COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73756 JANE ROE, ET AL. : : Plaintiffs-Appellants : JOURNAL ENTRY : -vs- : AND : SHAIA PARKING, INC., ET AL. : OPINION : Defendant-Appellee : Date of Announcement of Decision: NOVEMBER 25, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 315806 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiffs-Appellants: WILLIAM M. CROSBY, ESQ. NANCY A. KELLY, ESQ. Crosby & Kelly 55 Public Square, #1400 Cleveland, Ohio 44113 For Defendant-Appellee: TERRANCE P. GRAVENS, ESQ. JOHN R. CHRISTIE, ESQ. Gravens & Franey Co. Standard Bldg., #1240 1370 Ontario Street Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Plaintiffs-appellants Carol Miller ( Jane Roe ) and her husband appeal from a jury verdict and judgment in favor of defendant-appellee Shaia Parking, Inc. arising out of Mrs. Miller's abduction from defendant's parking lot and subsequent rape by an unknown assailant during an Indians game. Plaintiffs contend the trial court erred in not granting a mistrial based on the trial judge's misconduct; in denying plaintiffs' motion for judgment notwithstanding the verdict or a new trial; in excluding evidence of defendant's knowledge of high crime around the parking lot; and in not permitting the jury to consider punitive damages. We find no error and affirm. Shaia Parking, Inc. operates surface parking lots in the downtown Cleveland area including Lot No. 11 at East 14th Street and Sumner Court. There are numerous parking lots in the vicinity. Parking Lot No. 11 was an honor lot or unattended lot during the day where patrons would put their money in a numbered slot in a box corresponding to their parking spaces. During special events, such as Cleveland Indians' games at nearby Jacobs' Field, defendant followed the common practice of surface parking lots in downtown Cleveland by having parking attendants at the lot several hours before the game or event. They would take the patrons' money and direct parking to avoid blocking so that all of the patrons could exit the lot at any time. Shaia's attendants remained at the parking lot for a limited period of time after the baseball game began to park latecomers and to make sure -3- that panhandlers would not attempt to collect latecomers' parking fees. It was the standard practice of Shaia and other surface parking facilities that the attendants did not remain at the parking lot for the entire baseball game. During cross-examination of defendant's employees, general testimony was elicited regarding the defendant's knowledge of crime relevant to the area. Victor Shaia, the owner, and his employees testified that they had no expectation that certain crimes would be committed at any of the lots. There was no evidence in this case regarding any previous rape or kidnapping incidents occurring at Shaia's Lot No. 11. The attendants and owner testified that these attendants never held themselves out to be or acted as security guards. If a criminal situation developed they would call the Cleveland Police or 911. On the night in question, all the defendant's parking attendants had left the parking lot by 9:00 p.m. There were no Shaia employees at the lot when the attack on Mrs. Miller occurred. Plaintiffs testified to the events leading up to the episode. Both plaintiffs had been to a number of events in downtown Cleveland before. They had previously parked at unattended parking lots. The husband, Charles Miller, had previously parked at this very same parking lot on at least one, and perhaps two, occasions for Cleveland Indians games prior to the incident at issue in this case. Mr. Miller knew that on previous occasions when he returned to the parking lot after the game there were no attendants at the lot. Both plaintiffs admitted that no one from the defendant -4- represented that the lot would be attended for the entire Cleveland Indians game. Nevertheless the plaintiffs thought there would be attendants at the lot. On the day in question, the plaintiffs arrived early at Lot No. 11 and parked for a pre-game party at Jacobs' Field about 5:00 p.m. Unfortunately, during the game (about the first half of the seventh inning - 8:45 p.m.), Mrs. Miller became crampy because of her problems with Crohn's disease. She left the game for the restroom and to go back to rest in their car at the parking lot. Her husband stayed behind to watch the game and join her later. Mrs. Miller walked alone to the parking lot where there was ample lighting. The lot was unattended. However, in the back of the parking lot, she observed an African-American male who was not one of the attendants who had been there when they arrived earlier. She then went to her car, opened the door and got in. Rather than immediately locking the automatic door locks, she put souvenirs into the back seat of the car, put her purse on the floor of the car and was positioning herself in the seat when suddenly the door was opened and the assailant entered the vehicle. The assailant robbed her, obtained her keys and drove to East 39th Street and Central Avenue where he raped her. He threw the keys in the back of the car, left the vehicle and disappeared. She drove back to the parking lot and found her husband waiting. All of this occurred from the time she arrived back at the parking lot, slightly after 9:00 p.m. to 9:33 p.m. The matter was reported to -5- the police on duty at Jacobs' Field and Mrs. Miller was treated at St. Vincent's Charity Hospital. The assailant was never caught. The defense presented the videotape deposition of Frederick Henrich, the director of operations for Shaia, who explained Shaia's parking lot practices and procedures. The defendant called Lance Foster, an experienced security consultant. He reviewed relevant criminal statistical information for the area and gave the opinion that, given all of the relevant circumstances, foreseeability of an incident similar to this abduction and rape on that particular date and time and at that location was very low. Further, based upon all of the circumstances, he opined that Shaia had done what was appropriate. He pointed to the fact that there were no previous similar incidents at this lot and the fact that there were 48 police officers in the general vicinity of Jacobs' Field during the game. The defendant moved for a directed verdict at the close of the plaintiffs' case. The trial court granted that motion as to punitive damages, but overruled the balance of the motion. The jury returned a 7-1 verdict in favor of the defense on which the trial court entered judgment. Plaintiffs' motions for J.N.O.V. and new trial were denied and this appeal timely ensued. We will address plaintiffs' assignments of error in the order asserted and together when common questions of law and fact are presented. I. THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION FOR A MISTRIAL BASED ON THE MISCONDUCT OF THE TRIAL JUDGE. -6- II. THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' MOTION FOR JUDGMENT N.O.V. OR, ALTERNATIVELY, FOR A NEW TRIAL. Plaintiffs contend that the trial court's misconduct prevented a fair trial and required the trial court to grant plaintiffs' motions for a mistrial, J.N.O.V. or a new trial. We disagree. This Court stated the standard regarding motions for mistrial in the case of Quellos v. Quellos (1994), Cuyahoga App No. 65690, unreported at 12-13: The grant or denial of a motion for mistrial rests within the sound discretion of the trial court. (Citations omitted.) This discretionary standard is premised upon the fact that the trial judge is in the best position to determine whether the circumstances of the case require the declaration of a mistrial or whether other corrective actions are sufficient. (Citations omitted.) An abuse of discretion connotes more than error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Our review of the record indicates that it was not until the second morning of trial that plaintiffs' counsel moved for a mistrial based on the trial court's facial expressions, claiming they indicated to the jury the judge's bias in the case. The day before, the plaintiffs had moved for a mistrial based on the trial court's ruling which limited the plaintiffs' questioning of the parking lot owner's knowledge of crime in the area. No mention was made of the trial judge's behavior at that time. Nonetheless, defense counsel, on the second motion for a mistrial, gave a far different perspective of the proceedings in which he perceived the judge as being evenhanded. A review of the record does not show any bias on the part of the judge as he appeared to treat both -7- defense and plaintiffs' counsel even handedly. Of course, any facial expressions of the judge would not be reflected on the record. Recognizing this problem, the court in Gordon v. Columbus and Southern Ohio Electric Co. (1960), 112 Ohio App. 218, 219 held: As to the errors in the general charge to the jury, it is impossible to consider those complaints having to do with the inflection of the judge's voice, his mannerisms and facial expressions, of which counsel complains, but which he admits are not shown by the record for consideration of this court. It would be impossible for us to determine if the judge was indeed making gestures indicating bias or, as he claimed, was simply expressing his discomfort due to recent knee surgery. This Court in State v. Boyd (July 1, 1993), Cuyahoga App. No. 62853, unreported at 9, addressing a similar situation, held: Reversible error must affirmatively appear on the record. See, Uvegas, surpa; City of Cleveland v. Iacampo (Dec. 27, 1990), Cuyahoga App. No. 57796, unreported; and Bennett v. City of Cleveland (June 5, 1986), Cuyahoga App. No. 50479, unreported. The record before this court does not demonstrate judicial impartiality, bias or ill-will toward appellant. The trial court denied laughing or smiling at the witness' comments, while Mr. Gasior merely stated that some facial gestures were made. Nonetheless, the trial court instructed the jury to disregard the court's laughing or making facial gestures. A reviewing court will presume that the jury followed the instructions of the trial court. State v. Ferguson (1983), 5 Ohio St.3d 160; See, also, City of Columbus f. Hutchins (July 30, 1991), Franklin App. No. 91AP-18, unreported. The trial court in the case herein also issued a curative instruction after plaintiffs' counsel moved for the mistrial. (Tr. 263). The court admonished the jury not to pay attention to his -8- facial expressions as he was uncomfortable due to knee surgery. Although counsel argues the court's admonition to the jury not to have sympathy for the plaintiffs showed bias or prejudice, this instruction was the standard instruction regarding sympathy which is required to be given to the jury. The trial court again, in its charge to the jury, admonished them to ignore any expressions he may have incorrectly expressed during the trial. (Tr. 379). In the absence of evidence that the jury failed to follow these curative instructions no prejudice can be shown. Id. For the above reasons, the trial court properly denied the plaintiffs' motion for a mistrial and the motions for J.N.O.V or new trial. Plaintiffs' Assignments of Error I and II are overruled. III. THE TRIAL COURT ERRED IN EXCLUDING TESTIMONY AND EVIDENCE OF THE DEFENDANT SHAIA'S KNOWLEDGE OF CRIME IN AND AROUND THE DEFENDANT'S DOWNTOWN CLEVELAND PARKING LOTS. We find no merit to this assignment of error. The defendant filed a motion in limine against this evidence requesting the court to consider a geographical and time limitation regarding incidents of crime in the area. There is no indication that the trial court ever ruled on this motion. However, the trial court gave the plaintiffs great latitude in this regard. It permitted the plaintiffs to present evidence of numerous criminal statistics for several years prior to the incident at issue for a limited area surrounding Jacobs' Field. Criminal statistics for a limited time period more directly related to the parking lot at issue were also admitted. These were the relevant criminal statistics that both -9- expert witnesses considered. Indeed, the nature of this analysis was set forth in the testimony of the defendant's expert, Lance Foster. (Tr. 288). Plaintiffs' expert gave substantial testimony about the issue of foreseeability based on these same statistics. (Tr. Videotape Depo. of Ira Somerson at 40, 48). Plaintiffs contend the trial court repeatedly sustained any objections to Shaia's knowledge about crime about his lot. However, close examination of the record reflects that this characterization of the court's rulings is not correct. The cross- examination questions which were objected to by counsel and sustained by the trial court related to Victor Shaia's knowledge regarding criminal statistical information, not personal experience, and his knowledge of crimes committed in other lots quite a distance away from defendant's lot. Defendant had previously testified that he was not familiar with the criminal statistics developed by the Cleveland Police Department, therefore the trial court correctly sustained the objections to this line of questioning. (Tr. 236). The questions relating to criminal incidents that occurred at the parking lot by the Justice Center and at the Paxton Building parking lot were outside the relevant area of inquiry and were also properly sustained. These rulings were in the sound discretion of the trial court and we find no abuse of discretion in the court's rulings. Plaintiffs' Assignment of Error III is overruled. IV. THE TRIAL COURT ERRED IN NOT PERMITTING RELEVANT EVIDENCE AND NOT CHARGING THE JURY ON PUNITIVE DAMAGES. -10- Since we find no error sufficient to overturn the result below or order a new trial, discussion of the punitive damage issue is moot and will not be discussed. Since the jury found no liability or actual damages, no punitive damages could be awarded. McCullough v. Spitzer Motor Ctr., Inc. (1995), 108 Ohio App.3d 530, 536. App.R. 12(A)(1)(c). Judgment affirmed. -11- It is ordered that appellee recover of appellants 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. LEO M. SPELLACY, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER 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 .