COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73463 LAURA CETERA FARAGO : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION PANINI'S INTERNATIONAL, INC. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : OCTOBER 15, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-314640 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: PAUL MANCINO, JR., ESQ. CHARLES V. LONGO, ESQ. Suite 1016 1995 Huntington Building 75 Public Square 925 Euclid Avenue Cleveland, OH 44113-2098 Cleveland, OH 44115-1407 CLARK D. RICE, ESQ. DALE F. PELSOZY, ESQ. ROBERT J. KOETH, ESQ. Bertsch, Millican & Winslow 1280 West Third Street Cleveland, OH 44113 -2- JOHN T. PATTON, J.: Anthony Mitchell, a panhandler roaming the Flats section in the city of Cleveland, stabbed decedent Armando Farago to death in a restaurant/bar operated by defendant Panini's International, Inc. Plaintiffs Laura Cetera-Farago, the administratrix of Armando's estate, and her brother, plaintiff Marcello Cetera, brought this wrongful death and negligence action alleging Panini's failed to provide adequate security against panhandlers. A jury returned a defense verdict on all counts. The primary issues in this appeal concern various portions of the court's jury instructions. Wife and decedent were married three days before the murder. Brother, who was also a close friend of decedent's, traveled from Columbus to join wife and decedent for an evening in the Flats to celebrate the marriage. Both wife and brother had worked at bars and restaurants in the Flats, and during the course of the evening they met a number of people they knew. It being a late Monday evening after the busy summer season, there were few customers in the bars. The celebrants initially stopped at Panini's, a restaurant where brother had worked in the past. There he met Panini's assistant manager, whom he knew well. After staying for a short period, they moved next-door to a bar called the Basement. When the Basement closed at 2:30 a.m., wife, brother and decedent decided to go to Panini's. They knew Panini's served food after other local bars closed for the evening, and expected to find there a number of employees from various Flats restaurants that -3- had closed for the night. In fact, there were about twenty to thirty customers inside Panini's, and wife and brother knew most of them. As he left the Basement, brother noticed the panhandler. Two people were working at Panini's: the assistant manager and a cook. The celebrants ordered food and sat at a table. Mitchell entered Panini's and began to ask its patrons for money. When Mitchell approached the celebrants, the brother told him to leave them alone, as decedent, a visitor from Italy, did not speak English. Mitchell wandered off to other parts of the restaurant. He returned to the table a short while later, and brother grew annoyed at Mitchell's presence. Brother asked the assistant manager whether he planned to do something about Mitchell's presence or whether the assistant manager wanted the brother to take care of removing Mitchell. Being occupied with serving the crush of customers entering the bar at that time and having it in mind that brother, a former Panini's employee knew how to deal with panhandlers, the assistant manager told brother to take care of it. Brother approached Mitchell, called him a bum and told him to leave. One witness testified that brother used stronger terms, calling Mitchell a nigger and telling him to get the fuck out of the bar. The witness firmly recalled brother's racial slur because he had been sitting with a friend who took personal offense at brother's racial slur. The witness testified that he personally stopped that friend from intervening and fighting with brother. Mitchell, who all witnesses characterized as either drunk or on -4- drugs, responded to brother by saying, who you talking to; who is you? He claimed brother responded, I'm talking to you nigger. A patron sitting at the counter alerted the assistant manager to the confrontation between brother and Mitchell. The assistant manager angrily yelled to brother, Marcello, shut the fuck up and go sit down. As brother turned to look at the assistant manager, Mitchell struck brother in the cheek. Brother charged Mitchell and pushed him against a wall. He put Mitchell in a headlock and gave him the business. Wife, who had been sitting with decedent, told decedent to aid her brother. At the same time, the assistant manager saw brother charge Mitchell and he leapt over the bar to break up the fight. Both the assistant manager and decedent attempted to pull brother away from Mitchell. During the scuffle, Mitchell pulled out a knife and began stabbing wildly. He struck the assistant manager three times in the buttocks. Decedent was fatally stabbed in the heart. The grand jury returned a three count indictment against Mitchell charging him with one count of murder and two counts of attempted murder. A jury convicted Mitchell of one count of murder and one count of attempted murder. This court affirmed the conviction in State v. Mitchell (Apr. 27, 1997), Cuyahoga App. No. 70437, unreported, rejecting Mitchell's argument that he proved he acted in self-defense. Wife and brother brought this civil action against Panini's. Wife raised claims of wrongful death, negligent failure to provide -5- security and negligent and intentional infliction of emotional distress. Brother joined the action and raised negligence and emotional distress claims. Panini's counterclaimed against brother for contribution and indemnity, claiming he engaged in a voluntary assault of Mitchell. The