COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71043 : ANNIE GURLEY, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and v. : : OPINION FRANK DIBLASI, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. CV-293259 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: SHELDON D. SCHECTER, ESQ. RONALD V. RAWLIN, ESQ. 113 St. Clair Avenue, Suite 375 RHOA, FOLLEN & RAWLIN CO. Cleveland, Ohio 44114 1850 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 - 2 - KARPINSKI, J.: 1 Plaintiffs, Erecker Adams and Annie Gurley, were injured when their car was struck by a delivery van. At the time of the accident, this van was owned by DiBlasi Bakery Inc. and occasionally used by Baked Goods Galore Inc., two separate entities. The trial court granted summary judgment for defendants because the van had been stolen at the time of the accident. On appeal, plaintiffs argue that the judgment of the lower court was improper because it is disputed whether the delivery van was driven by a thief or someone associated with defendants. For the reasons that follow, we find no merit to plaintiffs' argument and affirm the judgment of the court below. Plaintiffs brought this negligence action originally against Frank DiBlasi, d.b.a. DiBlasi Bakery. Thereafter, plaintiffs filed an amended complaint which substituted Baked Goods Galore Inc. as the proper defendant. Less than two months later, plaintiffs filed a second amended complaint, which substituted 2 Sagamore Enterprises as the proper defendant. All these 1 In court documents, plaintiff's first name is spelled both "Ekecker" and "Erecker." 2 The record is unclear as to the effect of these amended complaints. The final motion to amend asks the court to substitute Sagamore Enterprises as the proper defendant. The use of "defendant" in the singular implies that Sagamore Enterprises is the only remaining defendant. However, Frank DiBlasi and Baked Goods Galore Inc. were never dismissed by the court. Moreover, both sides have continued to refer to multiple defendants in their briefs below, the notice of appeal, and the appellate briefs. Therefore, for purposes of this appeal, we will assume that all three defendants continue as parties to this action. - 3 - defendants (Frank DiBlasi, Baked Goods Galore Inc., and Sagamore Enterprises) jointly moved for summary judgment and argued that they were not liable to plaintiffs because, at the time of the accident, the van was driven by a thief who had stolen it. The accident in question occurred in Cleveland at approximately 11:30 p.m. on Sunday, February 5, 1995. On that date, plaintiffs' car was struck on Angelus Avenue by a 1992 Dodge van owned by DiBlasi 3 Bakery Inc. The van was occasionally used to deliver bakery for Baked Goods Galore Inc. Attached to defendants' motion for summary judgment were two affidavits and a police report. Frank DiBlasi, owner of Baked Goods Galore Inc., averred in part as follows: 6. That said 1992 Dodge van was parked at the rear of 8575 East Washington Street, Bainbridge Township, Ohio on February 4, 1995, at approximately 6:00 p.m.; 7. That said vehicle was parked on private property and out of view to the general public; 8. That said van was discovered stolen at approximately 5:00 a.m. on February 6, 1995; 9. That based upon the information and belief, no employee or person operated said vehicle with the permission of Frank DiBlasi or Baked Goods Galore Inc. between the hours of 6:00 p.m. on February 4, 1995, and 5:00 a.m. on February 6, 1995. Similarly, Salvatore DiBlasi, the owner of Sagamore Enterprises, averred as follows: 4. The white 1992 Dodge van allegedly involved in the collision with Plaintiffs was originally owned by DiBlasi Bakery Inc. from February 28, 1992, until June 12, 1995, when said title was transferred to Sagamore Enterprises; 3 DiBlasi Bakery Inc. was never made a party to this action. - 4 - 5. That said van was used primarily in my business operations and occasionally used by Frank DiBlasi doing business as Baked Goods Galore Inc.; 6. That said van was parked at the rear of my business property on February 4, 1995, and was subsequently stolen; 7. That inquiry was made and it was determined that no employee or friend had borrowed said van between February 4, 1995 and February 6, 1995; 8. That to my knowledge and belief no employee or officer of Sagamore Enterprises used said van between 6:00 p.m. on February 4, 1995 and 5:25 a.m. on February 6, 1995. The police report, dated February 6, 1995, stated as follows: On 2-6-95 at approx. 0502, B.P.D. dispatch received a telephone complaint from Frank DiBlasi *** who stated that his companie's [sic] white Dodge Ram van was missing from the family business located at 11979 E. Washington St. Bainbridge Twp, Oh. The van was last known to be at the business on 2-4-95 at 1800 hrs. It was stolen between that time and the time reported. The keys were left in the van as was the usual practice as several persons had access and permission to use the van. It was determined that no employee or friend had borrowed the van. The van was entered into LEADS on 2-6-95 at 1448 hrs. A supplemental police report was made on February 10, 1995, which stated that the van was recovered on Angelus Avenue in Cleveland at 12:57 a.m. on February 6, 1995. Plaintiffs responded to the summary judgment motion and argued there was a question of fact as to whether