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Cole v. Pine Ridge Apartments Company II12/21/2001
ate cause of JoAnne's death and the injuries to Steve and Lillian.
Third, appellants allege that there were genuine issues of material fact as to whether criminal activity at Pine Ridge was foreseeable.
Fourth, appellants maintain that there were genuine issues as to whether Pine Ridge and Goldberg had a duty under the "totality of the circumstances," including the security agreement between DRP and Goldberg, to protect JoAnne, Steve, and Lillian from harm from intruders and unauthorized persons on the premises and "unlawful or dishonest activity" where: (1) Pine Ridge and Goldberg assumed the duty of providing security as defined in the security agreement; (2) Pine Ridge and Goldberg were liable for the harm caused by the negligence of DRP and its guards based on the non-delegable nature of those duties; and (3) Pine Ridge and Goldberg created an environment where a third person might avail himself of the opportunity to commit such a crime because Pine Ridge and Goldberg had a dysfunctional maintenance policy regarding inspection for and correction of a known security hazard associated with the ground-level sliding doors, Pine Ridge failed to improve the lighting around the apartment where the murder occurred, and Pine Ridge and Goldberg failed to establish a communication link between maintenance, security, management, and the local police to remain informed of the type and amount of crime that took place at the apartment complex.
Lastly, appellants assert that there were genuine issues of material fact as to whether: (1) DRP transferred the Pine Ridge account to Willo on August 15, 1995; (2) a joint enterprise existed between DRP, Morris, Willo, and Trubiano for the security services provided during the period from August 15, 1995 to October 6, 1995; and (3) the second consulting agreement dated August 22, 1995, was a device which attempted to rewrite history after JoAnne's murder on August 17, 1995.
We will first examine whether summary judgment was proper as to DRP, Morris, Hill, and Latham, and whether their acts or omissions were the proximate cause of Aquilla entering the apartment, which resulted in the death of Joanne.
In order to maintain a wrongful death action on a theory of negligence, a plaintiff must show that: (1) there was a duty owed to the plaintiff's decedent; (2) there was a breach of that duty; and (3) there was proximate cause between the breach of duty and the death. Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio St.3d 86, 92. The existence of a duty is in the first instance a question of law for the trial court even though negligence actions involve both questions of law and fact. Clemets v. Heston (1985), 20 Ohio App.3d 132, paragraph one of the syllabus. Under Ohio law, the existence of a duty depends on the injury 's foreseeability. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77. "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. [Citations omitted]." Id. The foreseeability of harm generally depends on a defendant's knowledge. Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116, 119-120.
"The issue of whether a defendant should have recognized the risks involved focuses on only those circumstances perceived by the defendant or those that should have been perceived at the time of the defendant's actions." Thomas v. Parma (1993), 88 Ohio App.3d 523, 527. If the evidence does not identify specific conduct that involved an unreasonable risk, there is no issue to submit to a jury. Id.
Moreover, there is ordinarily no duty to control the
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