Peters v. Hanslik

2024 Ohio 5061

• Court: Ohio Court of Appeals
• Decided: October 21, 2024
• Docket: 2024CA00018
• Status: Published

Opinion

[Cite as Peters v. Hanslik, 2024-Ohio-5061.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

MONICA PETERS, Individually and : JUDGES: Administratrix for the Estate of : Hon. Patricia A. Delaney, P.J. Christopher Peters, Deceased, : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. Plaintiff - Appellant : : -vs- : : CRAIG HANSLIK, et al., : Case No. 2024CA00018 : Defendants - Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2023 CV 01757

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 21, 2024

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee AAA East Central, Inc. DAN J. FUNK KENDRA L. BARABASCH ANDREW H. ISAKOFF Baker Dublikar Marshall, Dennehey, P.C. 400 South Main Street 127 Public Square, Suite 3510 North Canton, Ohio 44720 Cleveland, Ohio 44114

For Defendant-Appellee Finlayson’s Towing Inc.

KENNETH A. CALDERONE BRENDEN K. CARLIN Hanna, Campbell & Powell, LLP 3737 Embassy Pkwy #100 Akron, Ohio 44333 Stark County, Case No. 2024CA00018 2

Baldwin, J.

{¶1} The appellant, Monica Peters, Individually and as Administratrix for the

Estate of Christopher Peters, deceased, appeals the trial court’s decision granting the

motions to dismiss and motions for judgment on the pleadings filed by appellees AAA

East Central (“AAA”) and Finlayson Towing Company (“Finlayson”).

STATEMENT OF THE FACTS AND THE CASE

{¶2} On December 29, 2022, the appellant’s husband was driving southbound

on Interstate 77 when he experienced mechanical problems with his automobile. He

pulled off the travelled portion of the highway and on to the berm, where he called

appellee AAA for roadside assistance. Appellee AAA allegedly assured him that

assistance “would arrive shortly.” The appellant also allegedly called appellee AAA on her

husband’s behalf and was given the same assurance.

{¶3} A few hours later, Craig Hanslik, who was a defendant below but is not a

party to this appeal, drove the motor vehicle owned by Ravon Jones, also a defendant

below but not a party to this appeal, southbound on Interstate 77 while under the influence

of alcohol and/or drugs. While the appellant’s husband remained waiting inside his

vehicle on the berm of the road for roadside assistance, Hanslik struck his vehicle from

the rear, causing fatal injuries.

{¶4} Hanslik was indicted on March 10, 2023, in the Tuscarawas County Court

of Common Pleas on charges of aggravated vehicular homicide; operating a vehicle

under the influence of alcohol, a drug of abuse, or a combination of them; aggravated

trafficking in drugs; and, aggravated possession of drugs. Stark County, Case No. 2024CA00018 3

{¶5} The appellant’s complaint herein set forth claims of negligence, negligence

per se, and wrongful death against Hanslik. The appellant also set forth a negligence

claim against Jones, as owner of the vehicle, for negligently entrusting his vehicle to

Hanslik.

{¶6} The appellant also set forth claims of negligence and breach of contract

against appellee AAA, and negligence against appellee Finlayson. The appellant alleges

that after her husband called appellee AAA for roadside assistance, appellee AAA in turn

contacted appellee Finlayson to provide towing services. The appellant alleges that the

appellees were negligent in failing to provide timely roadside assistance to her husband.

While generally alleging a breach of duty and resulting damages against all defendants,

the appellant alleged a breach of contract claim against appellee AAA based on the length

of time that elapsed between the time of the call for service and the time of the accident.

However, her prayer for relief sought only tort; contractual type damages were not sought.

{¶7} Both appellees AAA and Finlayson filed motions to dismiss and motions for

judgment on the pleadings, which were granted on January 17, 2024, in a joint Order.

{¶8} On January 24, 2024, the trial court granted appellant’s motion for default

judgment as to defendant Hanslik, and set a damages hearing for April 26, 2024. On

February 2, 2024, the appellant filed a notice of voluntary dismissal pursuant to Civ.R.

41(A) dismissing the case without prejudice as against both defendants Hanslik and

Jones. The appellant then moved to have the trial court’s January 17, 2024, Order

modified to include “no just cause for delay” language, which the trial court granted.

{¶9} The appellant filed a timely appeal in which she sets forth the following four

assignments of error: Stark County, Case No. 2024CA00018 4

{¶10} “I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS’

MOTION TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS,

PURSUANT TO CIV.R. 12(B)(6), CIV.R.12(C) AND PLAINTIFF’S COMPLAINT.”

{¶11} “II. THE TRIAL COURT ERRED IN HOLDING THAT DEFENDANTS’ [SIC]

DID NOT OWE PLAINTIFF A DUTY OF CARE BECAUSE NO SPECIAL RELATIONSHIP

EXISTED BETWEEN PLAINTIFF AND EITHER DEFENDANTS AND THAT THE ACTS

OF DEFENDANT HANSLIK WERE NOT REASONABLY FORESEEABLE.”

{¶12} “III. THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF’S BREACH

OF CONTRACT CLAIM.”

{¶13} “IV. THE COURT ERRED IN DISMISSING PLAINTIFF’S CLAIM FOR

PUNITIVE DAMAGES.”

STANDARD OF REVIEW

{¶14} A trial court’s order granting a Civ.R. 12(B)(6) motion to dismiss is subject

to de novo review. When reviewing whether a motion to dismiss should be granted, all

factual allegations in the complaint must be accepted as true. Perrysburg Twp. v.

Rossford, 2004-Ohio-4362, ¶ 5.

{¶15} Motions for judgment on the pleadings are governed by Civil Rule 12(C),

which provides, “after the pleadings are closed but within some time as not to delay the

trial, any party may move for judgment on the pleadings.” Pursuant to Civil Rule 12(C),

dismissal is only appropriate where a court (1) construes the material allegations in the

complaint, with all reasonable inferences to be drawn therefrom in favor of the nonmoving

party as true; and, (2) finds beyond doubt that the plaintiff could prove no set of facts in

support of his claim that would entitle him to relief. State ex rel. Midwest Pride IV, Inc. v. Stark County, Case No. 2024CA00018 5

Pontious, 75 Ohio St.3d 565, 570 (1996). The standard of review of a Civil Rule 12(C)

motion is also de novo. Columbus v. Sanders, 2012-Ohio-1514, ¶13 (5th Dist.).

{¶16} A de novo review requires an independent review of the trial court's decision

without any deference to the trial court's determination. Brown v. Scioto Cty. Bd. of

Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993), as cited in State v. Standen, 2007-

Ohio-5477, ¶7 (9th Dist.); and Deutsche Bank Natl. Tr. Co. for Ocwen Real Est. Asset

Liquidating Tr. 2007-1, Asset Backed Notes, Series 2007-1 v. Mallonn, 2018-Ohio-1363,

¶ 21 (5th Dist.).

ANALYSIS

{¶17} The appellant’s assignments of error are interrelated. Accordingly, we shall

address them together.

{¶18} The appellant argues that the appellees owed her decedent a duty of care

and, with regard to appellee AAA, conflates allegations of negligence with a breach of

contract claim in an effort to establish a duty in tort on the part of appellee AAA. We

disagree with the appellant’s analysis, and find that the appellees did not owe the

appellant’s decedent a duty of care.

{¶19} The elements of a cause of action in negligence are the existence of a duty;

a breach of the duty; proximate case; and, damages. Jeffers v. Olexo, 43 Ohio St.3d 140,

142. These elements were adeptly discussed by this Court in Keister v. Park Ctr. Lanes,

3 Ohio App. 3d 19, (1981):

Compare a negligence case to a hurdle race. Plaintiff runs the race

alone at first. Plaintiff's run to the finish line (verdict), is interrupted by

several hurdles, each of which must be crossed in succession before he Stark County, Case No. 2024CA00018 6

gets into the stretch—the foot race to the finish line. Until he crosses all the

hurdles he is in the hands of the judge. Legal questions are involved. When

he reaches the stretch the race to the finish line is in the hands of the jury

(fact finder).

* * *

Plaintiff's hurdles. Plaintiff's first hurdle is DUTY. He must identify a

duty, or duties, owed him by the defendant. Because this is a law question

he crosses the hurdle if he alleges and identifies the duty.

Id. at 22. Thus, the appellant must first overcome the duty hurdle. If there is no duty, the

appellant’s claims must fail.

The Ohio Supreme Court discussed the issue of duty in the case of Wallace v.

Ohio Dep't of Com., 2002-Ohio-4210:

“Duty, as used in Ohio tort law, refers to the relationship between the

plaintiff and the defendant from which arises an obligation on the part of the

defendant to exercise due care toward the plaintiff.” Commerce & Industry

Ins. Co., 45 Ohio St.3d at 98, 543 N.E.2d 1188; see, also, Huston v.

Konieczny (1990), 52 Ohio St.3d 214, 217, 556 N.E.2d 505. This court has

often stated that the existence of a duty depends upon the foreseeability of

harm: if a reasonably prudent person would have anticipated that an injury

was likely to result from a particular act, the court could find that the duty

element of negligence is satisfied. Texler v. D.O. Summers Cleaners & Shirt

Laundry Co. (1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 271; Commerce

& Industry, 45 Ohio St.3d at 98, 543 N.E.2d 1188; Menifee v. Ohio Welding Stark County, Case No. 2024CA00018 7

Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707.

In addition, we have also stated that the duty element of negligence may be

established by common law, by legislative enactment, or by the particular

circumstances of a given case. Chambers v. St. Mary's School (1998), 82

Ohio St.3d 563, 565, 697 N.E.2d 198; Eisenhuth v. Moneyhon (1954), 161

Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440, paragraph one of the

syllabus….

Id. at ¶ 23. The appellant attempts to create a duty on the part of appellee AAA by virtue

of contract, and attempts further to extend this duty to appellee Finlayson Towing. This

argument fails as to appellee Finlayson, as there was no contractual relationship between

the appellant and Finlayson, and can only succeed as to appellee AAA if the harm caused

to the appellant’s decedent was foreseeable.

{¶20} The Ohio Supreme Court discussed the foreseeability of harm in the

seminal case of Menifee v. Ohio Welding Prod., Inc., 15 Ohio St. 3d 75 (1984):

The test for foreseeability is whether a reasonably prudent person

would have anticipated that an injury was likely to result from the

performance or nonperformance of an act. Freeman v. United States (C.A.

6, 1975), 509 F.2d 626; Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio

St.2d 116, 224 N.E.2d 131 [38 O.O.2d 294]; Mudrich v. Standard Oil Co.

(1950), 153 Ohio St. 31, 90 N.E.2d 859 [41 O.O. 117]. The foreseeability of

harm usually depends on the defendant's knowledge. Thompson, supra.

In determining whether appellees should have recognized the risks

involved, only those circumstances which they perceived, or should have Stark County, Case No. 2024CA00018 8

perceived, at the time of their respective actions should be considered. Until

specific conduct involving an unreasonable risk is made manifest by the

evidence presented, there is no issue to submit to the jury. Englehardt v.

Philipps (1939), 136 Ohio St. 73, 23 N.E.2d 829 [15 O.O. 581]; Prosser &

Keeton Law of Torts (5 Ed.1984) 169, Section 31. Although each appellee

raises various arguments in its defense, they all stand on one common

ground: General Electric was the only entity with the knowledge required to

prevent the decedent's injuries. It was clearly established by the parties

before the trial court that only General Electric knew that the compressed

air was going to be used for breathing purposes. In fact, General Electric

represented to the appellees that the compressed air was going to be used

to power air tools. Therefore, in the absence of the requisite knowledge,

appellees could not have foreseen or reasonably anticipated the decedent's

injuries and, as a matter of law, cannot be held liable for negligence.

Johnson v. Kosmos Portland Cement Co. (C.A. 6, 1933), 64 F.2d 193;

Hetrick v. Marion-Reserve Power Co. (1943), 141 Ohio St. 347, 48 N.E.2d

103 [25 O.O. 467].

Id. at 77. So, too, can the appellees herein not be held responsible for the actions of

defendants Hanslik and Jones. The appellees had no requisite knowledge of the fact that

Jones would entrust his vehicle to Hanslik despite his known drug use and suspended

license, nor that Hanslik would drive Jones’ vehicle while under the influence of alcohol

and/or drugs and crash into the vehicle in which the appellant’s decedent was sitting.

