law Office of Jaye M. Schlachet 55 Public Square, Suite 1600 Cleveland, Ohio 44113 P. (216) 456-2488 P. (216) 777-3032 (Direct) F. (216) 456-2499 Email: Law@GetLevy.com CERTIFICATE OF SERVICE The foregoing Defendant’s Motion for Summary Judgment, attached memorandum of Law and all Exhibits, has been filed electronically with the Clerk of Courts, this 28th day of March, 2023. Notice of this filing will be sent to all counsel through the Court’s electronic filing system. Parties, including those referenced below, can access this document through the Court’s system. Alan H. Kraus, Esq. 20133 Farnsleigh Road Shaker Heights, Ohio 44122 Ahkesq1@aol.com Eric M. Levy Counsel for Defendant, Virostek Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB MEMORANDUM OF LAW STATEMENT OF FACTS: Defendant has been alleged to have engaged in an act of sex with Plaintiff on or about September 22, 2019. As a result, on September 18, 2020 Plaintiff filed a civil action before this Court and upon which this Court may take notice in CV-20-937434. The case alleged two (2) causes of action: (1) assault and battery for a violent sex act; and (2) intentional infliction of emotional distress for a violent sex act. On April 08, 2021, Plaintiff filed a Civ. R. 41(A) Notice of Dismissal. The Complaint was re-filed herein based upon the savings statute and alleged a new third cause of action civil liability for a criminal offense upon different facts than a violent sexual act, now alleging that Defendant engaged in sex with Plaintiff while she was substantially impaired and unable to consent and Defendant was otherwise convicted in a criminal matter for such offense. This offense does not require force or injury or violence of any kind and can actually be completed even with consent. The matter was indicted criminally in Cuyahoga County, Ohio in case number CR-20- 655504-A on January 21, 2021, with Defendant charged with one count of rape by force in violation of R.C. 2907.02(A)(2), one count of rape by engaging in sexual conduct where the other persons ability to resist or consent in substantially impaired in violation of R.C. 2907.02(A)(1)(c), and one count of gross sexual imposition by force in violation of R.C. 2907.05(A)(1). The matter proceeded to a jury trial and Appellant was found not guilty of the force offenses and guilty of consensual sex where the victim was substantially impaired. The matter proceeded forward to Appeal in Eighth District Court of Appeals case number CA-21-110592. The conviction was affirmed. The Ohio Supreme Court did not accept Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB jurisdiction for further review. The attached documents are incorporated herein in support of this Motion for Summary Judgment. A. Affidavit of Eric M. Levy; B. Docket in CV-20-937434; C. Complaint in CV-20-937434 D. Notice of Dismissal in CV-20-937434; E. Docket in CA-21-110592; F. Appellant’s Brief in CA-21-110592; G. Appellee’s Response Brief in CA-21-110592; H. Appellant’s Reply Brief in CA-21-110592; and I. Opinion of Court of Appeals in CA-21-110592, State v. Virostek, (Cuyahoga Cty., 2022), 2022-Ohio-1397. LAW AND ARGUMENT: The standard applicable to a trial court’s review of a motion for summary judgment is as follows: Under Civ.R. 56(C), summary judgment is proper “if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The party seeking summary judgment always bears the initial responsibility of informing the trial court of the basis for its motion and identifying those evidentiary materials which it believes demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 2553, 91 L.Ed.2d 265, 273-274. Although the moving party does not have to support the motion for summary judgment with evidentiary materials, it does bear the initial burden of establishing that the material facts are not in dispute and there is no genuine issue of material fact. Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 120, 570 N.E.2d 1108, 1113-1114. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB McNeil v. Case W. Res. Univ., (Cuyahoga Cty., 1995), 105 Ohio App. 3d 588, 592. {*40} We review summary judgment rulings de novo, applying the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56, summary judgment is appropriate when no genuine issue exists as to any material fact and, in viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the nonmoving party, entitling the moving party to judgment as a matter of law. {*41} In a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate their entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party has the reciprocal burden to point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial. Id. at 293. Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id. Bostick v. Salvation Army, Et al., (Cuyahoga Cty., 2023), 2023-Ohio-933, **’s 40-41. Here, Defendant establishes that Plaintiff cannot meet its prima facia case on any of its three (3) causes of action and that no genuine issue of material fact exists entitling Defendant to an award of summary judgment on all claims. First Cause of Action - Assault and Battery: In her first cause of action Plaintiff alleges assault and battery by means of a violent sexual assault. Plaintiff cannot maintain all of the elements of the cause of action. There is no genuine issue of material fact and summary judgment must be awarded in favor of Defendant. As an initial matter is must be presumed that Defendant’s claim lies in battery and not assault. To establish a claim for civil assault one must demonstrate a willful threat or attempt to harm or touch another offensively, which threat reasonably places the other in fear of such contact. Brooks v. Lady Foot Locker, (9th Dist., 2005), 2005-Ohio-2394, * 18. Here, Plaintiff is alleging a violent sex act which is not a threat or attempt to touch but rather an actual touching of the person. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB Therefore, Plaintiff's cause of action must only be reviewed for battery. To establish a claim for civil battery, a plaintiff must demonstrate that the defendant acted intending to cause a harmful or offensive contact and, in fact, a harmful or offense contact results. Id, * 63. A claim of battery, which is an intentional, nonconsensual touching, requires that causation and damages also be shown. Anderson v. St. Francis-St. George Hosp. (1996), 77 Ohio St.3d 82, 84, 671 N.E.2d 225, 227, citing Love v. Port Clinton (1988), 37 Ohio St.3d 98, 524 N.E.2d 166. Watkins v. Cleveland Clinic Found., (Cuyahoga Cty., 1998), 130 Ohio App. 3d 262, 279. Here, Plaintiff cannot establish and there was no intent to cause harmful or offensive touching; there was no nonconsensual touching; no injury or damages and no link between any touching, injury or damages. In its Response Brief in the criminal Appeal, the state of Ohio makes certain to acknowledge at page 18 that “the jury probably determined that D.R. didn’t physically resist or say no.” and at page 32, “[t]he jury clearly thought D.R. consented but was substantially impaired...” Text messages were exchanged between Plaintiff and Defendant around the time of the alleged offense where Defendant set forth that he did not cause Plaintiff any injury or bruising. See, attached Opinion of Eighth District Court of Appeals. i* 22} D.R. eventually spoke with appellant on the phone. She asked him if he knew what he did to her the other night. She described to him the bruises left on her body and how the skin of her elbows was peeled off. {* 23} After the phone call, appellant sent D.R. the following text message: [D.R.] We really need to talk. There is absolutely no way I could have put 20 bruises on you. If you had any bruises, it would have been on the inside of your thighs from my hands. And I know you did not have any scrapes on your elbows when I dropped you off. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB State v. Virostek, (Cuyahoga Cty., 2022), 2022-Ohio-1397, 22-23. The documents attached hereto also establish that prior to this alleged incident Plaintiff had been engaged in substantial yard work and home improvement which could be the cause of any injury alleged. Defendant’s conviction is under R.C. 2907.02(A)(1)(c) which is conduct when the victim’s ability to resist or consent is substantially impaired by a mental or physical condition and the other individual is aware of the substantial impairment by mental or physical condition. Neither consent nor force are at issue in the offense. Further, per R.C. 2907.02(A)(1) no person shall engage in sexual conduct.... This is a strict liability offense. No intent is necessary. The issue of knowledge only comes into play with regard to knowledge of substantial impairment. Here, Defendant did not intent to cause harmful or offensive touching. He intended to engage in consensual sex which the Plaintiff and Defendant had a history of. The touching was not absent consent, which is both an element of the action and a civil affirmative defense. Belcher v. Carter, (10th Dist., 1967), 13 Ohio App.2d 113. Further, Plaintiff cannot prove that she was injured by any touching