Doe v. Flair Corp.

• Decision Date: 14 September 1998
• Docket Number: No. 73243.,73243.
• Parties: DOE et al., Appellants, v. FLAIR CORPORATION et al., Appellees.
• Court: Ohio Court of Appeals

129 Ohio App.3d 739

719 NE 2d 34

DOE et al., Appellants, v. FLAIR CORPORATION et al., Appellees.¹

No. 73243.

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

Decided September 14, 1998.

Leonard W. Yelsky and Jeffrey A. Yelsky, for appellants.

Reminger & Reminger, George S. Coakley, Andrew A. Kabat and Brian D. Sullivan, 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-307842, in which the trial court granted summary judgment in favor of Flair Corporation, d.b.a. The Islander Apartments and Western Reserve Property Management, defendants-appellees, on plaintiffs-appellants' claims of negligence, fraud, promissory estoppel, detrimental reliance and breach of contract arising out of the sexual assault of Jane Doe at The Islander Apartment Complex in Middleburg Heights, Ohio. Appellants assign five errors for this court's review.

Appellants' appeal is not well taken.

On May 1, 1996, Jane Doe (hereinafter "appellant") and her two minor children, designated as John Doe No. 1 and John Doe No. 2, filed the instant lawsuit against appellees alleging that in August 1995, appellant met with appellees' leasing agent for the purpose of leasing an apartment at The Islander Apartment complex. At that time, appellant inquired as to the safety of the complex. The leasing agent allegedly indicated that the complex was very safe and that adequate security was provided on the premises. Appellants alleged further that a sales brochure as well as a newspaper advertisement "implied that [appellees] would provide * * * a safe and secure residential dwelling unit." Appellant maintained that she entered into the lease agreement based upon the alleged representations of safety made by appellees.

Appellant alleged further that on September 16, 1995 at approximately 4:00 A.M., she was attacked in a common area of the complex as she attempted to enter her building, forcibly dragged across Sprague Road to a wooded secluded area, where she was raped. The rapist was eventually apprehended in Medina, Ohio during another rape attempt.

Appellant claimed that appellees were liable to her for their alleged failure to provide adequate security on the premises, negligent infliction of severe emotional distress, promissory estoppel, detrimental reliance, fraud, breach of contract, breach of the covenant of quiet enjoyment, and breach of R.C. 5321.04. In addition, appellant's children brought a claim for loss of parental consortium. Appellant's promissory estoppel, detrimental reliance, fraud and breach-of-contract claims were based upon appellees' alleged representations that the building was safe and adequate security was provided. The claims for breach of covenant of quiet enjoyment and breach of R.C. 5321.04 were ultimately dismissed voluntarily by appellants.

On January 1, 1997, appellees moved for summary judgment, arguing that the presence of a serial rapist could not be foreseen, that there had never been a rape or abduction on the property in the past, and that there was no proximate cause. Appellants filed a brief in opposition to the motion for summary judgment in which they maintained that, in the three-year period preceding the assault on appellant, there were approximately three hundred eighty police department incident reports at the nine-hundred-fifty-unit complex where appellant resided. Police records contain complaints regarding burglaries, stalking, and voyeurism. Appellants also submitted the expert report of Daniel Bruce Kennedy, Ph.D. who stated that, in his opinion, "a crime against a person was reasonably foreseeable on 9/16/95 due to the nature of apartment living in general combined with the actual offense data concerning the Islander Apartments in particular." Finally, appellants submitted evidence that the assailant had been smoking near appellant's building for some time waiting for a woman to approach.

On September 19, 1997, the trial court granted appellees' motion for summary judgment on all claims. On September 25, 1997, appellants filed a timely notice of appeal from the judgment of the trial court.

Appellants' first assignment of error states:

"I. The trial court committed reversible error in granting appellees' motion for summary judgment for the reason that genuine issues of material fact existed to be litigated respecting appellants' fraud claim."

Appellants argue, through their first assignment of error, that the trial court erred in granting summary judgment in appellees favor on appellant's fraud claim, which was based upon the leasing agent's representations that she was unaware of any serious criminal activity at the apartment complex and that there was twenty-four-hour security provided, and the agent's failure to disclose the actual extent of criminal activity when questioned by appellant at the time she entered into the lease. Appellants maintain that the leasing agent's supervisors, Edward Donnely and Michael Marelli, were aware of the extensive criminal activity at the complex and failed to inform the leasing agent. It is appellants' position that liability for fraud may result from the leasing agent's untrue statement even though she did not know the statements were untrue at the time she made them. Kerr v. Parsons (1948), 83 Ohio App. 204, 38 O.O. 271, 82 N.E.2d 303.

The standard for granting a motion for summary judgment is set forth in Civ.R. 56(C). In applying this rule, the Ohio Supreme Court has consistently held that, before such a motion can be granted, the moving party must show that (1) there is no genuine issue of fact, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 667 N.E.2d 1197; Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 617 N.E.2d 1129; Osborne v. Lyles (1992), 63 Ohio St.3d 326, 587 N.E.2d 825.

A motion for summary judgment forces the nonmoving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, syllabus. The nonmovant must also present specific facts and may not merely rely upon the pleadings or upon unsupported allegations. Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46.

In Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264, the Ohio Supreme Court discussed the standard to be applied when reviewing motions for summary judgment. The court stated:

"Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C)." Id. at 298, 662 N.E.2d at 277. The court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107, 614 N.E.2d 765, 767-768; Howard v. Wills (1991), 77 Ohio App.3d 133, 601 N.E.2d 515. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No.1920, unreported, 1991 WL 156416.

In Russ v. TRW, Inc. (1991), 59 Ohio St.3d 42, 49, 570 N.E.2d 1076, 1083, the Ohio Supreme Court set forth the elements of fraud as follows:

"(a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true of false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance." Accord Pamer v. Pritchard Bros. (1990), 61 Ohio Misc.2d 150, 155, 575 N.E.2d 900, 902-903.

A party is liable to speak, and may be liable for nondisclosure, if the party fails to exercise reasonable care to disclose a material fact which may justifiably induce another to act or refrain from acting, and the nondisclosing party knows that the failure to disclose such information to the other party will render a prior statement or representation untrue or misleading. Textron Fin. Corp. v. Nationwide Mut. Ins. Co. (1996), 115 Ohio App.3d 137, 150, 684 N.E.2d 1261, 1269-1270.

In this case, appellees clearly demonstrated that the leasing agent was not familiar with the reports of criminal conduct at the apartment complex and reasonably believed it was a safe place to live when meeting with appellant. In contrast, appellants failed to demonstrate that the statements of the leasing agent were made with intent to mislead appellant into relying upon it or from which an intent to mislead can be inferred. Accordingly, no evidence has been presented to create a genuine issue as to the agent's intent to mislead.

Finally, it is apparent that appellants' reliance upon Kerr v. Parsons, supra, 83 Ohio App. 204, 38 O.O. 271, 82 N.E.2d 303, is misplaced. In K...