Pandey v. BanachowskiPandey v. Banachowski
Rendered on December 30, 2011
Nirmala Pandey, pro se.
Smith, Rolfes & Skavdahl Company, LPA, M. Andrew Sway and Matthew J. Dougherty, for appellee Elizabeth Banachowski.
Matre & Beyke Co., LPA, Kerrie K. Matre and Joseph L. Beyke, for appellees Prudential Commercial Real Estate Columbus and Jim Simmons.
Freund, Freeze & Arnold, and Carl A. Anthony, for appellee Re/Max City Center Realtors.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Plaintiff-appellant, Nirmala Pandey, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment to defendants-appellees,
I. Facts and Procedural History
{¶2} On October 6, 2009, plaintiff, the owner of real property located at 7336 East Main Street, Reynoldsburg, Ohio (the “property“), filed a complaint against defendants alleging that in May 2008, as a result of defendants’ negligence, a vandal entered plaintiff‘s property through an unlocked door and set a fire that ultimately destroyed the building and caused in excess of $183,200 in damages.
{¶3} Plaintiff entered into an exclusive listing agreement in September 2006 with Prudential, acting through its licensed real estate agent Simmons, to sell the property. Banachowski, a licensed real estate agent employed with Re/Max, represented Richard Long, a prospective purchaser of the property.
{¶4} The property consisted of two residential units on the second floor of the building and a commercial area on the first floor. Although plaintiff was the titled owner of the property, Nawal Pandey, one of plaintiff‘s in-laws, dealt with the property on a daily basis and gave Simmons the key to the front door of the property so Simmons “could have shown the property to whoever was the perspective [sic] purchaser.” (Nawal Pandey Depo., 101.)
{¶6} After his meeting with Long, Simmons received a call from Banachowski. Banachowski informed Simmons she represented Long, and Long wanted to go back through the property with some contractors. Simmons told Banachowski she could pick up the key to the property at a store Khaled Abouseda owned, located on East Main Street. Simmons left the key with Khaled, an individual Simmons had known for many years, because Khaled was a contractor and had a potential client for the property. Nawal Pandey stated that, although he was not aware at the time that Simmons had given Khaled the key to the property, Nawal “came to know that Khaled was holding [the key] and [he] had no objection of [Simmons‘] giving the key to Khaled.” (Nawal Pandey Depo., 104.)
{¶7} Long and Banachowski testified in their depositions that Long, not Banachowski, contacted Simmons about viewing the property a second time. Long stated that, on his second visit to the property, he picked up the key from Khaled‘s store, and Banachowski, who is also Long‘s wife, accompanied Long to the property. Long used the key to enter the property through the front door and spent between 15 to 20 minutes in
{¶8} Long and Banachowski never informed Simmons they were married. Banachowski admitted that, when she accompanied her husband to the property, she did not know whether she was there as his wife or his realtor. Had Long made an offer on the property, she would have written the offer.
{¶9} After learning that Long and Banachowski picked up the key from Khaled and had not yet returned it, Simmons contacted Banachowski on May 17, 2008 to inquire about the status of an offer and the whereabouts of the key. Banachowski confirmed the conversation happened and stated she informed Simmons both that Long was still looking at the property and that she would check on the status of the key.
{¶10} Long made his final visit to the property on May 19, 2008, the day of the fire. Long went to the property alone between 10:30 and 11:00 a.m. but never entered the building. Long parked his car at the back of the building, where he noticed the second floor back door was ajar and glass in the door was broken. Long walked around to the front of the building and saw “stab wounds in the * * * metal door, between the two buildings.” (Long Depo., 24.) Long determined he did not want to purchase the building, as it had structural issues and he was “frightened because * * * obviously, somebody was in the building.” (Long Depo., 26.) Long stated he left between 10:30 and 11:00 a.m. and returned the key to Khaled‘s store.
{¶12} The arsonist initially went to the building two or three days prior to the fire with a neighborhood friend who before had been inside the building. On their initial visit, the boys entered through an unlocked door located between the two buildings on the second floor and exited through an unlocked second floor door at the rear of the building. On May 19, 2008, the arsonist entered and exited through the same doors as he had previously, both of which were unlocked. The arsonist never went in or out the front doors to the building.
{¶13} In December 2010, defendants filed
II. Assignments of Error
{¶15} Plaintiff appeals, assigning the following errors:
- THE TRIAL COURT ERRED WHEN IT GRANTED DE FENDANTS’ MOTION FOR SUMMARY JUDGMENT DE SPITE GENUINE ISSUES OF MATERIAL FACT.
- THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SUMMARILY EXCLUDED CERTAIN EXHIBITS.
- THE TRIAL COURT‘S ATTITUDE WAS UNREASON ABLE, THEREFORE CONSTITUTED AN ABUSE OF DIS CRETION AND PLAIN ERROR WHEN IT USED THE DOC TRINE OF INTERVENING AND SUPERSEDING CAUSE WITHOUT CONSIDERING THE PROXIMATE CAUSE.
For ease of discussion, we address plaintiff‘s assignments of error out of order, first discussing plaintiff‘s second assignment of error, and then plaintiff‘s first and third assignments of error together, as they are interrelated.
{¶16} Plaintiff‘s second assignment of error asserts the trial court erred in striking the exhibits plaintiff attached to her amended response to defendants’ motions for summary judgment. In addition to the parties’ depositions, plaintiff attached (1) her own affidavit, (2) Nawal Pandey‘s affidavit, (3) a statement from Jim Simmons, (4) portions of the National Association of Realtors Code of Ethics and Standards of Practice, (5) a list of “professional courtesies” published by the National Association of Realtors titled “Pathway to Professionalism,” (6) a portion of the Ohio Canons of Ethics for the Real Estate Industry, and (7) the first two pages of the police report concerning the fire. Re/Max, Prudential, and Simmons filed motions to strike the affidavits and exhibits attached to plaintiff‘s amended response.
{¶17} The trial court granted in part and denied in part defendants’ motions to strike. The court declined to strike the affidavits in full simply because the affidavits lacked the words ” ‘personal knowledge,’ at least when the statements [in the affidavits] indicate that the affiant is claiming to have personal knowledge.” (Decision, 2.) The court noted that it was “capable of determining which statements in the affidavits are proper and which are not.” (Decision, 2.) Concerning the remaining documents, the court concluded the documents had “not been properly authenticated under
{¶19} The court did not err in striking the codes and canons of ethics, the partial police report, or Simmons’ unsworn and uncertified statement. Such documents are not among the types listed in
{¶20} Accordingly, plaintiff‘s second assignment of error is overruled.
{¶21} Plaintiff‘s first assignment of error asserts the trial court erred in granting defendants’ motions for summary judgment because defendants had a duty “to conduct themselves according to certain standards so as to avoid unreasonable risks to her.” (Appellant‘s brief, 6-7.) Plaintiff‘s third assignment of error contends the trial court erred in granting defendants’ motions for summary judgment, because genuine issues of material fact exist concerning whether defendants’ actions were the proximate cause of the fire and whether the arsonist‘s actions were an intervening cause of the fire.
{¶22} An appellate court‘s review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41; Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588. Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor.
{¶23} Pursuant to
{¶24} Plaintiff alleged that Simmons and Banachowski, acting on behalf of their respective employers, negligently conducted themselves as real estate agents in allowing Long to possess the key for ten days and to view the property without a real estate agent present. To establish a cause of action for negligence, plaintiff was required to present evidence of (1) the existence of a duty, (2) a breach of that duty, and (3) an injury resulting proximately from the breach. Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75, 77, citing Di Gildo v. Caponi (1969), 18 Ohio St.2d 125; Feldman v. Howard (1967), 10 Ohio St.2d 189. In the negligence context, a trial court properly grants a motion for summary judgment “[w]hen the defendants, as the moving parties, furnish evidence which demonstrates the plaintiff has not established the elements necessary to maintain [her] negligence action.” Feichtner v. Cleveland (1994), 95 Ohio App.3d 388, 394, citing Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19.
A. Duty
{¶25} ” ‘Duty, as used in Ohio tort law, refers to the relationship between the plaintiff and the defendant from which arises an obligation on the part of the defendant to exercise due care toward the plaintiff.’ ” Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶23, quoting Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98. The existence of a duty depends on the foreseeability of harm, so that “if a reasonably prudent person would have anticipated that an injury was likely to result from a particular act, the court could find that the duty element of negligence is satisfied.” Id. (Citations omitted.) Common law, legislative enactment, or the particular circumstances of a given case may establish the duty element of negligence. Id.
{¶26} Responding to defendants’ motions for summary judgment, plaintiff alleged Simmons and Banachowski, as realtors, not only “owed a special duty to plaintiff by virtue of being agent and sub-agent” but were “duty bound to adhere to the Realtors’ Code of Ethics.” (Plaintiff‘s Amended Response, 4.) The canons and codes of ethics for realtors, however, were improper evidentiary material under
{¶27} Real estate agents nonetheless owe a fiduciary duty to their clients. Parahoo v. Mancini (Apr. 14, 1998), 10th Dist. No. 97APE08-1071, appeal not allowed, 83 Ohio St.3d 1416; Moreland v. Ksiazek, 8th Dist. No. 83509, 2004-Ohio-2974, ¶20. See Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 282 (noting “[a] ‘fiduciary relationship’ is one in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust“). “Like other professionals, a person holding a real estate license is held to a higher standard of competency and fairness than is a lay member of the public in the market-place.” Richard T. Kiko Agency, Inc. v. Ohio Dept. of Commerce, Div. of Real Estate (1990), 48 Ohio St.3d 74, 76. To that end, the General Assembly invested the Ohio Real Estate Commission with the authority to adopt canons of ethics and sanction licensed realtors who violate such canons. See Boggs v. Ohio Real Estate Comm., 186 Ohio App.3d 96, 2009-Ohio-6325, ¶31-33 (internal citations omitted).
{¶28} “Except to the extent the duties of a real estate agent are specifically set forth in”
{¶30} Although plaintiff framed Simmons’ and Banachowski‘s duties as respective duties to safeguard the key and accompany a prospective purchaser onto the property, the substance of plaintiff‘s negligence claim is that defendants had a duty to ensure that the doors were locked so as to prevent the arsonist from entering the building and setting it on fire. The trial court determined defendants could not have foreseen the series of events which would unfold after the door allegedly was left unlocked, as “defendants could not have foreseen that a third party would commit the crime of arson, when there is no evidence of previous incidents of arson in that building or the surrounding area.” (Decision, 10.)
{¶31} “If a person exercises control over real * * * property and such person is aware that the property is subject to repeated third-party vandalism * * *, then a special duty may arise, to those parties whose injuries are reasonably foreseeable, to take adequate measures under the circumstances to prevent future vandalism.” Federal Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171, syllabus
{¶32} Although defendants may have had control over the property as a result of possessing the key, plaintiff failed to present evidence establishing that the fire was reasonably foreseeable. Nawal Pandey testified that his truck, while parked near the property, was broken into six months prior to the incident, but both plaintiff and Nawal Pandey testified they were not aware of any acts of vandalism or arson occurring to real property in the area. To the contrary, plaintiff testified the “[n]eighborhood was very quiet. It was peaceful” and not a high crime area. (Nirmala Pandey Depo., 32.) Simmons similarly testified that, aside from the fire, he was not aware of any incidents where people came into the building unlawfully. Because the arsonist‘s actions of entering the property unlawfully and setting it on fire were unforeseeable, defendants did not owe plaintiff a duty to protect her from such harm. Cf. Farley v. Duke Constr. Co., 10th Dist. No. 08AP 192, 2008-Ohio-6419, ¶36, appeal not allowed, 121 Ohio St.3d 1453, 2009-Ohio-1820 (concluding plaintiffs could not establish the defendant had a duty to prevent third parties from entering its construction site, as plaintiffs failed to demonstrate defendant
B. Proximate Cause
{¶33} In response to defendants’ motions for summary judgment, plaintiff argued that “[d]espite the fact that Mr. Long says he did not open the doors and Mr. Simmons says he locked the doors; the doors were left open” and “reasonable minds would come to only one conclusion that Defendants failed to lock the doors that facilitated the act of arson.” (Plaintiff‘s Amended Response, 4.) The trial court found proximate cause lacking, pointed out Long testified he did not leave a door unlocked, and noted the arsonist‘s “testimony that the door was unlocked when he entered the building, even if true, does not constitute evidence that Long or another defendant was the person who left the door unlocked.” (Decision, 11.)
{¶34} To establish proximate cause, plaintiff must prove her injuries were the natural and probable consequence of defendants’ negligent act. Zachariah v. Roby, 178 Ohio App.3d 471, 2008-Ohio-4832, ¶44, citing Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 287. To find that an injury was the natural and probable consequence of an act, it must appear that the defendant could have foreseen or reasonably anticipated the injury resulting from the alleged negligent act. Strother at 287. An injury is foreseeable if a reasonably prudent person, under the same or similar circumstances, would have anticipated that injury to another was the likely result of his conduct. Commerce & Industry Ins. Co. at 98, citing Menifee at 77.
{¶36} In her response to defendants’ motions for summary judgment, plaintiff asserted, citing to alleged inconsistencies in Long‘s testimony, that Long was untruthful and that “his deposition appear[ed] to be a trumped-up story.” (R. 153, 10-13.) “The credibility of witnesses should * * * be resolved at trial, and not on summary judgment.” Hassan v. Progressive Ins. Co. (2001), 142 Ohio App.3d 671, 676; Pearce v. Fouad, 146 Ohio App.3d 496, 2001-Ohio-3986, ¶26, appeal not allowed, 100 Ohio St.3d 1431, 2003-Ohio-5396 (noting “uncontroverted testimony may be disbelieved where the witness has an interest in the litigation, the witness‘s story is improbable, or there are contradictions in the witness‘s testimony“).
{¶37} Even if plaintiff raised a credibility concern about the truthfulness of Long‘s testimony and thus created an issue for trial in that respect, plaintiff also failed to present evidence establishing that “had the buildings’ doors been properly locked the arson would not have occurred.” Runge v. Rosewater (June 14, 1984), 8th Dist. No. 47650, citing Gugten v. Rhodes (1940), 162 Ohio App. 163 (determining plaintiffs failed to establish that their landlord‘s failure to install adequate locks on apartment building doors was the
{¶38} Thus, even if defendants locked the doors, someone may have entered the building either through an open window or by breaking a window and exited, leaving the door unlocked. Moreover, as the Pandeys both testified to no prior acts of arson or vandalism in the area surrounding the property, nothing indicated a foreseeable consequence of leaving the doors unlocked was an arsonist‘s entering the building and setting fire to it. Accordingly, plaintiff failed to establish that defendants’ actions were the proximate cause of her harm.
C. Intervening or Superseding Cause
{¶39} Plaintiff alleged, in response to defendants’ motions for summary judgment, that although the arsonist “may have been the intervening cause, * * * the negligent act of the Defendants to leave the doors open was sufficient to facilitate the arson, the intervening cause.” (Plaintiff‘s Amended Response, 19.) The trial court decided that the arsonist was a ” ‘conscious and responsible agency’ which undertook actions which were ‘an efficient, independent, and self-producing cause of the injury.’ ” (Decision, 11.)
{¶41} “[T]he law usually does not require the prudent person to expect the criminal activity of others.” Federal Steel & Wire Corp. at 174. Even so, “a defendant, who is in control of certain premises, may be liable for injuries to others notwithstanding the intervening criminal acts of some parties, where the defendant knows that there has been a history of repeated tampering or vandalism of the same or similar nature occurring on such premises.” Id. at 177.
{¶42} Even if a question of fact exists as to whether defendants’ negligence permitted a door to remain unlocked, thus allowing the arsonist to enter the building easily, the arsonist‘s further action of setting the building on fire was not foreseeable to defendants where plaintiff did not present evidence of other acts of vandalism or arson occurring in the surrounding area. Cf. Pendrey v. Barnes (1985), 18 Ohio St.3d 27, 28
{¶43} Accordingly, plaintiff‘s first and third assignments of error are overruled.
V. Disposition
{¶44} Having overruled plaintiff‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas granting in part and denying in part defendants’ motions to strike and granting defendants’ motions for summary judgment.
Judgment affirmed.
BROWN and TYACK, JJ., concur.
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