Casey v. Jones

2022 Ohio 1841

• Court: Ohio Court of Appeals
• Decided: June 2, 2022
• Docket: 110892
• Status: Published

Opinion

[Cite as Casey v. Jones, 2022-Ohio-1841.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

DENNIS CASEY, JR., :

Plaintiff-Appellant, : No. 110892 v. :

KARI JONES, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 2, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-935672

Appearances:

Dennis Casey, Jr., pro se.

McDonald Humphrey, LLP, Jonathan M. McDonald, and Eric L. Foster, for appellees.

MICHELLE J. SHEEHAN, J.:

Plaintiff-appellant Dennis Casey appeals the judgment of the trial

court dismissing his complaint against appellees Kari Jones and KJ, an alleged

limited liability corporation, and denying his motion for default judgment against

KJ. In his complaint, Casey alleged that he was at Jones’s home, that the home was owned by KJ, and that, while there for social purposes, he was attacked and injured

by an intruder. We affirm the trial court’s dismissal of the complaint against Jones

and KJ where Casey did not assert claims upon which relief could be granted.

Further, because Casey did not assert claims entitling him to relief, we find that the

trial court did not abuse its discretion by denying his motion for default judgment

as to KJ.

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

On August 6, 2020, Dennis Casey filed a complaint against Kari Jones,

KJ, and a John Doe. The complaint alleged that Jones was a resident of a home in

Garfield Heights, Ohio (the “premises”) and that KJ was a limited liability

corporation that owned the premises. Casey alleged that on June 18, 2020, Casey

was at the premises with Jones for social purposes and that while Casey was in the

home, an unknown male entered, assaulted Casey, and put a gun to his head. Casey

was able to call the police, and the unknown male left the home.

The complaint consisted of seven causes of action of which three

pertained to Jones and KJ, Counts 1, 2 and 4. In Count 1, Casey alleged negligence

where Jones and KJ failed in a duty of care to take reasonable steps to ensure Casey’s

safety while he was on the premises as a “licensee.” In Count 2, Casey alleged a cause

of action for premises liability stating that Jones and KJ knew of a dangerous

condition on the premises and failed to exercise reasonable care to reduce an

unreasonable risk of harm by not providing adequate security. In Count 4, Casey

alleged Jones and KJ negligently inflicted emotional distress. The remaining counts of the complaint pertained only to John Doe and alleged causes of action of assault,

battery, false imprisonment, and intentional infliction of emotional distress.

Jones answered the complaint on September 14, 2020, within which

she asserted as an affirmative defense that Casey failed to state a claim upon which

relief could be granted. On September 30, 2020, Jones filed a motion to dismiss

pursuant to Civ.R. 12(B)(6). Within the motion, Jones argued that as to negligence,

Casey’s status on the premises did not give rise to any duty nor did he allege any fact,

act, or omission that created a dangerous condition on the premises. As to the

premises liability cause of action, Jones argued that she had no duty to protect Casey

from the criminal conduct of a third party. Finally, as to the claim for negligent

infliction of emotional distress, Jones argued that because Casey alleged that

intentional conduct caused his injuries, there was no accident upon which his claim

entitled him to relief.

On October 8, 2020, Casey filed a motion for default judgment against

defendant KJ alleging that KJ was served and failed to respond to the complaint. On

October 27, 2020, Jones filed a motion asking the trial court to take judicial notice

of the fact that there was no limited liability company, corporation, or legal entity in

Ohio per the Ohio Secretary of State’s business portal with a “variance of ‘KJ, LLC’

and none include the purported ‘DEFENDANT KJ.’”

On November 3, 2020, Casey filed his opposition to the motion to

dismiss and averred that as a licensee, he was entitled to maintain his suit because

Jones knew John Doe and that she should have known John Doe could commit the crimes alleged against him. Further, Casey attached an affidavit including facts that

were beyond those stated in the complaint to describe his injuries, his medical

records, text messages, and a police report of the incident.

By judgment entry on March 26, 2021, the trial court granted Jones’s

motion to dismiss and determined “plaintiff has failed to state claims against

defendants Kari Jones and KJ as a matter of law and, therefore, the case is

dismissed.” The court further denied Casey’s motion for default judgment against

defendant KJ and found Jones’s motion to take judicial notice of adjudicated facts

to be moot.

On April 1, 2021, Casey appealed the judgment entry of the court. On

July 23, 2021, we dismissed the appeal for lack of a final order where the claims

against John Doe had not been adjudicated, those claims had not been expressly

abandoned, the one-year period for service of unknown defendants had not expired,

and the judgment entry appealed did not find there was no just reason for delay.

On August 2, 2021, Casey moved the trial court for an order to include

the language of no just reason for delay in the judgment entry dated March 26, 2021.

On October 6, 2021, the trial court granted Casey’s motion by journal entry stating:

The court having dismissed plaintiff’s complaint against defendants Kari Jones and KJ on 3/26/2021 for failure to state a claim, and plaintiff having a separate claim against a John Doe defendant, pursuant to Civil Rule 54(B), the court determines that there is no just cause for delay as to defendants Kari Jones and KJ. On October 8, 2021, Casey again filed an appeal. In briefing to this

court, Casey stated that no claim remained pending in the case against John Doe

because he had not been identified or served.

II. LAW AND ARGUMENT

A. The court properly granted the motion to dismiss because Casey failed to state claims upon which relief could be granted

Appellant’s first assignment of error reads:

The Trial Court erred in dismissing Plaintiff-Appellant’s complaint by determining Plaintiff-Appellant failed to state claims against Defendants-Appellees Jones and KJ as a matter of law.

Under this assignment of error, Casey argues that his complaint

against Jones and KJ properly alleged causes of action in negligence, premises

liability, and negligent infliction of emotional distress and the court erred by

granting Jones’s motion to dismiss. Civ.R. 12(B)(6) provides that a defendant may

move the court to dismiss a complaint where it fails to state a claim upon which relief

can be granted. We review a ruling on a motion to dismiss pursuant to

Civ.R. 12(B)(6) de novo and, in doing so, accept the factual allegations in the

complaint as true and draw all reasonable inferences in favor of the nonmoving

party. NorthPoint Properties v. Petticord, 179 Ohio App.3d 342, 2008-Ohio-5996,

901 N.E.2d 869, ¶ 11 (8th Dist.). However, we have held that “‘[l]egal conclusions,

deductions, or opinions couched as factual allegations are not given a presumption

of truthfulness.’” Williams v. U.S. Bank Shaker Square, 8th Dist. Cuyahoga

No. 89760, 2008 Ohio 1414, ¶ 9, quoting Crane & Shovel Sales Corp. v. Bucyrus- Erie Co., 854 F.2d 802, 810 (6th Cir.1988); Allstate Ins. Co. v. Electrolux Home

Prods., 8th Dist. Cuyahoga No. 97065, 2012-Ohio-90, ¶ 8.

In making a claim for negligence “a plaintiff must show the existence

of a duty, a breach of that duty, and an injury that was proximately caused by the

breach.” Rieger v. Giant Eagle, Inc., 157 Ohio St.3d 512, 2019-Ohio-3745, 138

N.E.3d 1121, ¶ 10. Further, failing to prove any of the necessary elements defeats the

claim. Id. When the alleged negligence occurs in the premises-liability context, the

applicable duty owed is determined by the relationship between the landowner and

the plaintiff. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495,

909 N.E.2d 120, ¶ 10, citing, Gladon v. Greater Cleveland Regional Transit Auth.,

75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996).

In order to maintain a cause of action against Jones and KJ, Casey’s

status determines the duty of care owed him. Casey asserted within his complaint

that he was a “licensee” on the premises. In this case, Jones disputes the existence

of KJ as a limited liability corporation as alleged by Casey in the complaint.

However, we are bound to accept the existence of KJ as true in our review of the trial

court’s grant of the motion to dismiss. NorthPoint Properties at ¶ 11. We are not

bound to accept the legal conclusion that Casey was a licensee on the premises.

Lopez v. Dave’s Supermarket, 8th Dist. Cuyahoga No. 81549, 2003-Ohio-1350, ¶ 15,

citing Kirschnick v. Jilovec, 8th Dist. Cuyahoga No. 68037, 1995 Ohio App. LEXIS

3773 (1995). The Ohio Supreme Court stated that “a person who enters the

premises of another by permission or acquiescence, for his own pleasure or benefit,

and not by invitation, is a licensee.” Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502

N.E.2d 611 (1986). In contrast, a social guest is defined as a person “who rightfully

come[s] upon the premises of another by invitation, express or implied, for some

purpose which is beneficial to the owner.” Gladon at 315, citing Light at 68; Scheibel

v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453 (1951), paragraph one of the syllabus.

Despite pleading that he was a licensee on the premises, Casey alleged no fact that

indicated he was at the premises for anything other than social purposes. Because

Casey did not allege within the complaint any commercial activity for which he

entered the premises and despite his self-classification as a licensee, we find that he

pled facts that established he was a social guest at the premises.

In Carlton v. Williams, 8th Dist. Cuyahoga No. 77853, 2000 Ohio

App. LEXIS 5702, 9 (Dec. 7, 2000), we noted that a social guest is owed the duty

described in paragraphs two and three of the syllabus in Scheibel as:

2. A host is not an insurer of the safety of a guest while upon the premises of the host and there is no implied warranty on the part of a host that the premises to which a guest is invited by him are in safe condition.

3. A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition. Casey alleged Jones was negligent and should have warned him of a

dangerous condition because it was foreseeable to Jones that John Doe would enter

the premises and cause Casey harm. “It is fundamental that in order to establish

actionable negligence, one must show the existence of a duty, a breach of the duty,

and an injury proximately resulting therefrom.” Fed. Steel & Wire Corp. v. Ruhlin

Constr. Co., 45 Ohio St.3d 171, 173, 543 N.E.2d 769 (1989). Further, in a context

where a third party causes harm:

Ordinarily, there is no duty to control the conduct of a third person by preventing him or her from causing harm to another, except in cases where there exists a special relationship between the actor and the third person which gives rise to a duty to control, or between the actor and another which gives the other the right to protection.

Id.

In his complaint and argument to this court, Casey further alleged

Jones knew John Doe and thus should have known John Doe would cause him

harm. However, Casey did not plead any special relationship between Jones and

John Doe that would give rise to Jones having a duty to control John Doe’s conduct,

nor did Casey plead a special relationship between him and Jones that indicated

Jones had a duty to protect Casey. See Hall v. Watson, 7th Dist. Mahoning No. 01

CA 55, 2002-Ohio-3176, ¶ 15, citing Gelbman v. Second Natl. Bank of Warren, 9

Ohio St.3d 77, 79, 458 N.E.2d 1262 (1984). Accordingly, Casey did not state a claim

entitling him to relief upon his causes of action in negligence or premises liability. Casey also alleged a cause of action for negligent infliction of

emotional distress. In order to state a claim for negligent infliction of emotional

distress, the plaintiff must first show negligent conduct on the part of the defendant.

Galland v. Meridia Health Sys., 9th Dist. Summit No. 23163, 2006-Ohio-4867, ¶ 11;

Stowe v. E. Toledo Boys & Girls Club, 6th Dist. Lucas No. L-90-099, 1991 Ohio App.

LEXIS 1577, 12 (Apr. 12, 1991). As we find Casey did not alleged facts to support a

cause of action for negligence or premises liability, there is no negligent act upon

which Casey could maintain a cause of action for negligent infliction of emotional

distress. The trial court did not err in dismissing the complaint because Casey did

not state claims upon which relief could be granted.

The first assignment of error is overruled.

B. The trial court did not err in denying Casey’s motion for default judgment against KJ where he did not state claims upon which relief could be granted

Appellant’s second assignment of error reads:

The trial court erred in denying Plaintiff-Appellant’s Motion for Default Judgment.

Casey argues under this assignment of error that because KJ did not

answer the complaint, he is entitled to default judgment pursuant to Civ.R. 55. We

review a trial court's denial of a motion for default judgment for an abuse of

discretion standard. Deutsche Bank Trust C0. Ams. v. Smith, 8th Dist. Cuyahoga

No. 89738, 2008-Ohio-2778, ¶ 30. The term abuse of discretion connotes more

than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). Civ.R. 55 provides in pertinent part that “[w]hen

a party against whom a judgment for affirmative relief is sought has failed to plead

or otherwise defend as provided by these rules, the party entitled to a judgment by

default shall apply in writing or orally to the court therefore.” However, in Allan v.

Allan, 8th Dist. Cuyahoga Nos. 110177 and 110179, 2022-Ohio-1488, ¶ 44, we noted:

“[A] default judgment should not be granted when the complaint fails to state a claim upon which relief could be granted.” X-S Merchandise, Inc. v. Wynne Pro, L.L.C., 8th Dist. Cuyahoga No. 97641, 2012-Ohio- 2315, ¶ 11, citing Streeton v. Roehm, 83 Ohio App. 148, 51 Ohio Law Abs. 289, 81 N.E.2d 133 (1st Dist.1948) (A “court should make its decision conform to the law as applicable to the facts proven, and if no cause of action is shown no default judgment in plaintiff’s favor should be rendered.”) State ex rel. Pullins v. Eyster, 5th Dist. Knox No. 2009-Ohio-2846, ¶ 8.

In resolving appellant’s first assignment of error, we found that the

trial court did not err in granting Jones’s motion to dismiss because the complaint

did not state claims upon which relief could be granted. Where there could be no

cause of action maintained against Jones, there could be no cause of action

maintained against KJ, and the trial court did not abuse its discretion in denying

Casey’s motion for default judgment.

III. CONCLUSION

The trial court properly dismissed Casey’s complaint against Jones

and KJ and denied Casey’s motion for default judgment. Casey alleged in the

complaint that he was at Jones’s home for social purposes and he was attacked and

injured by an intruder. However, because he did not allege facts that indicated Jones or KJ had a duty to control the intruder or that they had a relationship with Casey

conferring a duty of protection, he did not assert a claim in negligence or premises

liability upon which relief could be granted. Because Casey did not assert claims

entitling him to relief in negligence, he could not maintain a cause of action for

negligent infliction of emotional distress. Further, the trial court did not abuse its

discretion by denying the motion for default judgment where he was not entitled to

relief.

Judgment affirmed.

It is ordered that appellees recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

____________________________ MICHELLE J. SHEEHAN, JUDGE

SEAN C. GALLAGHER, A.J., and FRANK DANIEL CELEBREZZE, III, J., CONCUR