jury returned a unanimous defense verdict and wife brought this appeal. I The first and second assignments of error collectively raise issues concerning a conflict of interest that arose on behalf of both plaintiffs' counsel, who represented wife and brother, and defense counsel. At trial, wife and brother maintained Panini's breached a duty to provide adequate security from panhandlers. Panini's denied it owed decedent any duty to provide more security and that brother's actions in removing Mitchell from the restaurant were the primary cause of decedent's death. Wife maintains these theories of the case gave rise to two different conflicts of interest. First, wife argues brother acted as an agent for Panini's once he followed instructions by Panini's assistant manager to remove Mitchell from the restaurant. She claims the conflict arose because if Panini's had enlisted brother's assis- tance as its agent, Panini's would be liable for indemnity to brother and could not disclaim his actions as being beyond the scope of the agency. Second, wife argues that Panini's counter- claim against brother for indemnity based on his wrongful conduct in expelling Mitchell from the restaurant necessarily placed wife and brother in adverse positions. She maintains that plaintiffs' -6- counsel would have been in an adverse position in representing her and her brother's separate interests. Turning first to the argument that defense counsel had an inherent conflict of interest by representing Panini's and the brother (as an agent of Panini's), we find wife has no standing to raise any complaint about a conflict of interest with an attorney who did not represent her. As a general rule, a stranger to an attorney-client relationship lacks standing to complain of a conflict of interest in that relationship. Morgan v. North Coast Cable Co. (1992), 63 Ohio St.3d 156, syllabus. Assuming there was an attorney-client relationship between brother and Panini's, wife would be a stranger to that relationship and, as the sole appellant here, could not raise any issues relating to a conflict in that context. We likewise reject wife's second argument that her brother's perceived liability in starting the scuffle that ended in dece- dent's death created a conflict between her and the brother. The concept of conflict-free representation arises under the Sixth Amendment. State v. Dillon (1995), 74 Ohio St.3d 166, 167. This concept, however, applies to criminal defendants, not civil litigants. In Hutcherson v. Smith (C.A.7, 1990), 908 F.2d 243, 246, the court stated: It has been held in criminal cases that a defense attorney's representation of multiple defendants with conflicting interests, under some circumstances, may constitute a violation of a criminal defendant's sixth amendment right to effective assistance of counsel. See -7- e.g. Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); United States v. Gaines, 529 F.2d 1038 (7th Cir.1976). How- ever, it is a well-established principle of law that there is, in general, no constitu- tional or statutory right to effective assis- tance of counsel in civil cases. Lewis v. Lane, 816 F.2d 1165, 1169 n. 5 (7th Cir.1987); Wolfolk v. Rivera, 729 F.2d 1114, 1120 (7th Cir.1984). * * * We know of no precedent in the law, nor has any been presented to us, holding that a party's federal due process rights in civil litigation are violated when his attorney, even if assumed to be a state actor, represents multiple parties with con- flicting interests. There are certain ethical considerations involved with multiple representation. These considerations are contained in DR5-105(C), which permits an attorney to represent multiple clients if (1) it is obvious that the attorney can adequately represent the interest of each client and (2) each client consents to the representation after full disclosure of the possible effect of such representation. The record suggests both wife and brother were aware prior to trial that their dual representation might pose a conflict of interest. They nonetheless proceeded to trial and wife cannot now complain that a conflict of interest prejudiced her prosecution of the case. The first and second assignments of error are overruled. II The third, fourth and fifth assignments of error relate to separate portions of the jury instructions. Wife complains the court erred by (a) failing to properly define Panini's duty under the circumstances, (b) failing to fully instruct upon the issue of -8- brother's agency with Panini's and (c) failing to fully inform the jury as to what effect a comparative negligence finding on the brother's claim would have on wife's claim. A Wife first complains the court made factual assumptions when it defined the law dealing with panhandlers. The court told the jury that Panini's was powerless to regulate the foot traffic of panhandlers and that: there is absolutely no evidence in this case that panhandlers, per se, are dangerous indi- viduals on the public streets of our cities, but notwithstanding, the defendant continues to have a duty to exercise ordinary care for the safety of its customers within, which is to say, inside its premises, and it is for you to decide if the situation was foreseeable. Wife complains this instruction made an improper factual assumption about the criminal proclivities of panhandlers and did not properly define Panini's duty under the circumstances. A business owner's duty to warn or protect its business invitees from criminal acts of third persons arises when the business owner knows or should know that there is a substantial risk of harm to its invitees on the premises in possession and control of the owner. Simpson v. Big Bear Stores Co. (1995), 73 Ohio St.3d 130, syllabus. We determine the foreseeability of criminal acts occurring on-premises by using a totality of the circumstancestest. Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188. The totality of the circumstances test looks to the business owner's knowledge of criminal acts, with the caveat that -9- the circumstances be somewhat overwhelming. Walworth v. BP Oil Co. (1996), 112 Ohio App.3d 340, 348, quoting Feichtner v. Cleveland (1994), 95 Ohio App.3d 388, 396. Jury instructions should be viewed in their entirety, not just in isolation. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 210. Viewed in their entirety, the jury instructions accurately stated the law applicable to this case. The court told the jury that Panini's had the duty to protect decedent if, under the totality of the circumstances, it could have foreseen the need for on-duty security personnel to protect patrons against panhan- dlers. The court told the jury that a business is not an insurer of its customers' safety, and that the danger attendant to third persons must be perceived as real, and not speculative. The court did not err by telling the jury there had been no evidence that panhandlers were per se dangerous individuals. This statement was supported by the evidence. Moreover, we find this statement did not amount to an impermissible comment on factual matters within the province of the trier of fact. The court is not precluded from commenting on evidence while charging a jury as long as the court informs the jury that it is the sole finder of facts. State v. Sutton (1966), 7 Ohio App.2d 178, 180. We do not believe the court's statement placed any undue emphasis on the evidence and find the statement about panhandlers could not have prejudiced wife in any way. B -10- Wife next complains the court failed to give an express instruction that brother had been an agent of Panini's when asking Mitchell to leave the restaurant. She claims the court omitted to tell the jury that even if brother had been an agent of Panini's and acted outside the course and scope of his employment, wife could recover were it shown that brother only deviated in part from the scope of the agency. Wife did not object to the court's agency instructions, so we review her arguments for plain error only. See Civ.R. 51(A); Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, paragraph one of the syllabus. In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself. Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, syllabus. We find no error that would undermine the legitimacy of the judicial process because the court's instruction on agency adequately stated the law. Moreover, wife's agency theory did not expressly rely on brother's conduct as the precipitating event for Panini's liabil- ity. In direct response to the court's question about the seeming conflict of interest between brother and wife's agency theory, wife told the court our theory of the case is, when [the assistant -11- manager] gave [brother] permission, [Panini's] breached their duty. Everything else was predictable and foreseeable. There would be a confrontation, and at a minimum, an argument, and at a maximum, why we're standing here today. In other words, wife believed Panini's breached a duty to ensure that its hired help had sufficient manpower to handle exigent circumstances, without having to resort to delegating responsibilities to its patrons. Wife's stated position to the court would have been inconsistent with the agency theory she now maintains should have been presented to the jury. C Wife next argues the court erred by failing to separate brother's claims from her own claims of wrongful death, conscious pain and suffering and negligent infliction of emotional distress. She claims this blurred the issues because the jury might think that if brother were responsible for decedent's death, that responsibility would eliminate wife's claims. Wife further suggests that the alleged conflict of interest between her and brother might have led the jury to believe that brother's liability would attach to wife. Wife did not raise any objection to this portion of the court's instructions. She concedes she failed to object at trial, yet glibly maintains that Panini's should not be allowed to raise the waiver issue given the fact there were conflicts of interest -12- and the conflict of interest concerning Laura's counsel came to pass because Panini's asserted a counterclaim and an affirmative defense, Panini's is in no position to complain. We disagree. Panini's had every right to assert a counterclaim against brother and cannot be held responsible for creating a perceived conflict of interest that neither wife nor brother took any steps to correct. In any event, the jury expressly found that Panini's did not have any duty to maintain additional security on-premises the evening of decedent's death. Given that express finding, there is no possibility that the jury would have found brother liable on a negligence theory. The third, fourth and fifth assignments of error are overruled. III The sixth assignment of error complains the court should have taken steps to inform the jury that self-defense was inapplicable. Wife maintains that throughout trial, Panini's argued Mitchell struck brother as a result of being provoked by brother's racial slur. Even though the court did not give any instruction on self- defense, wife claims the court should have gone further and expressly told the jury that self-defense did not apply. Again, wife failed to object to this portion of the court's charge. We find no plain error present, and note that any additional instruction may well have proven to be redundant or immaterial therefore, the court likely would have rejected the request outright. Bostic v. Connor (1988), 37 Ohio St.3d 144, -13- paragraph two of the syllabus. The sixth assignment of error is overruled. IV For her seventh assignment of error, wife complains the court erred by ruling that she could not recover on her claim of negligent infliction of emotional distress because of its subordi- nation to the wrongful death claim. Wife maintains she could have recovered for negligent infliction of emotional distress even if the jury were to find against her on the wrongful death claim. A derivative action clearly stems from a single accident or occurrence. Indeed, the derivative actions would not exist but for the primary action. Dues v. Hodge (1988), 36 Ohio St.3d 46, 48. For example, a claim for loss of consortium is derivative in that the claim is dependent upon the defendant's having committed a legally cognizable tort upon the spouse who suffers bodily injury. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 93. In Sweeney v. Deaconess Hosp. (Dec. 30, 1993), Cuyahoga App. Nos. 64349 and 64357, unreported at 5, we held a plaintiff's failure to prevail on a predicate medical malpractice claim precluded recovery on remaining derivative claims for mental anguish and loss of consortium. See, also, Schlachet v. Cleveland Clinic Foundation (1995), 104 Ohio App.3d 160, 168-169. The court did not err by instructing the jury not to consider the emotional distress claim if it were to find that Panini's did not breach any duty of care to provide security against panhan- dlers. We recognize that in some circumstances an emotional -14- distress claim might arguably be considered less derivative than a loss of consortium/wrongful death claim. Bernard v. Cordle (1996), 116 Ohio App.3d 116, 122. However, wife presented no evidence to show that her emotional distress claim could exist independently from the negligent failure to provide security claim. Indeed, the outrageous behavior comprising the emotional distress claim was the failure to provide security against panhandlers. Since the jury found Panini's breached no duty to provide security against panhandlers, the emotional distress claim could not survive. The seventh assignment of error is overruled. V. The eighth assignment of error is the court committed plain error by not fully instructing the jury concerning the burden of proof on Panini's claim for contribution against the brother. Wife did not object to this portion of the jury instructions and we find no plain error. The jury's finding that Panini's did not breach any duty to provide security necessarily mooted any consideration of a contribution claim by Panini's against brother. The eighth assignment of error is overruled. VI. In her ninth assignment of error, wife complains the court denied her a fair trial by unreasonably interjecting itself into the trial by asking numerous questions and making numerous remarks, limiting the presentation of evidence, and allowing improper evidence. A -15- Evid.R.614(B) permits the court to interrogate witnesses, in an impartial manner, whether called by itself or by a party. A judge's questions to a witness should be relevant and should not suggest bias for either side. Sandusky v. DeGidio (1988), 51 Ohio App.3d 202, 204. The court should ensure that its questions are asked in such a way that they do not indicate the court's opinion of witness credibility or sufficiency of testimony. State v. Davis (1992), 79 Ohio App.3d 450, 454. We presume the court interrogated a witness in an impartial manner unless the complaining party can show bias or prejudice. Jenkins v. Clark (1982), 7 Ohio App.3d 93, 98; cf. State v. Wade (1978), 53 Ohio St.2d 182, paragraph two of the syllabus, vacated on other grounds (1978), 438 U.S. 911. When reviewing a court's comments, we must determine whether the court abused its discretion. Davis, 79 Ohio App.3d at 454. Wife sets forth more than fifty instances in which she claims the court prejudiced her presentation of the case, but fails to show prejudice in a way that would make us conclude the court had abused its discretion. Some of the cites are incongruous because they refer to rulings that actually benefitted wife. For example, even though wife called Panini's assistant manager as a witness, the court permitted her to examine the assistant manager as though he had been called upon cross-examination. The court told the jury it did so because the assistant manager had been a former employee and leading questions would speed the trial along. We see no possible prejudice from permitting wife to ask the assistant manager leading questions. -16- As another example, wife cites, without further elaboration, to a sidebar conference held out of the jury's hearing. Since the jury did not hear what transpired during the sidebar discussion, we fail to see how this sidebar has any relevance to the assigned error. Many other page citations are to parts of the record where the court said that it did not understand certain questions and asked counsel to rephrase the questions. If the court did not understand a question, it stands to reason that jurors might also not understand the question. At some points, the court did anticipate objections from opposing counsel, but we find no abuse of discretion. Trial lasted two weeks, and the court could certainly exercise its discretion to move