of Defendant or a proximate cause between conduct of the Defendant and injury/damages. The criminal offense under R.C. 2907.02(A)(1)(c) does not require any injury or harm. Any injuries alleged by Plaintiff in her complaint including physical and emotional pain and any injury to her body require proof by an expert as said injuries go beyond common knowledge and an expert must verify the injury and opine that it was linked to the offense. Argie v. Three Little Pigs, Ltd., (10th Dist., 2012), 2012-Ohio-667, 15. Further law on the issue is set forth infra including the requirement of independent proof of injury and not merely a self-serving Affidavit. Further, here, Plaintiff was allegedly substantially impaired/intoxicated at the time of the alleged offense and would not know what was happening to her. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB Plaintiff will be unable to show any intent, non-consensual touching, injury or link of any injury to the touching. There is no genuine issue of material fact and Defendant is entitled to summary judgment. Second Cause of Action - Intentional Infliction of Emotional Distress: Plaintiff cannot meet its burden to establish a prima facia cause of action for intentional infliction of emotional distress and Defendant is entitled to summary judgment as a matter of law. Defendant did not intent to cause emotional distress. Plaintiff has not obtained an expert witness on this issue and the expert witness deadline established by this Court has passed. Further Plaintiff has not established that she suffered emotional distress, that severe and outrageous conduct took place and that any such conduct was the proximate cause of any severe emotional distress. The elements and requirements to establish a claim of intentional infliction of emotional distress are as follows: 46} In order to establish a claim of intentional infliction of emotional distress, Mendlovic must show (1) that Life Line either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to her, (2) that Life Line's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community, (3) that Life Line's actions were the proximate cause of Mendlovic's psychic injury, and (4) that the mental anguish suffered by Mendlovic is serious and of a nature that no reasonable person could be expected to endure it. Burkes v. Stidham (1995), 107 Ohio App.3d 363, 375, 668 N.E.2d 982. Serious emotional distress requires an emotional injury that is both severe and debilitating. Id. 17 {* 47} To recover for intentional infliction of emotional distress in Ohio, it is not enough that the defendant has acted with an intent that is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability is found only where the conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374-375, 6 OBR 421, 453 N.E.2d 666. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB Mendlovic v. Life Line Screening of Am., Ltd., (Cuyahoga Cty., 2007), 2007-Ohio-4674, 46 47, (emphasis added). Here, Plaintiff and Defendant were close friends with a history of engaging in sexual relations and exchanging explicit text messages. State v. Virostek, (Cuyahoga Cty., 2022), 2022- Ohio-1397, 2. Throughout the entire day in question, on or about September 22, 2019 Plaintiff had two to three beers and two plastic cups of wine. Id., 3. Plaintiff and Defendant engaged in sex and, thereafter, Plaintiff went to the hospital for the purpose of a Sexual Assault Nurse Examiner (“SANE”) examination. Id., 18, 26. Defendant sent text messages to Plaintiff describing what took place and testified regarding the sexual encounter as follows: {* 24} Appellant then asked D.R. if she went back outside after he dropped her off. He told her that he was really upset and said that he knew exactly what they had done on Saturday night. He maintained that he was coherent, or he would not have driven. Appellant then set forth his recollection of the events: We went over to Michelle's through her service door. You went pee in Michelle's downstairs bathroom & came out & laid on the floor. I lifted your shirt & removed your bra & sucked on your nipples. I kissed your body and started to remove your pants from your waist. You lifted your butt & you pulled your pants below your butt & I removed your pants. I went back up & sucked your nipples and fingered you for about 30 seconds. Then I got on top of you & we had sex for a few minutes. I came on your stomach. Then you went into the bathroom & pee'd again. You went to my truck while I locked up. You were obviously pissed at me for some reason because you did not talk to me on the way home. I dropped you off at your house & I watched you open the garage. I would never do anything to hurt you. I thought you were pissed at me because I figured that I took advantage of you by having sex with you because you were pretty drunk. I would of never had sex with you if I thought you were totally out of it. The only reason I went forward & had sex with you, was because you lifted your a[**] and you pulled your pants down below your butt. So, I figured you were willing. [D.R.], I honestly do not know what else you think happened. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB {* 31} Appellant testified that stating that he “took advantage” referred simply to the drinking and inviting D.R. to his sister's house and that did not relate to sex. With regard to appellant's text where he said he was “so sorry” if he had hurt and disrespected D.R., he again stated that it related to the drinking and had nothing to do with sex. State v. Virostek, 24, 31. The testimony of Defendant, Virostek, establishes that he engaged in a sex act with Plaintiff, an individual who he had a prior sexual relationship. The sex act was not done with intent or knowledge that extreme emotional distress would occur. Defendant testified and texted Plaintiff that he was not intending to harm her and her actions caused him to believe she was a willing participant in the sex act. Plaintiff has never established intent. Plaintiff is required to establish that she suffered severe emotional distress due to extreme and outrageous conduct of Defendant and that there is a proximate cause link between the sex act and the emotional distress suffered. This is generally proven by expert testimony. However, here, the expert deadline has come and gone and Plaintiff has produced no expert report and none of the necessary elements have been established. In fact, the only mention Plaintiff makes to any psychological injury is in Exhibit “1,” attached to her Motion for Summary Judgment an Affidavit of Dawn Marie Rossi where in Paragraph 3 she makes a self-serving claim that “[a]s a result of the attack by the Defendant, I suffered psychological injuries for which I sought treatment.” A self-serving affidavit is insufficient to overcome summary judgment for a plaintiff on a claim of intentional infliction of emotional distress. Nikooyi v. Nikooyi, (Cuyahoga Cty., 2022), 2022-Ohio-3239, 13, 17. Plaintiff has offered no diagnosis of any injuries, no record of any treatment and no information which could establish extreme or outrageous conduct or a link between such and any injuries. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB Plaintiff herein was required to produce expert testimony and has failed to do so and cannot otherwise establish outrageous conduct, suffering of emotional distress, a link between conduct and emotional distress or damages. A plaintiff cannot rely on unspecific allegations of “harassment” in order to defeat a motion for summary judgment. When a motion for summary judgment is made and supported as provided for in Civ.R. 56(C), the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” (Emphasis added.) Civ.R. 56(E); Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. We also find that the estate failed to present evidence of severe emotional distress resulting from the alleged harassment. At best, the affidavits showed that McNeil was “upset,” “angry,” and had “feelings of distress, anxiety and fear.” None of these complaints is sufficient to rise to the level necessary to constitute the type of serious emotional injury contemplated by the tort of intentional infliction of emotional distress. Putka v. First Catholic Slovak Union (1991), 75 Ohio App.3d 741, 751, 600 N.E.2d 797, 803-804. 15 Even were we to find the above complaints sufficient to satisfy the element of outrageous behavior, we would find that that behavior did not result in serious stress. Serious emotional stress describes emotional injury which is both severe and debilitating. Paugh, supra. Although the complaint alleged that the stress continued for a period of five years, McNeil did continue to work without any interruptions caused by stress. In fact, the unrebutted evidence shows that moments before she suffered her heart attack, McNeil spoke with one of the defendant-employees. That employee stated McNeil “appeared to be calm and in good spirits. There was no indication whatsoever she had had any sort of confrontation with anyone.” Another defendant-employee stated that McNeil appeared