LaMusga v. Summit Square Rehab, L.L.C. , 94 N.E.3d 1137 ( 2017 )

[Cite as LaMusga v. Summit Square Rehab, L.L.C., 2017-Ohio-6907.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
JUDITH LaMUSGA, ESQUIRE :
:
Plaintiff-Appellant : Appellate Case No. 27186
:
v. : Trial Court Case No. 2014-CV-408
:
SUMMIT SQUARE REHAB, LLC, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellees :
:
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OPINION
Rendered on the 21st day of July, 2017.
...........
SAM G. CARAS, Atty. Reg. No. 0016376, DAVID M. DEUTSCH, Atty. Reg. No. 0014397,
130 West Second Street, Suite 310, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellant
BRIAN L. WILDERMUTH, Atty. Reg. No. 0066303, LAUREN K. EPPERLEY, Atty. Reg.
No. 0082924, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440
Attorneys for Defendants-Appellees
.............
TUCKER, J.
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{¶ 1} Plaintiff-appellant Judith LaMusga, Esquire, as Administrator of the Estate of
Dant’e Price, Deceased (“LaMusga”), appeals from a summary judgment rendered
against her on her claims against defendants-appellees Ivan and Christina Burke for
damages associated with the death of Price. For the reasons set forth below, we affirm.
I. Factual Background And Procedural History
{¶ 2} This case arises from the death of Dant’e Price after he was shot while on
the premises of Summit Square Apartments (“Summit”) in Dayton. On March 1, 2012
Price drove to Summit to visit his girlfriend and minor son. Price was attempting to park
his car when he was confronted by private security guards Christopher Tarbert and Justin
Wissinger. The two guards surrounded Price's vehicle with their guns raised and
ordered him to exit the vehicle. Although Price offered to leave and asked the guards to
lower their guns, they refused to do so. Price then stated his intent to remain in his
vehicle until officers from the City of Dayton Police Department arrived. Tarbert and
Wissinger continued to shout orders and point their guns at the car, and Price attempted
to drive away. The guards fired their weapons at the vehicle approximately 17 times.
Price was hit by at least three of the shots and subsequently died.
{¶ 3} Tarbert and Wissinger were employees of Ranger Security, LLC, which was
owned and operated by defendants Christina and Ivan Burke. The company provided
private security guards to numerous clients, including Summit. The Burkes also owned
Tactical Solutions Group (“TSG”), a sole proprietorship that provided weapons training to
individuals seeking to become private security officers. Ivan Burke was certified by the
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Ohio Peace Officer Training Commission and The Office of The Attorney General as a
School Commander and Unit Instructor in the Ohio Private Security Basic Training
Program. TSG offered certification courses in semi-automatic weapons, revolvers and
shotguns. Once an individual successfully completed a course, Burke sent all required
paperwork to the State which would then issue certificates to the individual students.
{¶ 4} LaMusga filed a complaint against Summit, the Wallick Companies (as
owner/operator of Summit), Ranger Security, LLC, Wissinger, Tarbert and the Burkes.
The Complaint contained seven counts including claims for assault and battery (Count I),
false imprisonment (Count II), improper hiring training, retention and supervision (Count
III), intentional infliction of emotional distress (Count IV), wrongful death (Count V),
punitive damages (Count VI), and vicarious and statutory liability (Count VII).
Subsequently, LaMusga filed an Amended Complaint, adding Dayton Metropolitan
Housing Authority dba Greater Dayton Premier Management and TSG as defendants.
The Amended Complaint also added a claim that TSG should have known the guards
had a reputation for violence (Count VIII), as well as a claim for intentional infliction of
serious emotional distress (Count IX).
{¶ 5} The defendants filed Civ.R. 12(C) motions for judgment on the pleadings with
respect to Counts I, II, and IV of the Complaint and Count IX of the Amended Complaint,
based on the statute of limitations. The trial court granted the motions for dismissal
and/or partial judgment on the pleadings on June 28, 2014, and ordered Counts I, II, IV,
and IX dismissed with prejudice. The trial court did not include a Civ.R. 54(B) certification
with its decision.
{¶ 6} Subsequently, in July 2014, LaMusga voluntarily dismissed TSG, without
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prejudice. LaMusga also filed a motion asking the trial court to reconsider its decision
dismissing Counts I, II, IV, and IX. The court overruled this motion on January 31, 2015,
and added a Civ.R. 54(B) certification. However, a Civ.R. 58(B) notice was not issued
until March 5, 2015. LaMusga appealed from the order dismissing Counts I, II, IV, and
IX, and from the order overruling the motion for reconsideration. This court affirmed the
trial court’s decision in LaMusga v. Summit Square Rehab, L.L.C., 2015-Ohio-5305, 43
N.E.3d 504 (2d Dist.). Eventually, LaMusga entered into settlement agreements and
dismissed all parties except the Burkes individually.
{¶ 7} Both parties filed motions for summary judgment. In her motion, LaMusga
argued that security services performed at Summit were provided by Ranger Security and
Investigation rather than Ranger Security, LLC. Thus, she maintained that the Burkes, as
sole proprietors of Ranger Security and Investigation, were liable for the death of Price.
LaMusga further argued that the Burkes, through TSG, were liable for failing to properly
train the guards.
{¶ 8} The Burkes’ motion for summary judgment argued that LaMusga’s claims
regarding TSG constituted an educational malpractice claim which is not recognized in
Ohio. They also argued that they could not be held liable through TSG as no special
relationship existed between them and the guards that would result in a duty to Price.
The Burkes further argued that they did not breach any duty to Price, and that they did
not proximately cause Price’s death. Finally, they argued that their security business
was a limited liability company, not a sole proprietorship.
{¶ 9} The trial court rendered summary judgment in favor of the Burkes, and
overruled LaMusga’s motion for summary judgment. LaMusga appeals.
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II. The Trial Court Did Not Err By Concluding That There Is No Genuine
Issue of Material Fact Regarding the Liability of the Burkes.
{¶ 10} LaMuga’s first and second assignments of error state:
THE TRIAL COURT ERRED BY MAKING FACTUAL DETERMINATIONS
IN FAVOR OF THE BURKES IN DEROGATION OF CIV.R.56(C) EVIDENTIARY
STANDARDS OF REVIEW FOR SUMMARY JUDGMENT AND IN DEROGATION
OF APPLICABLE SUBSTANTIVE LAW, AND SO GRANTED THE BURKES’
MOTION FOR SUMMARY JUDGMENT.
THE TRIAL COURT ERRED BY GRANTING THE BURKES’ MOTION FOR
SUMMARY JUDGMENT BY FAILING TO CONSIDER THE UNCONTROVERTED
FACTS, ADMISSIONS, AND APPLICABLE LAW, WHICH WARRANTED
SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF-APPELLANT FOR THE
BURKES’ NEGLIGENT TRAINING AND SUPERVISION.
{¶ 11} LaMusga contends that the trial court erred by rendering summary judgment
in favor of the Burkes, and by failing to grant her motion for summary judgment.1 She
argues that the trial court erred by concluding that the Burkes were not personally liable
for negligent training through their sole proprietorship TSG. Second, she contends that
the trial court erred by concluding that the Burkes had no personal liability in connection
with Ranger Security and Investigation.
{¶ 12} “Summary judgment pursuant to Civ.R. 56 should be granted only if no
1
Both motions for summary judgment focus on the same issues and facts. Thus,
granting one motion necessarily entailed denying the other.
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genuine issue of material fact exists, the moving party is entitled to judgment as a matter
of law, and reasonable minds can come to but one conclusion, which is adverse to the
nonmoving party.” Trutschel v. Kettering Med. Ctr., 2d Dist. Montgomery No. 22816,
2009-Ohio-3302, ¶ 9, citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66,
375 N.E.2d 46 (1978). “The moving party bears the initial burden of showing that no
genuine issue of material fact exists for trial. The burden then shifts to the non-moving
party to set forth specific facts which show that there is a genuine issue of material fact
for trial.” Id. All evidence must be construed in favor of the nonmoving party. Id. An
appellate court reviews summary judgments de novo. Koos v. Cent. Ohio Cellular, Inc.,
94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist. 1994). In other words, we review
such judgments independently and without deference to the trial court's determinations.
Id.{¶ 13} It is a basic rule that in order to establish actionable negligence, a plaintiff
must demonstrate “the existence of a duty, a breach of that duty and an injury proximately
resulting therefrom.” Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472
N.E.2d 707 (1984). Thus, to prevail on a motion for summary judgment, LaMusga must
demonstrate that the Burkes owed a duty to Price, a breach of that duty, and that the
breach was the proximate cause of Price’s death.
{¶ 14} “The existence of a duty in a negligence action is a question of law for the
court, and there is no express formula for determining whether or not a duty exists.”
Adelman v. Timman, 117 Ohio App.3d 544, 549, 690 N.E.2d 1332 (8th Dist.1997).
“Ordinarily, there is no duty to control the conduct of a third person by preventing him or
her from causing harm to another, except in cases where there exists a special
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relationship between the actor and the third person which gives rise to a duty to control,
or between the actor and another which gives the other the right to protection.” Fed.
Steel & Wire Corp. v. Ruhlin Const. Co., 45 Ohio St.3d 171, 173, 543 N.E.2d 769 (1989).
“[A] ‘special relation’ exists when one takes charge of a person whom he knows or should
know is likely to cause bodily harm to others if not controlled.” Littleton v. Good
Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988), citation
omitted. A special relationship has been found to exist between a business owner and
invitee. Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130,135, 652 N.E.2d 702 (1995).
Other “[r]elationships which result in a duty to protect others include (1) common carrier
and its passengers, (2) innkeeper and guests, (3) possessor of land and invitee, (4)
custodian and individual taken into custody, and (5) employer and employee.” Jackson
v. Forest City Ent., Inc., 111 Ohio App.3d 283, 285, 675 N.E.2d 1356 (8th Dist.1996).
{¶ 15} Even when a special relationship exists, a defendant is not liable unless the
actions of the third party were foreseeable. Maier v. Serv-All Maintenance, Inc., 124
Ohio App.3d 215, 221, 705 N.E.2d 1268 (8th Dist. 1997). The test to determine
foreseeability is “[w]hether a reasonably prudent person would have anticipated that an
injury was likely to result from the performance or nonperformance of an act.” Menifee,
15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
{¶ 16} LaMusga contends that the Burkes, acting as sole proprietors of TSG, had
a duty to prevent harm to Price because they had a special relationship with Tarbert and
Wissinger. Specifically, she argues that the Burkes employed the guards through
Ranger Security, LLC, and the terms of that employment required that the guards receive
their training through the Burkes’ sole proprietorship, TSG. Thus, she argues that there
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is a nexus between the training and employment which creates a special relationship; i.e.,
an employment relationship. She further argues that the Burkes breached their duty to
Price by negligently training the guards through TSG. Specifically, she claims that TSG
improperly instructed on the use of force and on the detention of individuals.2 She also
argues that because the Burkes had knowledge of prior instances in which the guards
acted improperly in discharging their duties as security guards, it was reasonably
foreseeable that an individual such as Price would suffer harm.
{¶ 17} The elements necessary to establish a claim for negligent training and/or
negligent supervision are: “(1) the existence of an employment relationship; (2) the
employee's incompetence; (3) the employer's actual or constructive knowledge of such
incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5)
the employer's negligence in hiring or retaining [or training or supervising] the employee
as the proximate cause of plaintiff's injuries.” Sheldon v. Kettering Health Network, 2015-
Ohio-3268, 40 N.E.3d 661, ¶ 41 (2d Dist.), appeal not allowed, 144 Ohio St.3d 1477,
2016-Ohio-467, 45 N.E.3d 244 (2016), quoting Evans v. Ohio State Univ., 112 Ohio
App.3d 724, 739, 680 N.E.2d 161 (10th Dist.1996).
{¶ 18} At issue in this case is the first element; whether the special relationship of
employer-employee exists between the Burkes, operating as TSG, and the guards. The
trial court found that the guards were not employed by TSG. Instead, the trial court found
that the guards were employed by Ranger Security, LLC, and were engaged in that
2
The Burkes argue, as a cross-assignment of error, that this amounts to an educational
malpractice claim which is not recognized in Ohio. Thus, they argue that the trial court
erred by finding that it did not constitute an educational malpractice action. Given our
resolution of both assignments of error, we conclude that this argument is moot.
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employment at the time Price was killed. Thus, the trial court found that no special
relationship existed between the Burkes, as sole proprietors of TSG, and Tarbert and
Wissinger.
{¶ 19} We agree. The record is devoid of any evidence to support a finding that
Tarbert and Wissinger were employed by TSG. Instead, the record demonstrates that
TSG merely provided training to the guards.
{¶ 20} We are not completely unsympathetic to the claim that the Burkes created
a nexus between the guards’ employment with Ranger Security, LLC and their training
with TSG as the record does support a finding that Ranger Security, LLC required its
guards to train at TSG. However, the record also supports a finding Tarbert and
Wissinger did not train exclusively with TSG. The evidence also indicates that individuals
other than those employed by Ranger Security, LLC took courses through TSG; and that
some individuals trained by TSG worked for competitors of Ranger Security, LLC. More
significantly, we have not found, and LaMusga does not cite, any authority to support a
finding that this type of link is sufficient to create an employment or other special
relationship between the Burkes operating as TSG and the guards. Thus, the Burkes,
acting through TSG, had no duty to control the actions of the guards.
{¶ 21} Additionally, we cannot conclude, even assuming the existence of a special
relationship, that TSG provided improper training to Tarbert and Wissinger. Simply put,
LaMusga failed to present any evidence or competent authority to support the claim that
TSG should not have instructed the guards on the use of force, or on the topic of search
and seizure. Indeed, the evidence demonstrates that the curriculum set forth by the Ohio
Peace Officer Training Council Private Security Training Course provides for such
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instruction. Specifically, there is evidence in this record that a portion of the training
course includes instruction on the use, and necessity, of force and deadly force. Further,
the Peace Officer Training Commission mandates 100% attendance at all security guard
courses covering the topics of search, seizure and arrest. OAC 109:2-3-07. On this
record, LaMusga failed to demonstrate a question of fact regarding whether the training
provided by TSG was improper. Thus, we conclude that the trial court did not err in
rendering summary judgment in favor of the Burkes with regard to TSG.
{¶ 22} We next address the claim that the trial court erred by failing to hold the
Burkes individually liable for their security business. This portion of LaMusga’s argument
first rests upon the claim that the Burkes were actually providing security guard services
to Summit through a sole proprietorship known as Ranger Security and Investigation, and
were thus, individually liable for the acts of the guards. LaMusga alternatively argues
that even if the guards were employed by Ranger Security, LLC, rather than the sole
proprietorship, there is evidence to support piercing the corporate veil of Ranger Security,
LLC.
{¶ 23} We begin with LaMusga’s claim that the Burkes were not operating their
security guard business as a limited liability company, but rather as a sole proprietorship
known as Ranger Security and Investigation. In support, she cites the fact that the
service contract executed by Summit listed Ranger Security and Investigation as the
provider of services. She also notes that checks for payments received from clients were
made payable to Ranger Security and Investigation. Also, payments made to the guards
were drawn on a checking account titled “Ivan Burke dba Ranger Security and
Investigation.” LaMusga further argues that because the name Ranger Security and
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Investigation was not registered as a fictitious name as required by R.C. Chapter 1329,
the Burkes are estopped from claiming that Ranger Security, LLC was merely doing
business under the fictitious name of Ranger Security and Investigation.
{¶ 24} The trial court found that the facts cited by LaMusga were not sufficient to
raise a genuine issue of material fact. We agree.