matters along. It did so without any obvious prejudice to wife and, significantly, none of the instances where the court sua spontesustained an objection are the subject of an assigned error in this appeal. B Finally, wife argues the court erred by refusing to permit the testimony of Richard Cottom, a bouncer at an adult entertainment bar in the Flats. Cottom would have testified to an incident he witnessed while on duty in spring of 1995 in which a panhandler (not Mitchell) refused to leave the establishment and pulled a pair of scissors as a weapon. Cottom and a buddy surrounded the panhandler, disarmed him and briefly chased him down the street. Wife told the court it would show that Panini's assistant manager -17- saw the tail end of this incident, where Cottom chased the scissor- wielding panhandler. The court refused to permit Cottom's testimony because it did not bear any similarity to the facts at issue and would likely have been more prejudicial than probative. A trial court has broad discretion in determining whether to admit or exclude evidence. Absent an abuse of discretion that materially prejudices a party, the trial court's decision will stand. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66. Moreover, the court has discretion to determine whether contested events or objects are sufficiently similar to other events or objects that evidence about the other events or objects has probative value. Babb v. Ford Motor Co. (1987), 41 Ohio App.3d 174, 177. The court did not abuse its discretion by refusing to permit Cottom to testify because the event Cottom would have testified to did not bear any similarity to Mitchell's assault. Significantly, Cottom's panhandler had not been begging for money at the time he was refused admission to the adult entertainment bar. That panhandler had been more in the nature of a customer, not a begger like Mitchell. As a disgruntled person who had been refused admission to the bar, Cottom's panhandler's status would be wholly irrelevant to the incident occurring at Panini's, so we cannot say that the court abused its discretion by refusing to permit Cottom's testimony. The ninth assignment of error is overruled. VII -18- For her tenth assignment of error, wife maintains the verdict was against the manifest weight of the evidence. She believes brother clearly acted at the request of Panini's and the jury lost its way in finding that Panini's should not have been liable for brother's actions, even if he did utter a racial slur that provoked Mitchell's assault on decedent. A reviewing court will not reverse the verdict of the trial court where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense had been proved. State v. Eley (1978), 56 Ohio St.2d 169. The trier of fact is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. The jury heard testimony to show that Panini's had no duty to provide security against panhandlers. The evidence showed that Monday evenings after the summer season were typically the slowest nights of the week for Panini's and other establishments in the Flats. The evidence further showed that panhandlers were fairly common in the Flats and there had been no significant crimes involving panhandlers. On the night of decedent's murder, the only persons in the restaurant were other employees of Flats establish- ments, and none of the witnesses gave any indiction that a violent incident might ensue. Given this evidence, reasonable minds could -19- find Panini's had no reason to hire additional security on that particular Monday evening. Reasonable minds could find brother had not been an agent of Panini's or, if so, that Panini's did not violate any duty of care to decedent by acquiescing to brother's offer to remove Mitchell from the bar. The evidence showed Mitchell had been merely annoying, not violent. Mitchell's act of violence was therefore so spontaneous that reasonable minds could find Panini's could not anticipate its occurrence. Finally, we reject wife's argument that the evidence showed brother mishandled his duty of removing Mitchell. Wife refused to take a position on the question whether her brother instigated Mitchell's assault, instead maintaining that Panini's decision to delegate responsibility to remove Mitchell created a situation in which a violent outcome would have been preordained. At trial, the jury heard evidence to contradict this position. Brother testified that he had experience working in restaurants and bars, and reasonable minds could find that this experience would have made it less likely that Mitchell would react in a violent reaction manner to his ejection from the restaurant. Wife now argues that a racial slur may have been used and that Panini's would be responsible under an agency theory. She underscores this argument by pointing to the alleged conflict of interest between her position at trial and that of her brother. As we previously stated, these conflicting positions were known to wife and brother in advance of trial and could have been resolved if desired. In terms of the weight of evidence, they have no real -20- bearing on the jury's verdict. The tenth assignment of error is overruled. Judgment affirmed. -21- 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 direct ing 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. DIANE KARPINSKI, P.J. JAMES D. SWEENEY, J., CONCUR. 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 pursuantto 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 revi ew by the Supreme Court of Ohio shall begin to run upon the jour nalization of this court's announcement of decision by the .