Lamusga v. Summit Square Rehab, LLC

• Decision Date: 21 July 2017
• Docket Number: No. 27186,27186
• Citation: 94 N.E.3d 1137,2017 Ohio 6907
• Parties: Judith LAMUSGA, Esquire, Plaintiff–Appellant v. SUMMIT SQUARE REHAB, LLC, et al., Defendants–Appellees
• Court: Ohio Court of Appeals

94 N.E.3d 1137

2017 Ohio 6907

Judith LAMUSGA, Esquire, Plaintiff–Appellant

v.SUMMIT SQUARE REHAB, LLC, et al., Defendants–Appellees

No. 27186

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on July 21, 2017

SAM G. CARAS, Atty. Reg. No. 0016376, DAVID M. DEUTSCH, Atty. Reg. No. 0014397, 130 West Second Street, Suite 310, Dayton, Ohio 45402, Attorneys for Plaintiff–Appellant

BRIAN L. WILDERMUTH, Atty. Reg. No. 0066303, LAUREN K. EPPERLEY, Atty. Reg. No. 0082924, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440, Attorneys for Defendants–Appellees

OPINION

TUCKER, J.

{¶ 1} Plaintiff-appellant Judith LaMusga, Esquire, as Administrator of the Estate of Dant'e Price, Deceased ("LaMusga"), appeals from a summary judgment rendered against her on her claims against defendants-appellees Ivan and Christina Burke for damages associated with the death of Price. For the reasons set forth below, we affirm.

I. Factual Background And Procedural History

{¶ 2} This case arises from the death of Dant'e Price after he was shot while on the premises of Summit Square Apartments ("Summit") in Dayton. On March 1, 2012 Price drove to Summit to visit his girlfriend and minor son. Price was attempting to park his car when he was confronted by private security guards Christopher Tarbert and Justin Wissinger. The two guards surrounded Price's vehicle with their guns raised and ordered him to exit the vehicle. Although Price offered to leave and asked the guards to lower their guns, they refused to do so. Price then stated his intent to remain in his vehicle until officers from the City of Dayton Police Department arrived. Tarbert and Wissinger continued to shout orders and point their guns at the car, and Price attempted to drive away. The guards fired their weapons at the vehicle approximately 17 times. Price was hit by at least three of the shots and subsequently died.

{¶ 3} Tarbert and Wissinger were employees of Ranger Security, LLC, which was owned and operated by defendants Christina and Ivan Burke. The company provided private security guards to numerous clients, including Summit. The Burkes also owned Tactical Solutions Group ("TSG"), a sole proprietorship that provided weapons training to individuals seeking to become private security officers. Ivan Burke was certified by the Ohio Peace Officer Training Commission and The Office of The Attorney General as a School Commander and Unit Instructor in the Ohio Private Security Basic Training Program. TSG offered certification courses in semi-automatic weapons, revolvers and shotguns. Once an individual successfully completed a course, Burke sent all required paperwork to the State which would then issue certificates to the individual students.

{¶ 4} LaMusga filed a complaint against Summit, the Wallick Companies (as owner/operator of Summit), Ranger Security, LLC, Wissinger, Tarbert and the Burkes. The Complaint contained seven counts including claims for assault and battery (Count I), false imprisonment (Count II), improper hiring training, retention and supervision (Count III), intentional infliction of emotional distress (Count IV), wrongful death (Count V), punitive damages (Count VI), and vicarious and statutory liability (Count VII). Subsequently, LaMusga filed an Amended Complaint, adding Dayton Metropolitan Housing Authority dba Greater Dayton Premier Management and TSG as defendants. The Amended Complaint also added a claim that TSG should have known the guards had a reputation for violence (Count VIII), as well as a claim for intentional infliction of serious emotional distress (Count IX).

{¶ 5} The defendants filed Civ.R. 12(C) motions for judgment on the pleadings with respect to Counts I, II, and IV of the Complaint and Count IX of the Amended Complaint, based on the statute of limitations. The trial court granted the motions for dismissal and/or partial judgment on the pleadings on June 28, 2014, and ordered Counts I, II, IV, and IX dismissed with prejudice. The trial court did not include a Civ.R. 54(B) certification with its decision.

{¶ 6} Subsequently, in July 2014, LaMusga voluntarily dismissed TSG, without prejudice. LaMusga also filed a motion asking the trial court to reconsider its decision dismissing Counts I, II, IV, and IX. The court overruled this motion on January 31, 2015, and added a Civ.R. 54(B) certification. However, a Civ.R. 58(B) notice was not issued until March 5, 2015. LaMusga appealed from the order dismissing Counts I, II, IV, and IX, and from the order overruling the motion for reconsideration. This court affirmed the trial court's decision in LaMusga v. Summit Square Rehab, L.L.C. , 2015-Ohio-5305, 43 N.E.3d 504 (2d Dist.). Eventually, LaMusga entered into settlement agreements and dismissed all parties except the Burkes individually.

