COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70604 SONIA STUBBS : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION DARRYL HODGE, AT AL. : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-288066. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Ronald A. Margolis, Esq. Misny & Associates Co., LPA Suite 805 - Terminal Tower 50 Public Square Cleveland, Ohio 44113 For Defendants-appellees: Walter H. Krohngold, Esq. 330 Hanna Building 1422 Euclid Avenue Cleveland, Ohio 44115-1901 - 2 - SWEENEY, JAMES D., P.J.: Plaintiff-appellant Sonia Stubbs appeals from the trial court's order granting the motion for summary judgment filed by the defendants-appellees Darryl Hodge (Hodge) and Magie Hodge. The appellant was injured in an accident caused by a truck titled to Magie Hodge, but generally driven by her son, Darryl Hodge. It is undisputed that Hodge was not the driver of the truck at the time of the accident. On March 14, 1995, Hodge stopped at a local store at approximately 12:30 p.m. He there ran into a woman named Cynthia, a person with whom he had intimate relations five or six times in the prior six weeks. Cynthia returned home with the appellant where they both consumed drugs and alcohol in an unspecified amount. Between 3:30 and 4:00 Hodge fell asleep. He awoke after 9:30 p.m. that evening to find both Cynthia and some of his personal effects absent. The appellant noticed that Cynthia was gone and that his apartment door was unlocked. As he searched for his apartment keys he discovered that his wallet, watch, gold chain, truck keys and truck were also missing. Hodge notified the Cleveland Police Department of the theft of his truck. Hodge testified during his deposition that, although there were prior opportunities, Cynthia had never previously stolen from him. Although no evidence is provided as to the accident itself, the parties do not dispute, 1) that the appellant was injured in a collision with Hodge's truck, 2) that Cynthia was not the driver - 3 - who negligently caused the appellant's injuries, and 3) Hodge was not the driver who negligently caused the appellant's injuries. This court must note that absolutely no evidence has been provided that Cynthia was the person who actually absconded with Hodge's keys and/or truck. The appellant's assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT APPELLEE'S MOTION FOR SUMMARY JUDGMENT DETERMINING AS A MATTER OF LAW THAT DEFENDANT DARRYL HODGE'S NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURIES SUSTAINED BY PLAINTIFF SONIA STUBBS. The appellant argues that Hodge was negligent in the supervision, control and dominion over his truck keys. The appellant asserts that this conduct was the proximate cause of the truck falling into the hands of a third party who used it to cause injury to the appellant. The appellant asserts that Hodge is liable to the appellant for her injures under a negligence cause of action and under the theory that a special duty existed requiring that Hodge control Cynthia. Under Civ.R. 56, summary judgment is proper when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; and it appears from the evidence that reasonable minds can come but to one conclusion, and, when such evidence is viewed most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made. State, ex rel. Parsons v. - 4 - Fleming (1994), 68 Ohio St.3d 509; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. Finally, the appellate court reviews the lower court's granting of the motion for summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704. The motion must be overruled if reasonable minds could find for the party opposing the motion. Saunders v. McFaul (1990), 71 Ohio App.3d 46. In order to show actionable negligence, one must show the existence of a duty, a breach of that duty, and an injury resulting proximately therefrom. Jeffers v. Olexo (1989), 43 Ohio St.3d 140. Whether a duty exists depends largely on foreseeability. Id. at 142. The court went on to state that "only when the injured person comes within the circle of those to whom injury may reasonably be anticipated does the defendant owe him a duty of care" and "foreseeability of the harm depends on the defendant's knowledge." Jeffers, supra, at 142, 143. As to proximate cause, the court held: The rule of proximate cause "'requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might, and should have been foreseen or - 5 - anticipated by the wrongdoer as likely to follow his negligent act.'" Ross v. Nutt (1964), 177 Ohio St. 113, 114, 29 O.O.2d 313, 314, 203 N.E.2d 118, 120, quoting Miller v. Baltimore & Ohio Southwestern RR. Co. (1908), 78 Ohio St. 309, 325, 85 N.E. 499, 504. See, also, Pendrey v. Barnes (1985), 18 Ohio St.3d 27, 18 oBR 23, 479 N.E.2d 383; cf. Strother v. Hutchinson (1981), 67 OhoSt.2d 282, 21 O.O. 3d 177, 423 N.E.2d 467. The Supreme Court has determined that an operator of a motor vehicle who leaves the vehicle unattended with the keys in the ignition and the door unlocked is not liable for injuries sustained to a third person resulting from the negligent operation of the motor vehicle by a thief. Pendry v. Barnes (1985), 18 Ohio St.3d 27. The court held that the theft of the motor vehicle was a sufficient superseding cause as to absolve the owner from responsibility for the injuries and break the chain of causation. The court reasoned that "while the theft may have been anticipatable, the subsequent negligent use of the vehicle to injure a third party was not." As noted in the facts, the appellant has presented no evidence that Cynthia was the thief. While many may suppose that Cynthia had the easiest opportunity to commit the theft, it is conceivable that when she exited the apartment she left the door either open or unlocked and that an opportunity too good to pass presented itself to some other observant, but independent, actor. Thus the appellant has failed to produce any evidence that Hodge proximately caused her injuries. The appellant also failed to present any evidence that Hodge should have foreseen that as a result of - 6 - spending the afternoon with Cynthia, and leaving his truck keys in his apartment while he slept, the appellant would suffer injuries from an accident caused by a truck thief. Further, assuming Cynthia was the thief, the appellant has failed to show that Cynthia intentionally gave the truck keys to the person who negligently injured the appellant. Without some evidence of a nexus between Cynthia and the driver, the appellant has once again failed to show that Hodge proximately caused her injuries or could reasonably have foreseen those injuries. Even if this court assumes that Cynthia both stole Hodge's truck keys and handed those keys over to an accomplice, this court would be compelled to hold that the theft of the motor vehicle was a sufficient superseding cause as to absolve Hodge from responsibility for the injuries and break the chain of causation. Pendry, supra. This court must find that, despite allegations that Hodge's lifestyle may not meet the standards of middle class morality, Hodge was entitled to fall asleep in his own apartment with a woman while leaving available access to his truck keys. Lastly, this court must find that Hodge did not owe the appellant a special duty. Under Ohio law, there is no duty to prevent a third person from causing harm to another absent a special relation between the parties. Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171; Feichtner v. Cleveland (1994), 95 Ohio App.3d 388. The existence of such a "special" duty depends on the foreseeability of the injury. - 7 - Feichtner, supra. No duty arises to control the conduct of a third person and prevent physical harm to another unless a special relation exists between the actor and the third person which imposes a duty on the actor to control the third person's conduct, or a special relation exists between the actor and the other which gives to the other a right to protection. See Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St.3d 77. Thus, absent a special duty to control the behavior of Cynthia or a special duty to protect the appellant, Hodge may not be held liable for the appellant's injuries. As this court has previously stated, the appellant's injuries were not foreseeable. And, even assuming Cynthia was the thief and handed the truck keys to an accomplice, the appellant has neither presented evidence that Hodge had a duty to control Cynthia's behavior nor presented evidence that the appellant had a right to Hodge's protection. The appellant's assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant his 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. Exceptions. PATRICIA A. BLACKMON, J., and DAVID T. MATIA, J., CONCUR. JAMES D. SWEENEY PRESIDING 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 .