COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73142 WENDOLYN BARNES, ADMINISTRATIX : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION ORTH SHORE CAR WASH : : Defendant-Appellee : : ATE OF ANNOUNCEMENT DECEMBER 3, 1998 F DECISION: HARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-295520 UDGMENT: Affirmed. ATE OF JOURNALIZATION: PPEARANCE: or Plaintiff-Appellant: RICHARD L. DEMSEY, ESQ. JOHN SCHLOSS, ESQ. Nurenberg Plevin Heller & McCarthy, 1stFl. Standard Bldg. Cleveland, Ohio 44113-1792 or Defendant-Appellee: JOHANNA M. SFISCKO, ESQ. WILLIAM F. SCHMITZ, ESQ. 1100 Illuminating Building 55 Public Square Cleveland, Ohio 44113 ATRICIA ANN BLACKMON, A.J.: Appellant Gwendolyn Barnes, administratrix of her son Robert arnes' estate, appeals the trial court's granting summary judgment -2- n favor of Appellee North Shore Car Wash, d/b/a American Pride Car ash ( North Shore ) in her wrongful death action. In that action, he claimed North Shore failed to provide adequate security at its laceof business, failed to warn of dangerous area, and knowingly isled her son into believing that he was in a secure place. North hore answered that it could not reasonably have foreseen that obert Barnes would be murdered by an unidentified third person ssailant. Gwendolyn Barnes assigns the following error for our eview: THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S COMPLAINT WHERE PLAINTIFF PRESENTED AN OVERWHELMING AMOUNT OF EVIDENCE CLEARLY CREATING A GENUINE ISSUE OF MATERIAL FACT. Having reviewed the record and the legal arguments of the arties, we affirm the decision of the trial court. The apposite acts follow. On September 18, 1995, an unidentified assailant murdered obert Barnes while Barnes was using the car wash facilities at orth Shore. North Shore is a self-service style car wash. Barnes' ar was not stolen and his personal items appeared to be intact and ndisturbed. In fact, Barnes had $220 in cash on his person and a leveland Police Narcotics receipt for $5,200, which evidenced that 5,200 had been confiscated from Barnes by Cleveland police. Barnes as shot five times on the evening in question. North Shore had one employee, Jerold Crew, to service its eight ar wash facilities. Crew acted as a service man and guard. owever, on this evening, he was not seen in the area until after -3- idnight. North Shore did have inoperable decoy (drone) urveillance cameras and tamper-resistant sensors on change machines t the facility. A panic button was available to the employee on uty. Conspicuous signs and cameras were on the premises, which tated Beware, Video Camera Surveillance and Armed Guard Patrol esponse. North Shore's owner Patrick Montgomery testified the armed uard patrol was an informal, non-authoritative patrol by an cquaintance who is a security guard who passes North Shore on his egular patrol. Montgomery said the purpose of these security easures was to deter vandalism. Gwendol yn Barnes sued North Shore for failing to warn its usiness invitees of known risks and failing to protect its business nvitees from unknown foreseeable risks. Barnes provided the court ith evidence that within a 1000 foot radius of the car wash, riminal activity occurred. This area is within the 4th District f the Cleveland Police Department and is characterized as a high rime area. Barnes also established that crimes such as vandalism, obberies, and thefts had occurred at North Shore in the past. Her xpert, Dr. Michael Witkowski, opined that based on the history, the ature of an open facility, and the type and number of crimes in his neighborhood, North Shore should have foreseen the murder. NorthShore moved for summary judgment arguing that it had no uty because the assailant was a third party whose action was not easonably foreseeable. -4- In Barnes' sole assignment of error, she argues that a property wner owes a duty to an invitee for the criminal acts of a third artywhen the third party acts are foreseeable under the totality f circumstances test. Consequently, she argues she presented vidence that, when viewed in her favor, would enable a reasonable ury to find for her on the issue of North Shore's liability. We isagree. Summary judgment may be granted only if no genuine issue of aterial fact exists. Civil Rule 56(C). Our standard of review for ummary judgment is the same as that of the trial court. onsequently, we review cases de novo. Brown v. Scioto Cty Bd of ommrs.(1993), 87 Ohio App.3d 704, citing Midwest Specialties, Inc. . Firestone Co. (1988), 42 Ohio App.3d 6, dismissed (1988), 39 Ohio t.3d 710. In applying the de novo standard, we review the trial ourt's decision independently and without deference to the trial ourt's determination. Id. at 711. Summary judgment is appropriate when the following have been stablished: (1) that there is no genuine issue as to any material act; (2) that the moving party is entitled to judgment as a matter f law; and (3) that reasonable minds can come to but one onclusion, and that conclusion is adverse to the party against whom he motion for summary judgment is made, that party being entitled o have the evidence construed most strongly in its favor. Brown, upra, citing State ex rel. Coulverson v. Ohio Adult Parole Auth. 1991), 62 Ohio St.3d 12, 14; Civ. R. 56(C). -5- The burden of showing no genuine issue as to any material fact s on the party who requested the summary judgment. Dresher v. Burt 1996), 75 Ohio St.3d 280, citing Harless v. Willis Day Warehousing o.(1978), 54 Ohio St.2d 64 and Hamlin v. McAlpin Co. (1964), 175 hio St. 517, 519-520. However, the non-moving party has the nitial burden of showing a genuine issue of material fact for rial. Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, 115. See resher, supraat 295, [limiting syllabus 3 of Wing v. Anchor Media, td of Texas (1991), 59 Ohio St.3d 108.] An issue is genuine only f the evidence is such that a reasonable jury could find for the on-movant. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242. Not only must we apply the summary judgment law to the facts f the case but we must also look to that body of law that addresses he issue of whether a business owner is liable for the criminal cts of a third party against its customer. The Ohio Supreme Court has historically held that actionable egligence exists only when the plaintiff has shown a duty, a breach f duty, and an injury proximately caused by the negligent act. enifee v. Ohio Welding Products (1984), 15 Ohio St.3d 75, citing iGildo v. Caponi (1969), 18 Ohio St.2d 125; Feldman v. Howard 1967), 10 Ohio St.2d 189. All of the elements must be present and he remaining elements cannot be addressed until a duty has been stablished. A duty exists when a risk is reasonably foreseeable. d. at 77. Foreseeability depends on the property owner's knowledge. Id. t 77. This knowledge is crucial when the owner is charged with -6- aving breached a duty to exercise reasonable care to protect a usiness invitee from the criminal acts of a third party. However , as a rule, the owner is not liable for the acts of hird party criminals. Fed. Steel & Wire Corp. v. Ruhlin Constr. o.(1985), 45 Ohio St.3d 171. An exception exists when a special elationship exists between the parties. Id. at 173-174; estate ment of the Law 2d., Torts (1965), Section 344. [I]f a erson exercises control over real or personal property and such erson is aware that the property is subject to repeated third-party andali sm, causing injury to or affecting parties off the ontroller's premises, then a special duty may arise to those arties whose injuries are reasonably foreseeable, to take adequate easures under the circumstances to prevent future vandalism. Id. t 177. (Emphasis added.) Consequently, the foreseeability of riminal acts depends upon the knowledge of the defendant, which ust be determined from the totality of the circumstances; and only hen the totality of the circumstances is somewhat overwhelming ill an owner be held liable for the criminal actions of a third arty against its customer. Feichtner v. Cleveland (1994), 95 Ohio pp.3d 388; Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 88, jurisdictional motions overruled (1990), 52 Ohio St.3d 704. In this case, Barnes failed to establish that the circumstances n her case were somewhat overwhelming. To understand how this ourt has defined somewhat overwhelming, we looked to previous ases. In a parking lot abduction, rape, and robbery case, we held hat the owner was liable for the rape and robbery of its customer -7- hen the parking lot attendant was locked in a booth on the lot and sleep. Doe v. Sys. Parking, Inc. (1992), 79 Ohio App.3d 278, urisdictional motions overruled (1992), 65 Ohio St.3d 1420. In oe, the parking lot was located in a high-crime area, which ncluded incidents of violent crime. The lot had an attendant on uty but, at the time of the incident, the attendant was asleep in locked booth with a radio and air conditioner operating. In Doe, his court found there was a material issue of fact regarding the oreseeability of such an attack in light of evidence that the ttendant locked himself inside the booth because he was afraid of he suspicious people and bums that walked through the lot and hat the attendant had been given instructions by the owner on what o do if a customer was attacked. Also, this court found that a warning by a business owner to is employees that they should not go outside in the parking lot ecause of potential danger, coupled with the fact that the business as in a high crime area and several robberies had been reported in nd around the area, was sufficient evidence upon which reasonable inds could conclude the abduction and rape of a customer was oreseeable. Allison v. McDonald's Restaurants (November 4, 1993), uyahoga App. No. 63170, unreported. Here, evidence of prior criminal acts at the car wash was nsufficient as a matter of law to meet the somewhat overwhelming ircumstances standard as evidenced by Allison and Doe. See Daniel . Thistledown Racing Club, Inc., et al. (April 27, 1995), Cuyahoga pp. No. 67345, unreported. In Daniel, we determined that the rape -8- f a horse groomer by an intoxicated jockey was not foreseeable here there was no evidence of any previous assaults by the jockey. This court also assessed the quality of the prior criminal acts nd held that prior non-violent thefts by a Shell employee were nsufficient to place the owner on notice that its customer would ater be violently attacked by a third party. Stone v. Shell Oil omp., et al. (May 9, 1996), Cuyahoga App. No. 68807, unreported. his court further held that the evidence must be sufficient to equire that a case be submitted to the jury and that a high crime rea alone is not enough to establish the duty to protect or warn. Finally, in a similar case, the Franklin County Court of ppeals held that an owner could not anticipate that its customer ould be robbed and shot, although eight other robberies had ccurre d at the store. Taylor v. Lawson Milk Co. (1982), 8 Ohio pp.3d 161, certiorari denied (1983), 464 U.S. 848. Consequently, we conclude as a matter of law that North Shore ould not have reasonably foreseen that a gunman would enter onto he premises of North Shore and murder Barnes. Barnes' evidence stabli shed that crimes did occur in and upon North Shore's roperty; however, it did not show somewhat overwhelming ircumstances. Somewhat overwhelming circumstances exist in situa- ions where the owner has something greater than the general nowledge of potential crimes. In Doe, the attendant was locked in he booth because of the suspicious characters seen on the lot and ad been told what to do in case a customer was attacked. Under -9- hese circumstances, this court found the owner's information was omewhat overwhelming. Equally in Allison, the owner had warned his employees not to o outside in the parking lot unaccompanied by the security guard n duty. This was a somewhat overwhelming circumstance, which aused this court to rule as a matter of law that a fact question xisted as to the owner's duty. In this case, Barnes presented eneral knowledge which did not rise to the level of somewhat verwhelming circumstances. Consequently, as a matter of law, the orth Shore had no duty to guard against a murder that was not oreseeable. Additionally, Barnes argues that the security measures ndertake n by North Shore were inadequate and a question of fact xists as to that issue. We disagree. The security at North Shore as to protect North Shore's property from theft and vandalism. orth Shore never pretended it was protecting its customers. In act, the owner's testimony was that he was protecting his property nd did not anticipate that violence would follow Barnes on to his roperty. Consequently, we conclude as a matter of law that no fact uestion exists as to the adequacy of the security. Judgment affirmed. It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court irecting the Common Pleas Court to carry this judgment into xecution. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. xceptions. AHRA, J., and PELLACY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. ee App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will e journalized and will become the judgment and order of the court ursuant to App.R. 22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the .