Sabat v. Garfield Mall Assoc., 2006 Ohio 4764 (Ohio App. 9/14/2006)

• Court: Ohio Court of Appeals
• Writing for the Court: Colleen Conway Cooney
• Citation: Sabat v. Garfield Mall Assoc., 2006 Ohio 4764 (Ohio App. 9/14/2006), 2006 Ohio 4764, No. 87227. (Ohio App. Sep 14, 2006)
• Decision Date: 14 September 2006
• Docket Number: No. 87227.,87227.
• Parties: Myron Sabat, Plaintiff-Appellant, v. Garfield Mall Associates, et al., Defendants-Appellees.

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2006 Ohio 4764

Myron Sabat, Plaintiff-Appellant, v. Garfield Mall Associates, et al., Defendants-Appellees.

No. 87227.

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

Released: September 14, 2006.

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-547466

Affirmed.

Howard A. Schulman, Schulman, Schulman & Meros, 1370 Ontario Street, Suite 1700, Cleveland, Ohio 44113-1727, Attorney for Appellant

John P. O'Neil, Robert S. Yallech, Reminger & Reminger, 1400 Midland Building, 101 Prospect Avenue, West, Cleveland, Ohio 44115-1093, Attorney for Appellees.

Before: Cooney, J., Dyke, A.J., McMonagle, J.

JOURNAL ENTRY AND OPINION

COLLEEN CONWAY COONEY, J.:

{¶ 1} Plaintiff-appellant, Myron Sabat, appeals the trial court's granting of summary judgment in favor of defendants-appellees, Garfield Mall Associates, et al. Finding no merit to the appeal, we affirm.

{¶ 2} On a Wednesday afternoon in February 2003, Bernice Sabat ("Bernice") and her husband, Myron, went to the Giant Eagle supermarket at Garfield Mall in Garfield Heights. Myron Sabat ("Sabat") waited in the car while his wife went into the store. He heard his wife return and open the trunk. As he prepared to exit the car to assist her, a woman tapped on the window. The woman, Catherine Mollica ("Mollica"), told him that his wife was lying on the ground. Mollica found Bernice lying on the ground away from the Sabat vehicle. Her glasses were ten feet away from her and her purse was missing. Bernice was bleeding from her head and could not remember what had happened. Both Mollica and Sabat commented that Bernice appeared "roughed up."

{¶ 3} Garfield Heights police responded to the scene. The responding officer reported that Bernice told him that she had become dizzy and blacked out. He concluded that she had fallen and that there was no evidence of foul play. Bernice was taken to the hospital. Her purse was later recovered miles away, and the straps on one end of the purse had been broken. Bernice died sixteen months after the incident.

{¶ 4} Sabat filed suit against Garfield Mall, its management company, Associated Estates Management, and its owners (collectively "AEM") on behalf of himself and his wife's estate. The complaint alleged personal injury, wrongful death, and loss of consortium.

{¶ 5} In August 2005, AEM filed a motion for summary judgment, and Sabat filed a motion to compel discovery of security audits purportedly performed by AEM's security consultant, Craig Michalski. The trial court granted the motion to compel. Sabat, still not satisfied with the discovery, moved for leave to file an amended complaint to include a claim for destruction of evidence and punitive damages.

{¶ 6} In October 2005, the trial court granted AEM's motion for summary judgment. The trial court also denied, as moot, Sabat's motion for leave to file the amended complaint. Sabat had also filed an affidavit pursuant to Civ.R. 56(F), requesting a continuance because he had not received discovery. The trial court did not rule on that motion.

{¶ 7} Sabat separately appealed the granting of summary judgment and the denial of his motion to file an amended complaint. The appeals were consolidated, but Sabat subsequently dismissed the appeal regarding the denial of leave to file an amended complaint. This appeal remains, in which Sabat raises three assignments of error.

{¶ 8} In his first assignment of error, Sabat argues that the trial court erred in granting summary judgment.

{¶ 9} This court reviews the lower court's granting of summary judgment de novo. Druso v. Bank One of Columbus (1997), 124 Ohio App.3d 125, 131, 705 N.E.2d 717; Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153.

{¶ 10} The Ohio Supreme Court has established that summary judgment under Civ.R. 56 is proper when:

"(1) no genuine issue as to any material fact remains to be litigated; (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 the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made."

