COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60626, 61651 ROBERT J. SPERDUTI, et al : : Plaintiff-appellants : : JOURNAL ENTRY vs. : and : OPINION BUBULOO, INC., et al : : Defendant-appellees : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 28, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Cases No. 171,607/191,981 JUDGMENT : AFFIRMED IN PART; REVERSED : IN PART; AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellants: BRUCE TYLER WICK Attorney at Law Two King James South, #143 24650 Center Ridge Road Westlake, Ohio 44145-5624 For defendant-appellees: RONALD J. DEERY WILLIAM F. SCHMITZ Attorneys at Law 1100 The Illuminating Building Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, P.J.: Plaintiffs-appellants, Robert J. Sperduti and Thomas V. Finnegan, timely appeal from the decision of the common pleas court in Case Number 171,607 (Case Number 60626 on appeal), which granted the motion for summary judgment of defendants-appellees, Bubuloo, Inc. and Cuyahoga River Association Limited Partnership, and dismissed with prejudice the remainder of appellants' com- plaint against five unknown assailants. Appellants also appeal the decision of the common pleas court in Case Number 191,981 (Case Number 61651 on appeal), which granted appellees' motion for summary judgment and dismissed without prejudice the remain- der of appellants' case against the City of Cleveland and two Cleveland police officers. This court granted appellants' motion to con-solidate the above cases. For the reasons that follow, we affirm in part, reverse in part, and remand Case Number 171,607 for fur-ther proceedings not inconsistent with this decision. Case Number 191,981 is affirmed. Appellants filed their original complaint in Case Number 171,607 on June 19, 1989. Subsequently, appellants filed their amended complaint against appellees herein, various shareholders of Bubuloo, Inc., and five unknown assailants. Appellants' com- - 2 - plaint generally alleged that they were beaten and kicked by five unknown assailants in appellees' parking lot. Appellants claim the assault occurred within plain view of appellants' security guards, who watched the assault and negligently failed to protect appellants. Appellee Bubuloo, Inc. was a tenant at the premises in question and owned and operated a restaurant and lounge known as Tangerine Fahrley's in the Flats area of downtown Cleveland. Thereafter, on June 19, 1990, appellants filed a second complaint in Case Number 191,981 against appellees the City of Cleveland and two Cleveland police officers. Count one restated most of the allegations against appellees in appellants' com- plaint in Case Number 171,607, but added that appellees may have been members of an association whose object was to provide security of persons and businesses utilizing the Flats area. Counts two and three alleged the City of Cleveland and the two named police officers negligently failed to apprehend appellants' assailants. Apparently, appellants filed the second complaint in Case Number 191,981 to beat the applicable statute of limitations as they were afraid the trial judge in Case Number 171,607 could not grant a motion for leave to amend their complaint to reflect the amendments contained in their complaint in Case Number 191,981. Subsequently, on August 14, 1990, appellants filed, in both cases, a motion to consolidate the two cases. However, on Sep-tember 10, 1990, the common pleas court granted appellees' motion for summary judgment in Case Number 171,607 - 3 - and, in a separate journal entry, denied appellants' motion to consolidate. Thereafter, in Case Number 191,981, the common pleas court granted appellees' motion for summary judgment and later dismissed all other motions, including appellants' motion to consolidate, as moot since the remainder of the plaintiffs' case was dismissed for want of prosecution. The pertinent facts are as follows: On June 19, 1988, appellants had consumed about three beers in Fagan's and the Beach Club, located in the Flats area of down- town Cleveland. After leaving the Beach Club, appellants crossed Old River Road and proceeded past Tangerine Fahrley's. As they walked past Tangerine Fahrley's, they noticed five males who were loud and laughing. As appellants talked amongst themselves, one of the men asked appellants, "What did you say to us?" Robert Sperduti responded, "Nothing," and appellants continued along their way. Mr. Sperduti testified that after about five to six steps, someone from the group of men tapped him on his shoulder and sucker punched him as he turned around. At this point, due to the pedestrian traffic on the sidewalk, Mr. Sperduti had stepped off the sidewalk and entered onto Tangerine Fahrley's parking lot to look for his cousin, Thomas Finnegan. Mr. Sperdu- ti remained conscious for about five to six seconds, then fell to the ground unconscious. He stated he must have been punched and kicked as he lay unconscious in the parking lot. Appellants claim that two of appellees' parking lot attendants had to have - 4 - seen the incident as it occurred in plain view of the attendants. After about two to three minutes, Mr. Sperduti regained con- sciousness when his cousin helped him off the ground. As appel- lants proceeded up the street from Tangerine Fahrley's, the five men continued to heckle and laugh at appellants about the inci- dent. At one point, Mr. Finnegan went after the smallest of the men, whom he called the instigator, only to get thrown about by the other assailants. Eventually, appellants reached two Cleveland police offi- cers. Mr. Finnegan offered to go with one of the officers so that the assailants could be apprehended, but, apparently, the police offi-cers did not attempt to apprehend anyone. The officers did, how-ever, summon an ambulance, and Mr. Sperduti was taken to the hos-pital. Based on the above evidence, the common pleas court, in both cases, rendered summary judgment in appellees' favor. Appellants timely appeal, raising three assignments of error for our review. Appellants' first assignment of error states: THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION TO CONSOLIDATE THIS CASE [CASE NO. 171,607] WITH RELATED CASE NO. 191981. Appellants argue the trial court abused its discretion in failing to grant their motion to consolidate the instant cases. Appellants contend that identical questions of law and fact exist - 5 - in both cases and, further, that the additional allegations in Case Number 191,981 might well have swayed the trial court in Case Number 171,607 to have overruled appellees' motion for summary judgment. This argument lacks merit. Although consolidation pursuant to Civ. R. 42(A) may have been permissible in a particular instance, whether to order