{¶ 25} The Burkes submitted affidavits in which they averred that their security
guard business is named and registered as Ranger Security, but that they sometimes
conducted its business under various other names.3 The trial court noted that the record
contains evidence that the Burkes purchased a company named Ranger Security, Inc.,
which they converted to an LLC. There is evidence that some of the forms left over from
the original company used the name Ranger Security and Investigation, and that the
Burkes utilized those forms from time to time. There is evidence that the Burkes also
conducted some business under the names Ranger Security and Investigations, LLC, as
well as Ranger Security and Investigations. There is also evidence that some of the
forms utilized merely referred to the company as Ranger Security.
{¶ 26} Importantly, the record demonstrates that business licenses for the private
security guard services were issued by the State to Ranger Security, LLC. State
quarterly reports, as well as reports on employee rosters, were submitted under the name
Ranger Security, LLC. Identification cards bearing the Ranger Security, LLC moniker
were issued by the State to the guards, including Tarbert and Wissinger. The record
3
LaMusga argued that the trial court should strike the affidavits because they contradict
prior deposition testimony. The trial court rejected this argument, concluding that the
affidavits were not inconsistent with the Burkes’ depositions. We find no abuse of
discretion in this regard.
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demonstrates that the LLC, prior to the date of Price’s death, began using a payroll
company, and that the checks issued to the guards were then issued in the name of
Ranger Security, LLC. Ranger Security, LLC paid for, and carried a workers’
compensation policy with the State, as well as a policy of liability insurance with Great
Midwest Insurance Company. Both Tarbert and Wissinger testified that they were
employed by Ranger Security, LLC. LaMusga sued, and settled with, Ranger Security,
LLC.
{¶ 27} The mere fact that the Burkes utilized variations on the Ranger Security,
LLC name does not establish that they were acting as a sole proprietorship rather than a
limited liability company. Further, the failure to register the fictitious name does not act
to create a sole proprietorship in that name. R.C. 1329.01 defines “fictitious name” as “a
name used in business or trade that is fictitious and that the user has not registered or is
not entitled to register as a trade name * * *.” Failing to register the fictitious name as
required by R.C. 1329.10(B) merely prevents a person from commencing or maintaining
an action under the fictitious name until the person has registered the name with the
Secretary of State; it does not convert the business using the fictitious name into a sole
proprietorship.
{¶ 28} At most, the evidence establishes that Ranger Security, LLC on occasion
operated under a fictitious name, or variation of the corporate name, that was not
registered with the State. But such operation did not turn Ranger Security, LLC into a
proprietorship. Therefore, the trial court did not err in finding no genuine issue of fact on
this issue.
{¶ 29} We next turn to the claim that the trial court should have pierced the
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corporate veil in order to hold the Burkes liable for the conduct of Ranger Security, LLC.,
Tarbert and Wissinger. “A corporation is a separate legal entity from its shareholders
even where there is only one shareholder in the corporation.” Zimmerman v. Eagle Mtg.
Corp., 110 Ohio App.3d 762, 771, 675 N.E.2d 480 (2d Dist.1996). “Therefore,
shareholders, officers, and directors will generally not be held personally liable for the
acts of a corporation.” Charvat v. Farmers Ins. Columbus, Inc., 178 Ohio App.3d 118,
2008-Ohio-4353, 897 N.E.2d 167, ¶ 21 (10th Dist.). However, in certain circumstances,
the corporate form may be disregarded and the corporate veil may be pierced.
Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274,
287, 617 N.E.2d 1075 (1993), modified by Dombroski v. WellPoint, Inc., 119 Ohio St.3d
506, 2008-Ohio-4827, 895 N.E.2d 538. In order to reach the personal assets of the
corporation's individual shareholders, the creditor must show that “(1) control over the
corporation by those to be held liable was so complete that the corporation has no
separate mind, will, or existence of its own, (2) control over the corporation by those to
be held liable was exercised in such a manner as to commit fraud or an illegal act against
the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted
to the plaintiff from such control and wrong.” Id. at 289, 617 N.E.2d 1075. The burden
of proving these elements rested with LaMusga. Zimmerman at 772, 675 N.E.2d 480.
