COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69172 CARLO RESCIGNO, ADMINISTRATOR : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION DANIEL HEYDUK, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 15, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 260066 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES LANE HOTELS, INC. AND CONCORD RANDALL LIMITED PARTNERSHIP: Lewis Einbund, Esq. Alan M. Petrov, Esq. Peter C. Tucker, Esq. Gallagher, Sharp, Fulton & Rubenstein, Novak, Einbund, Norman Pavlik & Celebrezze 1501 Euclid Avenue 270 Skylight Office Tower 7th Floor, Bulkley Bldg. Tower City Center Cleveland, Ohio 44115 Cleveland, Ohio 44113 FOR DEFENDANT-APPELLEE T.D. SECURITY, LTD., INC.: James Rosenthal, Esq. Joseph E. Rutigliano, Esq. Kohrman, Jackson, & Krantz One Cleveland Center 1375 E. 9th Street, 20th Floor -2- Cleveland, Ohio 44114 HARPER, J.: Plaintiff-appellant, Carlo Rescigno, Administrator of the Estate of Albert Rescigno, appeals from the grant of summary judgment by the Court of Common Pleas of Cuyahoga County in favor of defendants-appellees, Lane Hotels, Inc., Concord Randall Limited Partnership, and T.D. Security, Ltd., Inc. Appellant submits that genuine issues of material fact remain for litigation regarding the appellees' failure to exercise reasonable care in preventing the foreseeable physical attack on Albert Rescigno ("the decedent"), the failure of which proximately caused his death. A careful review of the record compels affirmance. I. Lane Hotels, Inc. and Concord Randall Limited Partnership ("Lane" collectively) overtook the management of the Days Inn Hotel ("the hotel") located on Northfield Road in North Randall, Ohio, in October or November 1990. T.D. Security, Ltd., Inc. ("TD Security") provided private security services to the hotel pursuant to a 1989 verbal agreement. Between October and November 1990 and October 27, 1991, no incidents of assault, robbery or rape were reported to Lane. Stewart Collins, General Manager of the hotel in October 1991, and Dennis Matson, TD Security's President, provided deposition testimony regarding the hotel's security procedures for the period of 10:00 p.m. to 6:00 a.m. The hotel basically outlined its own -3- security measures. TD Security's personnel, therefore, only carried out functions as directed by hotel management. The standard eight-hour shift required TD Security's guard upon arrival at the hotel, to secure the public areas--the exits, ballroom, meeting rooms, pool and parking lot. After this approximate one-half hour procedure, the guard made standard rounds, including periodic checks of the residential floors and the public areas. If there was an event at the hotel, an off-duty police officer was brought in for additional security. The city of North Randall posted the available occasions that were awarded based upon seniority. Although there were no written guidelines concerning the hotel's security procedures, hotel employees learned in training not to divulge a guest's room number. Common sense rules furthermore required an employee to instruct or escort an intoxicated guest to his or her room, and to instruct or escort an intoxicated patron off the premises. Finally, unless an individual appeared suspicious, he or she could walk by the front desk to the elevators which would transport them to the guest floors. The decedent resided at the hotel as a month-to-month tenant. On October 27, 1991, the decedent voluntarily allowed Daniel Heyduk into his room, No. 505. A conversation between the two men about Heyduk's wife escalated into an argument which, in turn, led to the decedent's fatal beating at the hands of Heyduk. -4- The events leading up to, and the circumstances surrounding, the decedent's death were described at deposition by a number of employees of Lane and TD Security. These employees were Kevin Siska, a security guard employed by TD Security; Jorge Castillo, a banquet manager/night manager for the hotel; and Daniel Heyduk's wife, Katherine Heyduk, a hostess/server in the hotel's restaurant and lounge. David Davis, a full-time police officer who provided part-time security services for the hotel, also provided deposition testimony. Both Siska and Davis met Heyduk prior to October 27, 1991. Siska first saw appellant about a month before, when Heyduk and his wife were arguing in the hotel's parking lot. Heyduk left upon Siska's request, and Siska did not see him again until October 27, 1991. Davis knew Heyduk as a "very nice guy," having met him in the hotel's restaurant. However, Davis admitted that Ms. Heyduk, who was estranged from her husband on October 27, 1991, asked him on