Hall v. Kosta's Night Club , 2016 Ohio 5003 ( 2016 )

[Cite as Hall v. Kosta's Night Club, 2016-Ohio-5003.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DERRELL L. HALL, Administrator of : JUDGES:
the Estate of GARY M. HALL, :
DECEASED : Hon. Sheila G. Farmer, P. J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
:
vs. : Case No. 15 CA 105
:
KOSTA’S NIGHT CLUB, et al. :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 2013 CV 1381R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 18, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
BRIAN J. HALLIGAN THOMAS F. NAUGHTON
LAW OFFICE OF BRIAN J. HALLIGAN FRANK H. SCIALDONE
1105 Broad Street MAZANEC, RASKIN & RYDER
Post Office Box 455 100 Franklin’s Row, 34305 Solon Road
Ashland, Ohio 44805 Cleveland, Ohio 44139
Richland County, Case No. 15 CA 105 2
Wise, J.
{¶1} Appellant Derrell L. Hall, Administrator of the Estate of Gary M. Hall,
Deceased, appeals the decision of Richland County Court of Common Pleas granting
summary judgment in favor of Appellees Kosta’s Night Club, Kostadin Bulakovski, Mary
Bulakovski and Steve Bulakovski.
STATEMENT OF THE FACTS AND CASE
{¶2} The following facts, as taken from the trial court’s Judgment Entry, were
found to be undisputed:
{¶3} Kosta's Night Club/Kosta's Wings and Billiards (Kosta's) is located at 924
West Fourth Street, Mansfield, Ohio. It is owned by KMSJ, Inc. and is the only property
owned by the corporation. Mary Bulakovski is the president and sole officer of KMSJ,
Inc. KMSJ is the lessee of the property at 924 West Fourth Street and is the holder of
the liquor license for the establishment.
{¶4} Steven Bulakovski is the general manager and has operated Kosta's for
approximately the last fifteen years. Gary Hall worked at Kosta's off and on as a
bouncer/security guard. The testimony conflicted as to when Hall last worked for
Kosta's. The employees of Kosta's testified that it had been at least a year since Hall
had worked there. The affidavit of Hall's brother indicates that Hall may have been
called in to work a month before this incident in question; however, no foundation was
laid for the Court to determine the admissibility of this evidence.
{¶5} On December 25, 2011, Kosta's held a small private Christmas party for
employees, friends and special patrons. The bar was not open for general business.
There were four people working that night. Steven Bulakovski (hereinafter Mr.
Richland County, Case No. 15 CA 105 3
Bulakovski) and Glen Massey were bartending that night. Cody and Adrian (last names
unknown) were working security on this night.
{¶6} Gary Hall arrived at Kosta's between 9:30 p.m. and 10:30 p.m. as a guest
with his friends, Brandon Frost and Jason Vance. At some time prior to midnight,
Carees Linzy arrived at the bar. He was seen with Kevin Graves, but there is no
evidence as to whether they were there together or happened to meet there, but it
appears they left together. Mr. Linzy came into the bar to purchase a six pack of beer
and stayed to have some drinks and play pool.
{¶7} At around 12:30 a.m. to 12:45 a.m., Devin Edwards was outside smoking
with a friend, Brandon Sluey, and discussing an incident that occurred to Edwards in
New York City when he was younger. Carees Linzy butted into the conversation and
proceeded to verbally argue with Edwards, calling him a liar and a racist. Edwards, in an
Affidavit, indicated that Linzy appeared to be trying to provoke him into a fight. Edwards
ended the conversation with an apology and returned to the bar.
{¶8} Edwards did not indicate in his affidavit or his statement to the police any
threats issued by or menacing behavior on the part of Linzy. Edwards, however, was
concerned enough about Linzy's behavior in butting into his private conversation, that
he spoke to Bulakovski about the incident.
{¶9} Bulakovski was familiar with Linzy. He believed that Linzy had been to
Kosta's on maybe four previous occasions. On those previous occasions, Linzy had
come in and purchased a six-pack of beer and had a drink before leaving without
incident. Bulakovski spoke with Linzy and Edwards and the problem seemed as though
it had been resolved. Bulakovski assured Edwards that if Linzy caused any further
Richland County, Case No. 15 CA 105 4
problem, he would be removed from the premises and be removed prior to Edwards
leaving. Edwards continued to keep an eye on Linzy, but did not feel the need to leave
the bar, staying to sing karaoke.
{¶10} Approximately forty-five minutes to an hour later, Edwards was singing
karaoke when he saw Linzy and Graves leaving the bar. He noticed Hall leaving the bar
at the same time, but did not indicate that Linzy appeared to be leaving the bar at the
insistence of Hall or anyone else. Bulakovski indicated that he had asked Linzy to leave,
but there was no testimony that he asked Hall, or anyone else, to escort Linzy out of the
bar. The evidence indicates that Linzy left on his own accord after being asked to leave.
Bulakovski, Vance and Frost all testified that Hall left at the same time to go out to his
car to get a pack of cigarettes and to have a smoke.
{¶11} An altercation took place between Hall and Mr. Linzy outside of the bar.
Hall struck Linzy and Linzy shot Mr. Hall. After shots were heard fired from outside, Hall
ran into the bar and said that someone outside had a gun. Most of the witnesses did not
realize at the time that Hall had been shot.
{¶12} Following a jury trial, Linzy was convicted of the murder of Gary Hall.
Linzy was sentenced to an aggregate sentence of 21 years to life.
{¶13} Plaintiff-Appellant Derrell L. Hall, Administrator of the Estate of Gary M.
Hall, deceased, filed a Complaint against Kosta's Night Club, as well as Kostadin, Mary
and Steven Bulakovski (collectively "Kosta's") setting forth two causes of action:
wrongful death and survivorship. Appellant Hall brought the wrongful death action under
R.C. §2125.01 as a personal representative for the exclusive benefit of the children,
parents, and other next of kin of Gary M. Hall, deceased. The decedent, Gary M. Hall, is
Richland County, Case No. 15 CA 105 5
survived by his two minor children, Alyxa M. Hall and Paityn A. Hall, along with Gary's
parents. Appellant/Administrator Hall and Earlene Hall are Gary Hall's two siblings who
are beneficiaries under Ohio's wrongful death statute. Appellant did not sue the
assailant.
{¶14} On August 14, 2015, Appellees filed a motion for summary judgment.
{¶15} On October 7, 2015, Appellant filed his Memorandum in Opposition to the
Motion for Summary Judgment.
{¶16} On Nov. 3, 2015, the trial court granted Appellees’ motion for summary
judgment and dismissed Appellant’s Complaint, stating "the Plaintiff makes multiple
vague implications that somehow the Defendants should have foreseen and prevented
the death of Mr. Hall, but they have presented no evidence of the same." (Nov. 3, 2015
JE at 11).
{¶17} Appellant now appeals, raising the following error for review:
ASSIGNMENT OF ERROR
{¶18} “I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEES'
MOTION FOR SUMMARY JUDGMENT AS THERE EXISTS [SIC] GENUINE ISSUE
OF MATERIAL FACT IN DISPUTE AND THE APPELLEES ARE NOT ENTITLED TO
JUDGMENT AS A MATTER OF LAW, AS REASONABLE MINDS CAN COME TO BUT
ONE CONCLUSION AND THAT CONCLUSION IS NOT ADVERSE TO THE
APPELLANT AGAINST WHOM THE MOTION FOR SUMMARY JUDGMENT WAS
MADE.”
Richland County, Case No. 15 CA 105 6
Summary Judgment Standard of Review
{¶19} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment
which provides, in pertinent part:
Summary judgment shall be rendered forthwith if the pleading,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case and written stipulations of fact,
if any, timely filed in the action, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a
matter of law.* * * A summary judgment shall not be rendered unless it
appears from such evidence or stipulation and only from the evidence or
stipulation, that reasonable minds can come to but one conclusion and
that conclusion is adverse to the party against whom the motion for
summary judgment is made, such party being entitled to have the
evidence or stipulation construed most strongly in the party's favor.
{¶20} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court, which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d
264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot
rest on the allegations or denials in the pleadings, but must set forth “specific facts” by
the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.
Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).
Richland County, Case No. 15 CA 105 7
{¶21} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264(1996).
I.
{¶22} In his sole Assignment of Error, Appellant argues that the trial court erred
in granting summary judgment in favor of Appellees. We disagree.
{¶23} Ohio’s wrongful death statute, as contained in R.C. §2125.01, provides in
pertinent part:
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.
{¶24} R.C. §2125.01 operates to bar a wrongful death action brought against the
owner or operator of a premises for a death caused by the violent act of a third person
while on the premises unless (1) the cause proximately resulted from the gross
negligence of the owner or operator, or (2) the cause was provoked by the owner or
operator's act or omission. Monnin v. Fifth Third Bank of Miami Valley, N.A. (1995), 103
Ohio App.3d 213, 228, 658 N.E.2d 1140.
Richland County, Case No. 15 CA 105 8
{¶25} Appellant does not argue in this assignment of error that Linzy's act was
not a violent, unprovoked act, but argues only that reasonable minds could conclude
that Appellees committed gross negligence in “refusing to take measures with respect to
Linzy after being alerted by Devin Edwards.” (Appellant’s Brief at 11). Therefore, we
find that the standard of gross negligence applies to the wrongful death action brought
by Appellant.
{¶26} The Ohio Supreme Court has defined gross negligence as follows:
{¶27} “An early Ohio Supreme Court case defined ‘gross negligence’ as the
‘failure to exercise any or very slight care.’ Johnson v. State (1902), 66 Ohio St. 59, 67,
63 N.E. 607, 609. See, also, Cleveland, C. C. & I. Ry. Co. v. Elliott (1876), 28 Ohio St.
340, 356–357; Payne v. Vance (1921), 103 Ohio St. 59, 133 N.E. 85. Prosser states
that gross negligence ‘has been described as a failure to exercise even that care which
a careless person would use.’ Prosser & Keeton, Law of Torts (5 Ed.1984) 212, Section
34.” Thompson Elec. v. Bank One, Akron, N.A. (1988), 37 Ohio St.3d 259, 265,525
N.E.2d 761.
{¶28} Upon review, we find Appellant did not present evidence from which
reasonable minds could conclude that Appellees acts or omissions constituted gross
negligence.
{¶29} Initially, we note that while Appellant’s Complaint names Kostadin
Bulakovski, Mary Bulakovski and Steven Bulakovski, individually, Appellant failed to
argue how any of them were individually liable in his brief in opposition to the motion for
summary judgment or on appeal. We therefore find such argument waived.
Richland County, Case No. 15 CA 105 9
{¶30} We further find that Appellant has also waived any arguments in support
of his claim for survivorship at the trial court level or on appeal.
Wrongful Death Claim
{¶31} Under Ohio law, generally, absent a special relation between the parties,
no duty exists to prevent a third person from causing harm to another. Simpson v. Big
Bear Stores Co., 73 Ohio St.3d 130, 134, 652 N.E.2d 702 (1995). Further, a business
owner has a duty to warn or protect its business invitees from the criminal acts of third
parties only when the business owner knows or should know that there is a substantial
risk of harm to invitees on the premises. Id. at 135, 652 N.E.2d 702.
{¶32} Thus, the existence of a duty depends on the injury's foreseeability and
the foreseeability of criminal acts of third parties depends on the business owner's
superior knowledge of a danger relative to that of the invitee. Proctor v. Morgan, 8th
Dist. Cuyahoga No. 97404, 2012–Ohio–2066, ¶7, citing Haddad v. Kan Zaman
Restaurant, 8th Dist. Cuyahoga No. 89255, 2007–Ohio–6808, ¶18. This Court
considers the totality of the circumstances to determine foreseeability. Reitz v. May Co.
Dept. Stores, 66 Ohio App.3d 188, 583 N.E.2d 1071 (8th Dist.1990).
{¶33} In analyzing the evidence, the totality of the circumstances must be
“somewhat overwhelming” before a business owner will be held to be on notice of and
under a duty to protect against the criminal acts of third parties. Haddad at ¶18.
Moreover, courts are reluctant to impose such a duty when the record contains no
evidence of prior, similar occurrences. Mosby v. Sanders, 8th Dist. Cuyahoga No.
92605, 2009–Ohio–6459, ¶13, citing Brake v. Comfort Inn, 11th Dist. Ashtabula Nos.
2002–A–0006 and 2002–Ohio–7167.
Richland County, Case No. 15 CA 105 10
{¶34} In the instant case, Appellant alleges that on the night in question
Appellees failed to provide adequate security and failed to follow their own security
protocol by allowing the decedent to escort Linzy out of the bar, and that these failures
amounted to gross negligence.
{¶35} Upon review, we find that Appellant failed to provide any evidence that
Appellees had a duty to provide security or that the security in place was inadequate.
Further, Appellant has failed to provide evidence that Mr. Hall escorted Linzy out of the
bar on that night. Rather, the evidence presented shows that Mr. Hall went outside to
smoke and that Linzy went outside close to the same time on his accord, after being
asked to leave by Appellees.
{¶36} There was also no evidence presented to support the argument that
Appellees owed Mr. Hall a special duty over that owed to a business invitee.
{¶37} Appellant likewise failed to present any evidence in support of their
argument that Linzy’s actions were foreseeable. As stated above, Linzy had only been
in the bar on approximately four prior occasions. On each of those prior occasions,
Linzy purchased a six-pack of beer and left without incident. There was nothing about
Linzy or his actions on any prior visits that would have made his actions on this night
foreseeable.
{¶38} Even looking to this night in particular, while there is evidence that Linzy
did get into a verbal altercation with another patron, there was nothing about that
exchange that would lead Appellees to believe that he was dangerous or that they
should have foreseen his later actions.
Richland County, Case No. 15 CA 105 11
{¶39} Appellant has therefore failed to demonstrate that Appellees actions or
omissions proximately caused the wrongful death of Gary Hall.
{¶40} Based on the foregoing, we find Appellant’s sole Assignment of Error not
well-taken and hereby overrule same.
{¶41} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Delaney, J., concur. .
JWW/d 0629