[Cite as Wheeler v. Ohio State Univ., 2011-Ohio-1423.]

                                                         Court of Claims of Ohio
                                                                          The Ohio Judicial Center
                                                                  65 South Front Street, Third Floor
                                                                             Columbus, OH 43215
                                                                   614.387.9800 or 1.800.824.8263
                                                                              www.cco.state.oh.us




MIRIAM WHEELER

       Plaintiff

       v.

OHIO STATE UNIVERSITY

       Defendant
       Case No. 2009-08748

Judge Clark B. Weaver Sr.

DECISION




        {¶ 1} On December 28, 2010, defendant, The Ohio State University (OSU), filed
a motion for summary judgment pursuant to Civ.R. 56(C).1            On January 25, 2011,
plaintiff filed a response. The case is now before the court for a non-oral hearing on
defendant’s motion. Civ.R. 56(C) states, in part, as follows:
        {¶ 2} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
          {¶ 3} On November 6, 2008, plaintiff was a student at OSU’s Mansfield campus
when she was allegedly assaulted by Jesse Wolfe, another student who was sitting
behind plaintiff during a lecture.       Plaintiff alleges that Wolfe suddenly and violently
kicked her chair with sufficient force to cause plaintiff to fall to the floor and sustain
serious injuries. Plaintiff relates that when she turned and warned Wolfe that he should
“not try that again,” Wolfe gestured to indicate that another student had kicked the chair.
According to plaintiff, the professor who was teaching the class observed plaintiff fall but
did not comment on the incident.            Plaintiff did not discuss the incident with her
professor; however, the next day she returned to campus and informed Donna Hight,
the Chief Student Life Officer at OSU’s Mansfield campus, that Wolfe had assaulted
her. Plaintiff also alleges that Wolfe subsequently attempted to intimidate her by staring
at her.
          {¶ 4} In her four-sentence complaint, plaintiff alleges that defendant breached a
duty owed to her both by failing to prevent the assault and by tolerating “intimidation”
against her after the incident.
          {¶ 5} In her response to defendant’s motion, plaintiff argues that defendant
committed a breach of a contractual duty to protect her from harmful conduct of other
students. However, plaintiff did not attach a copy of any document to her complaint, nor
did she present any other evidence of a contractual duty that was owed to her.
          {¶ 6} Civ.R. 10(D)(1) requires that “[w]hen any claim or defense is founded on
an account or other written instrument, a copy of the account or written instrument must
be attached to the pleading. If the account or written instrument is not attached, the
reason for the omission must be stated in the pleading.” Furthermore, plaintiff has failed
to introduce “other” documentary evidence for consideration by way of a properly
framed affidavit pursuant to Civ.R. 56(E).


1
 Defendant’s December 17, 2010 motion for an extension of time to file a dispositive motion is hereby
GRANTED instanter.
       {¶ 7} Civ.R. 56(E) provides in relevant part:       “When a motion for summary
judgment is made and supported as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of the party’s pleadings, but the party's response,
by affidavit or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the party does not so respond, summary
judgment, if appropriate, shall be entered against the party.”
       {¶ 8} Inasmuch as plaintiff has failed to respond to defendant’s motion with any
evidence to support her argument regarding a contractual duty that was owed to her,
she cannot prevail on her breach of contract claim.
       {¶ 9} Plaintiff also alleges that defendant owed a duty to protect her from
Wolfe’s tortious conduct. However, “‘[o]rdinarily, 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. Thus, liability in negligence will not lie in the absence of a
special duty owed by a particular defendant.’” Evans v. Ohio State Univ. (1996), 112
Ohio App.3d 724, 740, quoting Fed. Steel & Wire Corp. v. Ruhlin Const. Co. (1989), 45
Ohio St.3d 171, 173-174.
       {¶ 10} In that plaintiff was a student at OSU, her legal status was that of a
business invitee. Kleisch v. Cleveland State Univ., Franklin App. No.05AP-289, 2006-
Ohio-1300; Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46.             “Generally, a
business owner owes no duty to an injured invitee for the criminal conduct of a third
person because such conduct is usually beyond reasonable expectation and a business
owner is not an absolute insurer of his invitees’ safety. However, when a business
owner knows or should know that there is a substantial risk of harm to his invitees from
the criminal acts of third persons, the business owner owes a duty to warn or protect his
invitees. In other words, the existence of a duty to warn or protect turns upon the
foreseeability of harm to an invitee from a criminal act. The foreseeability of criminal
acts depends upon the knowledge of the business owner.” (Citations omitted.) Sullivan
v. Heritage Lounge, Franklin App. No. 04AP-1261, 2005-Ohio-4675, ¶24. Furthermore,
“[b]ecause criminal acts are largely unpredictable, the totality of the circumstances must
be ‘somewhat overwhelming’ in order to create a duty.” Shivers v. Univ. of Cincinnati,
Franklin App. No. 06AP-209, 2006-Ohio-5518, ¶7, citing Reitz v. May Co. Dept. Stores
(1990), 66 Ohio App.3d 188, 194.
       {¶ 11} In support of its motion, defendant submitted the deposition testimony of
plaintiff wherein she conceded that she had no interaction with Wolfe prior to the
incident. (Transcript, Pages 36-37.) Indeed, plaintiff admitted that she had never had
“a problem with a single student or instructor” before the assault. (Transcript, Page
128.) Under these circumstances, the incident was not foreseeable inasmuch as there
is no evidence which would support an inference that defendant had any knowledge
that Wolfe had threatened to harm plaintiff before the incident.
       {¶ 12} Accordingly, plaintiff has failed to show that defendant owed her any duty
under the law, that defendant failed to act in accordance with any duty, or that
defendant’s conduct proximately caused any injury to plaintiff.
       {¶ 13} Plaintiff also has failed to prove intentional infliction of emotional distress.
Specifically, plaintiff did not prove that defendant’s conduct was extreme or outrageous
or that defendant intentionally or recklessly caused her severe emotional distress. See
Yeager v. Local Union 20, Teamsters (1983), 6 Ohio St.3d 369.
       {¶ 14} Furthermore, a plaintiff claiming tortious infliction of emotional distress
must present some “guarantee of genuineness” in support of her claim, such as an
expert opinion, or the testimony of lay witnesses who are acquainted with plaintiff to
prevent summary judgment in favor of the defendant. Powell v. Grant Med. Ctr., 148
Ohio App.3d 1, 6, 2002-Ohio-443. Plaintiff failed to present any evidence, other than
her own self-serving testimony, to establish that she suffered the “severe and
debilitating emotional distress” required of such claims. Id.
       {¶ 15} For the foregoing reasons, the court finds that there is no genuine issue as
to any material fact and that defendant is entitled to judgment as a matter of law.
Defendant’s motion for summary judgment shall be granted and judgment shall be
rendered in favor of defendant.
                                               Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us




MIRIAM WHEELER

      Plaintiff

      v.

OHIO STATE UNIVERSITY

      Defendant
      Case No. 2009-08748

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY




       A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.       For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.




                                          _____________________________________
                                          CLARK B. WEAVER SR.
                                          Judge

cc:
Peter E. DeMarco                  Thomas L. Mason
Assistant Attorney General        153 West Main Street
150 East Gay Street, 18th Floor   P.O. Box 345
Columbus, Ohio 43215-3130         Ashland, Ohio 44805-0345

AMR/cmd
Filed March 4, 2011
To S.C. reporter March 22, 2011
