[Cite as White v. Mansfield-Richland, Morrow Counties Policy Commt. of Total Operation Against Poverty, Inc.,
2013-Ohio-3296.]

                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

DENISE L. WHITE, INDIVIDUALLY                        :
AND AS EXECUTOR OF THE                               :
ESTATE OF GERALDINE HECKERD                          :    JUDGES:
                                                     :
                                                     :    Hon. William B. Hoffman, P.J.
       Plaintiff-Appellant                           :    Hon. Patricia A. Delaney, J.
                                                     :    Hon. Craig R. Baldwin, J.
-vs-                                                 :
                                                     :    Case No. 12CA115
MANSFIELD-RICHLAND, MORROW                           :    (consolidated with 12CA116 for oral
COUNTIES POLICY COMMITTEE OF                         :    argument only)
TOTAL OPERATION AGAINST                              :
POVERTY, INC. DBA MANSFIELD                          :
MANOR, ET AL.                                        :
                                                     :
                                                     :
       Defendants-Appellees                          :    OPINION

CHARACTER OF PROCEEDING:                                   Appeal from the Richland County Court
                                                           of Common Pleas, Case No. 10-CV-
                                                           706-H

JUDGMENT:                                                  AFFIRMED

DATE OF JUDGMENT ENTRY:                                    July 18, 2013

APPEARANCES:

For Plaintiff-Appellant:                                  For Defendants-Appellees:

DOUGLAS C. KNISLEY                                        WALTER M. KROHNGOLD
1111 Dublin Road                                          1360 E. 9th St.
Columbus, OH 43215                                        1000 IMG Center
                                                          Cleveland, OH 44114
JAMES BECKER
4380 Braunton Road                                        BYRON D. CORLEY
Columbus, OH 43220-4304                                   22 N. Walnut St.
                                                          Mansfield, OH 44902

                                                          GARY PIPER
                                                          3 N. Main St., Suite 500
                                                          Mansfield, OH 44902
Richland County, Case No.12CA115                                                     2

Delaney, J.

      {¶1} Plaintiff-Appellant Denise L. White, Individually and Executor of the Estate

of Geraldine Heckerd (Case No. 12CA115) appeals the October 10, 2012 and October

15, 2012 judgment entries of the Richland County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} Mansfield Manor, located in Richland County, Ohio, is a housing complex

providing low-income housing for persons with physical disabilities. Defendant-Appellee

Mansfield-Richland, Morrow Counties Policy Committee of the Total Operation Against

Poverty, Inc., operates Mansfield Manor. Allison R. Johnson was the property manager

for Mansfield Manor. Geraldine Heckerd was a licensed practical nurse and performed

various in-home nursing services on behalf of certain tenants at Mansfield Manor.

Geraldine Heckerd was not an employee of Mansfield Manor.

      {¶3} Jerry Hartman, a 44-year-old male, was a tenant of Mansfield Manor

based on his back problems due to a workplace accident.          Before accepting his

application for tenancy, Mansfield Manor conducted a criminal background check on

Jerry Hartman that did not reveal any prior violent crimes.    In 1992, Hartman was

charged with misdemeanor domestic violence but there was no record of the disposition

of the case. Mansfield Manor did not conduct a psychological exam before accepting

his tenancy.    Since 2004, Jerry Hartman was treated by Dr. Yogesh Desai, a

psychiatrist. Hartman’s medical records state he was diagnosed with bipolar disorder

and schizoaffective disorder.

      {¶4}     On May 18, 2006, Jerry Hartman was brought to MedCentral-Mansfield

Hospital by the Mansfield City Police Department. The police reported to the home of
Richland County, Case No.12CA115                                                        3


Richard and Ruth Hartman, the parents of Jerry Hartman, based on Jerry Hartman’s

911 call.   Jerry Hartman was at his parents’ home and he thought his father was

threatening his mother. Jerry Hartman allegedly made threatening statements against

his father. The police brought Jerry Hartman to the hospital for a psychiatric evaluation.

The May 18, 2006 hospital report stated, “[Jerry Hartman] is stating he is depressed and

did admit to homicidal ideation, although denies any suicidal ideation.” Jerry Hartman

was discharged from the hospital.

       {¶5} On May 26, 2006, at Mansfield Manor, Jerry Hartman shot and killed

Geraldine Heckerd and Allison R. Johnson with a 12-gauge shotgun. Jerry Hartman

then killed himself with the shotgun. The shotgun used in the crime came from the

home of Richard and Ruth Hartman.

       {¶6} On May 27, 2007, Plaintiff-Appellant Denise L. White, Individually and

Executor of the Estate of Geraldine Heckerd (“White/Heckerd”) filed a wrongful death

and survivorship action in the Richland County Court of Common Pleas against

Defendant-Appellee Mansfield-Richland, Morrow Counties Policy Committee of the

Total Operation Against Poverty, Inc., Defendant-Appellee Richard Hartman, Ruth

Hartman, and MedCentral Health System.           Plaintiff-Appellant Louise Blevins, Jr.,

Administrator to the Estate of Allison R. Johnson (“Blevins/Johnson”) simultaneously

filed a wrongful death and survivorship action in the Richland County Court of Common

Pleas against the same defendants. White/Heckerd and Blevins/Johnson dismissed

their complaints on June 9, 2009.

       {¶7} White/Heckerd and Blevins/Johnson refiled their complaints on June 2,

2010. The parties did not name the Estate of Ruth Hartman or MedCentral Health
Richland County, Case No.12CA115                                                      4


System as defendants.       The trial court ordered the cases be consolidated for all

purposes including trial.

       {¶8} Richard Hartman passed away on December 9, 2010.               Counsel for

Richard Hartman filed a Suggestion of Death on December 13, 2010.           Defendant-

Appellee Jeffrey Hartman, Administrator of the Estate of Richard Hartman (“the Estate

of Richard Hartman”) was substituted as the defendant.

       {¶9} Mansfield Manor filed a motion for summary judgment against

White/Heckerd on January 3, 2011. In its motion, Mansfield Manor argued Geraldine

Heckerd was a business invitee on the property on May 26, 2006 and as such,

Mansfield Manor did not owe a duty to Geraldine Heckerd because Jerry Hartman’s

criminal act was not foreseeable. In support of its motion, Mansfield Manor attached the

affidavit of Fred Kane, property manager of Mansfield Manor.

       {¶10} On April 28, 2011, the Estate of Richard Hartman filed a motion for

summary judgment against White/Heckerd and Blevins/Johnson.            Attached to the

motion for summary judgment was the affidavit of Richard Hartman given before his

death and the deposition of Dr. Desai. The motion argued Richard Hartman, as father

of Jerry Hartman, was not liable for the deaths of Geraldine Heckerd or Allison Johnson.

       {¶11} On May 31, 2011, White/Heckerd and Blevins/Johnson filed a joint motion

to modify response dates to the summary judgment motions. Appellants stated the

motion was not a Civ.R. 56(F) motion. The trial court modified the scheduling order to

give White/Heckerd and Blevins/Johnson until September 15, 2011 to complete

discovery. Appellants’ response to the motions for summary judgment was due on

September 26, 2011.
Richland County, Case No.12CA115                                                      5


        {¶12} White/Heckerd filed a motion to compel discovery against Mansfield

Manor on August 8, 2011.

        {¶13} White/Heckerd and Blevins/Johnson filed a response to the Estate of

Richard Hartman’s motion for summary judgment on September 26, 2011.

        {¶14} On October 3, 2011, the trial court issued a scheduling order. Mansfield

Manor’s discovery responses were due on November 11, 2011. White/Heckerd and

Blevins/Johnson were to respond to the motions for summary judgment on January 10,

2012.    The trial court would hold a non-oral hearing on the motions for summary

judgment on January 30, 2012.

        {¶15} Mansfield Manor filed a supplemental motion for summary judgment

against White/Heckerd on December 22, 2011. In the motion, Mansfield Manor argued

White/Heckerd failed to argue Mansfield Manor was liable under a theory of gross

negligence.

        {¶16} White/Heckerd and Blevins/Johnson filed a supplement to their response

to the Estate of Richard Hartman’s motion for summary judgment on January 10, 2012.

        {¶17} White/Heckerd never filed a response to Mansfield Manor’s motion for

summary judgment.         On October 10, 2012, the trial court granted the motion for

summary judgment filed by Mansfield Manor against White/Heckerd.

        {¶18} On October 15, 2012, the trial court granted the motion for summary

judgment      of   the   Estate   of   Richard   Hartman   against   White/Heckerd   and

Blevins/Johnson.

        {¶19} On November 14, 2012, the trial court issued a nunc pro tunc judgment

entry stating it granted summary judgment in favor of Mansfield Manor on
Richland County, Case No.12CA115                                                     6


Blevins/Johnson’s claim of intentional tort. Mansfield Manor did not previously file a

motion for summary judgment on Blevins/Johnson’s claim of intentional tort.

      {¶20} It is from these decisions White/Heckerd and Blevins/Johnson appeal.

                               ASSIGNMENTS OF ERROR

      {¶21} The appeals of Plaintiff-Appellant Denise L. White, Individually and

Executor of the Estate of Geraldine Heckerd (Case No. 12CA115) and Plaintiff-

Appellant Louise Blevins, Jr., Administrator to the Estate of Allison R. Johnson (Case

No. 12CA116) were consolidated by this Court for oral argument purposes.           The

appeals and Assignments of Error will be considered separately.

      {¶22} The Assignments of Error relating to the appeal of Plaintiff-Appellant

Denise L. White, Individually and Executor of the Estate of Geraldine Heckerd (Case

No. 12CA115) are as follows:

      {¶23} “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

GRANTED SUMMARY JUDGMENT TO THE HARTMAN ESTATE ON THE

ALLEGATIONS PRESENTED BY THE PLAINTIFFS, DENISE L. WHITE AND LOUIS

BLEVINS, JR. (OCTOBER 15, 2012 DECISION & ENTRY, RECORD 66).”

      {¶24} “THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

GRANTED SUMMARY JUDGMENT TO MRM ON ITS MOTION AGAINST THE

GERALDINE HECKERD ESTATE WHERE MRM COULDN’T PRODUCE ANY OF ITS

WITNESSES WHO ANSWERED PLAINTIFF’S DISCOVERY FOR DEPOSITIONS

(OCTOBER 10, 2012 DECISION & ENTRY, RECORD 65).”
Richland County, Case No.12CA115                                                         7


                                        ANALYSIS

       SUMMARY JUDGMENT AS TO THE ESTATE OF RICHARD HARTMAN

       {¶25} White/Heckerd argues the trial court erred in granting summary judgment

in favor of the Estate of Richard Hartman (October 15, 2012 Judgment Entry). We

disagree.

                                     Standard of Review

       {¶26} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment

which provides, in pertinent part:

       Summary judgment shall be rendered forthwith if the pleading,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence in the pending case 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. * * * A summary judgment shall not be rendered unless it

       appears from such 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, such party being entitled to have the

       evidence or stipulation construed most strongly in the party's favor.

       {¶27} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d
Richland County, Case No.12CA115                                                         8


264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

       {¶28} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421,

429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

                      Negligence of the Estate of Richard Hartman

       {¶29} In their complaints against the Estate of Richard Hartman, White/Heckerd

and Blevins/Johnson alleged Richard Hartman was negligent in the possession and

storage of the 12-gauge shotgun used in the shooting based on Richard Hartman’s

knowledge of his son’s psychiatric diagnoses and violent tendencies. The Estate of

Richard Hartman filed a motion for summary judgment, arguing there was no genuine

issue of material fact that Richard Hartman owed no duty to White/Heckerd or

Blevins/Johnson; or, if a duty was owed to the deceased, Richard Hartman was not

negligent.   In support of its motion for summary judgment, the Estate of Richard

Hartman filed the affidavit of Richard Hartman, taken before his death, and the

deposition of Dr. Desai, Jerry Hartman’s psychiatrist. The Estate argued reasonable

minds could only conclude Richard Hartman had no prior knowledge that Jerry Hartman

would commit a violent act with the shotgun.

       {¶30} Richard Hartman stated in his affidavit that his father purchased the

shotgun in the 1940s. The shotgun was given to Richard Hartman when his father
Richland County, Case No.12CA115                                                    9


passed away. When Jerry Hartman was 15 years old, Richard Hartman stated he gave

the gun to his son.    Jerry Hartman lived with Richard and Ruth Hartman until his

marriage in the 1980s.    Jerry Hartman divorced and he occasionally lived with his

parents. Jerry Hartman moved to Shelby, Ohio in the 2000s. He moved from Shelby,

Ohio and moved into the Mansfield Manor.       Jerry Hartman would visit his parents’

home.

        {¶31} Richard Hartman averred he never heard his son make threats of physical

harm to any person prior to May 26, 2006. He stated he was never told by a medical

doctor, psychiatrist, psychologist, therapist, or other healthcare provider that Jerry

Hartman presented a suicidal or homicidal threat to other persons.

        {¶32} In their response to the motion for summary judgment, White/Heckerd and

Blevins/Johnson filed the affidavits of Delaney Smith, M.D. and Daniel Kennedy, Ph.D.

Their experts stated that based on Jerry Hartman’s psychiatric records, Richard

Hartman should have known his son suffered from mental illness and could commit a

violent act. The Appellants also provided the depositions of the police officers who

responded to the Hartman home on May 18, 2006 and interviewed Richard Hartman

after the May 26, 2006 incident.     During the interview regarding the shooting at

Mansfield Manor, the police officer stated that Richard Hartman told the interviewing

officer he kept the shotgun in the home. The shotgun was discovered missing after May

26, 2006. Richard Hartman told the officer that at some time, Jerry Hartman took the

gun from the home unbeknownst to anyone. The police officer also stated Richard

Hartman told him that his son suffered from a number of ailments and was

schizophrenic.
Richland County, Case No.12CA115                                                         10


       {¶33} The trial court granted the motion for summary judgment. The trial court

found the basis of the Appellants’ negligence claims was Richard Hartman’s knowledge.

Neither party deposed Richard Hartman before his death.           In order to establish a

genuine issue of material fact, Appellants utilized the reports of the experts and the

police officers as to Jerry Hartman’s mental health and what Richard Hartman should

have known about his son. The only direct evidence before the trial court of Richard

Hartman’s knowledge was his affidavit. The trial court found there was no genuine

issue of material fact that Richard Hartman was not aware that Jerry Hartman presented

a violent risk to others.

       {¶34} We review de novo what duty the Estate of Richard Hartman owed to

White/Heckerd and Blevins/Johnson for the actions of his son, Jerry Hartman. In order

to establish a claim for negligence, a plaintiff must show: (1) a duty on the part of

defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury

proximately resulting from the breach. Jeffers v. Olexo, 43 Ohio St.3d 140, 142, 539

N.E.2d 614 (1989).

       {¶35} In tort law, there is no duty to control the conduct of a third person to

prevent him from causing physical harm to another; however, a defendant may owe a

duty to a plaintiff based upon a special relationship between the defendant and the third

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

1262 (1984); Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543

N.E.2d 1188, 1192 (1989). “Relationships which result in a duty to protect others

include: 1) common carrier and its passengers; 2) innkeeper and guests; 3) possessor

of land and invitee; 4) custodian and individual taken into custody; and 5) employer and
Richland County, Case No.12CA115                                                        11

employee.” Reddick v. Said, 11th Dist. No. 2011-L-067, 2012-Ohio-1885, ¶ 38 quoting

Jackson v. Forest City Ents., 111 Ohio App.3d 283, 285, 675 N.E.2d 1356 (8th

Dist.1996), citing 2 Restatement of the Law 2d, Torts (1965), 116, at Section 314(A).

“Relationships that may give rise to a duty to control a third person's conduct include the

following: (1) parent and child; (2) master and servant; and (3) custodian and person

with dangerous propensities.” Reddick, at ¶ 38 quoting Hall v. Watson, 7th Dist. No. 01

CA 55, 2002-Ohio-3176, ¶ 16.

       {¶36} Whether a duty exists depends on the foreseeability of injury. Menifee v.

Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707, 710 (1984). Injury

is foreseeable if a defendant knew or should have known that his act was likely to result

in harm to someone. Mudrich v. Standard Oil Co., 153 Ohio St. 31, 39, 90 N.E.2d 859,

863 (1950).

       {¶37} The Eleventh District Court of Appeals analyzed a similar fact pattern as to

those in the present case to determine whether a duty existed for the parents of an adult

child with mental health problems. In Havel v. Chapek, 11th Dist. No. 2004-G-2609,

2006-Ohio-7014, appeal not allowed, 113 Ohio St.3d 1514, 2007-Ohio-2208, 866

N.E.2d 512, the Chapek’s adult son, Jeremy killed Jessica, the Havel’s adult daughter.