consolidation is a matter lying within the sound discretion of the trial court. Fair v. School Employees Retirement System (1975), 44 Ohio App. 2d 115. In the present case, it cannot be said that either trial court abused its discretion in denying appellants' motion to con- solidate. In Case Number 171,607, the trial court denied appel- lants' motion the same day it granted appellees' motion for sum- mary judgment. Further, in Case Number 191,981, appellants had ample opportunity to respond to appellees' motion for summary judgment and come forward with some evidence which would raise an issue of material fact concerning the additional allegations con- tained therein. However, appellants failed to submit any evi- dence which would support their allegations. Thereafter, the trial court in Case Number 191,981 granted appellees' motion for summary judgment. Thus, appellants were afforded ample opportu- nity to support their allegations in both cases with supporting documentary evidence. Accordingly, appellants' first assignment of error is over- ruled. - 6 - Appellant's second assignment of error follows: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES. Appellants contend a genuine issue of fact exists which would preclude the trial court from having properly granted appellees' motion for summary judgment. This argument lacks merit. 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. The existence of a duty will depend on the foreseeability of the harm. Id., at 142-43. Whether such duty exists is a question of law for the court to decide on a case-by-case basis. See, Menif- ee v. Ohio Welding Products, Inc. (1984), 25 Ohio St. 3d 75. The duty to protect business invitees from the criminal acts of third parties does not arise if the business "does not and could not in the exercise of ordinary care, know of the danger which causes injury to the business invitee." Howard v. Royers (1969), 19 Ohio St. 2d 42. In determining whether a business has knowledge of the danger to its invitee, a reviewing court should look at the "totality of the circumstances." Reitz v. May Compa- ny Department Stores (Feb. 8, 1990), Cuyahoga App. Nos. 56251, 56324 and 56325, unreported, at 8; Valles v. Hannan-110 Limited (June 27, 1991), Cuyahoga App. No. 60931, unreported, at 5; and Rios v. First National Supermarkets (Apr. 2, 1992), Cuyahoga App. - 7 - No. 60211, unreported, at 6. However, courts should be mindful that a business is not an absolute insurer of the safety of its customers and that criminal behavior of third persons generally is not predictable to any particular degree of certainty. Reitz, supra, at 8. In the present case, there is absolutely no evidence of any prior criminal activity on or near the parking lot in question. Thus, there is no evidence in the record which would be suffi- cient as a matter of law to give appellees reason to know that an assault was likely to occur which would give rise to a duty to exercise reasonable care to protect appellants. Appellants further contend that, pursuant to Restatement (Second) of Torts, Section 334, Comment 7, a business proprietor has a duty to at least call police when an invitee is assaulted or about to be assaulted on the proprietor's premises. While this may well be so, appellants have submitted no evidence indi- cating that appellees or appellees' employees knew that an as- sault was taking place on their premises. Appellants' affidavits do not go beyond mere speculation in stating that appellees' employees "must have seen what was going on" and that it "was highly probable" that appellees' employees observed the assault in question. Thus, appellants failed in their burden to come forward with evidence on an issue for which they bear the burden of production at trial. Wing v. Anchor Media (1991), 59 Ohio St. 3d 108, paragraph 3 of the syllabus. A possible inference that - 8 - appellees' employees observed the assault simply does not suffice to sustain their burden of producing evidence to defeat appel- lees' motion for summary judgment. Id. Accordingly, appellants' second assignment of error is over- ruled. Appellants' final assignment of error is as follows: THE TRIAL COURT ERRED IN DISMISSING WITH PREJUDICE, AS TIME-BARRED, PLAINTIFFS' CLAIMS AGAINST THE FIVE UNKNOWN ASSAILANTS. Appellants contend the trial court erred in dismissing with prejudice the five unknown assailants named in their complaint in Case Number 171,607. The trial court's journal entry states the complaint was dismissed because appellants failed to perfect ser- vice of process within one year from filing the complaint and that the statute of limitations had run. Appellants' argument has merit. R.C. 2305.111 provides a one-year statute of limitations for actions for assault and battery. The statute of limitations com- mences to run on the date which the alleged assault or battery occurred. R.C, 2305.111(A). However, if the plaintiff did not know the identity of the assailant on the date on which the assault allegedly occurred, the statute of limitations commences to run on the date on which the plaintiff learns, or should have learned through the exercise of reasonable diligence, of the iden-tity of the assailant. R.C. 2305.111(B). - 9 - In the present case, there is nothing in the record which would establish that the appellants knew or should have known the identity of the five unknown assailants. Instead, the time in which appellants were to have perfected service of process on the five unknown assailants had passed. See, Civ. R. 3(A), 15(C) and 15(D); see, also, Amerine v. Haughton Elevator Co. (1989), 42 Ohio St. 3d 57, syllabus. The applicable statute of limitations does not come into effect until appellants learn or should have learned the identity of the unknown defendants. Amerine, supra. Therefore, this cause of action never duly commenced against the five unknown defendants. Civ. R. 3(A). When an action fails of com-mencement, it is as if no complaint were ever filed. Saunde- rs v. Choi (May 5, 1983), Cuyahoga App. Nos. 45101 and 45578, unre-ported, at 7. Thus, the proper action for the trial court to have taken would be to strike the complaint from the record for failure of commencement. Id. Accordingly, appellants' third assignment of error is well taken. The judgment in Case Number 171,607 is affirmed in part, re- versed in part, and remanded to the trial court to strike the re- mainder of appellants' complaint from the record. The judgment in Case Number 191,981 is affirmed. - 10 - It is ordered that appellees 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 Cuyahoga County Court of Common Pleas 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. SPELLACY, J. BLACKMON, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .