COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60211 : DEBBIELIN RIOS, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION FIRST NATIONAL SUPERMARKETS, INC. : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 159715 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: William S. Jacobson, Esq. David A. Schaefer, Esq. Joel Levin, Esq. Kevin H. Young, Esq. NURENBERG, PLEVIN, HELLER Mark A. Phillips, Esq. & McCARTHY CO., L.P.A. BENESCH, FRIEDLANDER, 1370 Ontario, First Floor COPLAN & ARONOFF Cleveland, Ohio 44113-1792 1100 Citizens Building Cleveland, Ohio 44114 - 2 - HARPER, J.: Plaintiffs-appellants, Debbielin Rios and her daughter, Christina, appeal from the partial granting of defendants- appellees', First National Supermarket, Inc.'s ("First National"), motion for directed verdict in appellants' negligence action by the Cuyahoga County Court of Common Pleas. In their complaint filed November 8, 1988, Debbielin Rios, her husband, Domingo Rios, and Christina Rios alleged that Mrs. 1/ Rios and Christina were assaulted by Nancy McLaughlin on January 11, 1988 in a Finast Supermarket owned and operated by First National. Appellants alleged that First National's negligence in failing to take adequate security measures, to come to their rescue and to take preventative measures to prevent the assault when it knew or should have known that the assault was likely to occur, caused the assault. Furthermore, Mr. Rios alleged that as a direct and proximate result of First National's conduct, he lost the services, companionship and consortium of his wife and the services of his daughter in addition to incurring medical expenses. 1/ Appellants named Nancy McLaughlin as a defendant in the complaint but subsequently dismissed her from the action with prejudice. - 3 - 2/ Trial by jury commenced on July 11, 1990 on the issue of 3/ liability alone. First National moved for a directed verdict at the close of appellants' evidence. The trial court denied the motion in order to hear First National's witnesses, noting that First National could renew the motion at the close of its case. First National renewed the motion after presenting two witnesses. The trial court granted the motion in part. The court ruled that the jury would consider the question of negligence in the rescue of appellants from the altercation with Mrs. McLaughlin. However, the court removed the issue of whether First National was negligent in failing to take preventative measures to avoid the incident from the jury's consideration. The jury returned a verdict in favor of First National on 4/ the claims of Mrs. Rios and Christina on the issue of whether First National was negligent in rendering aid to them. This 2/ Appellants' claims were referred to arbitration pursuant to Loc. R. 29 of the Cuyahoga County Court of Common Pleas, General Division. The matter was heard on May 7, 1990, and the arbitration panel subsequently found in favor of First National on all claims. Appellants filed a Notice of Appeal from this award on May 16, 1990. 3/ The trial court, on July 10, 1990, granted the parties' joint motion for bifurcation on the issues of liability and damages. 4/ Although the journal entry setting forth judgment against Mrs. Rios and Christina fails to dispose of Mr. Rios' claims, Civ. R. 54(B) is not applicable. The judgment rendered Mr. Rios' claims moot and is, therefore, a final appealable order pursuant to R.C. 2505.02. See, Wise v. Gursky (1981), 66 Ohio St. 2d 241, 243; Ford Motor Credit Co. v. Landmark Air Fund I (1983), 12 Ohio App. 3d 117. - 4 - appeal followed and a careful review of the record compels affirmance. Appellants, Debbielin Rios and her daughter, Christina, entered the Finast Supermarket located at West 109th Street and Lorain Avenue, Cleveland, Ohio, on January 11, 1988. Tina McLaughlin, a First National cashier, was a former common-law spouse of Mrs. Rios' brother-in-law, Angel Rios. Mrs. Rios and Tina subsequently encountered each other in an aisle of the store. According to Tina, Mrs. Rios sought to initiate a fight, whereas Mrs. Rios denied that anything was said between them. Tina immediately informed Robert Reiland, the store's co- manager, that Mrs. Rios was in the store and that she wished to start a fight. Tina thus asked to go on break. Mr. Reiland authorized her to do so and also directed a store security guard, Ralph Stark, to accompany her to the break room. Other security guards were alerted to the situation with one being told by Mr. Stark that there might be trouble. Tina, while on her way to the break room, requested a friend to telephone her home where her brother was watching her children. She testified that she believed her mother was not at home. The request was made out of concern for the safety of her children. Tina was unaware of whether the telephone call was actually made or received and, if so, of what the response would be to the call. Once in the break room, Tina spoke with Mr. Stark about the situation. She related that Mrs. Rios was in the store and she - 5 - thought there was going to be trouble with her. Mr. Stark understood that any trouble would be directed toward Tina. Tina then returned to the floor of the store. Mr. Stark accompanied her and continued to watch her. Tina's mother, Nancy McLaughlin, at some point, entered the Finast store. A verbal confrontation between Mrs. Rios, Christina and Mrs. McLaughlin developed into a physical one. The physical altercation prompted the instant lawsuit. Appellants, for their sole assignment of error, assert that: "A. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT- APPELLEE'S MOTION FOR A PARTIAL DIRECTED VERDICT PRECLUDING THE JURY FROM CONSIDERING, AND PLAINTIFF'S COUNSEL FROM ARGUING, EVIDENCE OF THE DEFENDANT-APPELLEE'S KNOWLEDGE PRIOR TO THE ASSAILANT'S ENTRANCE UPON THE WEST 109TH STORE'S PREMISES." In a two-part argument, appellants assert that First National owed them as business invitees the duty of ordinary care and that reasonable minds could conclude it was foreseeable to First National that some harm might befall them. The appellants, in support of the latter assertion, refer to Tina's apparently telling First National of the "bad blood" between the families, and of her fear that there may be trouble. Also, appellants contend that First National was aware of Tina's telephone call home. Appellants argue that armed with this knowledge, First National could have foreseen that some harm might occur and there thus remains a genuine issue of material fact which precluded a directed verdict with respect to the issue of foreseeability. - 6 - A motion for a directed verdict which is based upon the evidence presented is governed by Civ. R. 50(A), which provides as follows: "(4) When granted on the evidence. When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." See, also, O'Day v. Webb (1972), 29 Ohio St. 2d 215, 220. Pursuant to this rule, a trial court must direct a verdict in favor of the defendant where there is no evidence tending to prove an essential element of the plaintiff's cause of action. Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App. 3d 463, 465; Eplins v. Express Co. (1977), 55 Ohio App. 2d 59, 61. Actionable negligence requires the establishment of a duty, the breach of that duty and an injury proximately resulting therefrom. Jeffers v. Olexo (1989), 43 Ohio St. 3d 140, 142. A business "may be subject to liability for harm caused to *** a business invitee by the conduct of third persons that endangers the safety of such invitee" because of the special relationship between a business and its customer. Howard v. Rogers (1969), 19 Ohio St. 2d 42, paragraph one of the syllabus. However, a business is not an insurer of the safety of its patrons while they are on its premises. Id., paragraph two of the syllabus. Thus, the duty to protect invitees from the criminal acts of third parties does not arise if the business "does not and could - 7 - not in the exercise of ordinary care, know of a danger which causes injury to [its] business invitee ***." Id., paragraph three of the syllabus. The existence of a duty will, therefore, depend upon the foreseeability of harm. Jeffers, supra, 142- 143; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75. The issue of whether a duty is owed is a question of law which is reviewable on a case-by-case basis. Reitz v. May Co. (Feb. 8, 1990), Cuyahoga App. No. 56251, unreported. In order for First National to be arguably liable here, this court must find that it was foreseeable appellants were subject to a physical assault. The knowledge of a defendant-business indicates whether a reasonably prudent business would have anticipated the likely occurrence of an injury. See, Howard, supra; Montgomery v. Young Men's Christian Ass'n. (1987), 40 Ohio App. 3d 56. The best indicator of a business' knowledge is the "totality of the circumstances". Reitz, supra. However, a court must be ever mindful that a business is not an absolute insurer of safety and the criminal behavior of a third person is not predictable to any degree of certainty. Id. A business will only be held to be on notice and, therefore, under a duty to protect against acts of third parties where the totality of circumstances are somewhat overwhelming. Id. In the case sub judice, the evidence was insufficient as a matter of law to give First National reason to know that appellants were likely to be assaulted in the store by a third - 8 - party, and, therefore, to give rise to a duty of care to protect appellants. First National was arguably aware of the "bad blood" between appellants and Tina, and of possible trouble between them. First National was also arguably aware that Tina made a telephone call to her home. However, there was no evidence whatsoever imparting the knowledge that Mrs. McLaughlin would appear at the store of First National. Contrary to appellants' assertion, the record fails to establish that First National should have anticipated "that someone might come to the store, and whoever might come to the store might also, being unprovoked, assault this plaintiff. Accordingly this court finds that there was no special duty established in this case. Federal Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St. 3d 171. The trial court, therefore, properly directed a partial verdict in favor of First National. Appellant's assignment of error is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, C.J., CONCURS; JAMES D. SWEENEY, J., CONCURS IN JUDGMENT ONLY. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .