[Cite as Vos v. Ohio Environmental Protection Agency, 2018-Ohio-2956.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Donald L. Vos et al., : 

 Plaintiffs-Appellants, : 

 No. 17AP-749 

v. : (Ct. of Cl. No. 2017-552)

Ohio Environmental Protection Agency, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

 

D E C I S I O N 

Rendered on July 26, 2018 

 

On brief: Donald L. Vos, pro se, and Dennis Scott Wallace, 

pro se. Argued: Donald L. Vos. 

On brief: Mike DeWine, Attorney General, and Christopher 

Conomy, for appellee. Argued: Christopher P. Conomy. 

 

APPEAL from the Court of Claims of Ohio 

KLATT, J. 

{¶ 1} Plaintiffs-appellants, Donald L. Vos and Dennis Scott Wallace, appeal a 

judgment of the Court of Claims of Ohio that dismissed appellants' complaint against 

defendant-appellee, the Ohio Environmental Protection Agency ("the agency"). For the 

following reasons, we affirm. 

{¶ 2} Appellants filed a suit against the agency and its directors past and present 

on June 20, 2017. In the complaint, appellants alleged that the agency failed and refused 

to abide by its own rules in granting operational permits for the landfill in Negley, Ohio, 

and to conduct required inspections of that dump. They contended that the agency had 
No. 17AP-749 2 

knowledge and covered up the fact that material from New York and New Jersey containing 

blood and body parts from the 911 terrorist attack was being placed in the landfill. 

According to appellants, the agency also prohibited the Columbiana County Health Board 

from conducting inspections of the landfill. Based on these alleged facts, appellants claimed 

that the agency's refusal to hold the Negley landfill to the written rules caused damage to 

their property. They requested $10,000 in damages and that the agency pay the cost to dig 

up the material in the Negley landfill, to test it for blood and body parts, and to turn the 

Negley landfill into "a grave site for those buried there as common garbage." 

{¶ 3} A magistrate for the trial court dismissed the directors past and present of the 

agency pursuant to R.C. 2743.02(E) which provides that the state shall be the only 

defendant in the Court of Claims. The agency then filed a motion to dismiss pursuant to 

Civ.R. 12(B)(6) for failure to state a claim for relief. Appellants opposed the motion. 

{¶ 4} In a September 27, 2017 judgment entry, the trial court granted the agency's 

motion and dismissed the case. The Court of Claims found that appellants could not 

recover for a cause of action that alleged the agency failed to enforce its own rules and 

regulations. It also found that any claim for relief that may be construed from the complaint 

would involve the performance or nonperformance of a public duty. Because the complaint 

did not set forth facts to establish the "special relationship" exception to the public duty 

rule, the trial court concluded that the agency was entitled to immunity. 

{¶ 5} Appellants filed a notice of appeal on October 20, 2017. The Ohio Rules of 

Appellate Procedure require that an "appellant shall include in its brief, under the headings 

and in the order indicated * * * [a] statement of the assignments of error presented for 

review, with reference to the place in the record where each error is reflected," and a 

"statement of the issues presented for review, with references to the assignments of error 

to which each issue relates." App.R. 16(A)(3) and (4). Appellants' amended brief does not 

satisfy either of these requirements. Nevertheless, in the interest of justice, we will address 

the assertions appellants make in their brief, to the extent possible. 

{¶ 6} The Court of Claims dismissed appellants' complaint pursuant to Civ.R. 

12(B)(6). A motion to dismiss for failure to state a claim upon which relief can be granted 

tests the sufficiency of the complaint. Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio 

St.3d 494, 2010-Ohio-2057, ¶ 11. A trial court may not rely on allegations or evidence 
No. 17AP-749 3 

outside the complaint. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997). In 

construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume that all factual 

allegations in the complaint are true and make all reasonable inferences in the plaintiffs 

favor. Volbers-Klarich at ¶ 12; LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 

2007-Ohio-3608, ¶ 14. " '[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.' " Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio2480, ¶ 5, quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144 (1991). The trial 

court does not, however, accept as true any unsupported and conclusory legal propositions 

advanced in the complaint. Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 

40, 2009-Ohio-2665, ¶ 17 (10th Dist.). Appellate review of a trial court's decision to dismiss 

a claim pursuant to Civ.R. 12(B)(6) is de novo. Ohio Bur. of Workers' Comp. v. McKinley, 

130 Ohio St.3d 156, 2011-Ohio-4432, ¶ 12. 

{¶ 7} Appellants do not directly address the decision of the Court of Claims. 

