COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70796 BERTHA KITTRELLS : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ST. LUKE'S METROHEALTH MEDICAL : CENTER : : Defendant-appellee : : DATE OF ANNOUNCEMENT : MAY 8, 1997 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-268906 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: THOMAS L. MEROS, ESQ. JEFFREY A. HEALY, ESQ. 1630 Standard Building IRENE C. KEYSE-WALKER, ESQ. 1370 Ontario Street Arter & Hadden Cleveland, OH 44113 1100 Huntington Bldg. 925 Euclid Avenue Cleveland, OH 44115-1475 - 2 - PATTON, J. This appeal arises from a complaint filed by plaintiff- appellant Bertha Kittrells against defendant-appellee St. Luke's MetroHealth where plaintiff alleges her injuries were caused by the hospital's breach of their duty to keep their employees safe from the criminal conduct of third parties. Plaintiff now appeals the trial court's granting of summary judgment in favor of St. Luke's. The trial court based its judgment on the failure of the plaintiff to present evidence of prior criminal acts indicating foreseeability and the lack of evidence on a "special relationship duty owed to the plaintiff." Plaintiff and her husband, Clarence, both worked at St. Luke's: plaintiff as a secretary and Clarence as a maintenance man. On August 16, 1993, plaintiff finished her shift at 11:45 p.m. and went to her car, which was parked in an employee parking lot. The lot was for employees only and proper authorization was needed to enter the lot. In addition, there was a guard on duty at the lot and a television camera was employed to monitor the lot. A short time before plaintiff had finished her shift, Clarence drove into the lot and, using his own set of keys for the plaintiff's car, hid in the back seat of her car. When plaintiff approached her car and opened the back door Clarence jumped from the back seat and shot at plaintiff several times before running away. Two bullets struck plaintiff and she escaped alive only - 3 - because she shielded herself by diving beneath another car parked next to her own. The couple had a history of marital problems and by the date of this incident they were separated. However, plaintiff never spoke to anyone at work about these problems or her fear of her husband. Several employees stated that they heard rumors about plaintiff's marital problems but none of these rumors were substantiated. Also, the record reveals there was no prior history of violent crime in the parking lot except for a daytime purse snatching that occurred approximately three years earlier in a different lot. In her first assignment of error, plaintiff states as follows: THE TRIAL COURT ERRED IN GRANTING A SUMMARY JUDGMENT IN FAVOR OF APPELLEE WHEN A GENUINE ISSUE OF MATERIAL FACT REMAINED TO BE TRIED TO A JURY. Plaintiff claims the trial court erred in granting summary judgment for St. Luke's arguing the hospital was negligent in its security and it failed to protect her from the attack by her estranged husband on the hospital's premises. St. Luke's maintains it owed plaintiff no special duty and was not negligent in providing security because Clarence's criminal act was not foreseeable. Thus, without this special duty, no liability exists. In reviewing a trial court's granting of summary judgment, an appellate court applies the same standard used by the trial court. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, - 4 - 829. Pursuant to Civ.R. 56(C), summary judgment is proper if: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence, which is construed in favor of the non- movant, that reasonable minds can conclude only that the movant is entitled to judgment. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327; Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2. Turning to the substantive issue, this court recently discussed the principles governing the duty to protect against criminal activity in Axson v. LTV Steel Corp. (January 18, 1996), Cuyahoga App. No. 68538, unreported, citing Feichtner v. Cleveland (1994), 95 Ohio App.3d 388, 395-397. In Axon we stated: "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." Therefore, whether plaintiff's injury was foreseeable is a determination which depends on whether plaintiff presented evidence of recent and similar prior criminal activity on the premises. Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188. - 5 - An examination of the record reveals there were very few instances of violent criminal activity in St. Luke's parking lots. The security director for the hospital stated in an affidavit that he reviewed all the incident reports, which indicate the presence of criminal activity at the hospital, from 1990 through 1993. He said there was only one instance of violent criminal activity in the parking lots, a purse snatching in a different lot. The director explained other than the purse snatching the majority of crimes were automobile theft, vandalism, and car accidents. He also said the hospital's protective service department had no notice of Clarence's violent tendencies. Based on the record and the evidence presented, plaintiff has failed to show that her injury was sufficiently foreseeable, under the totality of the circumstances, to impose a duty to protect her from the crime as a matter of law. Accordingly, the trial court acted properly in granting St. Luke's motion for summary judgment. Plaintiff's sole assignment of error is overruled. Judgment affirmed. - 6 - 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 Court of Common Pleas 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. KARPINSKI, P.J. MAHONEY, J.,* CONCUR *SITTING BY ASSIGNMENT: JOSEPH E. MAHONEY, RETIRED JUDGE OF COURT OF APPEALS OF OHIO, ELEVENTH APPELLATE DISTRICT. JUDGE JOHN T. PATTON 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 .