State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 1994-Ohio-172, 628 N.E.2d 1377; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. The party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330, 91 L.Ed.2d 265, 106 S.Ct. 2548; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. Any doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 1992-Ohio-95, 604 N.E.2d 138. There is no issue for trial, however, unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 249-250, 91 L.Ed.2d 202, 106 S.Ct. 2505.

{¶ 11} Sabat's complaint contained claims for personal injury, wrongful death, and loss of consortium. R.C. 2125.01, the statute governing wrongful death claims, requires that the death be caused by a wrongful act, neglect, or default of a defendant which would have entitled the decedent to maintain an action and recover damages had the death not ensued. The statute also provides that "no action for the wrongful death of a person may be maintained against the owner or lessee of the real property upon which the death occurred if the cause of the death was the violent unprovoked act of a party other than the owner, lessee, or a person under the control of the owner or lessee, unless the acts or omissions of the owner, lessee, or person under the control of the owner or lessee constitute gross negligence."

{¶ 12} To maintain a wrongful death action on a theory of negligence, a plaintiff must demonstrate that:

"(1) the existence of a duty owing to plaintiff's decedent, (2) a breach of that duty, and (3) proximate causation between the breach of duty and the death."

Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92, 529 N.E.2d 449, 454. Likewise, to recover under a theory of negligence for a personal injury claim, a plaintiff is required to show duty, breach of that duty, and proximate causation between the breach and the injuries sustained.

{¶ 13} The existence of a duty depends upon the foreseeability of harm. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142-143, 539 N.E.2d 614; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 472 N.E.2d 707. Whether such a duty exists is a question of law for the court to decide on a case-by-case basis. See Hickman v. Warehouse Systems, Inc. (1993), 86 Ohio App.3d 271, 273, 620 N.E.2d 949; Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188, 583 N.E.2d 1071.

Genuine Issue of Material Fact: Did an Assault Occur?

{¶ 14} In the case sub judice, AEM argues that it did not owe Bernice a duty of care in part because she was never assaulted on their property; instead, AEM claims that the evidence shows that Bernice "blacked out" and hit her head on the ground. In granting summary judgment, the trial court agreed, finding no evidence to establish that Bernice had been assaulted. However, we disagree because the evidence reveals a genuine issue of material fact on this point.

{¶ 15} Sabat testified that he heard his wife return to the car, and he was preparing to exit the car to assist her when Mollica informed him his wife was lying on the ground. Mollica testified at deposition that Bernice looked as though she had been "roughed up" because her hair and clothes were in disarray. Mollica found Bernice an estimated ten to twenty feet away from the Sabat vehicle, and her glasses were found away from Bernice and the car. The shopping cart, however was next to the car. Both Mollica and Myron Sabat averred that Bernice's purse was missing. Her purse was later found miles away with the purse straps torn off at one end.

{¶ 16} Although the responding officer stated that Bernice told him that she had "blacked out" and had "blacked out" on prior occasions, both Mollica and Sabat claimed that she did not inform them that she had "blacked out." Four of Bernice's family members, including Sabat, averred that they were unaware of her history of losing consciousness and that Bernice had never complained to her doctor that she had previously "blacked out."¹ Moreover, AEM's own expert stated in his report that "one cannot rule out the probability that Mrs. Sabat was attacked by an unknown perpetrator causing her blackout and subsequent theft of her purse."

{¶ 17} Although Bernice never remembered what happened to her in the parking lot, we find that there is substantial evidence that she was a victim of a purse snatching. She was found lying a distance from her car, her clothes and hair were in disarray and, as Mollica testified, it appeared as though she had been thrown where she lay. Her glasses were found ten to twenty feet away from her. Her purse was found miles away with the straps broken. These facts all indicate that foul play may have been involved. We find that, in viewing the evidence in the light most favorable to the plaintiff, there remains a genuine issue of material fact upon which reasonable minds may differ.

{¶ 18} Therefore, assuming that an assault occurred, we must next consider whether AEM had a duty to protect Bernice from the criminal acts of a third person.

AEM's Duty

{¶ 19} "A business owner has a duty to warn or protect its business invitees from criminal acts of third parties when the business owner knows or should know that there is a substantial risk of harm to its invitees on the premises in the possession and control of the business owner." Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 1995-Ohio-203, 652 N.E.2d 702, at...