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Albright v. University of Toledo9/18/2001
that the bar had no duty to protect business invitees involved in a fight on adjacent property because such duty toward business invitees has not been held to extend to property which is beyond the owner's control, noting "liability in tort is an incident to occupation or control." Id., citing Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 94. See, also, Warren v. Crabtree (June 13, 1986), Lucas App. No. L-86-030, unreported (in order for a bar patron injured in a fight outside the bar to recover under a negligence theory, such business invitee was required to demonstrate that he was injured on premises owned or controlled by the bar owner).
In Ohio, the above legal tenet requiring possession and control of the business premises upon which the injury occurred is well-established. See Wireman v. Keneco Distributors, Inc. (1996), 75 Ohio St.3d 103, 108; Simpson v. Big Bear Stores Co. (1995), 73 Ohio St.3d 130, 132, syllabus; Mitchell, supra, at 94; Mustric v. Penn Traffic Corp. (Sept. 7, 2000), Franklin App. No. 00AP-277, unreported. The element of control is required as a predicate to liability because the possessor of the land is thought to be in the best position to diminish dangers to invitees. Simpson, supra, at 133. Moreover, the control necessary as the basis for tort liability implies the power and right to admit people to the premises and to exclude people from it, and involves a substantial exercise of that right. Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, citing Cooper v. Roose (1949), 151 Ohio St. 316; Brown v. Cleveland Baseball Co. (1952), 158 Ohio St. 1, paragraph three of the syllabus.
In the present case, the university clearly did not have control and possession of the public street upon which Matthew was struck by the vehicle. A public street is under the control of the municipality or public authority. Eichorn v. Lustig's, Inc. (1954), 161 Ohio St. 11, 13. The university did not have the power to allow or prohibit vehicles to travel on Douglas Road, as is required to invoke liability in negligence and tort. Therefore, under the reasoning in this line of cases, the university did not have a duty to protect Matthew or its business invitees under the circumstances of this case.
Appellants assert that the injuries to the university's business invitees while crossing Douglas Road were foreseeable; however, we fail to find a genuine issue of material fact to support such. Appellants fail to cite any evidence that the university knew or should have known that its business invitees would forsake the use of an available crosswalk to run across a five-lane thoroughfare in a poorly lit area at night and directly into the path of an oncoming car that was visible, according to the testimony of non-party witnesses and several of the current appellants. Appellants also cite no evidence regarding prior injuries or deaths under the same or similar circumstances that would have given the university knowledge of this specific or general potential danger. See, generally, Howard v. Rogers (1969), 19 Ohio St.2d 42, 47-48. Additionally, appellants fail to direct us to any evidence that any university official, employee, or municipal police officer specially hired by the university had ever previously observed such activities so as to put the university on notice.
Further, appellants admit that they had traversed Douglas Road safely via the crosswalk on their way to the concert from their parking spot, which would reinforce the university's reasonable expectation that concert attendees could and would travel that same route to safely arrive to and depart from the venue. Appellants' expert, Ira S. Somerson, stated in his preliminary report tha
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