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Albright v. University of Toledo9/18/2001
t there was no sidewalk or footpath along Douglas Road, and thus it was foreseeable that pedestrians would cut across the middle of Douglas Road in order to avoid being forced to walk in the actual road to reach the crosswalk. However, this statement is in direct contravention to Archie Albright's deposition testimony that the family had previously walked safely in the grass beside Douglas Road on the way to Savage Hall. At this point we would also note that appellants raised in their reply brief for the first time that they were "objecting" to the university's reference to deposition transcripts taken in the course of their separate action against Ritz. However, appellants not only failed to raise this issue in the trial court, but also took advantage of and invited such error by citing these depositions throughout their own memorandum contra summary judgment in the court below. Appellants have waived this argument for appellate purposes. See State ex rel. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359 ("invited error doctrine" prohibits a party from raising an error on appeal which she herself invited or induced the trial court to make); State v. Awan (1986), 22 Ohio St.3d 120, 123 (party waives issue on appeal that could have been raised at trial court level); Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 210 (appellate court will not consider error not raised in trial court). Based on the foregoing, we find that appellants have failed to raise a genuine issue of material fact regarding the foreseeability of such a tragedy so that the university reasonably knew or should have known that its business invitees would participate in the activities that resulted in Matthew's death.
Notwithstanding, foreseeability alone is insufficient to create liability. See Simpson, supra, at 134. There still must exist a special relationship between the parties. Id. The Supreme Court of Ohio in Simpson explained the dynamics of a relationship analogous to that in the present case. Like Simpson, in the current case, the relationship that arose between the university and Matthew was that of business owner and business invitee. See id. The university owed a duty of care to Matthew while he was on the university's premises. See id. However, once he left the university premises that relationship no longer existed. See id. When the burden is placed on the entity in control, allocation of responsibility is more clearly defined. See id. Just as the court reasoned in Simpson, if this court were to rely on foreseeability alone, there would conceivably be no limit to the university's liability. See id. Similar to the question posed by the court in Simpson, in the current case, at what geographic point would the university's liability end? Just as the Ohio Supreme Court concluded, in the present case it is difficult to create a test that would not subject every premises owner surrounding Douglas Road to liability. As concluded in Simpson, " ny extension of current law would only add confusion and unpredictability." Simpson, at 135.
In their reply brief, appellants address the issue of a landowner's duty to business invitees for injuries occurring off the landowner's premises, citing various cases from other states. Appellants cite Guerrero v. Alaska Housing Finance Corp. (2000), 6 P.3d 250, in which a five-year-old tenant of a housing complex was injured while crossing an adjacent public "traffic couplet," for the proposition that a landowner's duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. However, we find the persuasiveness of Guerrero diminished for several reasons. In Guerrero, the Supreme Court of Alaska admitted that
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