Doe v. Flair Corp. , 129 Ohio App. 3d 739 ( 1998 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] 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 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. AppliedCos. (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. BankOne 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 ofPortsmouth 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 Kerr, liability was premised upon a situation where a vendor knowingly permitted an agent to make false representations in order to induce a sale of land. In this instance, there is no evidence that the leasing agent's remarks were directed by her superiors or that they were the result of reliance upon any statements of her superiors. Therefore, Kerr does not apply to the factual scenario at hand.

For the foregoing reasons, appellants' first assignment of error is not well taken.

Appellants' second assignment of error states:

"II. The trial court committed reversible error in granting appellees' motion for summary judgment for the reason that the trial court applied incorrect legal principles respecting appellants' negligence claim."

Appellants argue, through their second assignment of error, that the trial court erred in determining that the sexual attack perpetrated against her on the night in question was not foreseeable. Appellants maintain further that genuine issues of material fact exist as to whether, having undertaken the responsibility to provide security at the apartment complex, appellees were negligent in the manner in which they performed that function.

In order to establish a claim for negligence, a plaintiff must establish a duty owed by the defendants and a breach of that duty which proximately results in an injury. Jeffers v. Olexo (1989),43 Ohio St.3d 140, 142, 539 N.E.2d 614, 616-617. As a general rule, landlords have no duty to protect their tenants from the criminal acts of third persons. Thomas v. Hart Realty, Inc. (1984), 17 Ohio App.3d 83, 86, 17 OBR 145, 147, 477 N.E.2d 668,671; Sciascia v. Riverpark Apts. (1981), 3 Ohio App.3d 164, 166,3 OBR 188, 190-191, 444 N.E.2d 40, 42; Johnson v. Monroe RealtyCo. (May 25, 1995), Cuyahoga App. No. 67964, unreported,1995 WL 322278. The duty of a landlord in such cases was set forth inCarmichael v. Colonial Square Apts. (1987), 38 Ohio App.3d 131,528 N.E.2d 585. Carmichael dealt with a tenant who had been assaulted in his own apartment and brought suit against his landlord alleging that he was negligent in failing to provide adequate security in the common areas of the building. The court determined that the landlord had complied with his duty to provide reasonable security:

"[W]hile the landlord has some duty to provide secure common areas in an apartment complex, he is not an insurer of the premises against criminal activity. * * * Thus, the duty on the landlord is only to take some reasonable precautions to provide reasonable security." Id. at 132, 528 N.E.2d at 586.

See, also, Kelly v. Bear Creek Invest. Co. (Feb. 14, 1991), Cuyahoga App. No. 58011, unreported, 1991 WL 19152, in which this court determined that liability attaches only where the landlord should have reasonably foreseen the criminal activity in question and failed to take reasonable precautions to prevent such activity, and this failure was the proximate cause of the tenant's harm. Foreseeability is based upon whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of the act.Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75,77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710; Eagle v.Mathews-Click-Bauman, Inc. (1995), 104 Ohio App.3d 792, 797,663 N.E.2d 399, 402.

In this case, a review of the record demonstrates that the trial court properly determined that appellees were entitled to judgment as a matter of law on appellants' negligence claim. Clearly, appellees could not have foreseen that a serial rapist would enter the property at approximately 4:00 a.m., stalk an unsuspecting tenant, forcibly remove her from the premises, and rape her in the woods across the street from the apartment complex. This is particularly true in light of the fact that no such incident had ever occurred at the complex in the past. Under the totality of the circumstances, this court cannot now say that, under the facts of this case, the criminal act of a third party was a foreseeable event for which appellees could be found liable under a negligence theory. Daniels v. Thistledown RacingClub, Inc. (1995), 103 Ohio App.3d 281, 659 N.E.2d 346; Rescignov. Heyduk (Aug. 15, 1996), Cuyahoga App. No. 69172, unreported,1996 WL 465374. In addition, there is no indication in the record that appellees' security measures were negligently performed on the night of the incident. The record reveals only that the attack was the unforeseeable criminal act of a third party.

For the foregoing reasons, appellants' second assignment of error is not well taken.

Appellants' third assignment of error states:

"III. 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' breach of contract claim."

Appellants argue, through their third assignment of error, that the trial court erred by improperly granting summary judgment in favor of appellees on appellants' breach-of-contract claim. Specifically, appellants argue that a contractual obligation existed based upon a newspaper advertisement for the apartment complex as well as a sales brochure, both of which represented that The Islander was a safe place to live.

In Meier v. Vistula Heritage Village (1992), 62 Ohio Misc.2d 632,637, 609 N.E.2d 1360, 1363-1364, the court noted that a breach of contract action may lie where the landlord fails to meet his obligations pursuant to the parties lease or pursuant to an implied agreement. See, also, Blair v. Property Mgt.Consultants (1987), 40 Ohio App.3d 103, 531 N.E.2d 752.

In the case sub judice, a review of the items relied upon by appellants in support of their breach-of-contract claim demonstrates that the lease between the parties does not require any specific security or safety measures as part of the contract. Similarly, a review of the newspaper advertisement and the sales brochure in question fails to reveal any language pursuant to which the landlord agrees to provide safety or security, nor can such material be considered contractual in nature. Accordingly, it is apparent that the trial court properly entered summary judgment in appellees' favor on this cause of action.

Appellants' third assignment of error is not well taken.

Appellants' fourth assignment of error states:

"IV. 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' promissory estoppel/detrimental reliance claim."

Appellants argue, through their fourth assignment of error, that genuine issues of material fact exist regarding their promissory estoppel and detrimental reliance causes of action which should have precluded summary judgment in appellees' favor. Specifically, appellants maintain that the leasing agent's representations regarding security at the apartment complex constituted a promise of security on which appellant relied to her detriment.

In McCarthy, Lebit, Crystal Haiman Co., L.P.A. v. First UnionMgt., Inc. (1993), 87 Ohio App.3d 613, 624, 622 N.E.2d 1093,1100, this court stated that, in Ohio, the doctrine of promissory estoppel has been adopted as stated in the Restatement of the Law 2d, Contracts (1973), Section 90. This provision states:

"A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

In this case, the application of this doctrine presents a difficult question where, as here, the parties have a written lease agreement. However, in Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 274, 533 N.E.2d 325, 333-334, the Ohio Supreme Court noted that a key consideration is whether the alleged oral agreement pertains to the same subject matter as the written agreement or is completely extrinsic.

In the case herein, both parties acknowledge that appellant and the leasing agent discussed the issue of safety and that safety is not a subject of the lease agreement. In addition, the record fails to demonstrate that there is an integration clause in the lease prohibiting additional agreements. Wall v. FirelandsRadiology, Inc. (1995), 106 Ohio App.3d 313, 324-325,666 N.E.2d 235, 241-243. Accordingly, the claim of promissory estoppel/detrimental reliance is not precluded by the underlying lease.

In the case sub judice, a review of the record demonstrates that none of the documentary evidence relied upon by appellants set forth any promises of safety. While it is true that the leasing agent, according to appellant, stated that the apartment complex was safe and that there was twenty-four-hour security, these remarks clearly do not constitute a "promise" for appellant's personal safety at all times while on the premises. Accordingly, the trial court properly entered summary judgment in favor of appellees on this claim.

Appellants' fourth assignment of error is not well taken.

Appellants' fifth and final assignment of error states:

"V. The trial court committed reversible error in denying appellants' motion for leave of court to file second amended complaint instanter for the reason that said motion was well within the spirit of Civ.R. 15(A)."

Appellants argue, through their fifth and final assignment of error, that the trial court abused its discretion in denying their motion for leave to file a second amended complaint to join two additional defendants in the action, The Islander Co., Ltd. and the Pearl Co. Appellants maintained that they only recently learned that these two entities were additional owners of the apartment complex. In addition, appellants sought to raise an additional cause of action for negligent misrepresentation and to correct or supplement their earlier pleading.

The amendment of pleadings is governed by Civ.R. 15(A), which provides:

"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calender, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within fourteen days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders."

It is well established that the decision to grant or deny a motion for leave to file an amended complaint is well within the sound discretion of the trial court and such decision will not be disturbed on appeal absent an abuse of that discretion.Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 573 N.E.2d 622; Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 175, 63 O.O.2d 262, 269-270,297 N.E.2d 113, 121-122. The term "abuse of discretion" connotes more than an error in law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Mortimorev. Mayfield (1989), 65 Ohio App.3d 450, 584 N.E.2d 770.

In this case, a review of the record demonstrates that the trial court did not abuse its discretion in denying appellants' motion for leave to file a second amended complaint. The underlying action was filed on May 12, 1996. On August 26, 1996, the trial court ordered that all dispositive motions were to be filed by January 2, 1997, the final pretrial would be held on March 7, 1997 and that the case would be tried on March 19, 1997. On March 11, 1997, the trial court supplemented the prior order as follows: the summary judgment motions would be ruled upon by September 10, 1997; the final pretrial would be held on September 12, 1997; and trial was scheduled for September 22, 1997. Thereafter, on August 18, 1997, appellants filed their motion for leave to file a second amended complaint instanter. The trial court denied the motion as not being timely filed and the record fully supports this conclusion. Given the advanced stage of the proceedings, this court cannot now say that the trial court abused its discretion in denying appellants' motion for leave to file a second amended complaint.Mortimore, supra.

Appellants' fifth and final assignment of error is not well taken.

For the foregoing reasons, the judgment of the trial court is hereby affirmed.

Judgment affirmed.

SPELLACY, J., concurs.

DYKE, P.J., concurs in part and dissents in part.