While the events of December 29, 2022, are unquestionably tragic, the appellees are not Stark County, Case No. 2024CA00018 9

legally responsible for the conduct of Hanslik and Jones. Further, the appellees are not

responsible for the criminal acts of Hanslik. Accordingly, the appellees owed no duty to

the appellant’s decedent, and the trial court correctly granted the appellees’ motions to

dismiss and for judgment on the pleadings.

Furthermore, assuming arguendo that a duty could be found, the intervening

criminal acts of defendant Hanslik supersede any such duty. As succinctly discussed by

the court in Wheatley v. Marietta Coll., 2016-Ohio-949, (4th Dist.):

“[T]here must appear from the facts and the circumstances of the

case presented that the defendant had some prior knowledge or

experience of the type of occurrence which occasioned the plaintiff's

injuries, as alleged, or that the defendant should reasonably have

known of or anticipated the type of danger or acts of third persons

which resulted in the injuries sustained by the plaintiff.”

Townsley v. Cincinnati Gardens, Inc., 39 Ohio App.2d 5, 7–8, 314

N.E.2d 409 (1st Dist.1974); Johnson v. Spectrum of Supportive Services,

8th Dist. Cuyahoga No. 82267, 2003-Ohio-4404, 2003 WL 21982915, ¶ 21

(citations omitted) (stating that foreseeability of criminal acts 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”). Under this analysis, therefore, it is not enough for

an invitee to show that a premises owner should have foreseen a

substantial risk of general harm to the invitee, but instead, the invitee must Stark County, Case No. 2024CA00018 10

demonstrate that a premises owner should have foreseen a substantial risk

of the precise harm that befell the invitee. The Ohio Supreme Court has not

yet, to our knowledge, specifically weighed in on this issue as it relates to a

premises owner's duty to protect an invitee from a third person's criminal

act.5 Regardless, under any foreseeability analysis (specific harm or

general harm),6 we do not believe that the evidence in the case sub judice

shows that a reasonable person would have anticipated that criminal

conduct posed a substantial risk of harm to appellant.

Id. at ¶ 63. In the case sub judice, there is no evidence to suggest that the appellees

should have foreseen the negligent entrustment of defendant Jones and/or the criminal

acts of defendant Hanslik. It is not enough that a drunk driver might potentially strike the

vehicle in which the appellant’s decedent was sitting; the appellees must have specific

knowledge of a potential future incident based upon past occurrences along with a

substantial likelihood that such an incident would occur. There is no such substantial

likelihood in this case. As stated by the Wheatly court:

We further note that “[t]he test for foreseeability is one of likelihood,

not mere possibility.” Shadler v. Double D. Ventures, Inc., 6th Dist. Lucas

No. L–03–1278, 2004-Ohio-4802, 2004 WL 2026412, ¶ 31 (stating that

simply because fights occasionally occur in some bars does not mean that

“a fight is imminent and foreseeable every day in every bar”).

“ ‘[T]he mere fact that misconduct on the part of another might be

foreseen is not of itself sufficient to place the responsibility upon the

defendant.’ Prosser & Keeton, [Law of Torts (5 Ed.1984) ] at 305. Rather, Stark County, Case No. 2024CA00018 11

‘[i]t is only where misconduct was to be anticipated, and taking the risk of it

was unreasonable, that liability will be imposed for consequences to which

such intervening acts contributed.’ Id. at 313.”

Id. at ¶61. The mere possibility that an individual might be driving while under the

influence of drugs and/or alcohol at the same time the appellant’s decedent was awaiting

towing services, and cause a crash, is insufficient to place responsibility for the December

29, 2022, accident upon the appellees. The trial court correctly granted the appellees’

motions to dismiss and motions for judgment on the pleadings. Accordingly, we find the

appellants’ assignments of error to be without merit.

CONCLUSION

{¶21} Based upon the foregoing, the appellant’s assignments of error numbers

one through four are overruled, and the decision of the Stark County Court of Common

Pleas is hereby affirmed.

By: Baldwin, J.

Delaney, P.J. and

Gwin, J. concur.