McLaughlin v. Speedway, L.L.C.McLaughlin v. Speedway, L.L.C.
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TRACI MCLAUGHLIN, ET AL.
Plaintiffs-Appellants
-vs-
SPEEDWAY, LLC, ET AL.
Defendants-Appellees
:
JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
Case No. 2015CA00184
O P I N I O N
CHARACTER OF PROCEEDING: Aрpeal from the Stark County Court of
Common Pleas, Case No.
2014CV02678
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 31, 2016
APPEARANCES:
For Plaintiffs-Appellants:
BRIAN L. ZIMMERMAN
229 Third Street NW
Suite 200
Canton, OH 44702
For Defendants-Appellees:
BRADLEY A. WRIGHT
TIFFANY M. SOVIK
CHRISTOPHER E. COTTER
222 South Main Street
Akron, OH 44308
{¶1} Plaintiffs-Appellants Traci and Randall McLaughlin appeal the September 14, 2015 judgment entry of the Stark County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee Speedway, LLC.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 20, 2014, Plaintiffs-Appellants Traci and Randall McLaughlin filed a complaint against Defendant-Appellee Speedway, LLC asserting claims for premises liability, negligence, and loss of consortium. The McLaughlins based their claims on an incident that occurred to Mrs. McLaughlin on July 21, 2013, while she was at a Speedway.
{¶3} Since 2011, Mrs. McLaughlin was a regular customer at the Speedway located at 522 Erie Streеt North in Massillon, Ohio. The Speedway is across the street from the Massillon Recreational Center. There are residences near the Speedway, two churches, and a Catholic elementary school. The Speedway is located approximately five minutes from Mrs. McLaughlin’s home. Mrs. McLaughlin stopped at the Speedway every morning before she went to work so she could get coffee. Mrs. McLaughlin felt safe in the area.
{¶4} On July 21, 2013, at approximately 6:00 a.m., Mrs. McLaughlin went to the Speedway to get her coffee. She greeted Jessica, the only Speedway employee on staff that morning, as she cаme into the convenience store. She asked Jessica if she could have a sandwich and Jessica went to look for the sandwich in the cooler at the back of the store. As Mrs. McLaughlin walked around the corner to get her coffee cup, Mrs. McLaughlin noticed a man by the candy aisle. She was starting tо pour her coffee when
{¶5} Jessicа called 911 and the police responded to the Speedway. Mrs. McLaughlin suffered injuries from the assault. She also developed anxiety that she treated with medication.
{¶6} The McLaughlins claimed in their complaint that Speedway was negligent because it failed to protect Mrs. McLaughlin from Teague’s criminаl conduct. Speedway filed a motion for summary judgment on July 20, 2015. The McLaughlins responded and Speedway replied. As Civ.R. 56 evidence, the parties supplied the depositions of Mrs. McLaughlin and Heather Zirhut, the manager of the Speedway at the time of the incident.
{¶7} On September 14, 2015, the trial court granted Speedway’s mоtion for summary judgment. It is from this judgment the McLaughlins now appeal.
{¶8} The McLaughlins raise one Assignment of Error:
{¶9} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO WHETHER THE DEFENDANT-APPELLEE SHOULD HAVE FORESEEN THAT CRIMINAL ACTIVITY WITHIN ITS CONVENIENCE STORE WAS SUBSTANTIALLY LIKELY TO OCCUR.”
ANALYSIS
Standard of Review
{¶10} The McLaughlins argue in their sole Assignment of Error that the trial court erred when it granted summary judgment in favor of Speedway. We refer to
Summary judgment shall be rendered forthwith 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 judgment as a matter of law.* * * A summary judgment shall not be rendered unless it appeаrs from such evidence or stipulation and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor.
{¶12} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).
Negligence
{¶13} In their apрeal, the McLaughlins argue the trial court erred when it found that as a matter of law, Speedway was not liable for Mrs. McLaughlin’s injuries caused by Teague’s criminal conduct. Mr. McLaughlin’s loss of consortium claim is dependent on a finding of negligence. In a negligence action, it is fundamental that the plaintiff in such a case must show (1) the existence of a duty, (2) a breach of duty, and (3) an injury proximately resulting therefrom. McPherson v. Total Car Express, Inc., 5th Dist. Stark No. 2015CA00081, 2015-Ohio-5251, ¶ 18 citing Scharver v. Am. Plastics Products, LLC, 5th Dist. Stark No. 2009 CA 00087, 2010–Ohio–230, ¶ 12 citing Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
Duty
{¶15} The existence of a duty in a negligence case is a question of law for a court to determine and therе is no formula for ascertaining whether such a duty arises. Simpkins v. Grace Brethren Church of Delaware, 2014-Ohio-3465, 16 N.E.3d 687, 699, ¶ 34 (5th Dist.) appeal allowed in part, 142 Ohio St.3d 1464, 2015-Ohio-1896, 30 N.E.3d 973 citing Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). “When the alleged negligence occurs in a premises-liability context, the applicable duty is determined by the relationship between the landowner and the plaintiff.” Heimberger v. Zeal Hotel Group, Ltd., 2015-Ohio-3845, 42 N.E.3d 323, ¶ 16 (10th Dist.) quoting Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 10.
Duty to Protect Against Criminal Acts
{¶16} In tort law, “there is no duty to control the conduct of a third person by preventing him or her from causing harm to another, except in cases where there exists a special relationship between the actor and the third party, which gives rise to a duty to control, or between the actor and another which gives the other the right to protection.” Wheatley v. Marietta College, 2016-Ohio-949, -- N.E.3d --, ¶ 56 (4th Dist.) quoting Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 45 Ohio St.3d 171, 173-174, 543 N.E.2d 769; March v. Steed Ents., Inc., 5th Dist. Muskingum No. CT2012-0058, 2013-Ohio-4448, ¶ 27. Onе type of special relationship that may give rise to a duty to prevent a third person from causing harm to another is that between a business owner and invitee. Wheatley,
{¶17} The parties in this case do not dispute that Mrs. McLaughlin was a business invitee on the day of the incident. A business premises owner generally owes a business inviteе a duty to exercise ordinary care and to protect the invitee by maintaining the premises in a reasonably safe condition. Wheatley, supra at ¶ 57 citing Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120. A premises owner, however, is not an insurer of an invitee’s safety. Id. at ¶ 58. The duty of the business owner to warn or protect its business invitees from the criminal acts of third parties extends only to thоse cases where “the business owner knows or should know that there is a substantial risk of harm to its invitees on the premises in the possession and control of the business owner.” March, supra at ¶ 28 quoting Simpson v. Big Bear Stores Co., 73 Ohio St.3d at syllabus. “Thus, where an occupier of premises for business purposes does not, and could not in the exercise of ordinary care, know of a danger which causes injury to his business invitee, he is not liable therefor.” March, supra at ¶ 28 quoting Howard v. Rogers, 19 Ohio St.2d 42, 47, 249 N.E.2d 804 (1969).
{¶18} A duty exists if the injury is foreseeable. March, supra at ¶ 29 citing Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707, 710 (1984). “If a third party’s criminal act is not foreseeable, then no duty arises and a business owner cannot be held liable in negligence.” Heimberger, 2015-Ohio-3845, ¶ 17 citing Shivers v. Univ. of Cincinnati, 10th Dist. Franklin No. 06AP-209, 2006-Ohio-5518, ¶ 6.
{¶19} This Court has adopted the “totality of the circumstances” test to determine whether a criminal act by a third party is foreseeable. March, supra at ¶ 30. The totality
{¶20} The McLaughlins argue that upon examining the totality of the circumstances in this case, the
01/27/2013 – Suspicious Person
01/29/2013 – Accident
02/07/2013 – Theft
02/14/2013 – Intoxicated Person
02/18/2013 – Solicitors
03/16/2013 – Domestic Issue
03/20/2013 – Disabled Vehicle
03/24/2013 – Unwanted Subject
04/10/2013 – Traffic Stop
04/18/2013 – Assist Other Agency
05/03/2013 – Accident
05/09/2013 – Traffic Stop
06/08/2013 – Disturbance
06/23/2013 – Robbery
07/21/2013 – Robbery, Theft
{¶21} Counsel questioned Zirhut as to the police call log:
Q. Okay. Do you see here at the top of the page – this is just for 2013, starting in February. Do you see there was a theft at the store?
A. Theft could mean anything.
Q. Well, I’m just asking. There was a theft, right?
A. Yeah. It could be any kind of theft though.
Q. Okay. But that’s a crime; right?
A. I would imagine shoplifting or something of that nature is.
A. Yes.
Q. Also that could be potentially criminal, right?
A. Not necessarily.
Q. Well, why would the police be called?
A. An intoxicated person was on the lot.
(Zirhut Depo., 46-47).
{¶22} In Heimberger, the Tenth District Court of Appeals addressed the use of police reports to establish the foreseeability of a criminal act:
These reports are problematic as summary judgment evidence. As stated by an appellate court faced with a similar problem in reviewing police reports as evidence of foreseeability of criminal acts, the reports “are not accompanied by the affidavit of anyone qualified to read them, and the court is left to guess how to do so [and] indicate only that рolice had been called to the premises; they do not indicate whether any of the calls were found to have merit.” Krause v. Spartan Stores, Inc., 158 Ohio App.3d 304, 2004-Ohio-4365, 815 N.E.2d 696, ¶ 20 (6th Dist.). For these reasons, the police reports are insufficient summary judgment evidence on the issue of foreseeability.
Heimberger v. Zeal Hotel Group, Ltd., 2015-Ohio-3845, 42 N.E.3d 323, 331, ¶ 21 (10th Dist.).
{¶24} The
{¶25} The Fourth District Court of Appeals in Wheatley v. Marietta College, analyzed whether the totality of the circumstances showed that the defendant college should have known that criminal conduct presented a substantial risk of harm to the plaintiff student. The court analyzed whether multiples crimes occurring on a given set of premises was enough to establish foreseeability of a violent criminal act. It stated:
* * * [E]ven if multiple crimes occurred on a given set of premises, courts have been unwilling to find foreseeability when those offenses were non-violent and differed in nature from the criminal conduct at issue. Walters, supra; accord Maier, 124 Ohio App.3d at 224, 705 N.E.2d 1268; Boyd v. Lourexis, Inc., 8th Dist. Cuyahoga No. 98028, 2012-Ohio-4595, 2012 WL 4755379, ¶¶ 20–21 (evidence did not show that premises owner knew or should have known that person would be “brutally killed” on its premises
{¶26} Under the foreseeability analysis, the totality of the circumstances of the criminal conduct must be somewhat overwhelming before a business will be held to be on notice of and therefore under the duty to protect against the criminal acts of others. Wheatley, supra at ¶ 66 citing Reitz v. May Co. Dept. Stores, 66 Ohio App.3d 188, 193-194, 583 N.E.2d 1071 (8th Dist.1990). This is due to the unpredictable nature of criminal behavior. Id. Looking at the evidence most favоrably to the non-moving party in the present case, we find the totality of the circumstances does not reveal any genuine issues
{¶27} The police call log does not provide sufficient
{¶28} We consider the evidence of the June 23, 2013 armed robbery but find it does not provide “somewhat overwhelming” evidence to show a genuine issue of material fact that it was foreseeable a violent criminal act would occur in the future. There was no evidence in the record that the June 23, 2013 armed robbery involved a customer or an assault of a customer or employee. The assault that occurred on July 21, 2013 was violent in nature but did not involve a weapon.
{¶29} We agree with the trial court when it states that while the events that occurred on July 21, 2013 werе unfortunate, reasonable minds could only conclude the totality of the circumstances does not show Speedway should have foreseen that Teague would assault Mrs. McLaughlin and steal her vehicle. Accordingly, the trial court properly determined Speedway did not have a duty to protect Mrs. McLaughlin from Teague’s criminal act.
{¶30} The McLaughlins’ sole Assignment of Error is overruled.
{¶31} The judgment of the Stark County Court of Common Pleas is affirmed.
{¶32}
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.