COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68807 KAREN STONE, ADMINISTRATRIX : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION SHELL OIL COMPANY, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 9, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 260590 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Michael R. Kube, Esq. Bruce C. Allen, Esq. William J. Shramek, Esq. (Ms.) Blair Hodgman, Esq. Jeffries, Kube, Forrest & Allen & Hodgman Monteleone Co., L.P.A. 13111 Shaker Square #304 1650 Midland Building Cleveland, Ohio 44120-2345 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 -2- HARPER, J.: Plaintiff-appellant, Karen Stone ("Appellant"), Administratrix of the Estate of Daniel Stone, appeals from the trial court's order which granted summary judgment in favor of defendants-appellees, Shell Oil Company, et al. ("Shell"). In the underlying action, appellant filed a wrongful death/negligence complaint seeking damages on behalf of her husband/decedent, Daniel Stone. Daniel Stone was assaulted and robbed on May 5, 1992 while he was on the premises of a Shell gas station located at 14021 St. Clair Avenue, Cleveland, Ohio. A third party, Shelby McGhee ("Mr. McGhee"), physically attacked Daniel Stone, causing Daniel Stone to sustain severe injuries, and as a result of the injuries, Daniel Stone died from Mr. McGhee's assault. Appellant submits that there remain genuine issues of material fact for litigation concerning whether Shell should have foreseen the assault by Mr. McGhee on its premises. A careful review of the record compels affirmance. I. The following facts are adduced from the evidentiary materials before the court: Daniel Stone and his friend, Mark Hollowell ("Mr. Hollowell"), were out together on the evening of May 5, 1992. On their way home, Mr. Hollowell noticed that the car needed gasoline. They exited the interstate and proceeded to look for an open gas station. They realized that they were unfamiliar with the neighborhood because they turned on the wrong exit. Nonethe-less, they continued to look for an open gas station. They passed one gas station and did not stop because lights in the gas station were -3- not on. They saw a Shell gas station farther down the street, and pulled into the lighted Shell gas station. As they pulled into the gas station, Mr. Hollowell observed four males standing near the cashier or "kiosk" arguing among themselves. The Shell attendant was in the kiosk. Mr. Hollowell also observed other cars in the gas station. Mr. Hollowell gave a twenty dollar bill to Daniel Stone for gas. Daniel Stone walked past the four men to the cashier in the kiosk to pay for the gas, as this was a pay-before-you pump gas station. Daniel Stone waited at the kiosk because the Shell attendant had a shift change. As he waited for the shift change to be completed, Mark Hollowell waited at the car. During the time Daniel Stone had been waiting, which was approximately five to ten minutes, one of the men from the group of four walked over to Mr. Hollowell and offered to sell to him some crack-cocaine. Mr. Hollowell told the man that he was not interested in buying any crack-cocaine and the man walked away and rejoined the group of men. Daniel Stone was still standing at the cashier's booth, but, he was not approached by the man who offered to sell crack-cocaine to Mr. Hollowell. Mr. Hollowell stayed at the car, and told neither Daniel Stone nor the attendant in the kiosk about the man who offered to sell him crack-cocaine. After the passage of ten to twelve minutes, Daniel Stone paid the cashier and walked back towards the car. Mark Hollowell observed that the cashier had given Daniel Stone his change in two bills. -4- As Daniel Stone walked back to the car, one man standing in the group of four suddenly lunged out at him, and simultaneously ripped the gold chain off Daniel Stone's neck. As Daniel Stone turned his head, the assailant punched him once in the face, and Daniel Stone fell to the ground. After witnessing Daniel Stone fall to the ground, Mr. Hollowell jumped into his car to find something to use to protect himself. As he reached into the back seat of the car he was pulled from the car, punched, and blacked out as a result of the blow. When Mr. Hollowell regained consciousness, Daniel Stone was lying on his side, face down. Mr. Hollowell turned him over and discovered he was unconscious. By this time, a group of people had gathered, however, Mr. Hollowell did not see any of the men from the original group of four standing nearby and he also observed that one of the parked cars was no longer parked on the premises. Subsequently, an unidentified motorist pulled into the gas station, stopped and asked if anyone had called 911. The motorist then called 911 from his cellular phone in his car. He asked Mr. Hollowell if he knew cardiopulmonary resuscitation ("C.P.R."). The motorist proceeded to assist Mr. Hollowell by administering C.P.R. to Daniel Stone. Daniel Stone received C.P.R. for at least ten minutes. Shortly thereafter, Emergency Medical Services "E.M.S." arrived at the gas station, followed by officers from the Cleveland Police Department. Daniel Stone was later pronounced dead. Appellant's complaint