Valjato v. Tartabini, CV-20-941544

CourtCourt of Common Pleas of Ohio
Writing for the CourtWILLIAM F.B. VODREY, JUDGE
Citation185 N.E.3d 225
Parties Jennifer VALJATO, Plaintiff, v. Audriona Maria TARTABINI, et al., Defendants.
Docket NumberCV-20-941544
Decision Date24 June 2021

185 N.E.3d 225

Jennifer VALJATO, Plaintiff,
v.
Audriona Maria TARTABINI, et al., Defendants.

NO. CV-20-941544

Court of Common Pleas of Ohio, Cuyahoga County.

June 24, 2021


185 N.E.3d 228

OPINION AND ORDER

WILLIAM F.B. VODREY, JUDGE:

This matter is before the court on defendants Joseph and Audriona Tartabini's motions to dismiss, filed February 16, 2021 and February 26, 2021 respectively. The motions have been fully briefed and are now ripe for decision. For the reasons set forth below, the court hereby grants defendant Audriona's motion to dismiss in whole, and grants defendant Joseph Tartabini's motion to dismiss in part.

185 N.E.3d 229

I. FACTUAL AND PROCEDURAL BACKGROUND

Drew Alan Szabo (hereinafter "decedent") died as a result of a fentanyl overdose on August 6, 2019. Complaint at ¶2, 5. Plaintiff, Jennifer Valjato, was appointed the Administrator of decedent's estate by the Cuyahoga County Court of Common Pleas, Probate Division. Id. at ¶1. Decedent died at 6280 Greenwood Parkway #206, Sagamore Hills, Ohio (the "property"). Id. at ¶3. Plaintiff characterizes the property as a "flophouse," at which drugs are often sold and consumed. Id. at ¶13. Defendant Audriona Tartabini ("Ms. Tartabini") resided at the property and defendant Joseph Tartabini ("Mr. Tartabini") owned the property. Id. at ¶4. Ms. Tartabini is Mr. Tartabini's daughter. Id.

Plaintiff alleges that on the morning of August 6, 2019, Ms. Tartabini provided decedent an illegal drug that contained fentanyl. Id. at ¶8. Decedent apparently was not aware that the drug was mixed with fentanyl. Id. Thereafter, at approximately 9:36 a.m., Ms. Tartabini became aware that decedent was struggling to breathe. Id. at ¶10. Ms. Tartabini then allegedly texted friends to discuss the situation, and ultimately called for an ambulance at 10:56 a.m. Id. By the time Ms. Tartabini contacted emergency services, decedent was beyond any possibility of being revived. Id. at ¶12. Ms. Tartabini allegedly had Narcan, a drug which might have revived decedent, at the property but failed to provide it to decedent. Id. at ¶11.

Plaintiff alleges that Ms. Tartabini had been distributing and consuming drugs from the property for at least one year prior to decedent's death. Id. at ¶8. Mr. Tartabini was allegedly informed on multiple occasions prior to the date of decedent's death that Ms. Tartabini was providing, selling and consuming drugs there. Id. at ¶13. Allegedly, the police informed Mr. Tartabini of Ms. Tartabini's activities. Id. at ¶15. Despite this knowledge, Mr. Tartabini took no action to stop Ms. Tartabini from conducting such activities there. Id. at ¶14.

Plaintiff filed a complaint for wrongful death on December 16, 2020 against Ms. Tartabini, Mr. Tartabini, John and/or Jane Doe(s), "[a]ny person who provided fentanyl to Audriona Maria Tartabini which was then delivered to Drew Alan Szabo," and Doe Corporation and/or Partnership, "[a]ny Corporation or other Business Entity that [sic] whose employees and/or agents are responsible for delivering fentanyl to Audriona Maria Tartabini which was then delivered to Drew Alan Szabo." Complaint at caption. While the incident occurred in Summit County, Ohio, plaintiff filed her complaint in this court because Mr. Tartabini is a Cuyahoga County resident. Id. at ¶6.

In her complaint, plaintiff alleges three causes of action. Count I asserts negligence against both Mr. and Ms. Tartabini. Complaint at 4. Count II asserts claims of qualified and absolute nuisance by both Mr. and Ms. Tartabini. Id. at 5. Count III asserts a claim for civil damages arising out of the criminal act of permitting drug abuse at his property pursuant to R.C.2307.60(A)(1) against Mr. Tartabini. Id. at 6.

Mr. Tartabini filed his motion to dismiss on February 16, 2021. Ms. Tartabini filed her motion to dismiss on February 26, 2021. In his motion, Mr. Tartabini moves the court to dismiss all claims against him. If some claims survive, Mr. Tartabini moves the court to dismiss plaintiff's prayers for relief of attorney's fees and punitive damages, and to change the venue of this action to Summit County. In her motion, Ms. Tartabini moves the court to dismiss all claims against her. If claims against her survive, Ms. Tartabini also

185 N.E.3d 230

moves the court to dismiss plaintiff's prayers for relief of attorney's fees and punitive damages.