to be in a good mood and did not appear emotionally distressed on the day of her death. The estate's medical expert submitted a report and concluded, to a reasonable degree of medical certainty, that the psychological stresses detailed in the estate's answers to interrogatories, precipitated McNeil's death. The expert did state, however, that “McNeil was at high risk for sudden cardiac death secondary to hypertensive heart disease, severe 3-vessel coronary artery disease, and an old posterior wall myocardial infarction.” The coroner listed McNeil's cause of death as “hyperintensive coronary sclerotic heart disease with remote myocardial infarct.” Significantly, the expert did not specifically tie the outrageousness of the alleged acts of harassment to McNeil's death. He simply concluded that Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566V Confirmation Nbr. 2814603 / CLAJB “psychosocial *596 stress has been implicated in the provocation of ventricular arrhythmias and sudden death. All these factors were multi-factorial in the cause of Ms. McNeil's demise.” Although defendants' acts may have caused McNeil stress, there is no indication that the stress alone caused her death. It follows that the estate, as a matter of law, has failed to establish a claim of intentional infliction of emotional distress. The trial court did not err by granting summary judgment. The assignments of error are overruled. McNeil v. Case W. Res. Univ., (Cuyahoga Cty., 1995), 105 Ohio App. 3d 588, 594-96. 12} Absent an actual, contemporary physical injury, plaintiffs must establish that defendant intentionally, recklessly, or negligently caused them “serious” emotional distress for plaintiffs to sustain a claim for tortious infliction of emotional distress. *6 Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 136, 4 OBR 376, 447 N.E.2d 109 (involving negligent infliction of serious emotional distress); Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759, paragraphs one and two of the syllabus (concerning negligent infliction of serious emotional distress); Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374, 6 OBR 421, 453 N.E.2d 666 (adopting for intentional infliction of serious emotional distress the standard established in Paugh that emotional injury be serious). The Supreme Court in Paugh explained the standard of “serious” emotional distress as follows: **878 13} “* * * By the term ‘serious,’ we of course go beyond trifling mental disturbance, mere upset or hurt feelings. We believe that serious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case. 14} “A non-exhaustive litany of some examples of serious emotional distress should include traumatically induced neurosis, psychosis, chronic depression, or phobia.” Paugh, supra, at 78, 6 OBR 114, 451 N.E.2d 759. (Emphasis added; citations omitted.) {* 15} A plaintiff claiming severe and debilitating emotional distress must present some “guarantee of genuineness” in support of his or her claim to prevent summary judgment in favor of the defendant. Paugh, supra, at 76, 6 OBR 114, 451 N.E.2d 759, Schultz, supra, at 134-135, 4 OBR 376, 447 N.E.2d 109; Knief v. Minnich (1995), 103 Ohio App.3d 103, 658 N.E.2d 1072; Grote v. J.S. Mayer & Co. (1990), 59 Ohio App.3d 44, 47-48, 570 N.E.2d 1146. Expert opinion frequently is helpful in proving the genuineness of a plaintiff's claim. As the Supreme Court has observed, in a case involving the tortious infliction of emotional distress, “expert medical testimony can assist the judicial process in determining whether the emotional injury is indeed, serious,” Paugh, supra, at Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB 80, 6 OBR 114, 451 N.E.2d 759, and “[i]n most instances, expert medical testimony will help establish the validity of the claim of serious emotional distress.” (Emphasis added.) Schultz, supra, at 135, 447 N.E.2d 109. 5678 {* 16} Nonetheless, expert medical testimony is not indispensable to a claim of serious emotional distress. Uebelacker v. Cincom Sys., Inc. (1988), 48 Ohio App.3d 268, 276, 549 N.E.2d 1210; see, also, Dobbs, 2 Law of Torts (2001), 832, Section 306 (noting medical testimony is not ordinarily required to demonstrate the severity of the distress or its cause, but severe distress must be demonstrated and must be caused in fact by the defendant's tortious conduct). More particularly, as an alternative and in lieu of expert testimony, a plaintiff may submit the testimony of lay witnesses who are acquainted with the plaintiff as to any “marked changes in the emotional or habitual makeup” of the plaintiff *7 following a defendant's allegedly culpable conduct. Paugh, supra, at 80, 6 OBR 114, 451 N.E.2d 759. A plaintiff claiming mental distress further must establish a “substantial causal relationship” between the cause alleged, as distinguished from other possible causes, and the claimed emotional injury suffered by the plaintiff. Grote, supra, at 47, 570 N.E.2d 1146, citing Ryan v. Connor (1986), 28 Ohio St.3d 406, 28 OBR 462, 503 N.E.2d 1379. A court may decide whether a plaintiff has stated a cause of action for tortious infliction of emotional distress by ruling whether the emotional injury alleged is “serious” as a matter of law. Paugh, supra. The “seriousness” of the emotional distress is decided on a case-by-case basis. Paugh, supra, at 80, 6 OBR 114, 451 N.E.2d 759. 17} Plaintiffs did not present expert medical testimony to support their claim of serious emotional distress. Instead, in their depositions and affidavits presented to the trial court in opposition to defendant's motion for summary judgment, plaintiffs variously stated that after their mother died and they learned of the injuries to her body, they were shocked, upset, angry, guilty, and/or sad. Several stated that they felt grief. Some of the plaintiffs stated that they cried, felt empty or lost, **879 or experienced uncertainty. Some could not eat, experienced loss of sleep, or had nightmares. One of the plaintiffs, who was being treated for depression at the time of his mother's death, stated that he maintained the same frequency of treatments but the dosage of his anti-depressant medication was increased after his mother's death. 18} Another plaintiff, whom the plaintiffs generally agree had the closest emotional attachment to their mother, stated that she became severely depressed, saw a mental health counselor three times, and saw her family physician, who prescribed anti-depressant medication for her. The mental health counselor, a licensed professional counselor who was not presented as a medical expert, stated in a letter that plaintiff was “experiencing great difficulty coming to terms with events surrounding the death of her mother.” (Letter, dated January 17, 2001.) Still another plaintiff stated that he went from being a “social drinker” who drank once a week before his mother's death to drinking at least three times a week after his mother's death. (Campbell Depo., 9-10.) Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB {* 19} The decedent's funeral director stated that the injuries to the decedent had “visible effects” on plaintiffs “by not permitting them to properly say goodbye to their mother and have closure in the grieving process.” A volunteer hospice worker at defendant hospital stated that the decedent's family was not permitted to properly grieve at her funeral and put closure to her death because “they were consumed by the horrification of her injuries.” (Darling affidavit, paragraph 7.) In the hospice worker's opinion, “the legal action instituted in this case can be a constructive, effective and civil means of dealing with the anger the *8 family feels over the disrespect shown to them during a time of grief and pain.” (Id., paragraph 11.) {* 20} With the evidence construed most strongly in plaintiffs' favor, plaintiffs failed to establish that the anger, grief, upset, and other emotional distress they allegedly suffered were both severe and debilitating. Paugh, supra; Schultz, supra. Even though expert medical testimony generally is not indispensable to support some “guarantee of genuineness” that plaintiffs suffered severe and debilitating emotional distress, here the alleged cause of plaintiffs' emotional distress was inextricably related to the decedent's death. Expert testimony was needed to establish a substantial causal relationship between the postmortem injuries to the decedent's body, as distinguished from the death of the decedent, and the serious emotional distress purportedly suffered by plaintiffs. See Grote, supra, at 47, 570 N.E.2d 1146 (concluding that expert medical testimony is required where possible causes of plaintiff's alleged emotional injury are “inextricably related”); Frys v. Cleveland (1995), 107 Ohio App.3d 281, 668 N.E.2d 929 (determining that trial court should have granted directed verdict against plaintiffs claims of tortious infliction of emotional distress where plaintiff testified that she was tense and upset after alleged negligent burial of her deceased mother, she experienced sleeplessness, and she saw a psychiatrist one time, but