COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68538 : GENEVA AXSON, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION THE LTV STEEL CORPORATION, ET AL. : : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-257074 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: RICHARD E. HACKERD, ESQ. RICHARD C. HUBBARD, III, ESQ. 1030 Euclid Avenue PAUL A. MONAHAN, ESQ. Suite 605 Duvin, Cahn & Hutton Cleveland, Ohio 44115 1301 East Ninth Street Erieview Tower-20th Floor Cleveland, Ohio 44114-1886 HENRY A. HENTEMANN, ESQ. JOHN P. O'DONNELL, ESQ. MEYERS, HENTEMANN, SCHNEIDER & REA CO., L.P.A. 2100 Superior Building 815 Superior Avenue, N.E. Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: Plaintiffs-appellants Geneva and Melvin Axson appeal from an order of the trial court granting summary judgment in favor of defendants-appellees The LTV Steel Corp. ("LTV") and Wells Fargo Guard Services ("Wells Fargo"). The Axsons filed an eight count complaint against LTV and Wells Fargo in the trial court on August 23, 1993. The complaint arose out of the rape of Geneva Axson at the LTV premises by an LTV employee on the evening of February 24, 1992. Geneva Axson was employed by a cleaning service and was cleaning the premises prior to the attack. Wells Fargo provided security services at the premises. Geneva Axson alleged that LTV and Wells Fargo failed to maintain a safe place or provide adequate security, negligently hired and failed to control adequately the employee who raped her, and inflicted emotional distress. Melvin Axson joined the suit with a claim for loss of consortium. The LTV employee was convicted of criminal charges relating to the incident. During the course of discovery the Axsons requested LTV to disclose information concerning prior criminal offenses at the premises for a period of more than fourteen years since 1978. The Axsons specifically requested information concerning a prior rape on the premises approximately thirteen years earlier in 1979. LTV objected to some of the discovery requests and disclosed the remaining information, including lists of - 3 - complaints made to the Cleveland Police at gates to the premises, sexual harassment incidents, and a general description of the 1979 rape. The Axsons subsequently filed motions to compel discovery and for an in camera review of material which had not been disclosed. The record indicates that LTV submitted documents concerning the 1979 rape to the trial court for in camera review. Approximately three months thereafter, following a pretrial, the trial court directed LTV and Wells Fargo to file motions for summary judgment. LTV filed a motion for summary judgment supported by the deposition testimony of Geneva Axson. Wells Fargo filed a motion for summary judgment supported by a map of the premises, a copy of its contract with LTV and responses to various discovery requests. Defendants argued, inter alia, they had no duty to protect Geneva Axson against criminal attack. Following an extension of time, the Axsons filed a consolidated response to the motions for summary judgment. The Axsons argued the rape was foreseeable based on the prior rape at the premises thirteen years earlier in 1979. The Axsons complained about the limited disclosure of records concerning prior criminal incidents. The trial court granted defendants' motions for summary judgment in orders journalized January 13, 1995. The Axsons timely appeal raising two "arguments." The Axsons' first argument on appeal follows: WHETHER THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF APPELLANT'S [SIC] MOTION TO COMPEL DISCOVERY OF PRIOR CRIMINAL ACTS ON THE PREMISES OF LTV STEEL. - 4 - The Axsons' first argument on appeal lacks merit. The Axsons argue the trial court erred by failing to order LTV to complete interrogatories concerning prior criminal incidents at the premises over a fourteen year period since 1978. The Axsons sought information concerning all criminal acts, incidents of criminal activity reported, employee sexual harassment or misconduct reports filed and subsequent remedial measures taken. The Axsons also sought information and an in camera review of documents concerning the 1979 rape to establish that her rape in 1992 was foreseeable. It is well established that management of the discovery process lies within the sound discretion of the trial court. Glick v. Marler (1992), 82 Ohio App.3d 752, 758-759; Shaver v. Standard Oil Co. (1990), 68 Ohio App.3d 783, 799-800; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 85-87. A reviewing court will not reverse the trial court's decision absent an abuse of discretion which results in material adverse prejudice. Based on our review of the record in accordance with this standard, the Axsons have failed to show any error. The Axsons sought extensively detailed information broadly relating to any and all crimes occurring on the premises over a fourteen year period. Most of the requested information, to the extent that any existed, would not have been admissible into evidence at trial because the requests were directed to remote, unrelated incidents. Reitz v. May Co. Dept. Stores (1990), 66 - 5 - Ohio App.3d 188. LTV provided perimeter gate reports, employee sexual harassment reports, and a general description of the 1979 rape. The record does not demonstrate what, if any, information was not disclosed. To the extent that the trial court did not require disclosure of any information, the trial court could properly find that the discovery requests were substantially overbroad, unduly burdensome and not reasonably tailored to lead to the discovery of admissible evidence. The Axsons made no effort to limit discovery to violent crimes or recent crimes more directly relevant to their claims. Under the circumstances, the Axsons have failed to demonstrate the trial court abused its discretion by declining to compel LTV to answer any interrogatories or that any prejudice resulted. The Axsons sought an in camera review by the trial court limited to documents concerning the 1979 rape. However, the failure to make these documents, or any other information allegedly withheld, part of the record on appeal precludes finding any error or prejudice. Without the documents submitted to the trial court for its in camera inspection, this court must presume regularity and affirm the trial court. Cleveland Heights v. Reese (Apr. 20, 1989), Cuyahoga App. No. 55236, unreported at p.4; State v. Gray (June 29, 1995), Hamilton App. No. C-940276, unreported at p. 8. Accordingly, the Axsons' first argument on appeal is overruled. The Axsons' second argument on appeal follows: - 6 - WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT. The Axsons' second argument on appeal lacks merit. The Axsons argue the trial court improperly granted summary judgment against them because there was a genuine issue of material fact concerning defendants' duty to protect her. The Axsons argue that the rape was sufficiently foreseeable to warrant imposing liability for this criminal act on the defendants in light of the rape on the premises thirteen years earlier. This court of appeals recently summarized the principles governing the duty to protect against criminal activity in Feichner v. Cleveland (1994), 95 Ohio App.3d 388, 395-397. Ohio law generally recognizes no duty to anticipate criminal activity and control the conduct of third persons in the absence of a special duty. The existence of a special duty depends on the foreseeability of the injury. The foreseeability of criminal acts resulting in injury depends on the knowledge of the defendant and is based on the totality of the circumstances. Only when the totality of the circumstances are "somewhat overwhelming" will the defendant be held liable for the criminal acts of the third party. Id. The trial court properly found that the Axsons have failed to satisfy this standard in this case. The Franklin County Court of Appeals recently held that the premises owner and the security guard service were not liable for the forcible rape of a female invitee on the premises by a male employee of a tenant in Eagle - 7 - v. Mathews-Click-Bauman, Inc. (June 22, 1995), Franklin App. No. 94APE10-1507, unreported. The rationale for the Eagle decision, which applies equally to the Axsons, was that the victim presented no evidence of recent prior criminal activity of any kind, whether or not involving employees, to support a finding that the rape was foreseeable. Accord Valles v. Hannan-110 Limited Partnership et al. (June 27, 1991), Cuyahoga App. No. 60931, unreported. Finally, contrary to the Axsons' argument, there is no evidence that the security service assumed a duty to safeguard the entire interior of the LTV premises by agreeing to guard the perimeter gates. The fact that a rape occurred on the LTV premises thirteen years earlier does not warrant a different result. This court of appeals recently held that criminal activity was not sufficiently foreseeable as a matter of law when a similar prior incident occurred over three years before the litigation. Reitz v. May Co. Dept. Stores, supra. Thirteen years is substantially more remote than three years. Moreover, the cases cited by the Axsons to support their argument to the contrary are distinguishable because they involved criminal acts that were numerous, repeated, recent, and similar. E.g., Daily v. K-Mart Corp. (1981), 9 Ohio Misc.2d 1 (forty-nine known prior serious crimes). Based on a review of the record, the Axsons have failed to show that this forcible rape was sufficiently foreseeable, under the totality of the circumstances, to impose a duty to protect her from the crime as a matter of law. - 8 - Accordingly, the Axsons' second argument on appeal is overruled. - 9 - 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. BLACKMON, P.J., and O'DONNELL, J., CONCUR. DIANE KARPINSKI 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 .