       {¶38} During Jeremy’s childhood, Jeremy suffered from obsessive-compulsive

disorder and depression and received mental health counseling. Jeremy and Jessica

began a romantic relationship as teenagers. When they were adults, they became

engaged and moved in together. Jessica ended the relationship and Jeremy moved

home with his parents.
Richland County, Case No.12CA115                                                         12


       {¶39} Jeremy owned several guns. On May 16, 2002, Jeremy’s mother noticed

that the shotgun was missing from Jeremy’s room. That day, Jeremy murdered Jessica

by a combination of beating, stabbing, and strangulation; thereafter, Jeremy killed

himself with a shotgun.

       {¶40} The parents of Jessica filed suit against Jeremy’s parents asserting claims

of negligence, survivorship, and wrongful death.           The trial court granted summary

judgment in favor of Jeremy’s parents. The Eleventh District affirmed the decision.

       {¶41} In order to reach their decision, the court examined the common law as to

a parent’s liability for acts of their child:

               “At common law, a parent is not ordinary liable for damages caused

       by a child's wrongful conduct.           However, liability can attach when the

       injury committed by the child is the foreseeable consequence of a parent's

       negligent act. In those circumstances, liability arises from the conduct of

       the parent.” Huston v. Konieczny (1990), 52 Ohio St.3d 214, 556 N.E.2d

       505, at syllabus.

               A child remains under the care and control of its parents until the

       age of majority, defined in Ohio, as the age of eighteen years.           R.C.

       3109.01 (“[a]ll persons of the age of eighteen years * * * are of full age for

       all purposes”).       It follows then, that a parent is only liable for the

       “foreseeable consequences” of their negligence in supervising their

       children during their minority.

               Stated otherwise, “there is no duty under Ohio law to control the

       conduct of another person so as to prevent him from causing physical
Richland County, Case No.12CA115                                                        13


       harm to another unless a ‘special relation’ exists between the actor and

       that person which imposes a duty upon the actor to control the person's

       conduct.” Littleton v. Good Samaritan Hosp. & Health Ctr. (1988), 39 Ohio

       St.3d 86, 92, 529 N.E.2d 449, (citations omitted).          Such a “special

       relationship” exists between a parent and a minor child.              See 2

       Restatement of the Law 2d, Torts (1965), Section 316; approved Huston,

       52 Ohio St.3d at 218, 556 N.E.2d 505, cf. R.C. 3109.10) “[a]ny person is

       entitled to maintain an action to recover compensatory damages in a civil

       action * * * from the parent of a child under the age of eighteen if the child

       * * * assaults the person”).

Havel, at ¶ 43-45.

       {¶42} The court found that because Jeremy was an emancipated adult at the

time he committed the murder, his parents were under no duty to Jessica because of

their status as Jeremy’s parents. Id. at ¶ 49.

       {¶43} Jessica’s mother argued that Jeremy’s parents knew of and encouraged

Jeremy’s violent propensities towards Jessica. “Ohio law also imposes a duty in the

following situation: ‘One who takes charge of a third person whom he knows or should

know to be likely to cause bodily harm to others if not controlled is under a duty to

exercise reasonable care to control the third person to prevent him from doing such

harm.’ Morgan v. Fairfield Family Counseling Ctr. 77 Ohio St.3d 284, 294, 673 N.E.2d

1311, citing 2 Restatement of the law 2d, Torts, Section 319.” Havel, at ¶ 50. The

Eleventh District found the evidence presented did not support the claim that Jeremy’s

parents knew of his violent propensities towards others.        Jeremy had no history of
Richland County, Case No.12CA115                                                     14

violent behavior towards anyone but himself. He did not have a criminal record. Id. at ¶

51.

      {¶44} In support of her argument as to negligence, Jessica’s mother relied on

the case of Volpe v. Gallagher, 821 A.2d 699 (R.I. 2003). The Appellants in the present

case also rely upon the Volpe case. In Volpe, the defendant allowed her mentally ill,

adult son to live with her. The son did not have a violent or criminal history. The

defendant was sued for negligence when the son shot and killed a neighbor with a gun

that he was allowed to keep. The jury found for the plaintiffs and the Rhode Island

Supreme Court upheld the decision. Havel at ¶ 57.