Instead, they state that the director of the agency had a duty to abide by all rules under 

which the agency acts and that the director willfully and wantonly failed and refused to do 

so. Appellants allege that the agency allowed the dumping of human blood and body parts 

in the Negley landfill. They contend that the agency and its director are liable for the 

violation of the agency's rules and for the taking of stream waters allegedly damaged by the 

dumping of human blood and body parts. 

{¶ 8} Initially, we note that appellants appear to argue that the agency's director 

should not have been dismissed. Appellants, however, did not include the June 21, 2017 

entry dismissing the director in their notice of appeal. Regardless, pursuant to R.C. 

2743.02(E), only state agencies and instrumentalities can be defendants in original actions 

in the Court of Claims. Also, appellants appear to argue that the agency is liable for a taking 

of groundwater. The complaint does not present a claim for a taking nor does it contain an 

allegation that the agency was operating the Negley landfill or dumping blood and body 

parts into the landfill. Therefore, these arguments are not well-taken. 

{¶ 9} The Court of Claims determined that appellants' complaint failed to state a 

viable claim because the agency's alleged failure to enforce environmental statutes or rules 

does not create a private cause of action and because the agency is immune from claims 
No. 17AP-749 4 

alleging the performance or nonperformance of a public duty in the absence of a special 

relationship. We agree. 

{¶ 10} When the state waived its sovereign immunity in R.C. 2743.02, it also limited 

its amenability to suit. R.C. 2743.02(A)(1) provides that the state may be sued in the Court 

of Claims "in accordance with the same rules of law applicable to suits between private 

parties." This language does not create a new cause of action against the state, but rather, 

places the state on the same level as any private party. McCord v. Div. of Parks and 

Recreation, 54 Ohio St.2d 72, 74 (1978). "Thus, a plaintiff may not pursue an action against 

the state if he or she could not pursue the same action against a private party." Cardi v. 

State, 10th Dist. No. 12AP-15, 2012-Ohio-6157, ¶ 13, citing Bell v. Ohio Dept. of Rehab. & 

Corr., 10th Dist. No. 10AP-920, 2011-Ohio-6559, ¶ 22; Henneke v. Ohio Dept. of Ins., 10th 

Dist. No. 11AP-254, 2011-Ohio-5366, ¶ 8. When a complaint seeks recovery purely for a 

statutory violation, no action will lie against the state unless the statute in question provides 

for a private cause of action. See Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 

2002-Ohio-4210, ¶ 37. 

{¶ 11} In their complaint, appellants seek damages for the agency's alleged failure 

to enforce its own rules with regard to inspecting and granting operational permits to the 

Negley landfill. Regulatory rules, however, do not create a private right of action. See 

Chambers v. St. Mary's School, 82 Ohio St.3d 563 (1998). In the absence of statutory 

authority for a private cause of action, appellants have not pled a viable cause of action for 

money damages against the state. 

{¶ 12} In addition, the Court of Claims found that the agency was entitled to 

immunity pursuant to the public duty doctrine. R.C. 2743.02(A)(3)(a) provides that "the 

state is immune from liability in any civil action or proceeding involving the performance 

or nonperformance of a public duty." "Public duty" includes any statutory or regulatory 

duty involving permitting, certifying, licensing, inspecting, or monitoring activity. R.C. 

2743.01(E). The immunity for the performance or nonperformance of a public duty, 

however, does not apply when a special relationship has been established between the state 

and an injured party. R.C. 2743.02(A)(3)(b). A special relationship is established if all the 

following elements exist: 
No. 17AP-749 5 

(i) An assumption by the state, by means of promises or 

actions, of an affirmative duty to act on behalf of the party who 

was allegedly injured; 

(ii) Knowledge on the part of the state’s agents that inaction of 

the state could lead to harm; 

(iii) Some form of direct contact between the state’s agents and 

the injured party; 

(iv) The injured party’s justifiable reliance on the state’s 

affirmative undertaking. 

R.C. 2743.02(A)(3)(b)(i) through (iv). 

{¶ 13} In their complaint, appellants alleged that the agency failed to abide by its 

own rules when it granted operational permits for the Negley landfill and failed to perform 

required inspections on the landfill. The activities of permitting and inspecting fall squarely 

within the definition of "public duty." Appellants do not allege, however, that they have a 

special relationship with the agency. None of the factual allegations in the complaint 

support any of the elements of the special relationship exception to immunity. Without an 

allegation of a special relationship, the agency is entitle to immunity as a matter of law for 

the performance or nonperformance of a public duty. Consequently, appellants' complaint 

fails to allege a claim upon which relief could be granted. Thus, the Court of Claims 

correctly dismissed the complaint. 

{¶ 14} For the foregoing reasons, we affirm the judgment of the Court of Claims of 

Ohio. 

 Judgment affirmed. 

TYACK and DORRIAN, JJ., concur. 

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