several occasions how to deal with domestic violence situations. Davis, in fact, once observed a bruise on Ms. Heyduk, and learned that the bruise was caused by Heyduk. On another occasion, Davis escorted an intoxicated Heyduk from the hotel's premises, at Ms. Heyduk's request, without any physical resistance. Davis denied that Heyduk was always intoxicated when he appeared at the hotel. Davis also knew the decedent as a long-term guest of the hotel. About a month and a half prior to October 27, 1991, Davis learned from Ms. Heyduk that Heyduk was making threatening -5- telephone calls to the decedent. In a subsequent conversation with the decedent, the decedent told Davis that Heyduk stated during a recent phone call, "'Leave my f------ wife alone.'" The decedent responded that he was only a friend to Ms. Heyduk. Heyduk nonetheless repeated that the decedent should leave her alone. Davis asked the decedent if he wanted to report the call to the police. The decedent responded that he already told hotel management. Davis then advised him to either contact him or the police department if Heyduk made any additional threats or contact. When Davis saw the decedent a couple of weeks later, the decedent told him that Heyduk made no other calls. According to Davis' deposition testimony, the decedent never related that Heyduk threatened him with bodily harm, nor that he was going to "get him." The decedent instead indicated to Davis that he wanted to speak to Heyduk about his relationship with Heyduk's wife. Davis, however, listed in the affidavit attached to a search warrant for Heyduk's residence, that the decedent told him that Heyduk made death threats to him. Jorge Castillo met Heyduk about two months prior to October 27, 1991. According to him, despite the decedent's insistence that he and Ms. Heyduk were just friends, rumors spread throughout the hotel that the two were having an affair. Although Castillo first intimated that the rumors included threats to the decedent, he later stated that the gossip was basically restricted to the "affair." -6- Collins knew the decedent and Heyduk. He was, however, unaware of Heyduk's belief that Ms. Heyduk and the decedent were having an affair. Collins was, moreover, unaware of any threats made to the decedent by Heyduk, as well as any incidents when Heyduk was escorted off the hotel's premises. Ms. Heyduk testified that she left her husband on a couple of occasions because of his physical abuse and the "terrorizing" of her family. She also related that appellant had problems with alcohol and controlling his temper. Ms. Heyduk admitted, however, that Heyduk never threatened or assaulted anyone but her. Heyduk never accused Ms. Heyduk of having an affair with the decedent. However, she testified that Heyduk nonetheless threatened in telephone conversations to kill the decedent as a result of his belief in the affair. Siska arrived at the hotel on October 27, 1991 at the beginning of his shift, 10:00 p.m. His log sheet revealed that he implemented the standard security measures within the first half hour, e.g., the securing of the doors and public facilities. Siska 1 then conducted a couple of "detex" rounds during the night, rounds which included residential floor checks. The log sheet fails to indicate any unusual or suspicious activity from 10:00 p.m. to 6:00 a.m., the time that Siska left the hotel. 1 The "detex" are clocks located on the hotel's premises that are used to record the time that a security guard checks certain areas. -7- Davis was assigned to the "prefunction hallway," the area outside the hotel's ballroom, on October 27, 1991. A wedding reception was taking place in the ballroom that evening. Davis found Heyduk's wife, Ms. Heyduk, upset, after 8:00 p.m. Ms. Heyduk explained that her husband telephoned the hotel several times that night. Not wanting to speak with him, she asked a fellow employee, Jamal Upshaw, to answer the calls. An altercation followed when Jamal told Heyduk that Ms. Heyduk was not available. Ms. Heyduk left the hotel at approximately 8:30 p.m., according to her, because of Heyduk's calls. She then went to a Halloween party. Davis spotted a visibly intoxicated Heyduk at about 9:45 p.m. Heyduk asked for his wife. When Davis informed him that she was not at the hotel, Heyduk stated that he only wanted to speak with the man who earlier answered the phone (Jamal Upshaw). Davis told Heyduk to leave the hotel. According to Davis, Heyduk never mentioned the decedent, nor did he show any signs of impending violent behavior. Both Siska and Davis subsequently, but briefly, spotted Heyduk in the hotel's lounge area. Davis, thinking "trespass," called for police assistance. Meanwhile, Davis and Siska searched the public areas and the basement for Heyduk. Their search did not include the guest floors. After the arrival of back-up and a continued search, Heyduk was listed on the police report as "gone on arrival." -8- In his written confession, Heyduk revealed that he proceeded to the decedent's room that night. The decedent answered the door when knocked on by Heyduk. Heyduk asked for Ms. Heyduk, but the decedent told him that she was not in the room. The decedent then told Heyduk that he wanted to speak with him. The two sat on the bed and engaged in a conversation. At some point, Heyduk noticed a note that he believed was written to the decedent by Ms. Heyduk. The message on the note included the words, "I love you." A fist fight developed, and Heyduk left the room after the decedent fell to the floor, moaning. The decedent was discovered the following day. II. Appellant commenced this premises liability action in the 2 trial court on October 22, 1993 against Lane, TD Security, Matson and Heyduk. He alleged that Heyduk's actions were willful, deliberate and unconscionable, thus entitling the decedent's estate to compensatory and punitive damages. As to Lane and TD Security, appellant asserted that they knew or should have foreseen the criminal activity of Heyduk, and protected the decedent from it. However by failing to provide adequate security through revealing the decedent's room number and permitting Heyduk to reach the decedent's floor and room, Lane and TD Security proximately caused the decedent's death. 2 Appellant dismissed the claims against Matson with prejudice on March 4, 1994. -9- Following the filing of individual answers by Lane and TD Security, Lane filed a motion for summary judgment on December 10, 1993. Lane presented four grounds supporting its request for judgment relating to the applicable standard of care, with a focus on foreseeability, i.e., lack of knowledge, and proximate cause, i.e., the decedent's permitting Heyduk to enter his room broke the causal connection between any act of Lane and the decedent's death. The trial court granted Lane's motion for summary judgment on January 25, 1994. The court noted in its entry that appellant failed to file any opposing material in response to the motion. Appellant subsequently filed a motion for leave to plead to the motion for summary judgment. He also filed a Civ.R. 60(B) motion for relief from judgment. The trial court denied the latter motion on February 16, 1994. At a subsequent meeting, the parties informed the trial court that they agreed appellant would not file an opposing brief. The court, therefore, granted appellant's Civ.R. 60(B) motion on March 1, 1994, thereby reinstating his claims against Lane. TD Security filed a motion for summary judgment on August 24, 1994. It presented arguments similar to those of Lane concerning its lack of knowledge and the decedent's intervening act. TD Security also challenged a portion of appellant's evidence, an affidavit submitted by a security expert. -10- Appellant filed his briefs in opposition to the motions for 3 summary judgment on July 1, 1994 and September 9, 1994, respectively. Appellant countered that Lane and TD Security were fully aware of prior death threats made by Heyduk to the decedent. Given this knowledge, he argued that a material issue of fact existed regarding the issues of foreseeability and proximate cause. The trial court granted summary judgment in favor of Lane and TD Security on October 3, 1994. The court concluded that appellant's evidentiary materials failed to establish the existence of a genuine issue of material fact as to whether these defendants should have protected the decedent from the reasonably foreseeable criminal activity of Heyduk. The evidence, therefore, failed to demonstrate that Lane and TD Security breached any duty to the decedent, and thus that the breach was the proximate cause of the decedent's fatal beating. Appellant appealed these rulings to this court on October 17, 1994 (App. No. 68091). The appeal was dismissed on December 24, 1994 pursuant to Civ.R. 54(B) since the allegations against Heyduk were still pending. Appellant filed a motion for reconsideration in the trial court on March 2, 1995, seeking a reversal of its grants of summary judgment based upon newly discovered evidence. The "newly discovered evidence" was an affidavit from Heyduk wherein he 3 Lane filed a reply brief on August 1, 1994. In addition to reasserting their original arguments, they raised an evidentiary issue as well. -11- averred that he received the decedent's room number from an 4 unidentified hotel employee. Lane and TD Security filed briefs in opposition, after which appellant filed a reply brief. The trial court denied the motion for reconsideration on May 2, 1995. After a hearing on Heyduk's liability, the trial court entered judgment in favor of appellant and against Heyduk. Appellant was awarded $210,000 in compensatory damages, and $40,000 in punitive damages. III. The present appeal addresses the propriety of the trial court's grants of summary judgment in favor of Lane and TD Security. Appellant's challenge to the trial court's rulings is 5 reflected in the following assignments of error : A. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING APPELLEES' MOTIONS FOR SUMMARY JUDGMENT BY FAILING TO CONSTRUE THE EVIDENCE IN FAVOR OF THE NON-MOVING PARTY AND FAILING TO RECOGNIZE THAT APPELLANT BROUGHT FORWARD SUFFICIENT EVIDENCE TO ESTABLISH A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE APPELLEES SHOULD HAVE REASONABLY FORESEEN THE CRIMINAL ACTIVITY OF DANIEL HEYDUK AND PROTECTED THE TENANT FROM SUCH ACTIVITY. B. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING THAT THE EVIDENCE FAILS TO DEMONSTRATE THAT THE APPELLEES BREACHED A DUTY OWED TO THE TENANT AND THAT BREACH WAS A PROXIMATE CAUSE OF HIS DEMISE. 4 Other evidence existed, including Heyduk's written statement to the police, which indicated that he discovered the decedent's room number on a piece of paper located in his wife's personal belongings. 5 As appellant's two assignments of error relate to the summary judgment rulings and the application of the law governing premises liability in association with third-party criminal activity, they are addressed as a single assignment. -12- Appellant presents alternative arguments regarding the standard of care applicable to Lane and TD Security, and the conduct or lack thereof which amounted to a breach of this duty and the proximate cause of the decedent's death. He asserts in these two assignments that the trial court erred in granting summary judgment in favor of Lane and TD Security in light of the issues of fact exposed by the evidentiary materials. Appellant first proposes that even considering that the decedent was the first victim of violence at the hotel, application of the "totality of the circumstances" test pronounced in Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188, demonstrated the appellees should have foreseen Heyduk's criminal activity, and thus protected the decedent from it. Appellant offers that the appellees' employees' knowledge of the following facts supports his proposition: (1) Heyduk's jealousy of the decedent; (2) threats, including death threats, made by Heyduk to the decedent; (3) Heyduk's violent tendencies; (4) Heyduk's problem with alcohol and his inability to control his temper; and (5) the prior occasions when Heyduk was escorted off or told to leave the premises. Appellant next submits that the appellees breached their duty to the decedent, thereby proximately causing his death. He charges that the following scenario gave rise to a breach of duty: Heyduk's wife receives threatening phone calls at the hotel from Heyduk; the wife leaves the hotel after the calls; Heyduk arrives at the hotel, visibly intoxicated; instead of arresting Heyduk, security orders him to leave the hotel, but he returns, goes to the -13- decedent's room, a room number disclosed by a hotel employee, and subsequently kills him. Appellant argues that the appellees should have either notified the decedent of Heyduk's presence in the hotel or searched the residential floors of the hotel for Heyduk. He also suggests that antecedent security measures such as the firing or suspension of Heyduk's wife from hotel employment, and/or changing the decedent's room number or suggesting he find lodgings elsewhere, would have prevented the decedent from Heyduk's attack. As to the issue of proximate cause, appellant submits that if the appellees notified the decedent of Heyduk's presence in the hotel, or arrested him, and never disclosed the decedent's room number, the decedent and Heyduk would never have been together on October 27, 1991. Appellant, in other words, maintains that the decedent would not have been in the position to allow Heyduk's entry without the appellees' acts/failures to act. Consequently, appellees set a chain of events in motion which was not broken by the decedent's act of voluntarily allowing Heyduk to enter his room. Summary judgment is a procedural device that is used to terminate litigation and, therefore, must be awarded with caution with all doubts resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 333; see Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359. However, it "forces the nonmoving party to produce evidence on any issue for which that party bears the production at trial." Wing v. Anchor Media, Ltd. -14- of Texas (1991), 59 Ohio St.3d 108, 111, citing Celotex Corp. v. Catrett (1986), 477 U.D. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. In order to defeat a motion for summary judgment in a negligence action, the plaintiff must identify a duty owed by the defendants. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. The evidence, when construed most strongly in the plaintiff's favor, must allow reasonable minds to infer a breach of a specific duty, a breach which proximately caused injury to the plaintiff. Id. "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 invitee, just as such occupier may be subject to liability for harm caused to such invitee by any dangerous condition of those premises." Howard v. Rodgers (1969), 19 Ohio St.2d 42, 46. However, Lane, as an occupier of business premises, owed a duty to decedent, its invitee, to use reasonable safeguards to protect him from Heyduk only if Heyduk's criminal activity was reasonably foreseeable. See Fed. Steel & Wire Corp. v. Rhulin Constr. Co. (1989), 45 Ohio St.3d 171; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75; Howard. The same standard of care applies to TD Security. See Eagle v. Mathews-Click-Bauman, Inc. (1995), 104 Ohio App.3d 792, appeal dismissed (1995), 74 Ohio St.3d 1456; Deeds v. American Security (1987), 39 Ohio App.3d 31. Foreseeability relates to the knowledge of the defendant- business, specifically whether a reasonably prudent business would have anticipated the injury. Howard, 47; Montgomery v. Young Men's -15- Christian Assn. of Cincinnati & Hamilton Cty. (1987), 40 Ohio App.3d 56, 57. As correctly noted by appellant, this court in Reitz, supra, adopted a "totality of the circumstances" test to determine the existence of foreseeability. Reitz, 193; see Feichtner v. Cleveland (1994), 95 Ohio App.3d 388. This test permits the use of other criminal activity, including non-violent activity, at or near the business' location. Reitz, 193. Under this approach, the first victim is not necessarily unable to establish foreseeability. Id. The Reitz court, however, cautioned that certain factors must be considered in conjunction with the totality of the circumstances test. First, a well-established rule is that a business is not an absolute insurer of an invitee's safety. Id.; see Howard. Second, since criminal behavior of third parties is not predictable to any degree of certainty, it is unreasonable to hold a party liable for acts which are for the most part unforeseeable. Reitz, 193. We, therefore, concluded in Reitz that "the totality of the circumstances must be somewhat overwhelming before a business will be held to be on notice of and therefore under a duty to protect against the criminal acts of others." Id., 193-194. See Feichtner, 396 ("No one is bound to take care to prevent consequences, which, in light of human experience, are beyond the range of probability"). Appellant herein seemingly suggests that Reitz stands for the proposition that no evidence of criminal activity, violent or non- violent, needs to be presented in order to establish foreseeability -16- under the "totality of the circumstances" approach. He focuses on the statement, "the first victim is not necessarily precluded from establishing foreseeability." Reitz, 193. However, the issue in Reitz was whether evidence of prior nonviolent crimes should have been excluded at trial. Id., 192. We adopted the "totality of the circumstances" test after concluding that evidence of past nonviolent crimes, if relevant, could be used to determine foreseeability. Id., 192-193. Therefore, foreseeability still hinges on a defendant-business' knowledge of prior criminal activity of third parties. See Eagle; Axson v. The LTV Steel Corp. (Jan. 18, 1996), Cuyahoga App. No. 68538, unreported; and Valles v. Hannan-110 Limited Partnership (June 27, 1991), Cuyahoga App. No. 60931, unreported (criminal activity of third party not foreseeable when victims presented no evidence of recent criminal activity of any kind); see, also, Hickman v. Warehouse Beer Sys., Inc. (1993), 86 Ohio App.3d 271 (robber's shooting of cooperative victim not foreseeable despite evidence of past non-violent crime when there was no evidence of prior violent crime). In the instant case, there is no evidence that Heyduk assaulted his wife while she was at work, only that he argued with her. Heyduk's physical assaults on his wife, and unidentified instances of an uncontrollable temper, therefore, bear no relation to criminal activity on the premises. Additionally, even Heyduk herself testified at deposition that her husband restricted his -17- 6 physical attacks to her. There is, therefore, no evidence that any violent criminal activity occurred at the hotel prior to October 27, 1991, either at Heyduk's hands or any other individual. As to non-violent criminal activity, Heyduk's threatening phone calls to Heyduk and the decedent could be included in this category. However, even given the knowledge of Lane's employees that Heyduk was jealous of the decedent, and that Heyduk verbally threatened the decedent's life, there is no evidence establishing the appellees' knowledge of prior criminal activity of third parties on the premises, a requisite under the "totality of the circumstances" test. In other words, since Heyduk made no mention of the decedent on October 27, 1991, and was otherwise cooperative, given the lack of knowledge of prior violent criminal activity, and regardless of who provided Heyduk with the decedent's room number, a reasonably prudent person or business would not have anticipated that an injury to decedent was likely to result from the performance or nonperformance of any act. See Menifee; Hickman; Meyers v. Ramada Inn of Columbus (1984), 14 Ohio App.3d 311. Otherwise, appellees would be held to be "insurers" of the decedent's safety, a result cautioned against by well-established legal precedent. Appellant relies on the evidence concerning Heyduk's problem with alcohol to show foreseeability. A similar argument was 6 There was a domestic dispute indicated, but no details were presented as to the dispute. -18- rejected in Daniels v. Thistledown Racing Club, Inc. (1995), 103 Ohio App.3d 281. In Daniels, a jockey arrived at Thistledown in a noticeably intoxicated state. A security guard advised the jockey to "settle down." The jockey later raped the plaintiff groomer in her sleeping quarters. Id., 283. As part of her evidence, the plaintiff presented an affidavit of a retired police officer who possessed first hand knowledge of Thistledown's security measures. The officer opined, in part, that if adequate security measures were followed, the intoxicated jockey would not have been on the premises. Id., 285. This court found the officer's opinion to be unpersuasive since even though there were incidents involving intoxicated individuals in the past, none of these individuals were involved in criminal acts of sexual assault. There was, therefore, no reason to suspect that an intoxicated individual would commit a sexual assault on the premises. Id., 286. For the same reason, there was no reason to suspect that an intoxicated Heyduk would venture up to the decedent's room and physically assault him, even in light of evidence that he was previously escorted off the premises because of his intoxication. Finally, the evidence revealed that Heyduk was not violent when he appeared at the decedent's door. Rather, the physical attack occurred after a conversation when Heyduk saw a "love letter" written by his wife. This evidence only highlights the -19- paucity of evidence that to Siska and Davis, Heyduk's violent attack was foreseeable. Appellant failed to show that Heyduk's physical, violent attack upon the decedent was sufficiently foreseeable, under the totality of the circumstances, to impose a duty to protect him from the crime as a matter of law. Howard; Reitz. The trial court thus properly granted summary judgment in favor of the appellees as they were under no duty to protect the decedent from Heyduk's unforeseeable criminal activity. Fed. Steel & Wire Corp.; Jeffers; Howard. There must be a breach of duty in order to consider the nature of the decedent's act of voluntarily allowing Heyduk into his room. Since the record fails to establish, as a matter of law, that the appellees were negligent on October 27, 1991, we need not continue with the analysis of whether the decedent's act broke the causal connection between the negligence and the resulting injury. Appellant's assignments of error are overruled. Judgment affirmed. -20- It is ordered that appellees recover of appellant 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 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. JOHN T. PATTON, J., CONCURS; DIANE KARPINSKI, J., CONCURS IN JUDGMENT ONLY; SEE CONCURRING OPINION ATTACHED TO JOURNAL ENTRY. PRESIDING 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 time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69172 : CARLO RESCIGNO, ADMINISTRATOR : : : Plaintiff-Appellant : : CONCURRING v. : : OPINION DANIEL HEYDUK, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 