{¶ 30} In Springfield v. Palco Invest. Co., Inc., 2013–Ohio–2348, 992 N.E.2d 1194(2d Dist.), this court addressed the first prong of the Belvedere test:
In determining whether a corporation is an individual's alter ego, Ohio appellate
courts consider various factors, such as (1) whether corporate formalities were
observed, (2) whether corporate records were kept, (3) whether corporate funds
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were commingled with personal funds, (4) whether corporate property was used
for a personal purpose, and (5) gross undercapitalization. These factors are non-
exclusive.
(Citations omitted). Id. at ¶ 84.
{¶ 31} The trial court found that LaMusga had established that corporate funds
were commingled with personal funds. However, the trial court went on to find that
LaMusga failed to establish any other evidence that would satisfy the first prong of
Belvedere. We agree. The evidence demonstrates that the LLC filed articles of
incorporation with the State, and that it maintained an agent for service of process. The
evidence further shows that Ranger Security, LLC kept records of its State licensing,
employee rosters, contracts, and personnel files. The company maintained policies of
insurance for both liability and workers’ compensation. There is no evidence of gross
undercapitalization. Thus, we conclude that the trial court did not err in finding that
LaMusga failed to satisfy this prong.
{¶ 32} The trial court also found that LaMusga failed to establish the second
prong of the Belvedere test. However, as noted by LaMusga, it appears that the trial court
misstated the requirements of the second prong. Specifically, the second prong was
modified by the Supreme Court of Ohio in Dombroski v. WellPoint, Inc., 119 Ohio St.3d
506, 2008-Ohio-4827, 895 N.E.2d 538, wherein the court stated, “we hold that to fulfill the
second prong of the Belvedere test for piercing the corporate veil, the plaintiff must
demonstrate that the defendant shareholder exercised control over the corporation in
such a manner as to commit fraud, an illegal act, or a similarly unlawful act. Courts should
apply this limited expansion cautiously toward the goal of piercing the corporate veil only
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in instances of extreme shareholder misconduct.” Id. at ¶ 29.
{¶ 33} We conclude that the trial court did not err in finding no issue of genuine
fact with regard to this second prong. LaMusga contends that the Burkes violated the
second prong because Tarbert and Wissinger were not properly trained, and because
they had previous incidents involving improper detentions and interactions with
individuals for which they were not disciplined. As noted above, we found no genuine
issue of fact regarding improper training. Further, we cannot say that failing to discipline
an employee rises to the level of an illegal act. In short, nothing in this record leads to a
finding that the Burkes operated or controlled Ranger Security, LLC so as to commit fraud,
an illegal act, or any similarly unlawful act. We cannot say that LaMusga demonstrated
any extreme misconduct that rises to the level necessary to invoke the rare use of piercing
the corporate veil.
{¶ 34} Finally, during oral argument, LaMusga clarified and expounded upon an
issue that was not apparent from her appellate briefing. Specifically, she argued that
even if the corporate veil is not pierced, Ivan Burke should be held personally liable for
his actions in supervising the guards. In support, she cites Bowes v. Cincinnati
Riverfront Coliseum, Inc., 12 Ohio App.3d 12, 465 N.E.2d 904 (1st Dist. 1983), for the
proposition that “[a] corporate officer is individually liable [in tort] for injuries to a third party
when the corporation owes a duty of care to the third person, the corporation delegates
that duty to the officer, the officer breaches that duty through personal fault (whether by
malfeasance, misfeasance, or nonfeasance), and the third person is injured as a
proximate result of the officer's breach of that duty.” Id. at 18, quoting Schaefer v. D & J
Produce, Inc., 62 Ohio App.2d 53, 403 N.E.2d 1015 (6th Dist. 1978), paragraph three of
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the syllabus.
