COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69906 ERNEST ASKEW, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION ABC CHECK CASHING, INC., : ET AL., : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 270686 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Robert A. Ruggeri 55 Public Square Suite 1450 Cleveland, Ohio 44113 J. Michael Goldberg 28601 Chagrin Boulevard Suite 400 Pepper Pike, Ohio 44122 For defendants-appellees, Timothy L. Kerwin ABC Check Cashing, Inc. and Ernest C. Pisanelli Richelle Tucker: QUANDT, GIFFELS AND BUCK 800 Leader Building 526 Superior Avenue, N.E. Cleveland, Ohio 44114-1460 For defendants-appellees, Robert G. Cohn Wells Fargo Guard Services, Ezio A. Listati Borg-Warner Protective Services PORTER, WRIGHT, MORRIS & Corp., and Michael Gaynor: ARTHUR 925 Euclid Avenue Suite 1700 Cleveland, Ohio 44115-1405 -3- NAHRA, J.: Plaintiff-appellant Ernest Askew appeals from the trial court order which granted the motions for summary judgment filed by 1 defendants-appellees ABC Check Cashing, Inc. ("ABC"), Richelle Tucker ("Tucker"), Wells Fargo Guard Services ("Wells Fargo"), 2 Borg-Warner Protective Services Corp. ("Borg-Warner"), and Michael Gaynor ("Gaynor"). Appellant had sought damages from appellees for injuries he suffered as a result of an incident which occurred at approximately 12:15 a.m. on May 19, 1992. At the time of the incident appellant was a retired man over the age of seventy who worked part-time as a janitor at a restaurant located in Middleburg Heights. On May 18, 1992, appellant left work at 11:30 p.m. after receiving his paycheck. On his way home, appellant stopped at appellee ABC's store located at 7911 Carnegie Avenue in Cleveland to cash his paycheck. Appellant had done this several times in the past since the store was open all night and convenient to his home on Coit Road near East 140th Street. Appellant parked his car directly in front of the building. The parking lot was well-lit and the front of the building was mostly glass; appellant could see other customers inside. He went into the building to the lobby area and joined a line of other 1 This is the spelling of appellee's first name which was used in the trial court. 2 The record reflects appellant misspelled the company's nameas "Vorg-Warner Protective Services Corp." in his complaint. -4- patrons in front of the cashier, appellee Tucker. As appellant waited for the cashier to take care of the other customers, he noticed a security guard, appellee Gaynor, was standing nearby. When Tucker had finished cashing appellant's check, appellant counted his money, put it in his pants pocket, and exited the store. At that time, since there were no more customers in the store, Gaynor left his post in the lobby and went into the back of the store to get coffee. Once outside, appellant was approaching his car when he saw a young man coming toward him from behind the car. The young man told appellant he wanted to talk to him. Appellant changed his course to avoid the young man, attempting to get to the driver's side of the vehicle. At that point, another young man approached appellant as well. Appellant opened the driver's side door to this car; however, he was not able to get inside and shut it before one of the young men grabbed it. Appellant was then pushed down, across his car's front seat. At that point, the assailant who had pushed him produced a gun, pointed it at appellant, and reached into appellant's pants pocket with his other hand. When appellant tried to grab the assailant's hand to stop him from obtaining the money, the young man shot him in the shoulder. With appellant momentarily incapacitated, the young man was able to take appellant's money and flee with his companion. From the time appellant exited the store, the incident took place in the space of two to three minutes. -5- From inside the store Tucker had seen appellant fall across the seat of his car; when she heard a shot, she knew something had happened so she pressed the store's silent alarm. At that point, Gaynor was returning from the back. Tucker told him she had heard a shot fired and was calling the police. Gaynor proceeded out of the store to see what had occurred. Appellant was just emerging from his car, holding his arm. He asked Gaynor if he saw what happened. Gaynor replied in the negative. Appellant thereupon proceeded back into the store, where Tucker told him she had called the police. Minutes later, both police officers and an EMS unit arrived at the scene. Appellant was thereafter transported to the hospital where he was treated for his gunshot injury. On May 18, 1994, appellant filed a negligence action in the Cuyahoga County Court of Common Pleas seeking damages for the injuries he received as a result of the incident. Appellees ABC, Tucker, Wells Fargo, and Gaynor, along with Wells Fargo's owner, appellee Borg-Warner, were named as defendants in the action. Appellant alleged in the opening paragraphs of his complaint that appellee ABC had hired a security guard from appellee Wells Fargo "to protect customers ... from criminal activity" and that appellee Gaynor's "specific duty" was to "protect ... patrons"of the store. In count one of his complaint, appellant made, inter alia, the following allegations against appellee ABC: 1) ABC provided a security guard to "attract business;" 2) ABC was doing business in a "high crime area" where "similar occurrences" as the attack upon -6- appellant were "common" and ABC knew or had reason to know of such occurrences; 3) ABC had a duty to protect its patrons from criminal attacks; 4) ABC was negligent in failing to provide adequate security; and 5) ABC was negligent in hiring, retaining and supervising its "incompetent" security personnel. Count two of appellant's complaint alleged appellee Tucker was negligent in failing to protect or assist appellant during the incident. Count three alleged ABC was liable for Tucker's negligent actions based upon the doctrine of respondeat superior. Appellant alleged in count four that Wells Fargo had been hired by ABC to protect its "patrons" and Wells Fargo had breached its contract with ABC. Count five of the complaint was against appellee Gaynor, alleging he was negligent in failing to provide adequate security services to appellant during the incident. Count six alleged Wells Fargo was liable for Gaynor's negligent actions based upon the doctrine of respondeat superior, and count seven alleged Wells Fargo was negligent in hiring Gaynor. Finally, count eight alleged ABC was negligent in hiring both Wells Fargo and Gaynor for its security services. Appellees all filed answers in which they denied the pertinent allegations of the complaint and set up several affirmative defenses. Discovery then proceeded in the action. On July 5, 1995, appellees Borg-Warner, Wells Fargo and Gaynor jointly filed a motion for summary judgment. In their brief in -7- support of the motion, appellees stated they were entitled to judgment as a matter of law based upon the following arguments: 1) appellant could not establish the existence of a duty owed by them to protect him from the criminal attacks of third persons; 2) appellant had asserted no claims against Borg-Warner; and 3) appellant's negligent hiring claim was meritless. Appellees attached to their brief a copy of the contract between ABC and Wells Fargo, which had been executed in August 1992 but indicated it was effective beginning in September 1991, and portions of Gaynor's, Tucker's and appellant's depositions. On July 26, 1995, appellees ABC and Tucker also jointly filed a motion for summary judgment, presenting arguments similar to the ones asserted by the other appellees, and attaching to their brief the same deposition testimony. On October 10, 1995, appellant filed a brief in opposition to 3 appellees' motions. Appellant asserted therein that the foreseeability of the attack which was perpetrated upon him was for a jury to determine. Appellant attached to his brief the following evidentiary material: 1) the affidavit of Cleveland Police Detective Thomas Wheeler, who stated ABC's store was located in an area of "high drug and prostitution activity" and such a store "is a magnet for crime;" 2) ABC's response to appellant's first request for production of documents, which included: a copy of its 3 Appellees ABC and Tucker filed a motion to strike appellant's brief, challenging its timeliness; however, the trial court did not rule on the motion. -8- contract with Wells Fargo; a copy of the "guard schedules" set up between ABC and Wells Fargo; and appellant's response to ABC's first set of interrogatories. Thereafter, the two sets of appellees each filed a reply to appellant's brief but attached no new evidentiary materials. On November 1, 1995, without opinion, the trial court granted appellees' motions for summary judgment as to all counts of appellant's complaint. Appellant has filed a timely appeal from the foregoing order and presents the following as his sole assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEES' MOTIONS FOR SUMMARY JUDGMENT. Appellant argues summary judgment for appellees was improper because the evidence presented to the trial court was sufficient to 4 establish every element of his negligence action. This court has reviewed the record, however, and does not agree. Summary judgment is a procedural device to terminate litigation and avoid a formal trial where there is nothing to try. Norris v. Ohio Standard Oil Co. (1982), 70 Ohio St.2d 1. In this case, appellant alleged appellees' negligence was the proximate cause of the injuries he suffered when he was attacked by the two assailants in ABC's parking lot. 4 Appellant presents no arguments with respect to the application of summary judgment to his other causes of action against appellees; hence, this court will limit its discussion accordingly. App.R. 12(A)(1)(b). -9- A motion for summary judgment forces the non-moving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. When the defendants, as the moving parties, furnish evidence which demonstrates the plaintiff has not established the elements necessary to maintain his negligence action, summary judgment is properly granted in favor of defendants. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19. As to the elements of a cause of action in negligence it can be said that "[i]t is rudimentary that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. [Citations omitted.] Thus, the existence of a duty is fundamental to establishing actionable negligence. "... If there is no duty, then no legal liability can arise on account of negligence. Where there is no obligation of care or caution, there can be no actionable negligence." [Footnotes omitted.] 70 Ohio Jurisprudence 3d (1986), 53-54, Negligence, Section 13. Only when one fails to discharge an existing duty can there be liability for negligence. See Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 127, 47 O.O.2d 282, 283, 247 N.E.2d 732, 733. Jeffers v. Olexo (1989), 43 Ohio St.3d 140 at 142. (Emphasis added.) Appellant asserts this court "need not specifically find that a duty exists;" however, whether a duty of care is owed by defendants to the plaintiff is a question of law. Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188 at 192. In this case, therefore, to maintain his cause of action against appellees, appellant first had to provide sufficient evidence to demonstrate each of them owed him an "existing duty." -10- Appellant asserted in his complaint that ABC and its employees owed a duty to protect him from the young men who attacked him in its parking lot. In Howard v. Rogers (1969), 19 Ohio St.2d 42, the supreme court stated as follows: ... [A]n occupier of premises for business purposes may be subject to liability for harm caused to ... a business invitee by the conduct of third persons ..., just as such occupier may be subject to liability for harm caused to such invitee by a dangerous condition of those premises. [Citations omitted.] However, it is well settled that an occupier of premises for business purposes is not an insurer of the safety of his business invitees while they are on those premises. [Citations omitted.] Thus, 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. * * * As stated in Comment f to Section 344 of the Restatement of the Law, Torts 2d: "Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring or are about to occur. * * *" (Emphasis added.) See, also, Federal Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171. This court has held the foreseeability of criminal acts will depend upon the knowledge of the defendant-business, which must be determined from the totality of the circumstances. Reitz v. May Co. Dept. Stores, supra, at 192-193. Only when the totality of the circumstances are "somewhat overwhelming" will a defendant-business be held liable for the criminal acts of a third party. Id.; see, -11- also, Doe v. Sys. Parking, Inc. (1992), 79 Ohio App.3d 278; Knor v. Parking Co. of Am. (1991), 73 Ohio App.3d 177. The rationale for this rule is stated thusly: In delimiting the scope of duty to exercise care, regard must be had for the probability that injury may result from the act complained of. No one is bound to take care to prevent consequences, which, in the light of human experience, are beyond the range of probability. Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 338. (Emphasis added.) See, also, Jeffers v. Olexo, supra, at 143; Calmes v. Goodyear Tire & Rubber Co. (1991), 61 Ohio St.3d 470, 474. In this case, although appellant asserted in his complaint that ABC was doing business in a "high crime area" and "similar occurrences" as the attack upon him had taken place in the past, there was no evidence to support these assertions. In his deposition, Gaynor stated only one incident had occurred at the store in his ten years there as a security guard: he had to cope with an "obnoxious" customer. Gaynor knew of no incidents like the one appellant had suffered. Friedman v. Sutter (Oct. 29, 1992), Cuyahoga App. No. 61198, unreported; cf. Rush v. Lawson Co. (1990), 65 Ohio App.3d 817. Gaynor indicated, further, that his main duty was to "watch" the lobby in case an employee needed help. Burks v. C.B. Management, Inc. (July 15, 1993), Cuyahoga App. No. 63195, unreported; cf. Doe v. Sys. Parking, Inc., supra. Similarly, Tucker stated in her deposition that in her experience there were neither any robberies, shootings