alleged therein, inter alia, that: Shell was negligent in failing to discover that an attack on Daniel -5- Stone was likely to occur; failed to give Daniel Stone adequate warning to avoid the attack; and that Daniel Stone died as a direct and proximate result of Shell's negligent conduct. Pursuant to appellant's motion, a co-defendant was dismissed from the action. Shell answered and asserted inter alia that: (1) Shell had no duty to protect Daniel Stone from the injury alleged; (2) Shell was not liable for the death of Daniel Stone on the basis of negligently failing to prevent a violent attack by a third party; and (3) the sole and proximate cause of Daniel Stone's death was the violent, unexpected act of a third party, which could not have been prevented by the exercise of reasonable care. Shell filed a motion for summary judgment and appellant filed opposing briefs and affidavits. Shell asserted in its brief, in support of its motion for summary judgment, inter alia that a duty to protect business invitees from criminal activity can only be imposed on premises occupied when there is a history of similar criminal attacks on the premises. In support of its motion for summary judgment, Shell attached the affidavit of John Caster, the sales manager previously responsible for overseeing management of the company owned stores. Mr. Caster averred that prior to the attack on Daniel Stone, he was unaware of any other violent assaults or robberies at that location. Consequently, Shell did not see a need for security guards to be hired, and did not hire a security guard. In addition, Shell attached appellant's answer to Shell's first set of interrogatories, which included appellant's response to questions concerning knowledge of prior criminal -6- activities occurring on or near the Shell gas station located at 14021 St. Clair. Appellant filed a motion in opposition to Shell's motion for summary judgment. Appellant attached a report from former Cleveland Chief of Police Howard Rudolph in support of its motion. Mr. Rudolph opined inter alia that the police dispatch tickets relating to the incident showed that the first call to 911 was received at the Police Communication Control Center at 12:29 a.m., and the police were dispatched immediately. Mr. Rudolph concluded in his report that a call to the police prior to the assault, to report the four loitering men, would have received the same speedy response by police, and would have prevented the assault attack on Daniel Stone. Subsequently, Shell filed a motion to supplement its motion for summary judgment and to strike appellant's brief in opposition to Shell's motion for summary judgment. Shell attached the affidavit from Thomas Kostura. Mr. Kostura averred that two pages were omitted from the six pages of Cleveland Police Department Dispatch tickets that he faxed to appellant's counsel. In addition, Shell attached the deposition of Cleveland Police Radio Dispatcher, David Bender, in support of its motion. Mr. Bender stated that according to the Cleveland Police Department, records of May 5, 1992, five calls were placed to 911 from the business phone in the name of Cleveland Shell Car wash located at 14021 St. Clair Avenue; this phone was inaccessible to the general public. Mr. Bender stated that the first call was placed at -7- 12:17:08 a.m. and the last call was placed at 12:26:39 a.m. (As a result of the first call to 911 from the Shell telephone, the Cleveland Police were informed at 12:19 by E.M.S. that there had been two victims of an assault, and that E.M.S. was on its way and a Cleveland Police Department dispatch ticket and a fast response unit was dispatched based on that priority call. The police arrived four minutes after the call was placed. In addition to Mr. Bender's deposition, Shell submitted a sworn affidavit from defense expert Barbara Margolis. Ms. Margolis was employed by the city of Cleveland as a management analyst in the Department of Public Safety. Ms. Margolis developed and helped implement the City of Cleveland's Police response time performance measures. Ms. Margolis opined that Mr. Rudolph's conclusion that a call to police prior to the assault, to report the four men loitering would have received the same speedy response by police, and would have prevented the attack on Daniel Stone is erroneous for three reasons. First, at the time of the incident, the Cleveland Police Department did not have a category for loiters. Second, the closest category to loiters is probably "rowdies." The Cleveland Police Dispatch records for the early 1990's indicate that half of all calls for rowdies had a response time greater than one hour. Third, the police response to a "Suspicious Activity/Drugs" call also typically takes more than one hour. Thus, Shell asserted in its brief that Mr. Rudolph's expert report which draws absurd conclusions from demonstrably false premises cannot create a -8- material issue of fact where none otherwise exists. See, e.g., Jones v. H.J.I. Enterprises (1993), 83 Ohio App.3d 384. After discovery concluded, the trial court granted summary judgment in favor of Shell. The journalized entry, in pertinent part, states: Motion of Defendant Shell Oil Co. for summary judgment is