COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61198 HARRIETTE FRIEDMAN, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION JOHN SUTTER, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 29, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 181,146 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Paula J. Goodrich NEWMAN AND NEWMAN 716 Leader Building Cleveland, Ohio 44114 For defendant-appellee, William E. Armstrong John Sutter: Harold R. Rauzi BUCKLEY, KING & BLUSO 900 Park Plaza Cleveland, Ohio 44114 For defendants-appellees, Richard R. Kuepper Charles C. Pearson and KUEPPER, WALKER, HAWKINS & Dominic A. Visconsi, dba CHULICK Axle Properties: Skylight Office Tower -1- 1660 West Second Street Suite 480 Cleveland, Ohio 44113-1454 -2- NAHRA, P.J.: Harriette and Sanford Friedman appeal from the trial court's decision granting summary judgment in favor of Charles C. Pearson and Dominic Visconsi, doing business as Axle Properties, and John Sutter. For the reasons set forth below, we affirm. On September 1, 1988, the Friedmans ate dinner at Sutter's Restaurant with their friends the Spotts and Weizmans. At that time, Sutter's Restaurant was located on E. 140th in Cleveland. Adjacent to the restaurant was a parking lot owned by Axle Properties. Upon leaving Sutter's restaurant and returning to her car, Harriette Friedman was attacked by a would-be purse-snatcher. Mrs. Friedman was pulled to the ground and down the sidewalk by her attacker. Harriette and Sanford Friedman filed suit against Sutter's Restaurant and Axle Properties to recover for Harriette's injuries and Sanford's loss of consortium. Defendants filed motions for summary judgment which were granted by the court. The Friedmans brought this timely appeal, assigning two errors as follows: ASSIGNMENT OF ERROR NUMBER ONE: THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES FOR THE REASON THAT THERE WAS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER APPELLEES DID HAVE OCCUPATION AND CONTROL OF THE SITUS. ASSIGNMENT OF ERROR NUMBER TWO: THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING SUMMARY JUDGMENT IN -3- FAVOR OF APPELLEES FOR THE REASON THAT IT WAS FORESEEABLE THAT A PURSE SNATCHING WOULD HAVE OCCURRED UPON THE PARKING LOT AND THEREFORE THERE WAS A DUTY UPON THOSE IN CONTROL OF THE SITUS TO WARN ITS BUSINESS INVITEES OF, OR OTHERWISE PROTECT THEM FROM, THE DANGER. One of the elements necessary to establish an actionable negligence case is a breach by the defendant(s) of a duty of care owed to the plaintiff(s). Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92. Owners and occupiers of land are subject to different standards of care for injuries incurred on their property depending on whether the victim was invited on the property, was licensed to be on the property, or was trespassing. See Paul v. Uniroyal Plastics Co. (1988), 62 Ohio App.3d 277, paragraph 13 of the syllabus (landowners or occupiers must protect invitees from unreasonable harm from dangers of which occupier is aware or reasonably should be aware); Fuehrer v. Westerville City School Dist. Bd. of Edn. (1991), 61 Ohio St.3d 201, paragraph two of the syllabus and McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246 (licensees and trespassers owed duty by landowner or occupier to refrain from wanton or willful conduct). In Howard v. Rogers (1969), 19 Ohio St.2d 42, the Ohio Supreme Court explained the standard of care toward business invitees as follows in paragraphs one, two and three of the syllabus: 1. An occupier of premises for business purposes may be subject to liability for harm caused to a business invitee by the conduct of third persons that endangers the safety of such -4- invitee, just as such an occupier may be subject to liability for harm caused to such invitee by any dangerous condition of those premises. 2. An occupier of premises for business purposes is not an insurer of the safety of his business invitees while they are on those premises. 3. 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. In Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188, this court held that a business' duty to protect invitees from criminal acts of third parties depends on the foreseeability of harm; that foreseeability depends on the business' knowledge of possible harm; that the totality of circumstances must be considered in determining foreseeability, and that: [i]n determining whether a business owes a duty towards it patrons for the criminal acts of third parties under the totality of the circumstances standard, the court must be mindful that a business is not an absolute insurer of the safety of its customers and that criminal behavior of third persons is not predictable to a particular degree of certainty; totality of circumstances must be somewhat overwhelming before business will be held to be on notice of and under duty to protect against the criminal acts of others. (Emphasis added.) Paragraphs two, three, four and six of the syllabus. In Reitz, the victim was accosted and stabbed during the theft of her car from the May Co. parking lot in Cleveland Heights. The court held that: [u]nder totality of circumstances standard, possibility of criminal acts of third parties toward customers was not sufficiently foreseeable to create duty by -5- department store to furnish outdoor security; stabbing and car theft incident occurred in broad daylight, car theft incidents were relatively infrequent considering that lot was large, unguarded, and store was open nearly 365 days a year, store was not located in high crime area, and there had been only one prior similar incident more than three years earlier. Paragraph seven of the syllabus. In this case, even assuming that both appellees in fact owed the Friedmans the highest standard of care for the premises, they would have no duty in this case because the injury was not sufficiently foreseeable. John Sutter stated that he knew of no prior violent incidents in the parking lot itself, and of only one similar incident outside his restaurant on the sidewalk. There was no evidence of Axle Properties' knowledge. Knowledge of only one defendant of only one prior incident years before does not constitute the overwhelming evidence of criminal activity required to impose a duty to protect invitees pursuant to Reitz. See also Montgomery v. Young Men's Christian Association of Cincinnati and Hamilton Cty. (1987), 40 Ohio App.3d 56 (no liability imposed on YMCA for sexual assault which took place in pool where there was no showing of a course of prior criminal acts which would render incident foreseeable). Accordingly, the trial court properly granted summary judgment in favor of appellees. Appellants' assignments of error are overruled. Affirmed. -6- 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 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. HARPER, J., and KRUPANSKY, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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. .