COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73777 CLARICE B. BISHOP : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION PLAYHOUSE SQUARE FOUNDATION, : ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT DECEMBER 17, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-313035 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: ERIKA J. WAGNER, ESQ. 7055 Engle Road 1-103 Middleburg Hts., Ohio 44130 For Defendants-Appellees: CHRISTINE H. SUKEL, ESQ. 6480 Rockside Woods Blvd. Ste.210 Independence, Ohio 44113 For Hall Entertainment KEVIN C. ALEXANDERSEN, ESQ. Security: 7th Floor Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 PATRICIA ANN BLACKMON, A.J.: Appellant Clarice Bishop appeals a summary judgment decision in favor of appellees Playhouse Square Foundation; Art Falco, the -2- statutory agent of the Playhouse Square Foundation; Sheldon Lawrence, manager of the Palace Theater (hereafter jointly referred to as Playhouse Square ); and Hall Entertainment Security, in her negligence action. In her complaint, Bishop alleged Playhouse Square and Hall Security created a hazardous condition and failed to warn her of such conditions. Bishop assigns eight errors for our review:1 Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. For eight years, Clarice Bishop worked as a volunteer usher for the Palace Theater. On October 8, 1994, at age 76, she was one of six volunteers available, whereas eight volunteers usually worked as either ushers or ticket takers. In addition to the volunteer ushers, five Palace Theater security personnel were on duty and an additional five were requested from Hall Entertainment Security ( Hall Security ). The scheduled performance was a Def Comedy Jam show featuring two comedians. All 2,657 tickets were sold. The volunteers were not informed of the type of performance scheduled or that it was sold out. Due to the shortage of volunteers, the Palace closed off the three outer lobbies, utilizing only the inner lobby, the grand lobby. The grand lobby has three entrance ways that lead into the auditorium. Playhouse Square assigned two ushers to work each 1See Appendix. -3- entrance way. Bishop was assigned to take tickets at the far right entrance of the grand lobby. During intermission, the grand lobby was extremely crowded. Suddenly, a sound very similar to that of a gunshot was heard. As a result, the crowd panicked and surged forward. The noise turned out to be a knocked over trash can. Also during intermission, a fight between two male patrons erupted. Bishop was knocked down and trampled over by the crowd. One of the fighters stepped on her leg. She was finally rescued by another usher. Bishop sustained a severe injury to her left leg and had to be hospitalized for skin grafts. Her medical bills total more than $14,500. Bishop filed a complaint on August 6, 1996 suing Playhouse Square and Hall Entertainment Security. On September 5, 1997 Playhouse Square and Hall Security filed separate summary judgment motions. On December 1, 1997 the trial court granted both motions. On the same day, Bishop filed a motion to compel discovery upon which the trial court did not rule. This appeal followed. Bishop argues the trial court erroneously granted summary judgment as genuine issues of material fact existed. Bishop devotes an assigned error to each issue she argues. Summary judgment may be granted only if no genuine issue of material fact exists. Civil Rule 56(C). Our standard of review for summary judgment is the same as that of the trial court. Consequently, we review cases de novo. Brown v. Scioto Cty Bd of Commrs. (1993), 87 Ohio App.3d 704, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6. In applying the de -4- novo standard, we review the trial court's decision independently and without deference to the trial court's determination. Id. at 711. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor. Brown, supra,citing State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14; Civ. R. 56(C). The burden of showing no genuine issue as to any material fact is on the party who requested the summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64 and Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 519-520. However, the non-moving party has the initial burden of showing a genuine issue of material fact for trial. Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, 115. See Dresher, supra at 295, [limiting syllabus 3 of Wing v. Anchor Media, Ltd of Texas (1991), 59 Ohio St.3d 108.] An issue is genuine only if the evidence is such that a reasonable jury could find for the non-movant. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242. Appellees argue that the issues Bishop now brings on appeal were not argued before the trial court; therefore, they are barred -5- from consideration on appeal. We have reviewed the record from below and disagree with appellees. Each assigned error was brought before the trial court in Bishop's Briefs in Opposition to Playhouse Square's and Hall Security's motions for summary judgment. In her complaint, Bishop alleged that Playhouse Square and Hall Security negligently created a hazardous condition and breached their duty to warn her of the dangerous condition. In their summary judgment motions, Playhouse Square and Hall Security argued they owed no duty to Bishop. We agree. To prevail in a negligence action, one must first prove that the defendant owed a duty to the plaintiff. Restatement of Law 2d, Torts, 150 Section 328A comment c. Once a duty has been established, the plaintiff must also prove a breach of duty, causation, and damages. Barnes v. Univ. Hosp. Of Cleveland (July 21, 1994), Cuyahoga App.No. 66799, unreported [citing, Jeffers v. Olexo (1989), 43 Ohio St.3d 140]. See also, Orndorff v. Aldi (1996), 115 Ohio App.3d 632, 636. To overcome summary judgment, it is not necessary to prove that Playhouse Square and Hall Security owed a duty to Bishop. However, Bishop must produce some evidence of a duty. See Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344. Based on our review of the record, we see no indication where Bishop presented evidence of a legal duty of Playhouse Square and Hall Security. Therefore, we affirm the trial court's decision. -6- A duty exists when a risk is reasonably foreseeable. Menifee v. Ohio Welding Products (1984), 15 Ohio St.3d 75, 77. Foreseeability depends on the property owner's knowledge. Id. This knowledge is crucial when the owner is charged with having breached a duty to exercise reasonable care to protect a business invitee from the criminal acts of a third party. The law in Ohio does not require the owner of land to protect against criminal acts of a third party. Fed. Steel and Wire Corp. v. Ruhlin Constr. Co. (1985), 45 Ohio St. 3d 171. However, an exception exists when there is a special relationship between the parties. Id.at 173-174; Restatement of the Law 2d, Torts (1965), Section 344. Also, where the owner is aware of repeated third party acts that cause injury, then a special duty is reasonably foreseeable. Id. at 177. Consequently, a reasonably foreseeable third party act is based upon the knowledge of the owner. The owner's knowledge must be determined from the totality of the circumstances. The totality of the circumstances must be somewhat overwhelming before an owner can be held liable for the criminal acts of a third party. Feichtner v. Cleveland (1994), 95 Ohio App.3d 388; Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188, jurisdictional motions overruled (1990), 52 Ohio St.3d 704. In this case, the circumstances do not overwhelmingly suggest that Playhouse Square and Hall Security were aware of the probability of Bishop or anyone else getting injured. There was a full house on the night of the incident. The scheduled performance was a comedy act that attracts a young audience. In expectation of -7- a full house, Playhouse Square requested the customary number of security personnel from Hall Security - five. Also, Playhouse Square was shorthanded two ushers that night. This being the case, Playhouse Square changed its usual setup and procedure and closed the three outer lobbies to the general audience, allowing only smokers to enter. This left only one lobby open. Bishop also argues Playhouse Square and Hall Security should have foreseen the possibility of an injury because one year earlier, at another Def Comedy Jam event at the same theater, a similar incident occurred. A woman fell and a candy cart toppled on top of her as a result of a fight that broke out. There is no evidence, however, indicating a full house, a short-staff, the number of security or whether only one lobby was open at the earlier incident. Since these circumstances are essential to whether Playhouse Square and Hall Security could have reasonably foreseen an injury, the fact that there is no evidence to these circumstances gives no weight to the foreseeability issue. Thus, the circumstances are not overwhelming. Playhouse Square and Hall Security owed no legal duty to Bishop as her injury was not reasonably foreseeable. Consequently, Bishop's first, second, third, fourth, fifth, and sixth assignments of error are overruled. In her seventh assignment of error, Bishop argues Playhouse Square and Hall Security violated city building codes and that such violation led to her injuries. In essence, Bishop argues the doctrine of negligence per se. -8- The Ohio Supreme Court has held that [a] violation of a statute which sets forth specific duties constitutes negligence per se. Shroades v. Rental Homes (1981), 68 Ohio St.2d 20, 25; Steele v. McNatt (1995), 102 Ohio App.3d 558, 562. In 1954, the Ohio Supreme Court distinguished the violation of a specific act, which constitutes negligence per se, and the violation of a general enactment which does not amount to negligence per se. The court held: Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, neligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case. Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 374. Bishop states Playhouse Square and Hall Security violated several codes, specifically the BOCA National Building Code/1990, which is incorporated by reference into the Building Code of the City of Cleveland. For our consideration, Bishop quoted the following Section from the BOCA code: Because of the diversity in the kinds of occupancies assigned to the assembly use group and, particularly, because of the arrangement and density of the occupant loads, the potential for multiple fatalities and injuries from fire is comparatively high. For example, no other use group listed in Section 301.1 contemplates occupant loads as dense as 3 square feet per person (see Table 806.1.1). Darkened spaces in theaters, nightclubs and -9- the like serve to increase hazards. In sudden emergencies, the congestion caused by large numbers of people rushing to exits can cause panic conditions. For these and many reasons, there is an inherent degree of hazard in assembly facilities. BOCA National Building Code/1990, Section 302.0 Use Group A, Assembly Uses. (Emphasis in quote). In view of Eisenhuth, we conclude that Bishop's negligence per seclaim lacks merit. The BOCA code that Bishop points to does not state a specific act to which Playhouse Square must comply. It only generally suggests a rule of conduct. Without a specific rule establishing a standard of conduct to replace the reasonable person standard, a claim for negligence per se must fail. Bonds v. Ohio Dept. Of Rehab. and Corr. (1996), 116 Ohio App.3d 144, 150. Another code Bishop points to substantiate her negligence per se claim is Administrative Code Sec. 4101:2-1-28(B). This code requires an establishment to conspicuously post an occupancy load sign stating the maximum number of people permitted for each room. Although an occupancy load sign was not posted, Bishop's claim still fails for lack of proximate cause. Merely showing a violation of a statute is not enough, Bishop must also show a causal connection between the statute violation and her injury. Shroades, supra. Bishop fails to show how neglecting to post an occupancy load sign caused her injury. The third and final code Bishop points to for support is another BOCA code which makes it unlawful to obstruct any means of egress. BOCA, Section 805.0. Here, Bishop argues Playhouse Square -10- violated this code when they required the ushers to stand in the doorway with a ticket box. Again, Bishop's attempt at negligence per se falters. The evidence does not indicate that the doorways were obstructed in an unlawful manner. Bishop testified in her deposition that she was positioned to take tickets at the far right doorway and that the ticket box was in front and to the side of her. (Bishop Depo. p 37). She also testified that during intermission the ticket box was removed. (Bishop Depo. p. 40). The commentary of BOCA Section 805.1 states as examples of an unlawful obstruction a locked door, a restaurant dining table placed in the path to an exit, storage of loose furniture * * * on an exit stairway landing, ***, etcetera. There is no evidence showing that Playhouse Square unlawfully obstructed the passage of egress. Bishop's seventh assignment of error is overruled. In her eighth and final assignment of error, Bishop argues the trial court erred in granting summary judgment without ruling on her motion to compel discovery. Bishop also argues the trial court failed to rule on an earlier verbal motion to compel. When a trial court fails to rule on a motion, it may be presumed that the court overruled the motion. State ex rel. V Cos., et al. v. Marshall, Cty. Aud. (1998), 81 Ohio St.3d 467, 469, [citing, State ex rel. Cassels v. Dayton City School Dist. Bd. Of Edn. (1994), 69 Ohio St.3d 217, 223; and Newman v. Al Castrucci Ford Sales (1988), 54 Ohio App.3d 166. Since such rulings are discretionary, absent a showing of unreasonableness, we will not disturb the lower court's decision. State ex rel. V Cos., supra. Playhouse Square and Hall Security filed their respective motions for summary judgment one year after Bishop commenced her action. During that time, Bishop conducted discovery by way of depositions. Bishop sought to compel a videotaped interview of James Vigh, an eyewitness to the incident and the person who assisted Bishop after she fell. In her argument, Bishop does not state that Vigh was unavailable or unwilling to give a deposition testimony. That being the case, Bishop could have continued with the same method of discovery and deposed Vigh. Without showing good cause, a party may not obtain discovery of documents prepared in anticipation of litigation. Civ. R. 26(B)(4). Bishop's eighth assignment of error is overruled. Judgment affirmed. 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 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. Exceptions. JOHN T. PATTON, J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). APPENDIX ASSIGNMENTS OF ERROR I. THE LOWER COURT ERRED IN GRANTING DEFENDANT- APPELLEES' [sic] MOTIONS FOR SUMMARY JUDGMENT, WHEN SUFFICIENT DOCUMENTARY EVIDENCE WAS PRESENTED THAT ESTABLISHED THAT GENUINE ISSUES OF MATERIAL FACT EXISTED CONCERNING PLAINTIFF- APPELLANT'S CLAIM FOR NEGLIGENCE AGAINST DEFENDANT-APPELLEES [sic] AND THEY ARE THEREFORE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. II. THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT THE DEFENDANT-APPELLEES [sic] BREACHED THEIR DUTY TO PROTECT ITS INVITEES AND THE PLAINTIFF-APPELLANT FROM THE CROWD SPIRIT . III. THE LOWER COURT ERRED IN FAILING TO FIND THAT THERE WAS A PRESUMPTION OF KNOWLEDGE OF A DANGEROUS CONDITION BY THE DEFENDANT-APPELLEES [sic] BECAUSE DEFENDANT-APPELLEES [sic] CREATED THAT UNREASONABLY DANGEROUS CONDITION. IV. SUMMARY JUDGMENT WAS NOT PROPERLY GRANTED TO THE DEFENDANT-APPELLEES [sic] BECAUSE PLAIN- TIFF-APPELLANT WAS NOT INJURED BY THE INDEPEN- DENT CRIMINAL ACT OF THIRD PARTIES AND THOSE ACTS WERE NOT AN INTERVENING ACT THAT ABSOLVED DEFENDANT-APPELLEES [ sic] OF RESPONSIBILITY. V. THE LOWER COURT ERRED IN FAILING TO FIND THAT DEFENDANT-APPELLEES [sic] BREACHED A DUTY OF CARE TO PLAINTIFF-APPELLANT WHEN THEY FAILED TO WARN HER OF THE DANGEROUS CONDITION IN THE DOORWAY OF THE GRAND LOBBY, BUT INSTEAD ASSIGNED HER TO STAND IN THE DANGEROUS LOCATION. VI. THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT-APPELLEES [sic] WHEN DEFENDANT-APPELLEES [sic] FAILED TO PROVIDE ADEQUATE SECURITY FOR THE PLAINTIFF-APPELLANT. VII. SUMMARY JUDGMENT WAS IMPROPERLY GRANTED TO DEFENDANT-APPELLEES, [sic] WHEN THERE WAS A CLEAR VIOLATION OF CITY BUILDING CODES AND SUCH VIOLATION LED TO THE INJURIES OF THE PLAINTIFF-APPELLANT. VIII. THE LOWER COURT ERRED IN PROCEEDING WITH A DECISION ON A MOTION FOR SUMMARY JUDGMENT .