Kenneth Wilkerson and Gertrude Collins separately appeal from directed verdicts entered in their respective cases, which had been consolidated for trial on their claims for negligence arising from an incident that occurred at Numbers Nite Club in which nineteen-year-old Vidal Brown shot Collins's son, Allen D. Howell, in the face at close range, killing him, and shot Kenneth Wilkerson in the abdomen, seriously injuring him.
The record reveals that on July 9, 1993, several gay men traveled from Youngstown, Ohio, and arrived in the late evening at 620 Frankfort Avenue in Cleveland, an establishment known as the Numbers Nite Club, which primarily caters to members of the gay and lesbian community. The evidence shows that during that evening, Kenneth Tyler had been dancing with Allen Howell and had rejected Vidal Brown's efforts to renew a past relationship. Although he knew Brown was angry and had been drinking, Tyler was not particularly concerned because Brown had visited his Youngstown home four days earlier as Tyler and Howell were leaving to visit Tyler's daughter and, although Brown had threatened at that time to shoot Howell in the head and told Tyler he'd go to prison for him, Tyler never thought he'd carry out those threats.
At Numbers, Brown pulled Tyler from the dance floor yelling, "I don't want you dancing with that bitch," showed him a chrome-plated .25 caliber semiautomatic Phoenix Arms pistol, and ordered Tyler to stay away from Howell. Tyler told Howell about the gun, but as the two were dancing, Brown approached Tyler, reached over his back and right shoulder, and shot Howell in the face, killing him. Tyler then began to struggle with Brown, who fired two additional shots, one of which struck Wilkerson in the lower left chest or abdomen. Brown then fled from the club, but police later apprehended him in the Tower City area.
Following Brown's indictment for aggravated murder and felonious assault and his plea to murder and subsequent sentence of eighteen years to life, Kenneth Wilkerson filed case No. 255911, alleging negligence against Down River Specialties, Inc., d.b.a. Numbers Nite Club, Michael Tritola and Michael Sidora as its officers, and Vidal Brown. On April 20, 1994, Gertrude Collins, individually and as Administrator of the Estate of Allen Howell, filed case No. 269204 against Down River Specialties, Inc. and Brown, alleging that the negligence of both parties caused Howell's death. These cases were then consolidated for trial.
The trial court litigated the separate negligence cases against Numbers Nite Club, and at the close of plaintiffs' case, the court directed a verdict for appellee Numbers Nite Club in both cases. Collins and Wilkerson separately appealed, and each raised a single assignment of error.
Collins's assignment of error states: *Page 367
"The directed verdict must be reversed as plaintiffs-appellants demonstrated that Numbers was negligent in falling to provide for the safety and security of its patrons when it knew or should have known that there was a substantial risk of harm to Patrons Howell and Wilkerson while present on the premises."
Wilkerson's assignment of error states:
"The trial court erred in granting a directed verdict in favor of defendant when reasonable minds could conclude, based upon the evidence adduced at trial, that defendant knew or should have known of a substantial risk of harm to plaintiffs and that defendant was negligent in failing to provide proper security upon its premises."
In support of their contention that the trial court erred in directing verdicts, appellants urge that reasonable minds could conclude that Numbers Nite Club owed a duty to protect them from known danger and breached that duty and, further, that injury to patrons was reasonably foreseeable.
Numbers Nite Club contends that the trial court did not err in granting directed verdicts because Numbers had no notice or expectation of sudden or random acts of violence, that it owed no duty to protect its patrons from such acts in this instance and that it could not have foreseen or prevented Brown's action on July 9, 1993.
The issue, then, presented for our review is whether the trial court erred. in directing verdicts for the night club at the close of appellants' cases.
Civ.R. 50(A)(4) sets forth the standard for ruling on a motion for a directed verdict. It states:
"When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
Further, a motion for directed verdict does not present a factual issue to the court but, rather, a question of law, and it is the duty of the trial court to withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. See O'Day v. Webb (1972), 29 Ohio St. 2d 215, 58 O.O.2d 424, 280 N.E.2d 896, at paragraphs three and four of the syllabus.
In the instant case, appellants allege that Numbers owed a duty to protect patrons from known risks of harm and that it was foreseeable that patrons would be injured from violent acts of third parties within its premises. *Page 368
In Reitz v. May Co. Dept. Stores (1990), 66 Ohio App. 3d 188,583 N.E.2d 1071, 1073-1074, our court stated:
"Thus, the duty to protect invitees from the criminal acts of third parties does not arise if the business `does not, and could not in the exercise of ordinary care, know of a danger which causes injury to [its] business invitee. * * *' Id. [Howard v. Rogers (1969), 19 Ohio St. 2d 42, 48 O.O.2d 52, 249 N.E.2d 804] at paragraph three of the syllabus.
"The existence of a duty therefore will depend upon the foreseeability of harm." (Citations omitted.)
In that case, in considering what evidence is relevant to establishing foreseeability, our court stated:
"We believe the `totality of the circumstances' to be a better indicator to establish knowledge of a defendant than focusing in on any particular criminal occurrences." Id., 66 Ohio App.3d at 193, 583 N.E.2d at 1075.
The court went on to state that "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." Id.,66 Ohio App.3d at 193-194, 583 N.E.2d at 1075.
In Reitz, where the patron was accosted and stabbed during the theft of her motor vehicle from the May's-on-the-Heights store, the reported opinion catalogs a proffer of evidence of thirty-seven car thefts, episodes of disturbances, fights, vandalism, drug transactions and juvenile disturbances, evidence of a nearly identical incident in 1982, expert testimony on the risk of personal injury with automobile thefts, that security should have been altered, that a substantial likelihood of injury to customers existed in the parking lot due to criminal activity, and that this May's store was the only one without outdoor security, among other proffers. With that state of the record, the trial court granted a directed verdict to May Company, which had argued it owed no duty because the assault was not foreseeable since no similar incident had occurred in the parking lot within a reasonable time period, it was not in a high crime area, and proximate cause could not be established.
In this case, no evidence established any similar incidents between 1986 and 1993, leading the trial court to its conclusion that Numbers Nite Club had no reason to expect the sudden violent criminal act of Brown. See, also, Askew v. ABC Check Cashing,Inc. (Oct. 3, 1996), Cuyahoga App. No. 69906, unreported, 1996 WL 563710; Stone v. Shell Oil Co. (May 9, 1996), Cuyahoga App. No. 68807, unreported, 1996 WL 239864; Rescigno v. Heyduk (Aug. 15, 1996), Cuyahoga App. No. 69172, unreported, 1996 WL 465374; andWhite v. Euclid Square Mall (1995), 107 Ohio App. 3d 536,669 N.E.2d 82. *Page 369
Hence, in accordance with Reitz v. May Co., supra, and the other cases cited herein, we conclude that, based upon the totality of the circumstances, Numbers Nite Club did not have notice of the danger Brown posed to its patrons and could not have foreseen his actions and, hence, it had no duty to protect against Brown's criminal acts. Therefore, the court properly directed verdicts for appellee.
The judgment of the trial court is affirmed.
Judgment affirmed.
KARPINSKI, J., concurs.
SPELLACY, J., dissents.