[Cite as Adkins v. RLJ Mgt. Co.,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: JENNIFER ADKINS : William B. Hoffman, P.J. : Sheila G. Farmer, J. Plaintiff-Appellant : Julie A. Edwards, J. : -vs- : Case No. CT2011-0012 : : RLJ MANAGEMENT COMPANY : OPINION

Defendant-Appellee

CHARACTER OF PROCEEDING: Civil Appeal from Muskingum County Court of Common Pleas Case No. CC2008-0242

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 16, 2011

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

MILES D. FRIES JEFFREY A. LIPPS Gottlieb, Johnston, Beam & MICHAEL N. BEEKHUIZEN Dal Ponte 280 Plaza, Suite 1300 320 Main Street, P.O. Box 190 280 North High Street Zanesville, Ohio 43702-0190 Columbus, Ohio 43215 [Cite as Adkins v. RLJ Mgt. Co.,

.]

Edwards, J.

{¶1} Plaintiff-appellant, Jennifer Adkins, appeals from the February 23, 2011,

Judgment Entry of the Muskingum County Court of Common Pleas entering judgment in

favor of appellee RLS Management Company, Inc.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Jennifer Adkins was a tenant at Concord Square Apartments in

New Concord, Ohio. The apartment complex is managed by appellee RLJ Management

Company, Inc. Appellant moved into the apartment complex on December 1, 2006.

{¶3} Before moving into the complex, appellant asked Sheila, the apartment

manager, if appellee could put up a light on the side of the building that her apartment

faced because it was “pitch black” and offered to put up her own light if appellee could

not. According to appellant, Sheila agreed that there was inadequate lighting and

indicated that other tenants had complained about the lack of lighting. See Affidavit of

Jennifer Adkins attached to appellee’s response to appellant’s Motion for Summary

Judgment.

{¶4} On or about May 22, 2007, appellant submitted a Request for Service or

Repair to appellee stating, in relevant part, “outside light at end of sidewalk (end of

building).” Appellant testified that after moving in, she had several conversations with

Sheila, the apartment manager, regarding lighting. One of the conversations occurred

before appellant turned in her written request. Appellant testified that during such

conversation, she went up to the office and “brought it up to her, that when you’re

walking down the sidewalk, once you hit that very end of it where you have to turn left, it

that – in that corner where you- where the two meet, that that’s basically where the Muskingum County App. Case No. CT2011-0012 3

lighting stops. You can’t see anything past it.” Deposition of Jennifer

. After

being told that she had to put her request for lighting in writing, appellant filled out a

written request and took it to the office.

{¶5} Appellant testified that she had similar conversations with Sheila two or

three more times during the summer of 2007. She testified that she put her request for

lighting in writing twice. After Sheila was replaced by a new apartment manager named

Karen, appellant had conversations with Karen about the lighting. Appellant testified that

she asked if she could have a light put up and was told that she could not. She further

testified that her conversations with Karen occurred after the incident. Appellant, in her

affidavit, stated that she told Karen about criminal activity that had taken place at the

complex, including a stabbing, a shooting and drug activity.

{¶6} Appellant also had a conversation with Sue, a district manager, about the

lack of lighting and also made one phone call to the headquarters in Columbus.

{¶7} During the early morning hours of October 6, 2007, appellant was

attacked from behind while unlocking the door to her apartment and raped. Thereafter,

on March 14, 2008, she filed a complaint alleging negligence against appellee. While

one of the causes of action related to a May 5, 2007, foot injury that appellant had

suffered in her apartment, the other related to the rape. Pursuant to a Partial Dismissal

Entry filed on November 18, 2009, the cause of action and any claims related to the

May 5, 2007, foot injury were dismissed with prejudice.

{¶8} On October 26, 2010, appellee filed a Motion for Summary Judgment. As

memorialized in Findings and Decision filed on February 14, 2011, the trial court

granted appellee’s motion and ordered counsel for appellee to prepare the final Muskingum County App. Case No. CT2011-0012 4

Judgment Entry. Pursuant to a Judgment Entry filed on February 23, 2011, the trial

court granted judgment in favor of appellee.

{¶9} Appellant now appeals from the trial court’s February 23, 2011, Judgment

Entry. Appellant has failed to comply with App.R. 16(A)(3) as her brief does not include

“[a] statement of the assignments of error presented for review with reference to the

place in the record where each error is reflected.” Appellant argues, in essence, that

the trial court erred in granting summary judgment in favor of appellee.

{¶10} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987),

,

. As

such, we must refer to Civ. R. 56(C) which provides in pertinent part: “Summary

Judgment shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action, show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of

law. No evidence or stipulation may be considered except as stated in this rule. A

summary judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds can come

to but one conclusion and that conclusion is adverse to the party against whom the

motion for summary judgment is made, that party being entitled to have the evidence or

stipulation construed most strongly in the party's favor.”