plaintiff failed to present expert medical testimony that her distress was severe and debilitating). Powell v. Grant Med. Ctr., (10th Dist., 2002), 2002-Ohio-443, 12-20, (emphasis added). Generally, injuries which are hidden and cannot ordinarily be observed require expert testimony. Such would be the case with the psychological injuries alleged but not supported herein. {* 15} “[W]here subjective, soft-tissue injuries are alleged, the causal connection between such injuries and the automobile accident alleged to have caused them is beyond the scope of common knowledge, and that such causal connection must be established by expert testimony.” Rogers v. Armstrong, 1st Dist. No. C-010287, 2002-Ohio-1131 (Mar. 15, 2002). “Soft-tissue injuries like neck and back strains and sprains require expert testimony to establish a causal connection, because they are injuries that are ‘internal and elusive, and are not sufficiently observable, Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 9615664 Confirmation Nbr. 2814603 / CLAJB understandable, and comprehensible by the trier of fact.’ “ Lane v. Bur. of Workers' Comp., 2d Dist. No. 24618, 2012-Ohio-209, 60, citing, inter alia, Wright v. Columbus, 10th Dist. No. 05AP-432, 2006-Ohio-759, 19; see also Maney v. Jernejcic, 10th Dist. No. 00AP-483 (Nov. 16, 2000) (soft-tissue injuries sustained in a rear-end collision are internal injuries that are usually unaccompanied by observable external injuries and, therefore, require expert medical testimony of causation). Argie v. Three Little Pigs, Ltd., (10th Dist., 2012), 2012-Ohio-667, 15. In just about all cases where intentional infliction of emotional distress is alleged the claim must be supported by expert testimony to survive summary judgment. 10} An action for intentional infliction of emotional distress requires not only outrageous conduct but a resulting emotional injury that is “both severe and debilitating.”7 While the Dissidents assert that it is possible to prove a serious emotional injury without resort to expert evidence,8 such evidence is necessary in all but the most extraordinary cases.9 They admitted that they lacked expert evidence to show the existence and cause of their emotional injuries, they made no effort to proffer evidence showing that they could prove their claims without expert testimony, and the record gives no indication that this case was so extraordinary that expert evidence was unnecessary. Therefore, the grant of judgment on these claims against the Dissidents was not error. Shariff v. Rahman, (Cuyahoga Cty., 2003), 2003-Ohio-1336, 10, (emphasis added). Even if this were an extreme case where intentional infliction of emotional distress could be proven without the use of an expert and through a lay witness such is not the case in the instant matter and Defendant is entitled to summary judgment as Plaintiff has presented no evidence of outrageous conduct and a severe or debilitating injury. Even if such were produced, there is no evidence linking it to any conduct of Defendant. As such Defendant is entitled to summary judgment. {* 16} Extreme and outrageous conduct is conduct that goes beyond all possible bounds of decency and is so atrocious that it is “utterly intolerable in a civilized community.” Yeager v. Local Union 20, 6 Ohio St.3d 369, 375, 453 N.E.2d 666 (1983). “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” are insufficient to sustain a claim for relief. Lloyd v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 107214, 2019-Ohio-1885, 14, quoting Yeager at 375, 453 N.E.2d 666. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB {* 17} Moreover, to establish an intentional infliction of emotional distress claim, the plaintiff bears the burden of proving that he sustained a severe emotional injury. Allen v. Pirozzoli, 8th Dist. Cuyahoga No. 103632, 2016-Ohio-2645, * 11. “A plaintiff can prove severe and debilitating emotional injury through the testimony of an expert or lay witnesses acquainted with the plaintiff who have observed significant changes in the emotional or habitual makeup of the plaintiff.” Id., citing Burks v. Torbert, 8th Dist. Cuyahoga No. 91059, 2009- Ohio-486, * 20. Self-serving statements, however, are not sufficient to establish this element of intentional infliction of emotional distress. Id., citing Burks at * 20. *4 {* 18} Nikooyi failed to present any evidence, expert or otherwise, to establish that he suffered a severe emotional injury as a result of his parents’ conduct. The trial court afforded Nikooyi the opportunity to provide