                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0431n.06

                                        Case No. 18-4183

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Aug 19, 2019
QIUSHA MA and NENGLI SHI,                           )                      DEBORAH S. HUNT, Clerk
                                                    )
        Plaintiffs-Appellants,                      )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
BON APPÉTIT MANAGEMENT CO.,                         )       OHIO
                                                    )
        Defendants-Appellee.                        )


BEFORE: BATCHELDER, GRIFFIN, and DONALD, Circuit Judges.

        BERNICE B. DONALD, Circuit Judge. Qiusha Ma, a professor at Oberlin College

(“Oberlin”), was sitting with a group of her students in one of the college’s dining halls when a

broken wall-partition fell and struck her on the head. She sued Bon Appétit, a private company

that provided food services there, for negligence. The district court granted summary judgment to

Bon Appétit, finding that it did not owe Professor Ma a duty to keep the dining hall safe because

it did not have or exercise control over the dining hall.1 For the reasons that follow, we AFFIRM

the district court’s order.



1
 The district court also granted summary judgment to Bon Appétit on Professor Ma’s husband’s
loss of consortium claim. “Ohio law ‘recognize[s] that a claim for loss of consortium is derivative
in that the claim is dependent upon the defendant’s having committed a legally cognizable tort
upon the spouse who suffers bodily injury.”’ Eilerman v. Cargill Inc., 195 F. App’x 314, 320 (6th
Cir. 2006) (quoting Bowen v. Kil-Kare, Inc., 585 N.E.2d 384, 392 (Ohio 1992)). As described,
Case No. 18-4183, Ma, et al. v. Bon Appétit


                                                  I.

       Before the district court, Professor Ma argued that Bon Appétit owed her a duty to keep

the dining hall safe and breached that duty by failing to mitigate the danger of the broken wall-

partition. Bon Appétit responded that Oberlin, which owns the dining hall, never provided

Bon Appétit with the right to admit or exclude individuals from the dining hall—the hallmark of

premises liability in Ohio—so it did not owe Professor Ma a duty of care. The district court

reviewed the management agreement between Oberlin and Bon Appétit, as well as deposition

testimony and other documentary evidence, and agreed there was no genuine dispute that Bon

Appétit did not have or exercise such a right. Without that right, Bon Appétit had no duty of care.

The district court accordingly granted summary judgment to Bon Appétit.

       We review the district court’s decision to grant summary judgment de novo, Blackmore v.

Kalamazoo Cty., 390 F.3d 890, 894 (6th Cir. 2004), and must determine whether the evidence

creates a genuine dispute of material fact or entitles Bon Appétit to judgment as a matter of law on

Professor Ma’s negligence claim, see Fed. R. Civ. P. 56(a), (c). We view the evidence and draw

all reasonable inferences in favor of Professor Ma, see Scott v. Harris, 550 U.S. 372, 378 (2007),

though “[t]he mere existence of a scintilla of evidence in support of [Professor Ma’s] position will

be insufficient; there must be evidence on which the [trier of fact] could reasonably find for [her,]”

Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986).

       As detailed below, a jury could not reasonably find for Professor Ma. Ohio law only

imposes a duty to keep premises safe on entities that have and substantially exercise the right to

admit or exclude individuals from the premises. There is no evidence that Oberlin, which owned




Professor Ma’s claim fails as a matter of law, thus making her husband’s derivative claim suffer
the same fate.
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the dining hall, ever provided Bon Appétit with that right, let alone evidence that Bon Appétit ever

exercised the same. Therefore, Bon Appétit did not owe Professor Ma a duty to keep the dining

hall safe. Professor Ma’s citations to immaterial evidence and her attempt to expand Ohio premises

liability law do not persuade otherwise.

                                                II.

       In Ohio, the jurisdiction whose law we apply in this case, “[i]t is fundamental that to have

a duty to keep premises safe for others one must be in possession and control of the premises.”

Simpson v. Big Bear Stores Co., 652 N.E.2d 702, 704 (Ohio 1995) (citing Wills v. Frank Hoover

Supply, 497 N.E.2d 1118, 1120 (Ohio 1986)). “Control” is defined—quite simply—as having “the

power and right to admit people to the premises and to exclude people from it, and involves a

substantial exercise of that right and power.” Id. (quoting Wills, 497 N.E.2d at 1120). To survive

summary judgment, Professor Ma must introduce evidence that creates a genuine dispute as to

whether Bon Appétit held and exercised the right to admit or exclude individuals from the dining

hall. She has failed to do so.

