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Barnes v. North Shore Car Wash12/3/1998
JUDGMENT: Affirmed.
Appellant Gwendolyn Barnes, administratrix of her son Robert Barnes' estate, appeals the trial court's granting summary judgment in favor of Appellee North Shore Car Wash, d/b/a American Pride Car Wash ( North Shore ) in her wrongful death action. In that action, she claimed North Shore failed to provide adequate security at its place of business, failed to warn of dangerous area, and knowingly misled her son into believing that he was in a secure place. North Shore answered that it could not reasonably have foreseen that Robert Barnes would be murdered by an unidentified third person assailant. Gwendolyn Barnes assigns the following error for our preview:
THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S COMPLAINT WHERE PLAINTIFF PRESENTED AN OVERWHELMING AMOUNT OF EVIDENCE CLEARLY CREATING A GENUINE ISSUE OF MATERIAL FACT.
Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.
On September 18, 1995, an unidentified assailant murdered Robert Barnes while Barnes was using the car wash facilities at North Shore. North Shore is a self-service style car wash. Barnes' car was not stolen and his personal items appeared to be intact and undisturbed. In fact, Barnes had $220 in cash on his person and a Cleveland Police Narcotics receipt for $5,200, which evidenced that $5,200 had been confiscated from Barnes by Cleveland police. Barnes was shot five times on the evening in question.
North Shore had one employee, Jerold Crew, to service its eight car wash facilities. Crew acted as a service man and guard. However, on this evening, he was not seen in the area until after midnight. North Shore did have inoperable decoy (drone) surveillance cameras and tamper-resistant sensors on change machines at the facility. A panic button was available to the employee on duty. Conspicuous signs and cameras were on the premises, which stated Beware, Video Camera Surveillance and Armed Guard Patrol Response.
North Shore's owner Patrick Montgomery testified the armed guard patrol was an informal, non-authoritative patrol by an acquaintance who is a security guard who passes North Shore on his regular patrol. Montgomery said the purpose of these security measures was to deter vandalism.
Gwendolyn Barnes sued North Shore for failing to warn its business invitees of known risks and failing to protect its business invitees from unknown foreseeable risks. Barnes provided the court with evidence that within a 1000 foot radius of the car wash, criminal activity occurred. This area is within the 4th District of the Cleveland Police Department and is characterized as a high crime area. Barnes also established that crimes such as vandalism, robberies, and thefts had occurred at North Shore in the past. Her expert, Dr. Michael Witkowski, opined that based on the history, the nature of an open facility, and the type and number of crimes in this neighborhood, North Shore should have foreseen the murder.
NorthShore moved for summary judgment arguing that it had no duty because the assailant was a third party whose action was not reasonably foreseeable.
In Barnes' sole assignment of error, she argues that a property owner owes a duty to an invitee for the criminal acts of a third party when the third party acts are foreseeable under the totality of circumstances test. Consequently, she argues she presented evidence that, when viewed in her favor, would enable a reasonable jury to find for her on the issue of North Shore's liability. We disagree.
Summary judgment may be granted only if
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