granted. Plaintiff has failed to set forth sufficient evidence to establish a genuine issue of material fact as to whether Defendant Shell Oil should have reasonably foreseen the criminal activity at Defendant's premises. (Citations omitted). Appellant timely appeals. Appellant sets forth her sole assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT SHELL OIL COMPANY WHEN REASONABLE MINDS COULD CONCLUDE, BASED UPON THE EVIDENCE SUBMITTED BY PLAINTIFF, THAT DEFENDANT SHELL OIL COMPANY SHOULD HAVE FORESEEN THE CRIMINAL ACTIVITY ON ITS PREMISES. I. In her sole assignment of error, appellant attacks the trial court's order which granted summary judgment in favor of Shell. Appellant specifically disputes the trial court's conclusion that Shell could not reasonably foresee Mr. McGhee's attack on Daniel Stone. Appellant bases this argument on the theory that Shell should have reasonably foreseen the attack on Daniel Stone due to the existence of prior crimes at the Shell gas station. Moreover, appellant asserts that since the Shell gas station was located in a high crime area, and that the manager was aware of the crimes in the neighborhood, Shell should have anticipated Mr. McGhee's attack on Daniel Stone. -9- The underlying action was disposed of by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court finds that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is averse to that party. Civ.R. 56(C). Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. In order to defeat a motion for summary judgment in a negligence action, the plaintiff must identify a duty owed her by the defendant. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19. This evidence, construed most strongly in the plaintiff's favor, must be sufficient to allow reasonable minds to infer that a specific duty was breached; and that the breach was the proximate cause of plaintiff's injury; and that the plaintiff was injured. Id. The focus of the inquiry is whether the appellant brought forward sufficient evidence to establish a genuine issue of -10- material fact of whether the defendant should have reasonably foreseen the criminal activity and protected appellant for it. In Howard v. Rogers (1969), 19 Ohio St.2d 42, the court held that a business may be liable for harm to a business invitee for the conduct of third persons even though the business is not an insurer of the safety of the business invitees. The business owes a duty to exercise ordinary or reasonable care for the protection of its customers. Jackson v. Kings Island (1979), 58 Ohio St.2d 357, 359. The existence of a duty depends on the foreseeability of the harm. Menifee v. Ohio Welding Products Inc. (1984), 15 Ohio St.3d 75. In Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188, this court adopted a totality of the circumstances test to determine foreseeability. This test looks to not only prior similar incidents but also other criminal activity at or near the business. Reitz cautioned that when evaluating whether a duty is owed it must be remembered that a business is not an absolute insurer of the safety of its customers and that criminal activity of third persons is not predictable to any particular degree of certainty. "[T]he totality of circumstances must be somewhat overwhelming before a business will be held to be on notice of and therefore under the duty to protect against the criminal acts of others." Id., at 193-194. The court in Hickman v. Warehouse Beer Sys. Inc. (1993), 86 Ohio App.3d 271, applied the totality of the circumstances test to hold a drive-through liquor store not liable in the shooting of a -11- customer during a robbery. The court noted that there were no previous armed robberies or crimes involving personal violence at the store. The court found it to be unforeseeable that an armed robber would shoot a cooperative victim. In Doe v. Sys. Parking, Inc. (1992), 72 Ohio App.3d 278, this court applied the Reitz test to find summary judgment inappropriate regarding the same issue of foreseeability. In that case, a woman was abducted, raped, and robbed after attempting to enter her car located at a parking facility. The lot had an attendant on duty who, at the time, was asleep in a locked booth with a radio and air conditioner operating. The parking lot was located in a high- crime area which included incidents of violent crime. Cases subsequent to Doe, supra, have held that no duty existed in the cases of instances of prior criminal assaults. See, e.g., Hickman; Vrndavan v. Malcolm (March 17, 1994), Cuyahoga App. No. 64839, unreported, motion to certify overruled, 70 Ohio St.3d 1427; and Burkes v. C.B. Management, Inc. (July 15, 1993), Cuyahoga App. No. 63195, unreported; as well as the decisions of this court in Friedman v. Sutter (Oct. 29, 1992), Cuyahoga App. No. 61198, unreported; and Valles v. Hannan-110 Ltd. (June 27, 1991), Cuyahoga App. No. 60931, unreported. Recently, this court in Daniel v. Thistledown Racing Club, Inc., et al. (April 27, 1995), Cuyahoga App. No. 67345, unreported, affirmed a trial court's order which granted summary judgment in favor of defendant when it found that no genuine issues of material fact remained pending for litigation concerning whether defendant -12- owed a duty to plaintiff. In the underlying litigation, plaintiff asserted that defendant permitted a hazardous condition to exist and further, breached a statutory duty to provide a safe work place when she was sexually assaulted by an intoxicated jockey. Plaintiff asserted that the jockey who sexually assaulted her was noticeably intoxicated. This court held the evidence did not demonstrate that defendant had knowledge or reason to believe the intoxicated jockey would sexually assault her. Moreover, there was no evidence to show the jockey had been intoxicated on other occasions and attempted to assault other persons. Id. In appellant's motion for leave to file a notice of supplemental authority, appellant directs this court's attention to J & M, et al. v. Shell Oil Company (Dec. 5, 1995), Mo. Court of Appeals, Eastern District, Case No. 68756, unreported as supplemental authority (held material issue of fact remained for litigation whether a franchisor leasing a station to a franchisee could be held vicariously/primarily liable in a negligence suit when the franchisor retained operational control over the franchisee). Upon review of J & M, supra, we find the facts of the case to be readily distinguishable from the facts of the case sub judice. Therefore, we decline to adopt the reasoning of J & M, supra, and apply it to the facts of the instant case. With the substantive law set forth, we now turn to the issues in the instant action. In the case sub judice, the focus of our inquiry pertinent to premise liability for the acts of third persons is whether the acts of third persons were reasonably -13- foreseeable. The test is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75. Appellant argues Shell should have reasonably foreseen the criminal attack of Mr. McGhee and prevented Mr. McGhee's attack on Daniel Stone. A review of the record shows that there were four incidents that occurred prior to the attack on Daniel Stone. First, on October 12, 1990, an unknown person entered the station by the use of a key, then opened a second door, and took a supply of motor oil, antifreeze and promotional Cleveland Brown's hats. Second, on October 18, 1990, the storeroom was entered again and it was discovered that motor oil, and Cleveland Brown's hats were taken. Third, on October 30, 1990, ten cash drop envelopes containing one hundred dollars each were discovered missing as well as two hundred dollars worth of cigarettes. Fourth, on November 4, 1990, a key was used to open the storeroom, and oil, antifreeze and power steering fluid were taken. Consequently, Shell determined that the thefts occurred were when a Shell employee was on duty. He was held responsible for all the thefts and was discharged; thereafter, there were no more unlawful incidents until the attack on Daniel Stone. In the instant case, the four prior thefts at the Shell gas station do not indicate that Mr. McGhee's attack was reasonably foreseeable. Pursuant to Civ.R. 56, we find that appellant did not meet her burden under Civ.R. 56 which requires the production of -14- sufficient evidence to establish a genuine issue of material fact. No evidence was presented to show that Shell could have reasonably anticipated Mr. McGhee's attack on Daniel Stone. There is no indication that Shell had notice of a previous similar incident which would have required them to take extra precaution. Mr. Hollowell notified neither Daniel Stone nor the attendant that Mr. McGhee had approached and offered to sell Mr. Hollowell crack- cocaine. Moreover, Mr. Hollowell did not indicate that after he turned down Mr. McGhee's offer to buy crack-cocaine, neither Mr McGhee nor any one of the group of four man threatened to assault or pick a fist fight with Mr. Hollowell or Daniel Stone. Mr. Hollowell stated that the man walked away and joined the other three men after Mr. Hollowell turned down his offer to buy crack- cocaine. Finally, there is absolutely no evidence of any prior violent assaults of a similar nature on the premises of the Shell gas station. The four prior incidents were non-violent thefts of cigarettes, motor oil and Cleveland Brown's hats from Shell by one of Shell's employees which took place one and one half years prior to the attack on Daniel Stone. We also note that even if Shell is located in a "high crime area," this fact by itself would not establish a duty on Shell's part to anticipate a violent, unprovoked assault on one of its customers. Valles, supra. Consequently, we find no issue of material fact. Construing the evidence in Shell's favor, we find that reasonable minds can come to but one conclusion, i.e., that Shell could not reasonably have anticipated or prevented the attack by -15- Mr. McGhee. Therefore, Shell was entitled to summary judgment as a matter of law. See Harless v. Willis Day Warehouse Co. (1978), Ohio St.2d 64. Accordingly, appellant's sole assignment of error is overruled. Judgment affirmed. -16- It is ordered that appellee recover of appellant its 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 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. JAMES D. SWEENEY, P.J., AND JOHN T. PATTON, J., CONCUR JUDGE SARA J. HARPER 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 .