II. LAW AND ANALYSIS

A. Standard of Review – Civ.R. 12(B)(6) Motion to Dismiss

A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). A complaint is subject to dismissal for failure to state a claim upon which relief can be granted when it appears beyond doubt that plaintiff can prove no set of facts in support of his or her claim that would entitle plaintiff to relief. Doe v. Archdiocese of Cincinnati , 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶11. When considering a Civ.R. 12(B)(6) motion, the court must confine its factual review to the four corners of the complaint. Dabney v. Metro Appraisal Group, Inc. , 8th Dist. Cuyahoga No. 106917, 2018-Ohio-4601, 2018 WL 6002921, ¶15. Furthermore, the court must construe all factual allegations of the complaint as true, and all reasonable inferences shall be drawn in favor of the nonmoving party. York v. Ohio State Highway Patrol , 60 Ohio St.3d 143, 144, 573 N.E.2.d 1063 (1991). A plaintiff, however, cannot survive a motion to dismiss through the mere incantation of an abstract legal standard. Parsons v. Greater Reg'l Transit Auth. , 8th Dist. No. 93523, 2010-Ohio-266, 2010 WL 323420, ¶11. The grounds for a plaintiff's entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Id. Factual allegations must be enough to raise a right to relief above a speculative level. Id.

B. Venue

In pertinent part, Civ.R. 3(C)(1) provides that proper venue lines in "[t]he county in which the defendant resides." In his motion to dismiss, Mr. Tartabini argues that venue is proper in Summit County, Ohio. Mr. Tartabini asserts that the activity that gave rise to the complaint occurred in Summit County. Further, Mr. Tartabini argues that the complaint alleges that the drug activity took place in "his home" in Sagamore Hills, which, according to Mr. Tartabini, implies that he actually resides in Summit County.

The court finds Mr. Tartabini's arguments unpersuasive. The complaint clearly alleges that Mr. Tartabini resides in Broadview Heights, which is located in Cuyahoga County. Furthermore, the complaint clearly alleges that Mr. Tartabini owns the home in which the activity at issue in this case took place. The court does not find those allegations to be contradictory, or that they assert that Mr. Tartabini actually resides in Summit County. Therefore, pursuant to Civ.R. 3(C)(1), venue is proper in this court, so long as Mr. Tartabini is a party to this action, because he resides in Cuyahoga County.

C. Count I: Negligence

In count I of her complaint, plaintiff alleges negligence against both Mr. and Ms. Tartabini. To prevail on a negligence claim, a plaintiff must show "the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson , 67 Ohio St.2d 282, 423 N.E.2d 467 (1981). Plaintiff alleges that decedent was a business invitee of Mr. and Ms. Tartabini when he entered the home owned by Mr. Tartabini to obtain drugs from Ms. Tartabini. Ms. Tartabini, however, argues that decedent was her social guest, while Mr. Tartabini argues that decedent was a mere licensee. In Ohio, the legal status of a party,

185 N.E.3d 231

and thus the duty owed, is a question of law and not a question of fact. Alberty v. J.C. Partners Ltd. , 2000 Ohio App. LEXIS 5710.

A business invitee is "one who enters another's land by invitation for a purpose that is beneficial to the owner." Gladon v. Greater Cleveland Regional Transit Auth. , 75 Ohio St.3d 312, 315, 1996-Ohio-137, 662 N.E.2d 287 (1996). A licensee is a "person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation." Alberty at 8, quoting Provencher v. Ohio Dept. of Transp. , 49 Ohio St.3d 265, 266, 551 N.E.2d 1257 (1990). A gratuitous licensee is any licensee other than a business visitor, and includes three types of persons. Scheibel v. Lipton , 156 Ohio St. 308, 311, 102 N.E.2d 453 (1951). The first type is a licensee whose presence on the land is solely for the licensee's own purposes, in which the possessor has no business or social interest, and to whom the privilege of entering is extended as a mere favor by express consent or by general or local custom. Id. at 312, 102 N.E.2d 453. The...

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1 practice notes
  • State v. Moore, 110155
    • United States
    • United States Court of Appeals (Ohio)
    • February 24, 2022
    ...reasonable diligence on the part of the state in ascertaining Moore's identity called into question whether the John Doe-DNA indictment 185 N.E.3d 225 tolled the statute-of-limitation a motion to dismiss should have been filed. Defense counsel's failure to do so caused his advice to be outs......
1 cases
  • State v. Moore, 110155
    • United States
    • United States Court of Appeals (Ohio)
    • February 24, 2022
    ...reasonable diligence on the part of the state in ascertaining Moore's identity called into question whether the John Doe-DNA indictment 185 N.E.3d 225 tolled the statute-of-limitation a motion to dismiss should have been filed. Defense counsel's failure to do so caused his advice to be outs......

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