Machala v. Xiang

[Cite as Machala v. Xiang, 2022-Ohio-1491.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JULIAN MACHALA, :
Plaintiff-Appellant, :
No. 110321
v. :
YIFENG XIANG, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 5, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-20-929305
Appearances:
Blocker Law LLC and David S. Blocker, for appellant.
Gallagher Sharp LLP, Richard C.O. Rezie, and Liz R.
Phillips, for appellee.
EMANUELLA D. GROVES, J.:
Plaintiff-appellant, Julian Machala (“Mr. Machala”), appeals from the
trial court’s judgment granting the motion for summary judgment of defendant-
appellee, Yifeng Xiang (“Mr. Xiang”). For the reasons set forth below, we affirm.
I. Background
This case arises out of events that occurred on October 16 and 17,
2016. The record reflects that in 2016, Mr. Xiang hired Mr. Machala to give violin
lessons to Mr. Xiang’s daughter. On October 16, 2016, while he was at the Xiang
residence giving a lesson, Mr. Machala suffered a seizure. The Xiangs called an
ambulance, which took Mr. Machala to the hospital. Mr. Machala’s belongings,
including his violin and bow, together worth over $30,000, were left at the Xiang
home.
Mr. Xiang and his daughter visited Mr. Machala at the hospital, and
then took him to his apartment, where Mr. Machala claims he immediately fell
asleep. The Xiangs returned home. Later that evening, after purchasing a few
groceries for Mr. Machala, Mr. and Mrs. Xiang returned to Mr. Machala’s
apartment. Mr. Xiang drove Mr. Machala’s car; Mr. Xiang’s wife drove the Xiang
car. The Xiangs placed Mr. Machala’s violin and bow in the trunk of Mr. Machala’s
car and then brought the groceries and Mr. Machala’s car keys to his
apartment. Mr. Xiang then texted Mr. Machala to let him know that the violin and
bow were locked in the trunk of Mr. Machala’s car, and the Xiangs returned home.
According to Mr. Machala, when he awoke the next day, he checked
his vehicle for the violin and bow but they were not there. He texted Mr. Xiang to
let him know that they were gone; Mr. Xiang replied that he and his wife had double-
checked that the vehicle was locked. Mr. Machala then reported a theft to the police.
Mr. Machala subsequently filed a complaint asserting two claims
against Mr. Xiang relating to his handling of the violin and bow: Count 1,
conversion, and Count 2, negligence. Following discovery, Mr. Xiang filed a motion
for summary judgment, which Mr. Machala opposed. The trial court granted
Mr. Xiang’s motion. Mr. Machala appeals and assigns the following error for our
review.
Assignment of Error
Whether the trial court erred when, pursuant to Civ.R. 56(C), it granted
summary judgment in favor of Mr. Xiang on Mr. Machala’s claim that
Mr. Xiang acted negligently when he placed Mr. Machala’s prized violin
and bow in an unlocked car in a neighborhood that Mr. Xiang believed
was unsafe.
II. Law and Analysis
In his sole assignment of error, Mr. Machala challenges the trial
court’s grant of summary judgment regarding his negligence claim. He makes no
argument regarding his conversion claim and, therefore, has waived any issue with
respect to the trial court’s grant of summary judgment on that claim.
A. Standard of Review
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate where
(1) there is no genuine issue of material fact; (2) the moving party is entitled to
judgment as a matter of law; and (3) viewing the evidence most strongly in favor of
the nonmoving party, reasonable minds can come to only a conclusion that is
adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317,
327, 364 N.E.2d 267 (1977).
The party seeking summary judgment bears the burden of
demonstrating that no material issues of fact exist for trial. Celotex Corp. v. Catrett,
477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38
Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). The burden then shifts to the
nonmoving party to provide evidence showing a genuine issue of material fact does
exist. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The
nonmoving party may not rely on its pleadings but must produce some evidence in
support of its claim. Id.B. Negligence
To establish actionable negligence, a plaintiff must show the existence
of a duty, a breach of that duty, and an injury proximately caused by the breach.
Naso v. Victorian Tudor Inn, L.L.C., 8th Dist. Cuyahoga No. 110652, 2022-Ohio-
1065, ¶ 8, citing Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio
St.3d 677, 680, 693 N.E.2d 271 (1998). “‘If there is no duty, then no legal liability
can arise on account of negligence.’” Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539
N.E.2d 614 (1989), quoting 70 Ohio Jurisprudence 3d, Negligence, Section 13, at 53-
54 (1986). “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 relationship between the actor and the third person which gives rise
to a duty to control.” Fed. Steel & Wire Corp. v. Ruhlin Const. Co., 45 Ohio St.3d
171, 173, 532 N.E.2d 769 (1989).
“‘Duty, as used in Ohio tort law, refers to the relationship between the
plaintiff and the defendant from which arises an obligation on the part of the
defendant to exercise due care to the plaintiff.’” Wallace v. Ohio Dept. of Commerce,
96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 23, quoting Commerce &
Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). The Ohio
Supreme Court has stated that the existence of a duty depends on the foreseeability
of the injury. Menifee v. Ohio Welding Prod., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d
707 (1984). “The test for foreseeability is whether a reasonably prudent person
would have anticipated that an injury was likely to result from the performance or
nonperformance of an act.” Id. “We recognize there is no common-law duty to
anticipate or foresee criminal activity.” Fed. Steel at 174. “As a result, the duty to
protect against injury caused by third parties, which may be imposed where a special
relationship exists, is expressed as an exception to the general rule of no liability.”
Fed. Steel at 174.
Mr. Machala claims that Mr. Xiang breached a duty to him because
he should have anticipated that someone would steal the violin and bow from his
car. He contends that Mr. Xiang knew he lived in a dangerous neighborhood and
therefore, Mr. Xiang should have brought the violin and bow up to his apartment,
instead of leaving them in his car.
This argument is without merit. “The foreseeability of a criminal act
depends on the knowledge of the defendant, which must be determined by the
totality of the circumstances, and it is only when the totality of the circumstances
are ‘somewhat overwhelming’ that the defendant will be held liable.” Evans v. Ohio
State Univ., 112 Ohio App.3d 724, 742, 680 N.E.2d 161 (10th Dist.1996), quoting
Feichtner v. Cleveland, 95 Ohio App.3d 388, 396, 642 N.E.2d 657 (8th Dist.1994).
Those “somewhat overwhelming” circumstances are not found in this
case. Mr. Machala admitted in his deposition that Mr. Xiang had never been to his
home prior to the day of the incident at issue. Therefore, there are no facts to
indicate Mr. Xiang knew about the safety of the area where Mr. Machala lived or the
likelihood of theft in the neighborhood. In short, Mr. Xiang could not have
reasonably foreseen that the violin and bow would be stolen from Mr. Machala’s car
and thus, he did not owe Mr. Machala a special duty to protect him from the criminal
activity of third parties.
Mr. Machala’s assertion that Fed. Steel, 45 Ohio St.3d 171, 532 N.E.
2d 769, supports his argument that Mr. Xiang owed him a duty is incorrect. In Fed.
Steel, a construction company owner was aware that vandals would enter the bridge
site being repaired by his company, steal materials, and then throw the materials
from the bridge onto buildings below. Id. at 177. Federal Steel sued the construction
company for negligence after over 1,000 of the windows in its building were
damaged by construction materials thrown from the bridge onto its property below.
In response, the construction company argued it had no duty to the plaintiff to
control the criminal conduct of unknown third persons who were throwing objects
from the company’s job site.
The Ohio Supreme Court disagreed. The court first set forth the law
regarding a defendant’s liability for injury caused by third parties. It noted that
generally there is no duty to control the conduct of third parties and, thus, “liability
in negligence will not lie in the absence of a special duty owed by a particular
defendant.” Fed. Steel at 173. It found that such a special duty may exist where the
defendant could have reasonably foreseen that the third party’s act that resulted in
injury to the plaintiff was likely to happen. Id. at 175. After carefully reviewing
Sections 448 and 449 of the Restatement of the Law 2d, Torts (1965), as well as cases
from other jurisdictions that had found liability for the criminal acts of third parties,
the court concluded that if a person exercises control over real or personal property
and is aware that the property is subject to repeated third-party vandalism, a special
duty to take adequate measures under the circumstances to prevent future
vandalism may arise to parties whose injuries are reasonably foreseeable. Fed. Steel
at the syllabus.
Turning to the merits of Federal Steel’s negligence claim, the court
noted that in response to the vandalism on its job site, the construction company
had stationed guards at entrances to the site after working hours and erected a six-
foot chain link barbed wire fence to keep potential vandals off the premises. Id. at
178. However, during the winter months when the project was dormant, the
company withdrew the protective measures, although it left “rebar” and other
construction materials open and unsecured on the job site. Id. The court found that
under such circumstances, it was reasonably foreseeable for the company to expect
that vandalism on its job site would occur during that time and damage the plaintiff’s
building. Id. Accordingly, the court found that reasonable minds could have
concluded that the company had a special duty to take protective measures to
protect the plaintiff from harm by the third-party vandals. Id.
Here, unlike in Fed. Steel, there is no evidence that Mr. Xiang had any
prior knowledge of criminal activity in Mr. Machala’s neighborhood. Accordingly,
Mr. Xiang could not have reasonably foreseen that theft of the violin from Mr.
Machala’s car was likely to occur and, therefore, consistent with Fed. Steel, 45 Ohio
St.3d 171, 532 N.E.2d 769, he had no special duty to protect Mr. Machala from the
criminal acts of third parties. And because Mr. Xiang owed no special duty to Mr.
Machala to take measures to protect Mr. Machala from the criminal acts of third
parties, there is no genuine issue of material fact regarding whether Mr. Xiang
locked the doors of Mr. Machala’s car on the evening of October 6, 2021, despite Mr.
Machala’s assertion otherwise.
To summarize, in the absence of a special relationship, a defendant
has no duty to anticipate or foresee criminal activity. A special relationship can arise
when a defendant could have reasonably foreseen that the criminal activity was
likely to occur. Because Mr. Xiang had never been to Mr. Machala’s neighborhood
before the events at issue, he had no knowledge of the likelihood of theft in the
neighborhood and, thus, could not have foreseen that theft of the violin was likely to
occur. He therefore had no special duty to take measures to protect Mr. Machala
against the criminal acts of third parties. Without such a special duty, no liability
for negligence can arise.
Because Mr. Xiang owed no special duty to protect Mr. Machala from
the criminal conduct of third parties, Mr. Machala’s negligence claim fails as a
matter of law. Therefore, the trial court did not err in granting summary judgment
to Mr. Xiang. Accordingly, we overrule the assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR