Masterson v. Brody

2022 Ohio 3428

Opinion

[Cite as Masterson v. Brody, 2022-Ohio-3428.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MARK MASTERSON, ADMINISTRATOR, ET AL., :

Plaintiffs-Appellants/ : Cross-Appellees,

v. : No. 111035

ZACHARY BRODY, ET AL., :

Defendants-Appellees/ Cross-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 29, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-857804

Appearances:

Law Office of John T. Forristal and John T. Forristal, for appellants.

Gallagher Sharp LLP, Mark A. Greer, and Shane A. Lawson, for appellees. SEAN C. GALLAGHER, A.J.:

Mark Masterson, as Administrator of the Estate of Phil Masterson

(“Masterson”), Ayako Hobbs, Georgiann Masterson, Kevin Masterson, Mark

Masterson (personally), Matt Masterson, James Masterson, and Molly Barz

(collectively “the Estate”) appeal the trial court’s decision granting partial summary

judgment upon all claims against PMJ Properties, Inc., Island Club Property Owners

Association, and Equity Trust Co. f/b/o Paul Michael Jeris (collectively “Island

Club”). Although not parties to this appeal, Zacchary Brody, Cameron Parris, Clifton

Knoth, and Matt Brotzki (collectively “tortfeasors”)1 were alleged to be involved in

the misconduct causing Masterson’s death. For the following reasons, we affirm.

This is one of three appeals from the underlying civil litigation arising

from the death of Phil Masterson on the Island Club’s property in 2011 where he was

beaten and left to die by the tortfeasors. In the other two appeals, 8th Dist.

Cuyahoga Nos. 111043 and 111048, two individual tortfeasors appealed from a jury

verdict awarding damages based on their involvement in the killing and attempted

cover-up of Masterson’s death. The primary aggressor, Zachary Brody, pleaded

guilty to involuntary manslaughter, and Parris was convicted of a misdemeanor

relating to the attempted concealment of the crime. In light of the pending appeals

against the parties directly involved in Masterson’s death, the recitation of the facts

1 This designation is not meant to undermine or minimize the conduct of those directly involved in the death of Masterson. This is the civil action, grounded in tort principles, and as such, we will use the traditional designation of the parties throughout this discussion. relevant to this appeal will be brief and narrowly focused on the issues presented in

this appeal, which primarily deal with the legal question of whether the landowners

out of possession of the property have a duty to prevent another from attacking a

third party. The parties’ sole dispute relates to a question of law as to whether a duty

arose under general tort principles. Any facts related to the killing itself are for

background information to better understand the legal principles at play in this case

and are not to be construed as binding on any other aspect of this case.

Masterson and the tortfeasors separately vacationed in Put-in-Bay

over the Labor Day weekend in 2011. The tortfeasors rented a privately owned cabin

from the Island Club. Each of the separate entities comprising the Island Club had

separate responsibilities. The cabin was owned by Equity Trust, which employed

PMJ Properties to manage the property and the rentals. There are several cabins or

properties within the same development, and all are separately owned and

managed. Island Club Property Owners Association managed and maintained the

common area of the development, including sporadically providing a security

person whose primary function was to facilitate the calling of law enforcement

officers should the need arise.

Masterson was drinking with the tortfeasors at their rental cabin on

the night of Masterson’s death and remained on the tortfeasors’ rented property

through their permission, although the scope of that permission was disputed at

trial. After drinking throughout the waning hours of the evening, Masterson and the

tortfeasors began arguing, leading to a physical confrontation in which Masterson was severely injured. Masterson was moved to the woods near the cabin while he

was still alive. He died sometime the next day. After the criminal trials, the Estate

filed a civil wrongful death action against the tortfeasors and the Island Club.

