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Cole v. Pine Ridge Apartments Company II12/21/2001
irmed its January 28, 1999 entry. Appellants filed a notice of appeal from that entry and assert the following as error:
"[1.] The trial court erred in granting summary judgment to [appellees DRP, Hill, Latham, and Morris].
"[2.] The trial court erred in granting summary judgment to [appellees Pine Ridge, Goldberg, Willo, and Trubiano]."
As appellants' assignments of error are interrelated, they will be addressed in a consolidated fashion. In both assignments, appellants argue that the trial court erred in granting summary judgment in favor of appellees.
Before addressing appellants' arguments, we note that in order for a summary judgment to be granted, the moving party must prove:
" * (1) o genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made." Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385.
The Supreme Court stated in Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, that:
" * he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. The `portions of the record' to which we refer are those evidentiary materials listed in Civ.R. 56(C), such as the pleadings, depositions, answers to interrogatories, etc., that have been filed in the case. *" (Emphasis sic.)
If the moving party satisfies this burden, then the nonmoving party has the burden to provide evidence demonstrating a genuine issue of material fact. Civ.R. 56(E). If the nonmoving party does not satisfy this burden, then summary judgment is appropriate. Id. Appellate courts review a trial court's granting of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. The Brown court stated that "we review the judgment independently and without deference to the trial court's determination." Id. An appellate court must evaluate the record "in a light most favorable to the nonmoving party." Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. Further, a motion for summary judgment must be overruled if reasonable minds could find for the party opposing the motion. Id.
Appellants raise several issues for our review under both of their assignments of error. First, they claim that there were genuine issues of material fact as to whether DRP, Hill, Latham, and Morris had a duty under the "totality of the circumstances," including the security agreement between DRP and Goldberg, to protect JoAnne, Steve, and Lillian from intruders and unauthorized persons harming them and "unlawful or dishonest activity" on the premises and whether the tenants and the guests at Pine Ridge were third-party beneficiaries of the security contract between Goldberg and DRP.
Second, appellants argue that there were genuine issues of material fact as to whether the acts or omissions of DRP, Hill, Latham, and Morris were the proximate cause of: (1) Aquilla having the time and opportunity to enter the apartment; (2) Aquilla not being detected during the hour he was lurking on the property before he broke into the apartment; (3) Aquilla not being deterred because of an aborted foot patrol that would have placed Latham exactly where Aquilla was; and (4) creating a condition that was the proxim
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