Collins v. Down River Specialties, Inc. , 128 Ohio App. 3d 365 ( 1998 )

I concur in the main opinion, but write separately to address issues raised by the dissent. The trial court properly found that the murder and felonious assault committed by Vidal Brown with a firearm were not foreseeable by defendants. This lack of foreseeability negates both the existence of an underlying duty and the element of proximate cause necessary to establish a prima facie case of negligence.

This murder is significantly different from garden-variety cases involving barroom assaults, because the incident occurred among acquaintances who knew of the danger posed by Brown from his stalking and threats and his brandishing a concealed firearm before the incident. Wilkerson knew both Brown and Howell, but denied any knowledge of these prior circumstances. Defendants, however, did not create or enhance any risk to plaintiffs and are not insurers of their safety. Under the circumstances, the trial court properly found that defendants had no duty to protect or warn and were not liable for the murder and felonious assault.

Brown threatened Tyler, his former lover, in Youngstown before this incident. However, Tyler did not report the threat to police in Youngstown. On the evening of the incident, Tyler and Wilkerson each encountered and spoke with Brown in Cleveland at a different bar, Dominos. The two left, and again no one reported the encounter to the Cleveland police or Dominos' employees.

Brown then went to Numbers, where Tyler and Wilkerson had gone to meet up with other friends. Brown objected to Tyler dancing with others and "flashed" a small .25 caliber firearm. Tyler discussed this threat and handgun with others in his group, but no one reported the matter to the Cleveland police or bar employees. Numbers employed an off-duty police officer outside, and at least five employees, including a doorman, three bar servants, and a restroom monitor inside the small 94-by 38-foot building. Carrying out his threats, Brown murdered Howell by shooting him in the face and in the process also shot Wilkerson in the abdomen. Plaintiffs dismissed their claims against Brown,¹ but seek to recover from defendants on the basis they did not take adequate precautions to prevent the crimes from occurring on their premises.

It is well established that the existence of a duty "is a question of law for the court to decide on a case-by-case basis."Hickman v. Warehouse Systems, Inc. (1993), 86 Ohio App. 3d 271,273, 620 N.E.2d 949, 950. Courts routinely hold, contrary to the dissent, that a premises owner has no duty to ensure the safety of those shot by estranged acquaintances on their premises. E.g.,Mauter v. Toledo Hosp., Inc. (1989), 59 Ohio App. 3d 90,571 N.E.2d 470. Howell specifically knew that Brown brandished the pistol and was jealous about his dancing with Tyler, but did not report the matter or seek assistance from anyone prior to the shooting.

Even in cases which do not involve prior knowledge of the assailant, however, courts routinely decline to impose liability for criminal assaults based on "negligence" claims attributed to "crowded" or "understaffed" premises. The Franklin County case ofMcKee v. Gilg (1994), 96 Ohio App. 3d 764, 645 N.E.2d 1320, is strikingly similar to the matter at bar. The plaintiff in McKee was criminally assaulted by another patron who became intoxicated during a minor league baseball game. The plaintiff and assailant exchanged words and engaged in a series of scuffles inside the stadium before the assailant assaulted him and was apprehended in the parking lot.

The court, noting there had been no prior similar incidents, concluded that no duty to prevent the criminal assault existed as a matter of law. The opinion explained as follows:

"We find it significant that, despite continued threats directed at appellants throughout the game, appellants failed to alert security personnel of any impending danger. By his own testimony, appellant indicated that he had the opportunity to report the problem but that he failed to do so because he thought he could handle it himself. Additionally, we note that the discussion between appellants and the assailants took place over a distance of two rows. Despite the short distance, appellants assert that loud arguing and cursing occurred, which should have alerted security to the danger. However, appellants have failed to present any specific evidence that a member of the security personnel heard or witnessed this behavior." Id. at 768, 645 N.E.2d at 1323.

The same facts are present here. Moreover, as in McKee, the security arrangements inside Numbers that evening were typical, and the plaintiffs were regular patrons, who presumably deemed existing security to be adequate.

The dissent contends the shooting herein was foreseeable because Numbers was located in a "high crime area." This argument is particularly misplaced here because it is based on crime statistics from two complete census tracts spanning a large segment of the entire Cleveland downtown area. I am more persuaded by the dissent's discounting similar information in a case involving a shooting spree against innocent bystanders at a library in the same downtown area. Vrndavan v. Malcolm (Mar. 17, 1994), Cuyahoga App. No. 64839, unreported, 1994 WL 86225. The shooting herein was no more foreseeable by defendants than the shooting in Vrndavan.

In fact, unlike Vrndavan, there were no prior homicides or stabbings at the crime scene since it opened in 1986. Moreover, there is no indication that defendants had any knowledge of the two-tract crime statistics. The record herein unambiguously shows that only a minuscule fraction of the crimes reported in the two census tracts were attributed to the bar.

The dissent's reliance on King v. Lindsay (1993), 87 Ohio App. 3d 383,622 N.E.2d 396, to support its argument is misplaced. The case has been routinely distinguished, even by the court which decided it, because of its unique and "special circumstances." McKee v. Gilg, supra; accord Vrndavan v. Malcolm,supra. King involved a brawl at a college campus bar following the annual Ohio State-Michigan Big Ten football game. The court specifically stated as follows:

"Episodes of physical violence are readily foreseeable on the Saturday night of an OSU-Michigan football game at a busy campus bar. Indeed, the Columbus Police increased their presence on campus the night in question, and appellee [the bar] claimed to have increased its number of bouncers by nearly two-fold." Id. at 387, 622 N.E.2d at 399.

Unlike the matter at bar, violence in King was in fact actually foreseen on this precise occasion because it followed a predictably rowdy big event and the issue was whether the precautions taken to meet the recognized threat were adequate.

The King court, moreover, also emphasized that the assailant, who "had spent virtually the entire day drinking," committed two separate assaults against the victim at the bar. Id. at 384,622 N.E.2d at 397. After the first assault, and at the end of the second, he struck the victim with a long-neck glass beer bottle he purchased at the bar. Thus, unlike the matter sub judice, despite heightened security concerns, the bar actually provided an intoxicated patron with the weapon used to assault the victim. The case at bar involves none of these aggravated "special circumstances" to create a duty to protect against criminal assaults.

Finally, the inability to prove foreseeability of the criminal assault necessary to establish a duty also leads some courts to find a similar failure to prove the element of proximate cause necessary to establish a prima facie case of negligence. Courts frequently invoke these related principles when courts decline to impose liability against bar owners for criminal assaults, e.g.,Carr v. Nemer (Dec. 16, 1992), Summit App. No. 15575, unreported, 1992 WL 380598, particularly when the assault involves a sudden and unexpected shooting with a firearm. as here. Popovich v.Pechkurow (App. 1956), 76 Ohio Law. Abs. 200, 145 N.E.2d 550;Polando v. Vizzini (1949), 58 Ohio Law. Abs. 466, 97 N.E.2d 59.

Under the circumstances, the trial court properly entered judgment for defendants as a matter of law.²

¹ Brown is currently serving a sentence of fifteen years to life for murder with three years prior actual incarceration on the accompanying firearm specification pursuant to a plea bargain in CR-299097.

² Regardless of any "foreseeability" issues, the record contains no basis to impose personal liability on defendants Michael Tritola and Michael Sidora as corporate officers or shareholders of the bar owner, Down River Specialties, Inc. SeeHammock v. Calo (Oct. 30, 1995), Clermont App. No. CA 95-03-022, unreported, 1995 WL 631653.