Doe v. Beach House Dev. Co.

• Decision Date: 10 February 2000
• Docket Number: No. 75615.,75615.
• Parties: DOE et al., Appellants, v. BEACH HOUSE DEVELOPMENT COMPANY et al., Appellees.
• Court: Ohio Court of Appeals

136 Ohio App.3d 573

737 NE 2d 141

DOE et al., Appellants, v. BEACH HOUSE DEVELOPMENT COMPANY et al., Appellees.^*

No. 75615.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided February 10, 2000.

COPYRIGHT MATERIAL OMITTED

Schulman, Schulman & Meros, Howard A. Schulman, for appellants.

Gravens & Franey Co., Martin T. Franey and Terrance P. Gravens, for appellees.

MICHAEL J. CORRIGAN, Judge.

Jane Doe et al., plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, General Division, case No. CV-252781, in which the trial court granted the motion for summary judgment of Beach House Development Corporation and Associated Estates Corporation, defendants-appellees, on plaintiffs-appellants' complaint alleging negligence. Plaintiffs-appellants assign five errors for this court's review.

For the following reasons, plaintiffs-appellants' appeal is not well taken.

This case arises out of a sexual assault perpetrated by thirteen-year-old Christopher Greenwalt (a.k.a. "Boomer") on James Doe, the eight-year-old minor son of plaintiff-appellant Jane Doe, on March 31, 1993, at Lakeshore Village Apartments located at 16151 Lakeshore Boulevard, Cleveland, Ohio. Lakeshore Village is owned and operated by defendants-appellees. At the time of the assault, both boys lived with their respective mothers in the same building at Lakeshore Village.

Lakeshore Village consists of four buildings with several floors contained in each building. During the school year, security guards patrol the apartment complex from 5:00 p.m. to 5:00 a.m. In the summer months, when children residing in the complex are not in school, a security guard is also posted during daylight hours.

Boomer, his mother Linda Greenwalt, and his sister Christine were residents of Lakeshore Village prior to plaintiffs-appellants. Boomer has had a history of antisocial behavior while residing at Lakeshore Village consisting of violent and aggressive acts toward other residents of the complex. This history includes dropping water balloons from the upper levels of the building onto adults and younger children below, holding a knife on two young girls, throwing snowballs packed around rocks at apartment windows and apartment tenants, and other unspecified acts of vandalism and delinquent behavior.

Sometime in 1990, an eviction action was commenced by defendants-appellees against Linda Greenwalt in the Cleveland Municipal Court based partly upon Boomer's alleged behavioral problems and vandalism at Lakeshore Village. Ultimately, the case was dismissed by defendants-appellees due to a lack of direct evidence that Boomer had caused the subject damage to the property.

Soon after plaintiffs-appellants moved into Lakeshore Village, James Doe (hereinafter "the victim") began experiencing problems with Boomer. On at least five separate occasions, Boomer allegedly assaulted the victim physically on or near the premises of Lakeshore Village. After each occasion, the victim's mother contacted defendants-appellees' management in an effort to somehow stop the beatings. Defendants-appellees maintain that they attempted to contact Boomer's mother regarding some of the incidents, but she was rarely at home. Consequently, Boomer's conduct continued unchecked.

Plaintiffs-appellants were not the only residents of Lakeshore Village to complain to management about Boomer's behavior. The Greenwalt file at Lakeshore Village contained numerous complaints regarding Boomer. Plaintiffs-appellants did not contact the Cleveland police at any time concerning Boomer's continued pattern of aggressive conduct.

Defendants-appellees maintained a policy from 1990 to 1992 for dealing with a violent or potentially violent tenant. That policy consisted of sending a "cause letter" to the tenant warning of possible eviction if the violent behavior continued. An accompanying timely investigation was to be conducted to increase the chance of a successful eviction if the tenant continued to pose a threat to the building residents. No such cause letter was sent to the Greenwalt family concerning Boomer's continued physical assaults upon the victim in this case.

After one particular incident in which Boomer had once again physically assaulted the victim, Jane Doe was told by defendants-appellees to submit a letter regarding Boomer's violent actions toward her son. The letter was submitted to defendants-appellees on October 30, 1992. In the letter, Jane Doe maintained that Boomer had been terrorizing her son for an extended period of time and, in the latest incident, Boomer had pushed her son and hit him in the face, causing a split lip to occur.

Boomer continued to bother the victim throughout the five months between October 30, 1992, and March 31, 1993. After each incident, Jane Doe continued to complain to management about Boomer's abusive behavior. Each time, management responded that they would speak with Boomer's mother. While Boomer's mother was apparently never contacted, Fran Smoot, the manager of the complex at the time, spoke directly with Boomer sometime in January 1993. At that time, Boomer denied having assaulted the victim or anyone else living on the premises.

On March 31, 1993, Boomer approached the victim in one of the common areas of the apartment. Boomer asked the victim to "suck his thing." When the victim refused, Boomer physically grabbed the victim, dragged the victim to the Greenwalt apartment, forced the victim into his bedroom, and locked the door. At this point, Boomer then forced the victim to perform oral sex against his will.

The underlying action was originally filed by Jane Doe on May 27, 1993, as a bill in equity for discovery. On July 15, 1993, plaintiff-appellant filed an amended complaint in which she asserted a personal injury action as the mother of the minor victim against defendants-appellees, seeking costs for the medical and psychological treatment of her son and for her loss of her son's society and services allegedly caused by defendants-appellees' negligence in failing to protect her minor son from Christopher Greenwalt. On May 14, 1998, a second amended complaint was filed in which a personal injury action was brought on behalf of plaintiff-appellant's minor son against defendants-appellees.

On May 8, 1998, the trial court conducted a pretrial hearing at which time deadlines were established for the submission of expert reports, the completion of discovery as well as the filing of any dispositive motions. Extensive discovery ensued.

On September 15, 1998, defendants-appellees filed their motion for summary judgment in which they maintained that the criminal act of a third party was not a sufficiently foreseeable event to warrant the imposition of a duty to protect upon defendants-appellees. On October 20, 1998, plaintiffs-appellants filed their brief in opposition to the motion for summary judgment of defendants-appellees. Plaintiffs-appellants maintained that genuine issues of material fact existed as to whether Boomer's sexual assault of the victim was foreseeable given Boomer's extensively documented history of violent and aggressive acts. Plaintiffs-appellants argued further that defendants-appellees failed to follow their own internal procedure for dealing with violent tenants such as Boomer.

On September 27, 1998, defendants-appellees filed a reply to plaintiffs-appellants' brief in opposition. One day later, plaintiffs-appellants filed a motion for oral argument on the pending summary judgment motion based upon their contention that defendants-appellees' reply brief was based upon newly presented evidence.

On November 2, 1998, the trial court issued the following journal entry granting defendants-appellees' motion for summary judgment:

"Motion for Summary Judgment of Defendants, Beach House Development Co., & Associated Estates Corporation, is hereby granted. The Court hereby finds that there exists no genuine issue of material fact as to the duty owed to Plaintiff by these Defendants. Under the totality of the circumstances, this incident was not sufficiently foreseeable to impose a duty on these Defendants."

On November 3, 1998, the trial court issued a second journal entry which provided:

"Plaintiffs' Motion for Oral Argument on Defendants' Motion for Summary Judgment is hereby denied & overruled as the Court has ruled on Defendants' Motion for Summary Judgment."

On November 30, 1998, plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court.

Plaintiffs-appellants' first assignment of error states:

"I. The trial court erred in granting summary judgment to defendants, on the basis that `there exists no genuine issue of material fact as to the duty owed to plaintiff by these defendants,' where plaintiffs had demonstrated that defendants owed plaintiffs a duty, as landlords, `to take reasonable precautions to provide reasonable security in the common areas.'"

Plaintiffs-appellants' second assignment of error states:

"II. The trial court erred in granting summary judgment to defendants, on the basis that `there exists no genuine issue of material fact as to the duty owed to plaintiff by these defendants,' where plaintiffs demonstrated that the assault was just one additional assault in a long series of repeated assaults by the same perpetrator against the same victim."

Plaintiffs-appellants' third assignment of error states:

"III. The trial court erred when it held that `this incident was not sufficiently foreseeable to impose a duty on these defendants,' where plaintiffs demonstrated that defendants knew or should have known that there was a `substantial risk of harm' to plaintiff James Martin on `premises in the possession and control' of defendants."

Plaintiffs-appellants' fourth assignment of error states:

"IV. The trial court erred when it held that `this incident was not sufficiently foreseeable to impose a duty on these defendants,' where pl...