Adelman v. Timman , 117 Ohio App. 3d 544 ( 1997 )

I respectfully dissent from the conclusion reached by the majority in its decision.

In order to establish actionable negligence, one must show the existence of a duty, a breach of that duty, and an injury proximately resulting therefrom. Jeffers v. Olexo (1989),43 Ohio St.3d 140, 539 N.E.2d 614. Whether a duty exists depends largely on the foreseeability. Id. at 142, 539 N.E.2d at 616. The court went on to state that "`[o]nly when the injured person comes within the circle of those to whom injury may reasonably be anticipated does the defendant owe him a duty of care'" and "`foreseeability of the harm usually depends on the defendant's knowledge.'" Id. at 142 and 143, 539 N.E.2d at 617, quotingGedeon v. E. Ohio Gas Co. (1934), 128 Ohio St. 335, 338,190 N.E. 924, 926 and Menifee v. Ohio Welding Products, Inc. (1984),15 Ohio St.3d 75, 77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710.

The evidence presented to the trial court indicates that neither the CIA, its previous security company, the University Circle Police, nor the appellee had knowledge that students were shooting pellets from the roof of the Factory building. Since, under Jeffers, the uncontroverted evidence is that the appellee had no knowledge that potentially dangerous conduct was engaged in by the students, the appellant could not have been within the circle of those to whom an injury might reasonably have been anticipated.

However, assuming, arguendo, that foreseeability can be established through the deposition of the students who testified, essentially, that shooting clay pellets from the roof of the Factory building has been a practice among the students for some time, I would hold that liability may not be imposed because no special duty exists between the appellant and the appellee.

Generally, there is no duty to prevent a third person from causing harm to another absent a special relationship between the parties. Fed. Steel Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171, 543 N.E.2d 769. 2 Restatement of the Law 2d, Torts (1965) 122, Section 315, provides that there is no duty to control the conduct of a third person and prevent physical harm to another unless a special relation exists between the actor and the third person which imposes a duty on the actor to control the third person's conduct, or a special relation exists between the actor and the other which gives to the other a right to protection. See Gelbman v. Second Natl.Bank of Warren (1984), 9 Ohio St.3d 77, 9 OBR 280,458 N.E.2d 1262.

Thus, absent either a special duty to control the behavior of the students or a special duty to protect the appellant, the appellee may not be held liable. I would find that had the parties to the contract, the CIA and the appellee, intended for the appellee to be civilly liable for student criminal activity, the contract would have made that manifest. The contract, however, is silent to that event because security companies, andhumanum genus in general, would not contract for the civil assumption of criminal liability of third parties. It is equally difficult to understand how the appellee could have any contractual duty to protect a pedestrian across the street from its place of employment.

For these reasons, I would affirm the trial court's decision to grant summary judgment in favor of the appellee.