In the complaint, the Estate advanced several claims against the

Island Club, all sounding in tort: (1) common law negligence (failure to exercise

ordinary care to protect Masterson or provide security personnel as alleged in

Counts I, II, and III); (2) wrongful death (based on the tortious conduct as alleged

in Count VII); and (3) negligent hiring or supervision of the security personnel (as

alleged in Count VIII). The remaining counts were unrelated to the Island Club or

failed to assert stand-alone claims: Counts IV and V only involved claims against

the tortfeasors, and Count VI pertained to a loss of consortium claim that is a

derivative claim to the underlying negligence claims advanced against the Island

Club.2

Upon the Island Club’s motions for summary judgment, the trial

court concluded that the Island Club owed no duty to Masterson, and judgment was

entered in the Island Club’s favor upon all claims. The Estate appealed, raising a

single assignment of error in which the Estate claims “[t]he trial court erred by

granting Defendants PMJ Properties, Inc., Island Club Property Owners

2 Since the sole issue is whether the Island Club owed a duty of care to Masterson, we need not separately address the loss of consortium claims. Fehrenbach v. O’Malley, 113 Ohio St.3d 18, 2007-Ohio-971, 862 N.E.2d 489, ¶ 11. If the trial court’s decision on the tort claims is correct, the loss of consortium cannot independently survive; and if the trial court erred, the loss of consortium claim would be revived by operation of law. Either way, the loss of consortium claim need not be addressed in this appeal. Association, and Equity Trust Company’s f/b/o Paul Michael Jeris joint motion for

summary judgment.”

Summary judgment rulings are reviewed de novo, and appellate

courts apply the same standard as the trial court. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Review of summary judgment is

governed by the standard set forth in Civ.R. 56. Argabrite v. Neer, 149 Ohio St.3d

349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 14. Summary judgment is appropriate only

when “[1] no genuine issue of material fact remains to be litigated, [2] the moving

party is entitled to judgment as a matter of law, and [3] viewing the evidence in the

light most favorable to the nonmoving party, reasonable minds can reach a

conclusion only in favor of the moving party.” Id., citing M.H. v. Cuyahoga Falls,

134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12. Appellate courts provide

no deference to the trial court’s decision and independently review the record to

determine whether summary judgment is appropriate.

In order to “‘maintain a wrongful death action on a theory of

negligence, a plaintiff must show (1) the existence of a duty owing to plaintiff’s

decedent, (2) a breach of that duty, and (3) proximate causation between the breach

of duty and the death.’” Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation

& Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 14,

quoting Littleton v. Good Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92, 529

N.E.2d 449 (1988). “‘The existence of a duty is a question of law for a court to decide,

even if resolving that question requires the court to consider the facts or evidence.’” A.M. v. Miami Univ., 2017-Ohio-8586, 88 N.E.3d 1013, ¶ 33 (10th Dist.), quoting

Martin v. Lambert, 2014-Ohio-715, 8 N.E.3d 1024, ¶ 17 (4th Dist.). The Estate’s

negligence-based tort claims all fall under the same umbrella — each of the alleged

tort claims requires the Estate to demonstrate that Island Club either owed a duty

to prevent the tortfeasors from causing injury to Masterson or owed a duty to protect

Masterson under Ohio law. The question to be answered, therefore, is whether a

special relationship exists between the Island Club and either the tortfeasors or

Masterson that gives rise to a duty to act.

At the onset, we must recognize the Estate’s attempt to muddle the

tort analysis. According to the Estate, the Island Club owed a duty to protect

Masterson as an invitee or a social guest on the property under the principles

established for resolving premises-liability claims. Premises-liability claims

generally arise from unsafe and defective conditions of an improvement to real

property. See R.C. 2305.131; Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-

6827, 173 N.E.3d 448, ¶ 30; Westfield Ins. Co. v. Hunter, 128 Ohio St.3d 540, 2011-

Ohio-1818, 948 N.E.2d 931, ¶ 25 (premises-liability claims generally arise from the

quality or condition of the premises). The Estate’s citations to authority all

demonstrate this concept: Gladon v. Greater Cleveland Regional Transit Auth., 75

Ohio St.3d 312, 313, 662 N.E.2d 287 (1996) (liability action based on the standard

of care owed to a passenger lying on the train tracks struck by the train); Shump v.

First Continental-Robinwood Assocs., 71 Ohio St.3d 414, 644 N.E.2d 291 (1994)

(faulty smoke detectors considered to be the hazardous condition causing the plaintiffs’ injuries); Ray v. Ramada Inn N., 171 Ohio App.3d 1, 2007-Ohio-1341, 869

N.E.2d 95, ¶ 1 (2d Dist.) (slip and fall caused by excessive wax on the floor); Andler

v. Clear Channel Broadcasting, Inc., 670 F.3d 717, 721 (6th Cir.2012) (plaintiff

injured by stepping into an unexpected hole near the pathway on a campground).

The entrant’s status on the property (as an invitee or social guest,

licensee or trespasser) is a reference to the relationship between the possessor of

land and the entrant. Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-

2495, 909 N.E.2d 120, ¶ 10, citing Gladon at 315. When the negligence occurs in the

context of a premises-liability action, the first inquiry is the relationship between the

entrant and the landowner because that establishes the scope of the duty of care

owed. Shump at 417 (“[T]he common-law classifications of trespasser, licensee, and

invitee determine the legal duty that a tenant owes others who enter upon rental

property that is in the exclusive possession of the tenant.” (Emphasis sic.)); see also

Donnelly v. Berea, 8th Dist. Cuyahoga No. 108753, 2020-Ohio-2722, ¶ 13, citing

Dysart v. Estate of Dysart, 2d Dist. Miami No. 2009 CA 24, 2010-Ohio-1238, ¶ 39.

The Estate’s claims against the Island Club do not arise from a theory

of premises liability. See, e.g., Estate of Ciotto v. Hinkle, 2019-Ohio-3809, 145

N.E.3d 1013, ¶ 26 (6th Dist.) (Ohio courts considered the duty to protect others from

criminal conduct without referencing premises-liability standards), citing Blevins v.

Hartman, 5th Dist. Richland Nos. 12CA115 and 12CA116, 2013-Ohio-3297. There

are no allegations of a physical defect or other hazardous condition arising from the

property itself, nor are there any allegations that the Island Club maintained both possession and control of the cabin at the time of Masterson’s death.3 Miami Univ.,

2017-Ohio-8586, 88 N.E.3d 1013, at ¶ 37, citing Lambert, 2014-Ohio-715, 8 N.E.3d

1024, at ¶ 36.

Although we recognize that courts have referenced premises-liability

analysis in instances in which the one in possession and control of the property

failed to warn of criminal misconduct of other persons, the key inquiry there focuses

on the defendant’s possession and control of the property arising from a special

relationship between the business owner and anyone accepting an invitation to that

business owner’s property. See, e.g., Wheatley v. Marietta College, 2016-Ohio-949,

48 N.E.3d 587, ¶ 61 (4th Dist.). That duty of reasonable care, however, does not

arise from the premises-liability context, but instead arises through the recognition

of a special relationship between the “possessor” of land who holds it open to the

public and those that enter in response to the invitation. Restatement of the Law

2d, Torts 122, Section 314A(3) (special relations giving rise to the duty to protect

another exist as between “[a] possessor of land who holds it open to the public is

under a similar duty to members of the public who enter in response to his

invitation”). This is generally referred to as the business invitee, a recognized special

3 In the complaint, in paragraphs five and six, the Estate alleged that the Island Club defendants are “owners, possessors, and lessors of” the cabin properties, but the tortfeasors “were possessors, renters, or occupants” of the cabins on the night of the killing. Thus, there is no allegation that the Island Club had both possession and control of the properties on the night of Masterson’s death; only the tortfeasors had possession and control at that time through their possession and occupation of the cabin. relationship requiring the business owner to exercise reasonable care to prevent

harm to its customers.

The Island Club ceded control and possession of the property to the

tortfeasors, shifting the duty to protect an entrant onto the property to the

tortfeasors. Shump, 71 Ohio St.3d at 417, 644 N.E.2d 291 (“Where a party other than

the owner possesses a premises (as in the case of a leased premises), under the

common law of premises liability, the possessor or occupier and not the owner owes

the applicable legal duty to the entrant.”), citing 5 Harper, James & Gray, Law of

Torts, Sections 27.2 and 27.16, 134, 271, (2 Ed.1986); Keeton, Dobbs, Keaton &

Owen, Prosser & Keeton on the Law of Torts, Section 63, 434 (5th Ed.1984); Page,

Law of Premises Liability (1976) 2-3; and 2 Restatement of the Law 2d, Torts,

Sections 328E to 350 (1965). Any duty owed to Masterson as an invitee on the

premises was owed by the tortfeasors, unless the injury was the result of a hazardous

defect on the property, in which case the social guest doctrine would impute liability

to the landowner. This is not a premises-liability action, but instead is an action

seeking to hold out-of-possession property owners liable for failing to protect a third

party or failing to control the criminal actions of the tortfeasors on a property that

is not open to the public.

Under that theory of liability, the relationship between the entrant

and the owner of the premises is not relevant (i.e., whether the entrant is an

invitee/social guest, licensee, or trespasser). See, e.g., Simpson v. Big Bear Stores

Co., 73 Ohio St.3d 130, 132, 652 N.E.2d 702 (1995); Miami Univ., 2017-Ohio-8586, 88 N.E.3d 1013, at ¶ 33 (the duty to protect another from harm arises from a special

relationship between the parties). In Simpson, for example, in concluding that the

duty to keep a premises safe for others is owed only by the one in possession and

control of the land, the Ohio Supreme Court did not discuss the injured person’s

status on the property. Id. In that case, the plaintiff was attacked by a third party

while walking in the parking lot adjacent to a business she had recently frequented.

Id. According to the Ohio Supreme Court, her status as an invitee while in the

establishment was irrelevant to the question of whether the business owner owed a

duty of care while the plaintiff traversed the parking lot possessed by another entity.

Id. at 134. The court concluded that because there was no special relationship

between the plaintiff and the business owner at the time of the injury, her status as

an invitee was irrelevant. Id.

The only relevant issue in this situation is whether there is a special

relationship between the Island Club and either Masterson or the tortfeasors giving

rise to a duty to control the conduct of the tortfeasors or to protect Masterson.

In Ohio, courts engage in the traditional Restatement analysis to

determine the existence and scope of a duty owed. Estates of Morgan v. Fairfield

Family Counseling Ctr., 77 Ohio St.3d 284, 296, 673 N.E.2d 1311 (1997). It is

therefore settled under Ohio law that there is no duty to control the conduct of a

third person to prevent the commission of physical harm to another person “‘unless

(a) a special relation exists between the actor [(Island Club)] and the third person

[(tortfeasors)] which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relationship exists between the actor [(Island Club)] and

the other [(Masterson)] which gives to the other the right to protection.’” Godwin

v. Facebook, Inc., 2020-Ohio-4834, 160 N.E.3d 372, ¶ 17 (8th Dist.), quoting Hite

v. Brown, 100 Ohio App.3d 606, 613, 654 N.E.2d 452 (8th Dist.1995), citing

Gelbman v. Second Natl. Bank of Warren, 9 Ohio St.3d 77, 79, 458 N.E.2d 1262,

1263 (1984) (adopting the Restatement of the Law 2d, Torts, 122, Section 315

(1965)), and Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 45 Ohio St.3d 171, 173,

543 N.E.2d 769, fn. 1 (1989).

Importantly, “[f]oreseeability alone does not create a duty; instead,

it is one of a number of factors that must be considered.” Santana v. Rainbow

Cleaners, Inc., 969 A.2d 653, 666 (R.I.2009), citing Ferreira v. Strack, 636 A.2d

682, 688, fn. 4 (R.I.1994); Estates of Morgan at 293 (“foreseeability alone is not

always sufficient to establish the existence of a duty”). If the defendant has no duty

to act based on the absence of a special relation with the third person or the

tortfeasor, the foreseeability of the resulting harm is irrelevant — there is no duty to

act as a matter of law. See, e.g., Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79,

2003-Ohio-2573, 788 N.E.2d 1088, ¶ 5 (the open-and-obvious doctrine obviates the

duty to act despite the foreseeability of the harm); Simpson, 73 Ohio St.3d at 134,

652 N.E.2d 702. There is no argument that the Island Club owed a duty to control the

acts of the tortfeasors,4 nor do any of the traditionally recognized relationships apply

between the Island Club and the tortfeasors.5 In other words, the Estate is invoking

the second part of the Restatements analysis: that “a special relationship exists

between the actor [(Island Club)] and the other [(Masterson)] which gives to the

other the right to protection.” Godwin at ¶ 17. Examples of special and definite

relationships as between the actor and the injured party include (1) common carrier

and its passengers, (2) innkeeper and guests, (3) possessor of land holding it open

to the public and those who enter in response to the invitation (business invitee), (4)

custodian and individual taken into custody, and (5) employer and employee.

4 The Estate argues that the Island Club owes a duty to Masterson as an invitee or social guest or that the Island Club defendants owe a duty to protect Masterson based on a special relationship, such as a business and invitee or innkeeper and guest relationship. There is no argument in this appeal, nor raised below, that the Island Club maintained a special relationship with the tortfeasors giving rise to a duty to control their conduct. Under the traditional Restatement analysis, there are five recognized “special relations” that justify imposition of a duty to control the acts of another. A parent owes a duty to control the conduct of his or her child (Section 316); a master owes a duty to control the conduct of his or her servant (Section 317); the possessor of land or chattels owes a duty to control the conduct of a licensee (Section 318); an actor in charge of a person with dangerous propensities owes a duty to control such a person (Section 319); and an actor having legal custody of another owes a duty to control the other’s conduct (Section 320). Restatement of the Law 2d, Torts 122, Sections 316-320.

5 We note that although the Estate has not preserved this claim for review, an actor such as the Island Club who permits a third person to use land or chattels in their possession as a licensee, owes a duty to exercise reasonable care to control the conduct of third persons to prevent harm to others if the actor is present in certain circumstances. Restatement of the Law 2d, Torts 122, Section 318. It is undisputed that the Island Club was not present during the events leading to, and immediately after, Masterson’s death, and no other exception gives rise to a special relationship between the Island Club and the tortfeasors. As a result, the Estate has not established that the Island Club owed a duty to control the tortfeasor’s conduct under the first exception to the general rule. Jackson v. Forest City Ents., Inc., 111 Ohio App.3d 283, 675 N.E.2d 1356 (8th

Dist.1996), citing Restatement of the Law 2d, Torts 122, Section 314A.

The Estate claims that the Island Club, the owners out of possession

of the property, owed a duty to protect Masterson because the Island Club is either

a business owner opening its property to the public and Masterson accepted that

invitation as the precursor to his presence on the property, or the Island Club is an

innkeeper and Masterson the guest.

The Estate does not present any argument demonstrating that the

Island Club is an “innkeeper” as that term is traditionally understood. Under

common law, an “innkeeper” is “a person who makes it his business to entertain

travelers and passengers, and provide lodging and necessaries for them.” Rowan v.

Weaver, 787 F.2d 592 (6th Cir.1986), quoting Reed v. Teneyck, 103 Ky. 65, 44 S.W.

356 (1898); Bell v. Maryland, 378 U.S. 226, 297, 84 S.Ct. 1814, 12 L.Ed.2d 822

(1964), fn. 17 (Goldberg, J., concurring) (if an innkeeper opens his property for

travelers, there is an implied engagement that he entertain all persons who travel

that way); Ballentine’s Law Dictionary (2010) (Defining “inn” as “[a] public house

of entertainment for all who choose to visit it. Elaborately defined, a house held out

to the public by the proprietor thereof as a place where transient persons who come

in a fit condition will be received and entertained as guests for compensation.”).

Under Ohio statutory law, a hotel or inn is more narrowly defined as any structure

containing more than five sleeping rooms for transient guests of 30 days or less.

R.C. 3731.01(A)(2). The Estate has not established that the temporary rental of a

residential property, which is not open to the public and has three bedrooms solely

used for the person renting the cabin, meets the definition of an “inn” for the

purposes of the innkeeper exception to the no-duty-to-act rule. App.R. 16(A)(7).

The Estate simply presumes that a cabin rental is considered an “inn.” In order for

this court to conclude that the cabin rental is tantamount to an “inn” for the purpose

of the innkeeper exception to the no-duty-to-act rule, this court would have to

impermissibly supplement the arguments and provide the rationale to those ends.

This is beyond an appellate court’s role and responsibility. State v. Quarterman,

140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke,

126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J.,

concurring in part and dissenting in part).

As to the second cited exception to the general rule, regarding the

business-invitee, the Estate has not alleged, much less demonstrated with

evidentiary submissions, that the Island Club opened the rental property to the

public, the necessary foundation of the business-invitee exception. From the

undisputed facts, the tortfeasors rented the property and had exclusive control over

those permitted on the property during the rental period.6 And even if the Estate

6 The Estate claims that the rental agreement includes provisions permitting the Island Club to terminate the rental based on the misconduct of the renters or their guests, and that fact establishes the Island Club’s ability to exclude or allow persons. Quite the contrary, those types of provisions demonstrate that the renter of the property is liable for the actions of their guests and must carefully exercise their discretion in permitting others on the property otherwise face termination of the rental agreement. That provision could establish that fact, under black-letter Ohio law, a business owner owes a duty

to warn or protect its invitees from criminal acts of others only “when the business

owner knows or should know that there is a substantial risk of harm to its invitees

on the premises in the possession and control of the business owner.” (Emphasis

added.) Simpson, 73 Ohio St.3d 130, 652 N.E.2d 702, at syllabus; Restatement of

the Law 2d, Torts 122, Section 314B, Comment c (innkeeper owes no duty to guests

injured while away from the innkeeper’s premises). The duty owed, however, “does

not extend to premises not in the possession and control of the business owner.” Id.;

Restatement of the Law 2d, Torts 122, Section 314A(3).

The Estate does not present any argument or discussion establishing

that the syllabus-holding from Simpson extends to an owner out-of-possession of

the premises. App.R. 16(A)(7).

Instead, the Estate focuses on the secondary question of whether the

criminal acts were foreseeable. In cases in which a special relationship gives rise to

the duty owed, foreseeability of the harm caused relates to causation and does not

impact the existence of a duty. Estates of Morgan, 77 Ohio St.3d at 293, 673 N.E.2d

1311 (“foreseeability alone is not always sufficient to establish the existence of a duty”

to protect, or prevent harm to, another). If a special relationship gives rise to a duty

to another, foreseeability of the injury is not a consideration as to the existence of a

duty. Godwin, 2020-Ohio-4834, 160 N.E.3d 372, at ¶ 21. In other words, in this

confirms that the tortfeasors had the right to permit or exclude others from their cabin during the rental period. context, foreseeability concerns the scope of the duty owed, not its existence.

Gedeon v. E. Ohio Gas Co., 128 Ohio St. 335, 338, 190 N.E. 924 (1934) (“In

delimiting the scope of duty to exercise care, regard must be had for the probability

that injury may result from the act complained of.”); Simpson at 134; see also

Lawrence v. La Jolla Beach & Tennis Club, Inc., 231 Cal.App.4th 11, 23, 179

Cal.Rptr.3d 758 (2014); Aegis Ins. Servs. v. 7 World Trade Co., L.P., 737 F.3d 166,

178 (2d Cir.2013), citing Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 231, 750

N.E.2d 1055, 727 N.Y.S.2d 7 (2001). Since the foreseeability question need only be

answered after it is established that the business owner is in possession of the

premises upon which the injury occurred, we need not address the foreseeability

analysis. See Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at

¶ 19, quoting Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, at ¶ 78

(O’Donnell, J., concurring in part and dissenting in part).

As a matter of law, the Island Club did not share a special relationship

with Masterson under settled tort principles. It necessarily follows that there is no

additional, independent duty to provide security personnel in an effort to satisfy the

nonexistent duty to protect others. And further, there can be no negligent hiring or

supervision claim holding the Island Club vicariously liable for the acts or omissions

of its employees based on the Estate’s concession that the Island Club provided no

security on the night of Masterson’s tragic death. There are no allegations

demonstrating that any employee’s conduct caused the injuries through negligent

behavior that would be attributed to the employer through vicarious liability. The Estate, to the contrary, alleged and maintains that there was no security provided

on the night of Masterson’s death. On that point, the only question is whether the

Island Club owed a duty to employ security at all times, a question we answered in

the negative.

The events of and immediately after Masterson’s death are tragic and

contemptable. However, with regard to the Island Club, entities not in possession

of the rented cabin at the time of Masterson’s death and who had no control over the

tortfeasors’ actions, we cannot extend liability based on the undeniable impact

Masterson’s death has on his friends and family. Under the state of the law, owners

out of possession of the property owe no duty to protect third persons from criminal

conduct by the possessors of the premises absent a special relationship with the

injured person. On this legal issue, the trial court did not err in granting judgment

in favor of the Island Club upon all claims.7

We affirm.

It is ordered that appellees recover of appellants 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.

7 In light of our conclusion disposing of the Estate’s sole assignment of error, we need not reach the issues in the cross-appeal, which seeks to preserve error with respect to the trial court’s decision on evidentiary issues. The cross-appeal is moot and need not be addressed. App.R. 12(A)(1)(c). A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and MICHELLE J. SHEEHAN, J., CONCUR