15, 1995 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I respectfully concur in judgment only. I would also add the following facts: Mrs. Heyduk reported the "threatening" calls to her employer and also to Davis before she left the hotel. Later, after Davis spotted Heyduk, Davis lost contact with Heyduk when he escorted him out. Judgment was properly granted for appellees because the decedent's voluntary act of inviting Heyduk into his hotel room constituted an intervening act which severed any causal connection between the alleged negligence of appellees and the victim's death. - 2 - In Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d 155, the court stated in paragraph one of the syllabus as follows: Whether an intervening act breaks the causal connection between negligence and injury, thus relieving one of liability for his negligence, depends upon whether that intervening cause was a conscious and responsible agency which could or should have eliminated the hazard, and whether the intervening cause was reasonably foreseeable by the one who was guilty of the negligence. In the case at bar, Heyduk had previously telephoned the victim and threatened his life. The victim was aware of the danger posed by Heyduk and could have prevented the incident by denying Heyduk entrance to his hotel room. Because of this intervening act it is not necessary to reach the issue of whether appellees were under a duty to protect the decedent from Heyduk's criminal activities. Moreover, Reitz v. May Co. (1990), 66 Ohio App. 3d 188, 193, permits, but does not require, evidence of prior criminal activity. According to Reitz, the standard is a "totality of circumstances" test. Evidence of prior criminal activity has substantial weight, but it is not yet a requirement under the totality of circumstances test. The cases the majority cites in support of its position that "foreseeability still hinges on a defendant-business' knowledge of prior criminal activity of third parties" can be distinguished. Two of the cases involved stores or their parking lot. Hickman v. Warehouse Beer Syst., Inc. (1993), 86 Ohio App. 3d 271, involved a customer shot by an alleged robber at a drive-through liquor store. In contrast to stores, hotels are expected to provide a greater degree of security to residents secluded in - 3 - separate sleeping units and especially vulnerable during their sleep. Valles v. Hannan-110 Limited Partnership (June 27, 1991), Cuyahoga App. No. 60931, unreported, involved an abduction and robbery in a grocery store parking lot. In Valles, there was no evidence of prior criminal activity in that parking lot, nor was there any evidence that the assailant knew the plaintiff. A significant difference in the case at bar was the specific threat of violence involving people who know each other. Knowledge of such a threat might be sufficient to establish foreseeability where there are personal relationships. In Eagle v. Mathews-Click-Bauman, Inc. (1995), 104 Ohio App.3d 792, plaintiff sued the owner of an office building and security company after she was raped in the building. The Tenth District found the rape was not foreseeable because there was no evidence to suggest that other rapes occurred at the building and also because plaintiff did not exhibit any unusual conduct signifying distress when she voluntarily entered the building with the rapist. Besides a difference between stores and hotels, there is a difference between a history of general criminal activity at a location and a history of personal relationships with specific threats of violence directed at particular persons. What is required under a "totality of circumstances test" will depend upon such differences in circumstances. In Daniels v. Thistledown Racing Club, Inc. (1995), 103 Ohio App.3d 281, a horse groomer testified she had previously received unwelcome advances by the jockey who raped her. However, she never - 4 - communicated this information to Thistledown stewards or security. Thus, unlike the case at bar, no one was put on notice to foresee a danger arising from the victim's specific history with the assailant. Also too dissimilar to be supportive is the case of Axson v. The LTV Steel Corp. (Jan 18, 1996), Cuyahoga App. No. 68538, unreported. In Axson the security company hired to protect the perimeter gates of a plant was found not liable for the actions of employees on the internal premises. In the case at bar, the responsibility of the security company was not so restricted. Accordingly, I would affirm the judgment of the court below for separate reasons, and I would not reach the issue of whether .