{¶ 35} LaMusga contends that Ivan Burke acted as the guards’ supervisor and that
he was aware of prior incidents in which the guards acted in an illegal or improper manner
by detaining people and by using their firearms while on Summit’s property. LaMusga
contends that these incidents, along with Burke’s knowledge of these incidents, satisfy
the second and third elements of a negligent training/supervision claim; i.e. evidence of
the employee's incompetence and the employer's actual or constructive knowledge of
such incompetence.
{¶ 36} First, LaMusga cites an incident that occurred on November 26, 2011. At
that time, Tarbert and another guard were on duty at Summit. The guards were in front
of a vehicle when the driver put the vehicle into drive and attempted to drive off. Tarbert
and the other guard pulled their guns and aimed them to make the driver stop. They
then gave the driver a criminal trespass notice.
{¶ 37} On December 3, 2011, Tarbert and the same guard were at Summit when
they noticed three men who smelled of marijuana. The guards approached the men and
checked them for weapons. Dayton police were called to the scene.
{¶ 38} The next day, Tarbert and the same guard returned to work at Summit when
they received a call from Ivan Burke telling them to make a domestic violence check at
apartment 755.4 The guards went to the apartment and were able to hear yelling. They
called Dayton police. The police attempted to make contact with the people in the
apartment, but no one answered their knock. Tarbert then observed Price leave through
the back door. Tarbert told Price to stop. He then cuffed Price’s left hand and escorted
4
This apartment was rented by Price’s girlfriend.
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him to the police.
{¶ 39} On February 8, 2012, Tarbert and Wissinger were at Summit when they
observed Price on the premises. Price had been given a trespass notice by the Dayton
police. Price saw the guards and ran into his girlfriend’s apartment. He did not answer
the door. The guards called Dayton police who responded to the scene.
{¶ 40} That same day, Tarbert and Wissinger observed a man parked at the
complex. They noticed him making furtive movements as they approached. They
asked the man what he was doing, and they observed an empty syringe in his lap. The
guards told the man to remove the keys from the ignition and to exit the vehicle. They
conducted a pat-down for safety and placed him in handcuffs. The man informed him
that he was there to purchase heroin. He told the guards that he would show them his
dealer if they uncuffed him. The guards called the Dayton police. They then observed
a man approach the car. They ordered the man to show his hands. The man instead
put his hands in his pockets. The guards drew their guns, and the man ran away.
Tarbert caught him. Both men were turned over to the police.
{¶ 41} On February 25, 2012, Tarbert and Wissinger were again at work at Summit
when they observed Price run into apartment 755. Price then exited the apartment and
got into a vehicle. He drove the vehicle toward Wissinger but then reversed and drove
back toward Tarbert. He then went forward again toward Wissinger. The guards
ordered Price to get out of the car, but Price just revved the engine. Wissinger drew his
gun at which time Price drove toward him up onto the curb and the grass.
{¶ 42} Although Ivan Burke was made aware of these incidents, the guards were
not reprimanded. LaMusga argues the failure to reprimand constituted a ratification of
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the guards’ conduct. Thus, she argues that Burke was not only aware of the improper
behavior, he condoned it.
{¶ 43} LaMusga does not cite any authority to indicate that the cited incidents
constitute incompetent or illegal conduct. The three times that a gun was used involved
incidents where the guards reasonably perceived a threat to their safety. As noted, the
training forms provided to TSG indicate that a guard may have to use force as part of the
job. The times that the guards conducted a pat-down involved situations in which it was
reasonable to suspect that the individuals involved might be armed. We simply cannot
say that this record supports a finding that the guards acted improperly or incompetently
on the dates cited. Thus, the elements of negligent supervision/training have not been
established. We find the claim that Ivan Burke is personally liable in tort is without merit.
{¶ 44} We conclude that the trial court did not err in rendering summary judgment
in favor of the Burkes. Accordingly, the first and second assignments of error are
overruled.
III. Conclusion
{¶ 45} Both of LaMusga’s assignments of error are overruled, and the judgment of
the trial court is affirmed.
.............
HALL, P.J. and WELBAUM, J., concur.
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