the vehicle was actually stolen at the time of the accident. Plaintiffs also argued that if the van had been stolen there was a question of fact as to whether defendants are responsible for plaintiffs' injuries. Plaintiffs did not attach any evidentiary materials to their responsive motion. - 5 - Plaintiffs state only one assignment of error. THE LOWER COURT ERRED IN FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT. Plaintiffs claim the trial court erred in granting summary judgment in favor of defendants. It is well settled that summary judgment should be granted under Civ.R. 56 only if no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. Any doubts must be resolved in favor of the nonmoving party. Davis v. Loopco Industry, Inc. (1993), 66 Ohio St.3d 64. The party seeking summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of fact material to the nonmoving party's claim. Dresher v. Burt (1996), 75 Ohio St.3d 280. If the moving party satisfies its initial burden, the nonmoving party has a reciprocal burden, outlined in Civ.R. 56(E), to respond to the moving party's allegations. Id. at 293. The standard of review for summary judgment is the same for both the trial and the appellate courts. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127. Plaintiffs' lawsuit is brought under a theory of negligence. "It 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." DiGildo v. Caponi (1969), 18 Ohio St.2d 125. Plaintiffs allege - 6 - two theories of negligence. They argue that an agent or employee of defendants was driving the van at the time of the accident. In the alternative, they argue that even if the van had been stolen, defendants were negligent in allowing the van to be stolen. Neither of these two theories has any merit. First, all the evidence presented points to the fact that the van was stolen. Two affidavits averred that it was stolen from Bainbridge between 6:00 p.m. February 4, 1995 and 5:00 a.m. February 6, 1995. The police report stated that the van was recovered on Angelus Avenue at 12:57 a.m., Monday, February 6, 1995. Plaintiffs claim the accident happened on Angelus Avenue at 11:30 p.m., Sunday, February 5, 1995. In the case at bar, plaintiffs did not produce any evidence to raise a question of fact as to whether the van was stolen. Because defendants presented evidence on this issue, plaintiffs' mere conjecture that it may not have been stolen will not overcome the motion for summary judgment. Under Civ.R. 56(E) the nonmoving party may not rest on the mere allegations or denials in the pleadings but must set forth specific evidence on any issue for which the party bears the burden at trial. Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421; Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108; Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383. Second, defendants cannot be held liable for negligently allowing their van to be stolen. In Ross v. Nutt (1964), 177 Ohio St. 113, the Ohio Supreme court addressed this issue and - 7 - held that a defendant who parked his car on a street with the keys in the ignition was not liable for the injuries of a third party when a thief stole the car and injured the third party. The Court stated, at 115, as follows: This brings us to the issue in the instant cases. Could defendant reasonably have foreseen or anticipated that by leaving his key in his car that [sic] it would be stolen, and if stolen, would be operated in a negligent manner so as to cause injury to a member of the public? The mere statement of the question shows that to hold defendant liable would require him to have anticipated not one but two probable consequences as a result of his leaving his key in his car. He must have foreseen, first, that his car would be stolen, and second, that the thief would operate the car in such a negligent manner as to cause an injury to some member of the public. The Court held that a person could not reasonably anticipate that (1) a car would be stolen and (2) that the stolen vehicle would be operated in a negligent manner. Reaffirming this holding in Pendrey v. Barnes (1985), 18 Ohio St.3d 27, the court stated at 29 as follows: The weight of authority supports the view that an accident caused by an intermeddler, who was enabled to misappropriate a vehicle by the owner's having left the car unattended and the key in the ignition, will not create liability for the car's owner. *** As we noted in Ross, the acts of an intermeddler, after the car has been stolen, are a sufficient intervening or superseding cause to break the chain of causation with respect to the car's owner. This court recently followed this holding. Stubbs v. Hodge (Dec. 19, 1996), Cuyahoga App. No. 70604, unreported. In the case at bar, the stolen vehicle was not on the street; it was not even left in a public area. Rather, it was parked in a private area behind the business. Defendants, therefore, will not be held - 8 - liable for the acts of the thief who drove the stolen car. - 9 - Accordingly, the judgment of the trial court is affirmed. It is ordered that appellees recover of appellants 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. BLACKMON, P.J., and O'NEILL*, J., CONCUR. DIANE KARPINSKI JUDGE *Retired Judge Joseph E. O'Neill, of the Seventh District Court of Appeals, sitting by assignment. 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 .