sworn testimony from experts and lay witnesses when it instructed him to file a motion for summary judgment, but he failed to do so. {* 19} Furthermore, the fact that Nikooyi is not a lawyer and represents himself pro se does not change his burden to produce evidence in support of his claims. The plaintiff in a civil case bears the burden of proof on each essential element of any claim for relief set forth in the complaint. Winston v. Jake Sweeney Automotive, Inc., 1st Dist. Hamilton No. C-910868, 1992 WL 356073, *--- , 1992 Ohio App. LEXIS 6024, *4 (Dec. 2, 1992), citing Charles A. Burton, Inc. v. Durkee, 162 Ohio St. 433, 123 N.E.2d 432 (1954); Schaffer v. Donegan, 66 Ohio App.3d 528, 585 N.E.2d 854 (2d Dist.1990). “Under Ohio law, pro se litigants are held to the same standard as all other litigants.” Bikkani v. Lee, 8th Dist. Cuyahoga No. 89312, 2008- Ohio-3130, * 29, citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171 (8th Dist.1996). Therefore, the trial court correctly concluded that Nikooyi’s intentional infliction of emotional distress claims fail due to lack of evidence. Nikooyi v. Nikooyi, 2022-Ohio-3239, ** 16-19. Here, on the night of the alleged incident Plaintiff was seen by a SANE nurse for purpose of police investigation and not treatment. Plaintiff has presented no evidence through initial disclosures required by the Ohio Rules of Civil Procedure, in is Complaint or other pleadings, in its Motion for Summary Judgment or otherwise to establish intent to cause severe emotional distress, extreme or outrageous conduct, that the conduct was linked to serious and debilitating psychological injury or that any such injury was ever suffered. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 961566/ Confirmation Nbr. 2814603 / CLAJB In fact, there is no genuine issue of material fact on this issue. Plaintiff and Defendant had a prior sexual history, and, engaged in sexual conduct on the night in question consensually. While Plaintiff might have had a few drinks throughout the day and, at best, might have been intoxicated to some level, she had a sexual relationship with someone she was already in same relationship with. There was and is no evidence of severe or outrageous conduct and even if there were the is no evidence that the sexual act caused severe or debilitating injury or any injury for that matter. Plaintiff has no presented any expert or other testimony and the deadline for such has passed. There have been no medical records, bills, or any evidence that Plaintiff ever even sought medical treatment. There is no set of facts upon which Plaintiff can prevail upon this case of action and summary judgment to Defendant is required. Finally, intentional infliction of emotional distress is a derivative cause of action in that, if the underlying cause of action upon which it relies is dismissed, so to must the cause of action for intentional infliction of emotional distress. Essentially, if Defendant receives summary judgment on the first or third cause of action he must also be awarded summary judgment in this case of action. Mcgee v. Simon & Schuster, Inc., 154 F. Supp. 2d 1308 (S.D. Ohio 2001) (applying Ohio law). Defendant is entitled to summary judgment on Plaintiff's claim of intentional infliction of emotional distress. Third Cause of Action - O.R.C. § 2307.60, Criminal Act Claim: In her third cause of action, Plaintiff seeks to obtain a civil judgment pursuant to R.C. Electronically Filed 03/28/2023 17:52 / MOTION / CV 22 9615667 Confirmation Nbr. 2814603 / CLAJB 2907.05(A)(1) which creates a civil cause of action for the commission of a criminal act. This cause of action has a one-year statute of limitations and, as it was not brought within one-year of the alleged conduct is barred from being litigated herein. The savings statute is not applicable. Plaintiff also cannot support this cause of action upon its elements. Defendant is entitled to summary judgment on Plaintiff's third cause of action. Civil causes of action under R.C. 2307.60(A)(1) a subject to a one-year statute of limitations from the date of the alleged act. In Paragraph 10 of his Answer and Affirmative Defenses filed herein Defendant raised the defense of statute of limitations. {* 130} In its thirteenth and final count, the County asserts a claim against all appellees for civil liability for criminal acts pursuant to R.C. 2307.60(A)(1), which provides, Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code. Here, the County alleged that all appellees engaged in criminal acts including, bribery, in