Thomas v. LSREF3 Bravo (Ohio), L.L.C.

[Cite as Thomas v. LSREF3 Bravo (Ohio), L.L.C., 2022-Ohio-4476.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Adam Thomas et al., :
Plaintiffs-Appellants, :
No. 21AP-691
v. : (C.P.C. No. 19CV-7446)
LSREF3 Bravo (Ohio), LLC et al., : (ACCELERATED CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on December 13, 2022
On brief: Oliver Law Office, and Jami S. Oliver, for
appellants. Argued: Jami S. Oliver.
On brief: Freund, Freeze, & Arnold, and Carl A. Anthony, for
appellees. Argued: Carl A. Anthony.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Plaintiffs-appellants, Adam and Jackie Thomas, appeal from the decision of
the Franklin County Court Common Pleas granting the motion for summary judgment in
favor of defendants-appellees, LSREF3 Bravo (Ohio), LLC, n.k.a. Buckeye Owners, LLC,
d.b.a. Alexander Court Apartments, Bell Partners, Inc., and Buckeye Owners, LLC,
(collectively, "Alexander Court Apartments"). The Thomases sued their landlord for
negligence after an unknown male physically assaulted Mr. Thomas in an authorized
structure on the premises constructed by another tenant. Because the trial court did not
err when it ruled that Alexander Court Apartments' duty of care did not encompass an
unforeseen criminal act committed by a third party against a tenant, we affirm the
judgment.
I. FACTS AND PROCEDURAL HISTORY
No. 21AP-691 2
{¶ 2} Jackie and Adam Thomas began leasing an apartment at Alexander Court
Apartments on May 7, 2010. (Sept. 13, 2019 Compl. at ¶ 15.) LSREF3 Bravo owned the
apartment complex and Bell Partners, Inc. managed it. (Nov. 6, 2019 Answer at ¶ 2;
Obuchowski Dep. at 15.) In August of 2018, Andrea Obuchowski was the property manager
at Alexander Court Apartments. (Obuchowski Dep. at 6.) At that time, "there were weekly
property inspections and monthly property inspections." Id. at 47. In addition,
management had a "policy" of daily inspections being conducted by "onsite" maintenance
and staff employees. Id. at 48-49.
{¶ 3} Prior to August of 2018, Ms. Obuchowski had received "reports of people
trespassing" and people using drugs from several residents. Id. at 53. She emailed "crime
alert notices" to residents and encouraged them to contact the police about any criminal
activity. Id. at 53-54. Ms. Obuchowski remembered that Mr. Thomas "had complained
about drug paraphernalia" and "inappropriate behavior" occurring near a storage unit at
the complex. Id. at 55. In response, lights were installed to discourage the activity. Id. at
56. Alexander Court Apartments did not have any security personnel in 2017 or 2018. Id.
at 20-21. Nevertheless, "[t]here had been no prior reports of physical altercations or
violence on the premises of Alexander Court Apartments, including the wooded area and
the tree house." (Obuchowski Aff. at ¶ 10.)
{¶ 4} In 2017, Ms. Obuchowski discovered during a quarterly property inspection
that a resident had constructed a treehouse on the premises. (Obuchowski Dep. at 21.)
When she contacted the resident, he told her that he had "built it for his kids" so that they
had "a place to play and be near their home." Id. at 23. Ms. Obuchowski told the resident
that "he didn't have permission to put it up and that it needed to be taken down." Id. at 23-
24. The resident did not remove the treehouse and, in 2018, Ms. Obuchowski "sent them
notices to remove" it. Id. at 24. She "didn't see it necessarily as a danger," but wanted the
treehouse removed because it "was not supposed to be there." Id. at 39-40. Because the
resident still did not remove the structure, Alexander Court Apartments did not renew their
lease, which terminated on July 27, 2018. Id. at 26.
{¶ 5} Mr. Thomas also remembered the treehouse being present at Alexander
Court Apartments for over a year. (Adam Thomas Dep. at 24.) He recalled drug
paraphernalia being "left around" the structure on multiple occasions, including
No. 21AP-691 3
"[h]ypodermic needles and leftover marijuana cigarettes." Id. at 26. He did not see anyone
actually using drugs there, nor did he recall any incidents of violence associated with the
treehouse. Id. at 25-26. Mr. Thomas complained to property management and
maintenance more than five times about the drug paraphernalia. Id. at 27-28. He was also
concerned because children played in the area around it and believed it posed a danger
because there were "[n]o lights" there and children could fall off of it. Id. at 29. Mr. Thomas
also felt the treehouse was unsafe because it appeared unfinished and had "no handrail up
the stairs." Id. at 30. He was also concerned about its height and that there were "nails on
the ground" and "nails sticking up from the wood." Id. at 31.