{¶11} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. The party moving for summary Muskingum County App. Case No. CT2011-0012 5

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the non-moving party cannot support

its claim. If the moving party satisfies this requirement, the burden shifts to the non-

moving party to set forth specific facts demonstrating that there is a genuine issue of

material fact for trial. Vahila v. Hall,

,

,

, citing Dresher v. Burt,

,

,

.

{¶12} In order to establish a claim for negligence, a plaintiff must establish a

duty owed by the defendant/defendants and that a breach of the duty proximately

caused injury to the plaintiff. Jeffers v. Olexo (1989),

,

. As a general rule, landlords, such as appellee, have no duty to protect their

tenants from the criminal acts of third persons. Doe v. Beach House Dev. Co. (2000),

,

. However, a landlord does have a duty to take

reasonable measures to provide reasonable security in common areas.

Liability for a

breach of that duty attaches only if the tenant can show that: (1) the landlord could have

reasonably foreseen criminal activity and did not take reasonable measures to provide

reasonable security; and (2) the negligence of the landlord existed at the time the

criminal activity took place and proximately caused the tenant's injury.

Foreseeability

is based upon “whether a reasonably prudent person would have anticipated that an

injury was likely to result from the performance or nonperformance of the act.” Menifee

v. Ohio Welding Products, Inc. (1984),

,

. Muskingum County App. Case No. CT2011-0012 6

{¶13} As noted by the court in Johnson v. Spectrum of Supportive Services,

Cuyahoga App. No. 82267,

, “A court must be mindful of two other

factors when evaluating whether a duty is owed in cases such as this one. Jane Doe, et

al. v. Beach House Dev. Co., et al. (2000),

,

citing,

Reitz v. May Co. Dept. Stores (1990),

,

. The first

is that a business is not an absolute insurer of the safety of its customers.

The

second is that criminal behavior of third persons is not predictable to any degree of

certainty.

It would be unreasonable, therefore, to hold a party liable for acts that are,

for the most part, unforeseeable.

Thus, the totality of the circumstances must be

somewhat ‘overwhelming’ before a business will be held to be on notice of and

therefore under the duty to protect against the criminal acts of others.

{¶14} “The ‘overwhelming evidence’ standard requires more than knowledge of

a potential future problem based on past occurrences. It requires (1) specific knowledge

of a potential future problem based on past occurrences along with (2) a substantial

likelihood that such an incident would occur. Walworth v. B.P. Oil Co. (1996),

,

. Reitz v. May Co. Dept. Stores (1990),

,

.

{¶15} “When liability is asserted against a landowner for the criminal acts of third

parties, the burden is upon the plaintiff to establish that the owner knew or should have

known about the assailant's dangerous propensities or knew the attack was imminent.

King v. Lindsey (1993),

,

citing, Meyers v.

Ramada Inn (1984),

,

.” Id at paragraphs 20-22. Muskingum County App. Case No. CT2011-0012 7

{¶16} Upon our review of the record, we find that appellant failed to present any

evidence demonstrating that her rape was foreseeable to appellee. Appellant, in support

of her argument that her rape was foreseeable, points to her own affidavit and the

affidavit of Chief Ed Stewart of the Village of New Concord. Appellant, in her affidavit,

stated, in relevant part, as follows:

{¶17} “During these conversations with Karen, I told her that I was concerned

about the lack of lighting because of the things that I had heard. I mentioned to her that

I was aware that there had been a stabbing at the complex, which took place after dark

and that I was also aware that there had been a shooting. I had also become aware

that there was a lot of drug activity in the complex and a number of people coming in

and out of the complex at night. Karen acknowledged that she was aware of the

stabbing and also confirmed that other tenants had complained about there not being

enough lights around the buildings and it being unsafe, especially with so many people

not living in the complex being there late at night due to the drug activity. Because of

the lack of lighting, the area that my apartment faced and other areas of the complex

would be pitch black at night. Karen acknowledged that the lack of lighting was a

security concern, that she had brought this up to her superiors but that they had not

take any action nor authorized her to take any. Karen also acknowledged that she was

aware that there was a lot of domestic violence in the complex, a lot of drug activity, and

that the lack of lighting presented a security problem because of people coming in and

out of the complex at night. Because of the proximity of my apartment to a wooded

area, and the complete lack of light on that side of building, I expressed my concern

about this as a safety issue.” Muskingum County App. Case No. CT2011-0012 8

{¶18} In turn, Chief Stewart, in his affidavit, stated, in relevant part, as follows:

{¶19} “I am familiar with the Concord Square Apartments where the Plaintiff

Jennifer Adkins resided at the time of the subject incident. I am aware that they had

security problems at the complex and that there had been previous criminal activity,

including violent criminal behavior. Approximately two years prior to the subject

incident, a stabbing occurred on the backside of one of the complex buildings. The

stabbing occurred at night. There was complete lack of lighting on the backside of that

building as was the case on the backside of Jennifer Adkins’ building. The darkness

provided a perfect cover for an assailant to conceal not only his identify (sic) but also his

presence. The lack of lighting was a proximate cause of that stabbing.

{¶20} “There had been other violent criminal activity that had occurred at the

subject complex including a shooting that occurred approximately three of (sic) four

years before the subject incident. There had also been a number of incidents involving

domestic violence, some of which involved physical injury.”

{¶21} Chief Stewart, in his affidavit, further stated that he recommended that

security cameras be installed and adequate lighting be provided.

{¶22} During her deposition, appellant was questioned about the stabbing. She

testified that a girl in the deli at the IGA told her that she had been stabbed and that she

believed the stabbing occurred between September of 2005 and December of 2006.

Appellant testified that Chief Stewart told her that the girl was stabbed by someone that

she knew. According to appellant, the stabbing did not occur in front of her apartment.

When questioned about the shooting, appellant testified that the Chief had told her that

the shooting had occurred seven to nine years before and involved domestic violence. Muskingum County App. Case No. CT2011-0012 9

{¶23} We concur with appellee that these incidents do not “constitute

‘overwhelming evidence’ of any ‘substantial likelihood’ that [appellant] would be raped.”

We find that a stabbing one to two years earlier, a shooting seven to nine years

previously and unspecified drug activity does not establish that appellant’s rape was

foreseeable. Both the shooting and the stabbing involve attacks by acquaintances

and/or spouses and did not occur in the same location as the rape. The incidents were

not the “same or similar” in nature to the rape. See for example, Brown v. Campbell,

. While appellant maintains that there was other miscellaneous criminal

activity, she provided no details with respect to the same. She thus provided no

evidence that such criminal activity was the same or similar to the rape.

{¶24} Moreover, we find that appellant failed to present any evidence that any

lack of adequate lighting was the proximate cause of her rape. The following testimony

was adduced when appellant was questioned about the rape:

{¶25} “A. I was - - I had the screen door opened so I was standing in between

the doors. I was trying to put my key in the lock to unlock the door. So I was standing

on the stoop with the screen door kind of leaning against my back while I was unlocking

the door.

{¶26} “Q. Okay. I believe I saw a reference to the police report1 saying that your

front - - your porch light was turned off at the time. Is that accurate?

{¶27} “A. No. That’s not accurate. It was turned on, but the light bulb was

unscrewed. So I guess to some degree there’s truth to that because it was off, but it

was not - -

{¶28} “Q. Did you ever tell that to the police? 1 Part of the police report was attached as Exhibit C to appellee’s Motion for Summary Judgment. Muskingum County App. Case No. CT2011-0012 10

{¶29} “A. Uh-huh, yes.

{¶30} “Q. Okay. Do you know why that’s not reflected in the police report?

{¶31} “A. I have no idea.

{¶32} “Q. Do you have any idea why that’s not reflected in your interview with

the police?

{¶33} “A. I don’t know. I mean, it was a detail that didn’t - - I don’t - - I don’t

know. I mean, I was obviously upset and the details of what happened seemed far

more significant to me at the time.

{¶34} “Q. When did you figure out that the light bulb was unscrewed?

{¶35} “A. The day that - - when this happened, it was in the early morning hours;

and then I got home from the hospital that afternoon and a friend of mine was there with

me, and he - - he had already gone to the apartment before I went back. And he

actually discovered that the - - that it was unscrewed because I kept saying I never

leave - - I don’t ever leave it - - my porch light was always on if there was any chance it

was going to be after dark because it’s pitch black back there, and there is no other

light.” Deposition of Jennifer

.

{¶36} Under either scenario, appellee was not responsible for the lack of

adequate lighting near appellant’s apartment door. Clearly, appellee was not

responsible for appellant’s failure to turn on her light or appellant’s attacker unscrewing

the same. In addition, in her police report, appellant stated that she got a glimpse of her

offender after he had walked away into the lights at the end of her building. Appellant,

during her deposition, admitted making such statement. The following is an excerpt

from her deposition testimony: Muskingum County App. Case No. CT2011-0012 11

{¶37} “Q. Okay. Do you remember as you sit here then what lights you were

referring to?

{¶38} “A. If you walk out of my apartment and you walk down the long walk,

which is almost the length of the entire building, and you turn right, halfway down that

long walk in the center of the building at the top, there is a light and it has, I believe –

yeah. It’s right in the center of the side of the building. It’s a small light that lets off a

small amount of light.

{¶39} “And as he walked around that corner back toward the parking lot area,

that’s when I got a glimpse of kind of – kind of a silhouette. I mean, I couldn’t give you

details of his face or - .” Transcript of Deposition of Jennifer

. Muskingum County App. Case No. CT2011-0012 12

Based on the foregoing, we find that the trial court did not err in granting appellee's

Motion for Summary Judgment.

{¶40} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

______________________________

______________________________

______________________________

JUDGES [Cite as Adkins v. RLJ Mgt. Co.,

.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JENNIER ADKINS : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : RLJ MANAGEMENT COMPANY : : Defendant-Appellee : CASE NO. CT2011-0012

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Muskingum County Court of Common Pleas is affirmed. Costs

assessed to appellant.

_________________________________

_________________________________

_________________________________

JUDGES