       Oberlin, which owns the dining hall, never provided Bon Appétit with the right to admit or

exclude. On July 1, 2004, Oberlin “retain[ed] Bon Appétit to manage and operate Food Service

for Oberlin’s students, faculty, staff, employees and invited guests at its campus in Oberlin, Ohio

(the ‘Premises’).” Management Agreement Renewal (“Agreement”), R. 28-3, PageID# 273. The

Agreement sets forth Bon Appétit’s limited rights and responsibilities over the dining hall in the

following ways. First, Bon Appétit is Oberlin’s agent in the provision of food services, subject to

Oberlin’s “supervis[ion of] Bon Appétit’s daily operation of the Food Service Operations,

including . . . safety, sanitation[,] and maintenance of the Premises.” Id. Second, Bon Appétit

does not have a “lease or license” to any portion of the dining hall. Id. Third, “Oberlin authorized



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Case No. 18-4183, Ma, et al. v. Bon Appétit


representatives shall have access to all food service areas at all times.” Id. Last, Oberlin retains

the unilateral power to “make reasonable regulations with regard to the use and occupancy” of the

dining hall. Id.

       If the Agreement were merely silent on the question of the ability to admit or exclude, we

would be compelled to find that Bon Appétit did not have control over the premises, Washburn v.

Lawrence Cty. Bd. of Comm’rs, 720 F.3d 347, 352 (6th Cir. 2013) (citing Ohio cases) (“Ohio

courts have found an absence of liability [for negligence] where the lease does not discuss the

lessor’s control.”), but the Agreement is not silent on this issue. Its terms are clear—and quite

loquacious—that Bon Appétit does not have the right to admit or exclude: Bon Appétit does not

hold a lease or license to the building; Bon Appétit may not exclude Oberlin-authorized

representatives from the dining hall at any time; and Oberlin has the sole authority to make

regulations regarding occupancy of the premises. Accordingly, Bon Appétit was not in “control”

of the dining hall; it had no duty to keep the premises safe for Professor Ma; and the district court

was correct to grant summary judgment to Bon Appétit. See Wills, 497 N.E.2d at 1120 (“The

[alleged land possessor] is not liable for injuries to a third party in the absence of authority to

exercise control over the premises to the exclusion of any control by the lessee.”).

       Professor Ma responds in four ways, none of which are persuasive.

       First, Professor Ma asserts that Bon Appétit exercised the ability to admit or exclude

people from the dining hall because it had keys to open and close the dining hall, it had offices in

the dining hall, it assisted individuals with reservations, and a Bon Appétit employee testified that

he could “possibly” close a dining room in the event a repair to a broken wall-partition was

underway. None of these facts create a genuine dispute. As to holding the keys to the dining hall,

maintaining offices there, and assisting with the reservation system, it is undisputed that each of



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these functions was performed pursuant to Oberlin’s plenary direction.               Without such

independent—or even shared—authority to decide who may or may not enter the dining hall,

Bon Appétit was not in control of the dining hall and had no duty to keep it safe. See id. As to

having the power to “possibly” close the dining hall, we do not find that this evidence creates a

genuine dispute as to whether Bon Appétit held and exercised the power to admit or exclude. The

specific deposition testimony is in response to a hypothetical question—so it’s not evidence that

Bon Appétit ever exercised the power in question—and the employee only explained what he

thought he possibly could do in the event of a repair, which, as an inconclusive statement, does not

genuinely conflict with the overwhelming evidence that Oberlin had the exclusive power to decide

who could enter the dining hall.

       Further, although Professor Ma identifies these four factors as purported evidence of

Bon Appétit’s control, she did not provide a single example of Bon Appétit actually admitting or

excluding anybody from the dining hall absent Oberlin’s instructions. See Currier v. Penn–Ohio

Logistics, 931 N.E.2d 129, 134 (Ohio Ct. App. 2010) (finding no duty of care where, amongst

other things, “there [was] no evidence of the exercise of such a right by [the defendant], let alone

a substantial exercise of it”). Her theory of de facto control thus fails.

       Second, Professor Ma cites the Restatement (Third) of Torts, contending that a person is

in “control” of land not when he or she has the ability to admit or exclude, but rather when he or

she has “the authority and ability to take precautions to reduce the risk of harm to entrants on the

land,” Restatement (Third) of Torts § 49 (2012), and that Bon Appétit satisfies this definition

because the Agreement requires Bon Appétit to “take reasonable and proper care of the

premises[,]” Appellant Br. at 25–26. While on the surface this argument appears compelling, the

Restatement (Third) of Torts is not a reflection of Ohio law. Simply put, the Ohio Supreme Court



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has not adopted the Restatement (Third) of Torts and instead “continues to apply the Restatement

(Second) of Torts.” See Martin v. Lambert, 8 N.E.3d 1024, 1035-36 n.2 (Ohio Ct. App. 2014).

       Third, and relatedly, Professor Ma concocts an “occupation” theory of premises liability,

such that any occupier of land owes all business invitees on that land a duty of care. The authority

for her proposition is a 1988 Ohio Supreme Court case: Fryberger v. Lake Cable Recreation Ass’n,

533 N.E.2d 738 (Ohio 1988). While Fryberger does—somewhat—muddy the waters of premises

liability law, we do not find Professor Ma’s “occupation” theory to be consistent with current Ohio

law.

       In Fryberger, the plaintiff jumped from a private dock and hit his head on the bottom of a

lake. 533 N.E.2d at 739. Suffering injury, the plaintiff sued the dock owner and the owners of the

lake for negligence. Id. The owners of the lake argued that they did not owe the plaintiff a duty

of care because they could not control who used the private dock from which he jumped.

Id. at 741. The trial and appellate courts agreed, but the Ohio Supreme Court reversed, opining

that “the right to admit or exclude is not the sole measure of control.” Id. Unfortunately, the court

did not elaborate further, and this statement appears to conflict with Ohio premises-liability law.

See id. at 743 (Moyer, C.J., and Wright, J., concurring in part and dissenting in part) (noting a

discrepancy between the majority decision and Ohio’s general approach where a duty is

determined by the relationship between the plaintiff and the party controlling the land). Rather

than clarify and enumerate what additional factors may give rise to a duty of care, the court in

Fryberger recited a list of facts from the case that it found created a genuine dispute, such as the

fact that the lake’s owners maintained a swimming area, controlled the water level of the lake, and

patrolled the lake for safety hazards. Id. at 741-42. The court also highlighted that the lake’s

owners did have “some control over who is admitted to or excluded from the lake.” Id. at 741–42.



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       It is unclear what exactly to make of Fryberger’s proclamation that the ability to admit or

exclude is not the sole measure of control, particularly because the lake’s owners did retain that

specific right with respect to the location where the plaintiff was ultimately injured (i.e., the lake

itself). We are primarily guided, therefore, by the subsequent courts that have unanimously

interpreted Fryberger as requiring that a land possessor subject to a duty of care have and exercise

at least a shared right to admit and exclude. See Monnin v. Fifth Third Bank of Miami Valley, N.A.,

658 N.E.2d 1140, 1151 (Ohio Ct. App. 1995) (“[W]e believe that [Fryberger] stands for the

proposition that one who has the power to admit or deny access to a premises has a sufficient

degree of control over it to create liability to another person who is admitted to the premises and

injured by a dangerous condition that exists there.”); id. (“Fryberger announces no new rule on

control different from that in other cases.”); Currier, 931 N.E.2d at 134–35 (“[I]n Fryberger, the

court merely held that liability can arise when the defendant shares the right to admit or exclude

with other defendants.”); Washburn, 720 F.3d at 352 (acknowledging Fryberger, yet explaining

that the “key to this [control] test is whether the lessor has the ability to admit or exclude people

from the premises[.]”). Indeed, since Fryberger was issued, Ohio’s Supreme Court has stated that

control is assessed by one’s “power and right to admit people to the premises and to exclude people

from it, and involves a substantial exercise of that right and power.” Simpson, 652 N.E.2d at 704

(citation omitted). Therefore, we are not convinced that Fryberger can bear Professor Ma’s

“occupation” theory.

       Professor Ma also relies on an Ohio appellate court decision, Monnin, as additional support

for her “occupation” theory. 658 N.E.2d 1140. Monnin has a complicated history. There, a bank

employee was fatally injured in the course of a bank robbery. Id. at 1145. Her husband sued the

bank and the bank’s holding company for negligence, alleging that the bank’s security measures



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did not keep the premises safe. Id. In its original decision, the Ohio Court of Appeals found that

there was no evidence that the holding company possessed or exercised the right to admit or

exclude individuals from the bank, and thus the holding company had no duty to keep the bank

safe. Id. at 1146. That decision was entirely consistent with previous proclamations of Ohio law.

See e.g., Wills, 497 N.E.2d at 1120. On reconsideration, however, the same court reversed course

and extracted from its analysis any discussion of the holding company’s ability to admit or exclude.

Monnin, 658 N.E.2d at 1151–54. The court instead focused on whether the holding company

directed the branch’s security operations, and because the holding company did direct those

operations, the court held that the holding company could have had a duty to keep the bank safe.

Id. at 1153-54. In justifying this wider focus, the Monnin court explained that the Fryberger court

had done the same thing when it considered the fact that the lake’s owners “performed some actual

functions related to safety and security.” Id. at 1154.

       Monnin is difficult to harmonize with previous and subsequent iterations of Ohio law.

On the one hand, Ohio courts have repeatedly made clear that control is measured by the ability to

admit or exclude, e.g. Simpson, 652 N.E.2d at 704, and on the other hand, the analysis in Monnin

did not explicitly consider the holding company’s ability to admit or exclude, Monnin, 658 N.E.2d

at 1154. So how do we reconcile Monnin with Ohio law? There are three possibilities, none of

which help Professor Ma.

       It could be that, in Ohio, those who have control over the specific feature of the property

that caused the injury have a duty of care related to that feature—such as the water level of the

lake in Fryberger and the security operations of the branch in Monnin. That approach would not

help Professor Ma, though, as the undisputed evidence shows that Bon Appétit was only

responsible for reporting the broken partition to Oberlin maintenance, which it did.



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Case No. 18-4183, Ma, et al. v. Bon Appétit


       It could alternatively be that Monnin silently equated the power to direct security decisions

with the power to direct who may enter the premises (i.e., the longstanding definition of control).

See Long v. Tokai Bank of California, 682 N.E.2d 1052, 1059 (Ohio Ct. App. 1996) (“Our rationale

for reversing summary judgment [in Monnin] was that entities other than the occupier might be

liable if they sought to occupy the premises by actually directing the activities of the occupant,

i.e., in the particular case at hand, by participating in security decisions made at the premises.”

(citation omitted)). That attempted reconciliation would also not help Professor Ma because there

is no evidence that Bon Appétit usurped Oberlin’s authority to decide who could or could not enter

the dining hall.

       Or it could just be that Monnin is an enigmatic—and incorrect—outlier in its application

of Ohio law, and as such we do not give it weight. See Brown v. Raymond Corp., 432 F.3d 640,

646 (6th Cir. 2005) (“[W]e are of course bound by the Tennessee Supreme Court’s construction

of [Tennessee law], not that of the Tennessee Court of Appeals.”) (citation omitted). This last

option is the most compelling, particularly because the Ohio Supreme Court held that control is

measured by the ability to admit or exclude just three months after Monnin was issued. See

Simpson, 652 N.E.2d at 704. Professor Ma’s “occupation” theory thus fails.

       Fourth, and last, Professor Ma argues that, even if Oberlin did not formally provide

Bon Appétit with control over the premises, Bon Appétit nevertheless assumed that duty through

its actions. Appellant Br. at 40 (citing Payne v. Ohio Performance Acad., Inc., 98 N.E.3d 1078

(Ohio Ct. App. 2017)). Professor Ma concedes in her briefing that she did not raise this

assumption-of-duty theory with the district court. Reply Br. at 17. We do not consider arguments

raised for the first time in this Court unless the arguing party shows that our “refusal to consider

the argument would result in a miscarriage of justice.” Perez v. Oakland Cty., 466 F.3d 416, 430



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(6th Cir. 2006). To make a miscarriage-of-justice showing, the arguing party must at least explain

why it chose not to raise its new position before the district court. See id. (holding that an argument

was waived where the plaintiff had an opportunity to raise it before the district court but did not

do so). Professor Ma offers no such explanation; accordingly, we find her argument to be waived.

                                                 III.

        For the aforementioned reasons, we AFFIRM the district court’s grant of summary

judgment in favor of Bon Appétit.




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