{¶ 6} Mrs. Thomas recalled that there was "lots of traffic" in the wooded area near
the treehouse, where people would engage in drug use and sexual activity. (Jackie Thomas
Dep. at 9-10.) She also believed the structure was unsafe and saw "nails sticking out" of it.
Id. at 10, 12.
{¶ 7} On August 1, 2018, Mrs. Thomas left the apartment with the dogs when she
"saw lights and heard some people" at the treehouse. Id. at 19. One of the dogs ran towards
the treehouse and Mrs. Thomas went after him into the wooded area. Id. at 20-21. She
went up into the treehouse and "encountered a girl sitting on the bench" inside. Id. at 21.
Mrs. Thomas asked her to leave, stating "this is not your property, you shouldn't be up
here," when a man "came around the corner and started yelling" at Mrs. Thomas. Id. at 22.
The man "seemed like he was on drugs" and "was not in [a] right state of mind." Id. at 27.
Mrs. Thomas called out for her husband. Id. at 23. Mr. Thomas arrived, scaled the
treehouse steps, and also asked the people to leave. Id. at 25. The man pushed Mr. Thomas
and the couple fled. Id. at 26. Mrs. Thomas went after one of the dogs who attempted to
chase them and returned to find her husband laying on the ground. Id.
{¶ 8} Mr. Thomas recalled that when the man pushed him, he "fell through the
guardrail" and onto the ground, breaking his arm. (Adam Thomas Dep. at 36, 42.) Mr.
Thomas "was knocked out from the fall," and when he came to, he felt that something was
wrong with his arm. Id. at 42. His wife called an ambulance and the police, who initiated
a felony assault investigation. Id. at 42-43. Nothing ever came of the investigation. Id. at
44. Alexander Court Apartments began removing the treehouse after the incident and it
was entirely removed by September 2018. (Obuchowski Dep. at 29.)
No. 21AP-691 4
{¶ 9} The Thomases filed suit against the appellees on September 13, 2019. They
alleged a negligence claim based on the alleged qualified nuisance of the treehouse
breaching appellees' duty of care to "maintain[] the premises in a reasonably safe
condition," which resulted in Mr. Thomas's injuries. (Sept. 13, 2019 Compl. at ¶ 24-34.)
The Thomases also alleged a breach of contract claim arising from their rental agreement,
as well as a claim for loss of consortium and a subrogation claim arising from Mr. Thomas's
health insurance claims. Id. at 35-47.
{¶ 10} Appellees moved the trial court for summary judgment on September 22,
2020. They argued that the felony assault on Mr. Thomas was not reasonably foreseeable
and that they did not owe him a duty of care to protect him from a third party's criminal
act.
{¶ 11} The Thomases responded by asserting that although appellees may not have
a duty to protect their tenants from a third party's criminal acts, "landlords do have a duty
to take reasonable precautions to provide security in common areas" and to maintain
conditions in such areas that prevent injury. (Feb. 22, 2021 Memo. in Opp. at 9.) They
asserted that a reasonable jury could find that the treehouse created a foreseeable risk of
the harm that occurred, and that summary judgment was therefore inappropriate. Id. at
12.
{¶ 12} The trial court granted the motion for summary judgment on April 26, 2021.
It reasoned that even though appellees "had prior knowledge of the existence [of] and the
dangerous condition of the treehouse and the drug activity at the property, this information
did not create a substantial likelihood that a violent offense would occur" on the premises.
(Apr. 26, 2021 Decision & Entry at 6.) Thus, the trial court ruled that Alexander Court
Apartments "did not have a duty to protect Mr. Thomas from the unforeseeable criminal
act of the unknown male who pushed" him off the treehouse. Id. Additionally, the trial
court found that although the Thomases had submitted evidence to show that appellees
"were aware of the dangerous condition of the treehouse," the trial court did "not find that
[appellees'] failure to provide for safe and sanitary common areas under R.C. 5321.04(A)(3)
proximately caused Mr. [Thomas's] injuries." Id. at 7. The Thomases' breach of contract
claim survived summary judgment but was subsequently dismissed with prejudice
pursuant to an agreement of the parties. (Nov. 22, 2021 Agreed Order.)
No. 21AP-691 5
{¶ 13} The Thomases appealed, asserting the following assignment of error:
THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANTS-APPELLEES
WHEN THE COURT HELD, AS A MATTER OF LAW, THAT
THE LANDLORD OWED NO DUTY TO PROTECT
PLAINTIFFS-APPELLANTS FROM HARM THAT WAS
"REASONABLY FORESEEEABLE," INCLUDING VIOLENT
CRIMINAL ACTIVITY THAT WAS MADE POSSIBLE BY
DEFENDANTS-APPELLEES' OWN ACTIONS.
II. STANDARD OF REVIEW
{¶ 14} An appellate court applies a de novo standard when reviewing a ruling on a
motion for summary judgment under Civ.R. 56. Bonacorsi v. Wheeling & Lake Erie Ry.
Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24. Thus, we must "apply the same standard as
the trial court" when it ruled on appellees' motion. Id. Under Civ.R. 56(C), a court must
enter summary judgment if the evidence supporting the motion "show[s] 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 the
evidence * * * 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, that party
being entitled to have the evidence * * * construed most strongly in the party's favor." Id.III. ANALYSIS
{¶ 15} "In general, a cause of action for negligence requires proof of (1) a duty
requiring the defendant to conform to a certain standard of conduct, (2) breach of that duty,
(3) a causal connection between the breach and injury, and (4) damages." Cromer v.
Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 23. "The failure
to prove any one of these elements is fatal to a claim of negligence * * *." Rieger v. Giant
Eagle, Inc., 157 Ohio St.3d 512, 2019-Ohio-3745, ¶ 10.
{¶ 16} "The existence of a duty in a negligence action is a question of law for the
court to determine." Mussivand v. David, 45 Ohio St.3d 314, 318 (1989). "The standard of
conduct as to due care to be exercised by one for the protection of others may be specifically
established by legislative enactment; by judicial decision; or, in the absence of legislative
enactment or judicial decision, by a consideration of the facts and circumstances of a
particular case." Eisenhuth v. Moneyhon, 161 Ohio St. 367 (1954), paragraph one of the
No. 21AP-691 6
syllabus. "As a general rule, landlords have no duty to protect their tenants from the
criminal acts of third persons." Doe v. Beach House Dev. Co., 136 Ohio App.3d 573, 580
(8th Dist.2000). "While 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." Sciascia
v. Riverpark Apts., 3 Ohio App.3d 164, 166 (10th Dist.1981).
{¶ 17} The Thomases argue that "[t]he trial court misapplied the law governing the
duties of landlords to tenants." (Appellate Brief of Plaintiffs-Appellants, Thomas
(hereinafter, "Appellants' Brief") at 24.) To support their contention of error, they cite the
discussion of a landlord's duty of care in Lindsay P. v. Towne Properties Asset Mgt. Co.,
12th Dist. No. CA2012-11-215, 2013-Ohio-4124. Lindsey P. reversed the trial court's grant
of summary judgment after identifying genuine issues of material fact as to the
foreseeability of a tenant raping the plaintiff, another tenant. The landlord "was well aware
of the history" of harassment, threats, and "escalating nature of [the] conduct" of the tenant
who raped the plaintiff. Id. at ¶ 29-31. This "totality of the circumstances" demonstrated a
genuine issue of material fact as to whether the landlord "may have been aware of the
foreseeability" of the criminal act. Id. at ¶ 32. The portion of Lindsey P.'s definition of duty
cited by the Thomases states that
if a "special relationship" exists between plaintiff and
defendant, that defendant's duty to protect the plaintiff from
harm caused by a third party may exist. Johnson v. Spectrum
of Supportive Services, 8th Dist. Cuyahoga No. 82267, 2003-
Ohio-4404, ¶ 23. Such a duty exists when the landlord "should
have reasonably foreseen the criminal activity and failed to take
reasonable precautions to prevent such activity." Id. at ¶ 18.
However, it is not necessary that the defendant should have
anticipated the specific injury. Profitt v. Tate Monroe Water
Assn., Inc., 12th Dist. Clermont No. CA2012-10-072, 2013-
Ohio-2278. Instead, the "test for foreseeability is whether a
reasonably prudent person, under the same or similar
circumstances as the defendant, should have anticipated that
injury to the plaintiff or to those in like situations is the
probable result of the performance or nonperformance of an
act." Id. at ¶ 19, citing Commerce & Industry Ins. Co. v. City of
Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989).
Lindsey P., 2013-Ohio-4124 at ¶ 20.
No. 21AP-691 7
{¶ 18} Based on Alexander Court Apartments' knowledge of the condition of the
treehouse, the "illegal drug activity, drug paraphernalia and needles, and sexual activity" of
trespassers in the vicinity, the Thomases argue that the trial court "should have concluded
that some injury to some person was reasonably foreseeable." (Appellants' Brief at 24.)
{¶ 19} "Some injury to some person" is an unjustifiably expansive definition of what
a landlord should reasonably foresee that Lindsey P.'s definition of duty does not support.
The Thomases seize upon the proposition that a defendant need not "have anticipated the
specific injury" to assert that the attack on Mr. Thomas was reasonably foreseeable.
Lindsey P., 2013-Ohio-4124 at ¶ 20, citing Profitt v. Tate Monroe Water Assn., Inc., 12th
Dist. No. CA2012-10-072, 2013-Ohio-2278 ¶ 19. But the injury must have been reasonably
foreseeable, even if not specifically anticipated. The condition of the treehouse and the
presence of trespassing drug users cannot be said to reasonably portend the violent injury
that Mr. Thomas suffered. Tetanus from stepping on one of the protruding nails, perhaps,
or a fall from the steps that lacked a handrail. But neither the Thomases nor appellees
admit of any history of crimes of violence of any sort associated with the structure. (Adam
Thomas Dep. at 25-26; Obuchowski Aff. at ¶ 10.)
{¶ 20} Furthermore, the Thomases' briefing tellingly omits a key portion of Lindsey
P.'s discussion of duty:
"The mere fact that misconduct on the part of another might be
foreseen is not of itself sufficient to place the responsibility
upon the defendant * * * it is only where the misconduct was to
be anticipated, and taking the risk of it was unreasonable, that
liability will be imposed for consequences to which such
intervening acts contributed." [Wagner v. Ohio State Univ.
Med. Ctr., 188 Ohio App.3d 65, 10th Dist. No. 09AP-1031,
2010-Ohio-2561, ¶ 25]. Stated another way, "when liability is
asserted against a landowner for the criminal acts of third
parties, the burden is upon the plaintiff to establish that the
owner knew or should have known about the assailant's
dangerous propensities or knew the attack was imminent."
[Adkins v. RLJ Mgt. Co., 5th Dist. No. CT2011-0012, 2011-
Ohio-6609, ¶ 15].
Lindsey P., 2013-Ohio-4124 at ¶ 21.
{¶ 21} Here, the Thomases have submitted no evidence to show that Alexander
Court Apartments knew or should have known about the dangerous propensities of the
No. 21AP-691 8
unknown assailant, or that a violent assault would be the imminent result of an encounter
at the treehouse. As discussed, there was no history of physical assault or violence at the
treehouse.
{¶ 22} The Thomases also argue that the trial court erred by ruling that their
negligence per se action failed as a matter of law because appellees did not violate their duty
under R.C. 5321.04(A). (Appellants' Brief at 26.) The statute imposes several duties on a
"landlord who is a party to a rental agreement," stating that the landlord must:
(1) Comply with the requirements of all applicable building,
housing, health, and safety codes that materially affect health
and safety;
***
(3) Keep all common areas of the premises in a safe and
sanitary condition.
R.C. 5321.04(A).
{¶ 23} The Thomases criticize the trial court for "us[ing] the same reasoning it used
to find no duty under a negligence theory to find no duty under the statute." (Appellants'
Brief at 27.)
{¶ 24} Although "a landlord's violation of the duties imposed by R.C. 5321.04(A)(1)
or 5321.04(A)(2) constitutes negligence per se,* * * a landlord will be excused from liability
under either section if he neither knew nor should have known of the factual circumstances
that caused the violation." Sikora v. Wenzel, 88 Ohio St.3d 493, 498 (2000). The
undisputed evidence demonstrating that persons had trespassed in the treehouse to use
drugs or loiter there for illicit purposes does not demonstrate that Alexander Court
Apartments should have known that one of those persons would push Mr. Thomas over its
railing to the ground, breaking his arm. Thus, the trial court did not err when concluding
that the Thomases' claim failed when analyzed under the statutory duties of R.C.
5321.04(A), in addition to the common law definition discussed.
IV. CONCLUSION
{¶ 25} We conclude that the trial court did not error when granting Alexander Court
Apartments' motion for summary judgment on the Thomases' negligence claims.
No. 21AP-691 9
Accordingly, we overrule their assignment of error and affirm the judgment of the Franklin
County Court of Common Pleas.
Judgment affirmed.
KLATT and SADLER JJ., concur.
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