{¶ 7} Both parties filed motions for summary judgment. In her motion, LaMusga argued that security services performed at Summit were provided by Ranger Security and Investigation rather than Ranger Security, LLC. Thus, she maintained that the Burkes, as sole proprietors of Ranger Security and Investigation, were liable for the death of Price. LaMusga further argued that the Burkes, through TSG, were liable for failing to properly train the guards.

{¶ 8} The Burkes' motion for summary judgment argued that LaMusga's claims regarding TSG constituted an educational malpractice claim which is not recognized in Ohio. They also argued that they could not be held liable through TSG as no special relationship existed between them and the guards that would result in a duty to Price. The Burkes further argued that they did not breach any duty to Price, and that they did not proximately cause Price's death. Finally, they argued that their security business was a limited liability company, not a sole proprietorship.

{¶ 9} The trial court rendered summary judgment in favor of the Burkes, and overruled LaMusga's motion for summary judgment. LaMusga appeals.

II. The Trial Court Did Not Err By Concluding That There Is No Genuine Issue of Material Fact Regarding the Liability of the Burkes.

{¶ 10} LaMusga's first and second assignments of error state:

THE TRIAL COURT ERRED BY MAKING FACTUAL DETERMINATIONS IN FAVOR OF THE BURKES IN DEROGATION OF CIV.R.56(C) EVIDENTIARY STANDARDS OF REVIEW FOR SUMMARY JUDGMENT AND IN DEROGATION OF APPLICABLE SUBSTANTIVE LAW, AND SO GRANTED THE BURKES' MOTION FOR SUMMARY JUDGMENT.

THE TRIAL COURT ERRED BY GRANTING THE BURKES' MOTION FOR SUMMARY JUDGMENT BY FAILING TO CONSIDER THE UNCONTROVERTED FACTS, ADMISSIONS, AND APPLICABLE LAW, WHICH WARRANTED SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF–APPELLANT FOR THE BURKES' NEGLIGENT TRAINING AND SUPERVISION.

{¶ 11} LaMusga contends that the trial court erred by rendering summary judgment in favor of the Burkes, and by failing to grant her motion for summary judgment.¹ She argues that the trial court erred by concluding that the Burkes were not personally liable for negligent training through their sole proprietorship TSG. Second, she contends that the trial court erred by concluding that the Burkes had no personal liability in connection with Ranger Security and Investigation.

{¶ 12} "Summary judgment pursuant to Civ.R. 56 should be granted only if no genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, which is adverse to the nonmoving party." Trutschel v. Kettering Med. Ctr ., 2d Dist. Montgomery No. 22816, 2009-Ohio-3302, 2009 WL 1914549, ¶ 9, citing Harless v. Willis Day Warehousing Co ., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). "The moving party bears the initial burden of showing that no genuine issue of material fact exists for trial. The burden then shifts to the non-moving party to set forth specific facts which show that there is a genuine issue of material fact for trial." Id. All evidence must be construed in favor of the nonmoving party. Id. An appellate court reviews summary judgments de novo. Koos v. Cent. Ohio Cellular, Inc. , 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist. 1994). In other words, we review such judgments independently and without deference to the trial court's determinations. Id.

{¶ 13} It is a basic rule that in order to establish actionable negligence, a plaintiff must demonstrate "the existence of a duty, a breach of that duty and an injury proximately resulting therefrom." Menifee v. Ohio Welding Products, Inc. , 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). Thus, to prevail on a motion for summary judgment, LaMusga must demonstrate that the Burkes owed a duty to Price, a breach of that duty, and that the breach was the proximate cause of Price's death.

{¶ 14} "The existence of a duty in a negligence action is a question of law for the court, and there is no express formula for determining whether or not a duty exists." Adelman v. Timman , 117 Ohio App.3d 544, 549, 690 N.E.2d 1332 (8th Dist. 1997). "Ordinarily, there is no duty to control the conduct of a third person by preventing him or her from causing harm to another, except in cases where there exists a special relationship between the actor and the third person which gives rise to a duty to control, or between the actor and another which gives the other the right to protection." Fed. Steel & Wire Corp. v. Ruhlin Const. Co. , 45 Ohio St.3d 171, 173, 543 N.E.2d 769 (1989). "[A] ‘special relation’ exists when one takes charge of a person whom he knows or should know is likely to cause bodily harm to others if not controlled." Littleton v. Good Samaritan Hosp. & Health Ctr. , 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988), citation omitted. A special relationship has been found to exist between a business owner and invitee. Simpson v. Big Bear Stores Co. , 73 Ohio St.3d 130,135, 652 N.E.2d 702 (1995). Other "[r]elationships which result in a duty to protect others include (1) common carrier and its passengers, (2) innkeeper and guests, (3) possessor of land and...