¶1 concurring.
¶2 I fully concur in the majority’s reasoning and disposition of appellant’s Assignments of Error Nos. II through VII. I further agree with the majority’s disposition of appellant’s first assignment of error on the basis that summary judgment was inappropriate.
¶3 I write separately only to state that I am not yet persuaded that a plaintiff has an affirmative duty to plead facts sufficient to demonstrate a tolling of the statute of limitations in an original or amended complaint. Though such would be the better practice, I question that the failure to do so renders the complaint fatally flawed under Civ.R. 12(B)(6). Because the statute of limitations is an affirmative defense, the better approach would be to raise said issue directly in a summary judgment motion. However, if raised in a Civ.R. 12(B)(6) motion, the trial court can treat the motion under the authority of Civ.R. 12(B) as a motion for summary judgment in that it involves matters outside the pleading, i.e., as presented in the instant case, the soundness of mind of the plaintiff as justification for tolling the statute of limitations.