nor any -12- other incidents at the store or in its parking lot which "required security." Appellant, moreover, stated in his deposition he did not consider the store to be in a "high crime area" and indicated he had cashed his paychecks there for a year in part because he considered the store to be safe since he had never seen anyone either assaulted or accosted there. Cf. Knor v. Parking Co. of Am., supra. Furthermore, although Det. Wheeler's affidavit contained some statements relating to the general area in which the store was located, there were no specific statements to the effect that any criminal incidents had ever occurred at or near the store or in its parking lot. Reitz v. May Co. Dept. Stores, supra; Valles v. Hannan 110, Ltd. (June 27, 1991), Cuyahoga App. No. 60931, unreported; cf. Rush v. Lawson Co., supra. Thus, since there was no evidence that a criminal attack on appellant was reasonably foreseeable by ABC or its employees, appellant failed to establish ABC and its employee owed him a duty of care to prevent such attacks. Howard v. Rogers, supra; Sperduti v. Bubuloo, Inc. (May 28, 1992), Cuyahoga App. Nos. 60626, 61651, unreported; Friedman v. Sutter, supra; cf. Rodgers v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256. Therefore, the trial court properly granted summary judgment in their favor. The trial court also properly awarded summary judgment to the remaining appellees. Initially, it is clear from a reading of appellant's complaint that none of his allegations either referred or related to Borg- -13- Warner. Since appellant made no claims against Borg-Warner, he asserted no facts which would entitle him to any relief, hence, judgment for Borg-Warner was appropriate. See, e.g., Rismiller v. Wagner (Nov. 10, 1982), Darke Cty. App. No. 1053, unreported; Gibbs v. Lemley (1972), 33 Ohio App.2d 220; Hoffman v. Halden (9th Cir., 1959), 268 F.2d 280 at 303-304. Secondly, as noted by the Ohio Supreme Court, ordinarily there is no duty to control the conduct of a third person to prevent that person from causing harm to another. Federal Steel & Wire Corp. v. Ruhlin Constr. Co., supra; see, also, Feichtner v. City of Cleveland (1994), 95 Ohio App.3d 388. In order to hold a defendant security company liable for the criminal acts of a third party, a "special duty" must exist which arises either from the contract between the security company and the business it agrees to protect or from the foreseeability of the injury based upon the totality of the circumstances. Hill v. Sonitrol of Southwestern Ohio, Inc. (1988), 36 Ohio St.3d 36; Deeds v. American Security (1987), 39 Ohio App.3d 31. In this case, the security agreement between ABC and Wells Fargo provides: (c) The services ... are solely for the benefit of Client and neither this Agreement nor any services rendered hereunder shall be deemed to confer any rights on any other party as a third-party beneficiary or otherwise and Client agrees to indemnify and defend [Wells Fargo] against third-party claims. (Emphasis added.) -14- The addendum clause and the schedule of guard services, moreover, indicate Wells Fargo's main duty was to protect employees by having guards present when the stores were opened and closed, and providing escort services in connection with the movement of money. Gaynor's deposition testimony was to the same effect: he stated his duty was to "watch" the lobby area and "help employees." Gaynor testified he would also help customers, but believed it was his duty to do so only "if they requested it." Thus, the contract between ABC and Wells Fargo created no "special duty" toward appellant. Hill v. Sonitrol of Southwestern Ohio, Inc., supra; cf. Doe v. Cub Foods of Ohio, Inc. (May 25, 1995), Franklin App. No. 94APE07-1005, unreported. As previously discussed, the totality of the circumstances in this case did not demonstrate a criminal attack upon appellant in the parking lot was reasonably foreseeable. Reitz v. May Co. Dept. Stores, supra. Moreover, a review of Gaynor's, Tucker's and appellant's deposition testimony reveals Gaynor exercised ordinary care in performing his duties. Eagle v. Mathews-Click-Bauman, Inc. (1995), 104 Ohio App.3d 792. Appellant also, therefore, failed to establish the elements necessary to maintain his cause of action in negligence against appellees Wells Fargo and Gaynor. Under the circumstances of this case, the trial court did not err in granting appellees' motions for summary judgment. Reitz v. May Co. Dept. Stores, supra; Feichtner v. City of Cleveland, supra; Eagle v. Mathews-Click-Bauman, Inc., supra. Accordingly, appellant's assignment of error is overruled. -15- Affirmed. -16- 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 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. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .