Wheatley v. Marietta Coll.

Decision Date16 February 2016
Docket NumberNo. 14CA18.,14CA18.
PartiesEmily WHEATLEY, Plaintiff–Appellant, v. MARIETTA COLLEGE, Defendant–Appellee.
CourtOhio Court of Appeals

Perry W. Oxley and David E. Rich, Anspach Meeks Ellenberger, LLP, Huntington, West Virginia, for appellant.

Christopher E. Hogan and Wanda L. Carter, Newhouse, Prophater, Kolman & Hogan, LLC, Columbus, Ohio, for appellee.



, J.

{¶ 1} This is an appeal from a Washington County Common Pleas Court summary judgment in favor of Marietta College, defendant below and appellee herein. Emily Wheatley, plaintiff below and appellant herein, assigns the following errors for review:


{¶ 2} During the late evening of February 27, 2009 and into the early morning hours of February 28, 2009, former Marietta College student Brandon Marino attended a party at a fraternity house on the Marietta College campus. After Marino consumed copious amounts of alcohol, he decided to prowl the campus to find a prospective sexual assault victim. He initially looked for a victim in Russell Hall, but was unsuccessful. Marino then went to Parsons Hall.

{¶ 3} Once at Parsons Hall, Marino climbed the first-floor exterior balcony railing and hoisted himself to the second level. Marino found appellant's suite room door and entered through the unlocked door. Marino then found and opened appellant's bedroom door.1 Once inside appellant's bedroom, he noted that she appeared to be asleep. Marino rifled through her belongings before he decided that he needed a condom. He then left appellant's room, exited the front door of Parsons Hall after placing a pen in the door so that he could easily re-enter. Marino purchased condoms at a nearby convenience store, returned to appellant's room, placed a pillow over her face and raped her.

{¶ 4} On February 25, 2011, appellant filed a complaint and alleged that appellee was negligent by failing to protect her from Marino, by failing to have adequate security in place, and by maintaining Parsons Hall in an unsafe and dangerous manner. Appellant's complaint further alleged that appellee breached its contractual duty to provide her with a safe environment. Appellant also sought punitive damages.

{¶ 5} Appellant subsequently amended her complaint to include a claim for spoliation of evidence and an allegation that appellee was negligent per se under R.C. 2921.12

(tampering with evidence).

{¶ 6} On December 20, 2013, appellee requested summary judgment. In particular, appellee asserted that appellant could not establish that appellee possessed a duty to protect appellant from Marino's criminal conduct. Appellee admitted that it owed appellant, a business invitee, a duty to exercise ordinary care and to protect her by maintaining the premises in a safe condition, but argued that this duty did not include protecting appellant from Marino's unforeseeable criminal act. Appellee contended that it could not have foreseen Marino's criminal because (1) appellee lacked any prior notice that Marino posed a threat on campus, and (2) no prior similar criminal acts had occurred in appellee's residence halls. Appellee thus claimed that because Marino's criminal act was unforeseeable, it did not have a duty to protect appellant from Marino's actions and appellant's failure to establish that appellee had a duty to protect her from Marino entitled appellee to judgment as a matter of law regarding appellant's negligence claims. Appellee further claimed that no genuine issues of material fact remained regarding whether any alleged negligence appellee may have committed was the proximate cause of appellant's rape.

{¶ 7} Appellee additionally asserted that it was entitled to summary judgment concerning appellant's breach of contract claim. Appellee contended that it did not contractually agree to provide any specific security or safety measures, thus appellant's breach of contract claim based upon appellee's alleged failure to “maintain adequate security procedures, protocols and practices” and “to maintain a safe environment” must fail.

{¶ 8} Appellee also argued that no genuine issues of material fact remained regarding appellant's spoliation of evidence claim. Appellee asserted that appellant lacked any evidence to show that (1) appellee willfully destroyed evidence in a manner designed to disrupt appellant's case, (2) appellant's case was, in fact, disrupted, and (3) appellant suffered damages as a result of any alleged spoliation. Appellee admitted that some alterations were made to Parsons Hall after appellant's rape, but stated that the alterations occurred before it received appellant's evidence-preservation letter. Appellee further conceded that it demolished Parsons Hall, but stated that appellant had ample opportunity to inspect the premises before the demolition and eventually did so. Appellee asserted that in July 2011, it granted appellant's request to inspect Parsons Hall, but appellant did not contact appellee to arrange an inspection until June 2012, when appellant learned that appellee had scheduled the demolition. Appellee also asserted that demolishing Parsons Hall was not designed to disrupt appellant's case, but was part of appellee's long-term planning.

{¶ 9} To show the absence of any genuine issues of material fact, appellee presented affidavits from Marietta College Residence Life Director Bruce Peterson and Marietta College Police Department (MCPD) Chief James S. Weaver, III, and relied upon former MCPD Chief David Valkinburg's deposition. Peterson attested in his affidavit that he is “not aware of any incidents of rape or sexual assault that occurred in a residence hall prior to [appellant]'s sexual assault that involved a non-student, unknown trespasser where access to the residence hall was an issue.” Valkinburg, who was the police chief from October 2008 through May 2010, stated that he is unaware of any sexual assaults that occurred in Parsons Hall before appellant's rape. Weaver, the current police chief who began working for MCPD in August 2008, stated that he is not aware of any incidents of rape or sexual assault that occurred on campus before appellant's “which involved an unknown trespasser who had gained access to a residence hall.” Weaver also averred that [t]he campus crime statistics reflect only a minimal number of crimes committed against persons during the five year period immediately prior to the sexual assault of [appellant] on February 28, 2009.”

{¶ 10} On January 3, 2014, appellant filed a response opposing appellee's summary judgment motion. Appellant asserted that Marino's criminal act was foreseeable and, thus, appellee had a duty to protect appellant from the rape. Appellant argued that the following circumstances showed the foreseeability of Marino's act: (1) in 1992, a female student was raped in Parsons Hall; (2) in 2008, three rapes occurred in on-campus housing, and at least one of those rapes occurred in Parsons Hall; (3) trespassers could easily access Parsons Hall's upper floors by scaling the exterior balcony; (4) Parsons Hall had inadequate security to prevent trespassers; (5) a Parsons Hall policy prevented students from locking their suite room doors; and (6) a substantial amount of prior criminal activity had occurred at Parsons Hall.

{¶ 11} With respect to the 2008 rapes that occurred in on-campus housing, appellant asserted that appellee “refused to disclose the location” of two of the rapes and that appellee either destroyed the documents or did not generate any documents regarding the two rapes. Appellant argued that appellee's failure to produce evidence regarding the rapes created a genuine issue of material fact as to whether those rapes occurred in Parsons Hall. Thus, appellant contended that the trial court could not grant appellee summary judgment due to a lack of evidence of prior similar rapes occurring in Parsons Hall when appellee failed to provide evidence regarding those rapes.

{¶ 12} Appellant further disputed appellee's argument that no genuine issues of material fact remained regarding her breach of contract claim. Appellant asserted that the student housing contract incorporates various other documents which state that students have the “right to be treated thoughtfully, considerately, and respectfully,” including “the right to sleep without being disturbed.” Appellant contended that genuine issues of material fact remain concerning her “right to sleep without being disturbed.”

{¶ 13} Appellant additionally argued that genuine issues of material fact remained regarding her spoliation claim. Appellant asserted that genuine issues of material fact remain as to whether appellee willfully destroyed not only Parsons Hall, but also documents that would have helped appellant establish the elements of her action. Appellant contended that appellee destroyed MCPD case files, arrest logs, College Creed Citations, an “open door log,” and emails. Appellant asserted that the many instances of destroyed documents allows an inference that appellee acted willfully, and thus precludes summary judgment regarding her spoliation claim. Appellant further claimed that the destroyed documents would have supported her case.

{¶ 14} Appellant also contended that appellee altered Parsons Hall before it permitted appellant to inspect it. Appellant recognized that she eventually inspected Parsons Hall, but claimed that by that point, it was “nothing but a hollow shell of a building.”

{¶ 15} To support her argument that Marino's conduct was foreseeable, appellant relied upon former Marietta College Police Department Sergeant and Interim Chief Benita Ruth's deposition, as well as multiple exhibits, including MCPD Uniform Incident Reports that...

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