      {¶45} The Eleventh District did not follow the Volpe case:

             Volpe is distinguishable in key respects. The son in Volpe did not

      suffer from mere depression, but was paranoid and delusional, “sit[ting] by

      himself in the darkness carrying on conversations with imaginary

      companions.” The son in Volpe had also been previously institutionalized

      for his mental illness and underwent two years of outpatient treatment

      during which time his condition worsened. Id., at 708-709.

             In Volpe, the mother's liability rested on the duty “to prevent those

      whom [one] allow[s] to use their property from doing so in a manner that

      creates an unreasonable risk of harm to others in situations in which the

      possessors are able to exercise such control.” Id. at 711. In other words,

      the mother's liability derived from her status as a possessor of land.FN4

      See 2 Restatement of the Law 2d, Torts, Section 318. In this case, the

      Chapeks' liability would derive from their alleged act of “taking charge” of
Richland County, Case No.12CA115                                                     15


     one whom they knew or should have known was likely to cause harm to

     another.   2 Restatement of the Law 2d, Torts, Section 319.             The

     distinction is important. Inherent in the possession of land is the ability

     and the necessity of exercising control over those premises. By allowing

     Jeremy to live with them, the Chapeks did not thereby “take charge” of

     Jeremy, creating a presumption the ability or the duty for his care and

     control. “Liability for the negligent acts of a third party is not ordinarily

     imposed unless the defendant has the authority, as well as the ability, to

     control that party's actions; the mere fact that the defendant could have

     exercised that control ‘as a practical matter’ does not create a duty to do

     so.” Harstock v. Harstock (N.Y.App.1993), 189 A.D.2d 993, 993-994, 592

     N.Y.S.2d 512; Kaminski v. Fairfield (Conn.1990), 578 N.E.2d 1048, 1052

     (“[n]either the defendant nor our own research has disclosed any case in

     which a parent, merely by making a home for an adult child who has a

     mental disorder, has been held to be ‘[o]ne who takes charge of a third

     person’ for the purposes of § 319 [of the Restatement 2d of Torts]”); Alioto

     v. Marnell (Mass.1988), 520 N.E, 2d 1284, 1286 (“[t]he fortuity of his living

     in their home does not create a duty where none otherwise exists; nor

     does their status as parents, without more, impose on the defendants the

     duty to supervise and control their emancipated adult son”).

           FN4. The court in Volpe was careful to particularly identify the

     mother's liability as deriving from her status as a possessor of land:

     “defendant's liability in this case does not stem from the fact that, because
Richland County, Case No.12CA115                                                      16


      she was Gallagher's mother and because Gallagher was living with her as

      an adult when he was mentally ill, therefore she necessarily had the ability

      and the duty to control his behavior.” 821 A.2d at 711.

             A third distinguishing feature of the Volpe decision is the great

      emphasis the court placed on the mother's negligence in allowing her son

      to have access to firearms on her property, which the son used to commit

      the murder. The court noted that “a person who allows deadly firearms to

      be stored on his or her property ‘is held to the highest standard of due

      care’.” 821 A.2d at 712 (Citation omitted.); also, Id. at 710 (“ ‘Whom the

      Gods would destroy, they first make mad.’ * * * [I]n this case, defendant * *

      * then allows such an individual to keep guns and ammunition on their

      property, whereupon he eventually destroys not only himself but one or

      more other lives.”) (Citations omitted.) In the present case, the Chapeks

      did allow Jeremy to keep firearms on their property. However, there is no

      evidence that firearms played any part in Jessica's murder, which was by

      beating, strangulation, and incision.

Havel, at ¶ 59-60. The Eleventh District found that Jessica’s mother failed to raise an

issue whether Jessica’s murder was a reasonably foreseeable event or that Jeremy’s

parents had taken charge of Jeremy so as to be liable for his conduct. Id. at ¶ 61.

      {¶46} We find the persuasive authority of Havel is dispositive of the present

appeal. The issue in Havel case whether there was a duty on the parents to prevent

their adult son from causing harm to another. Generally, there is no duty to control the

conduct of a third party by preventing him from causing harm to another, except in
Richland County, Case No.12CA115                                                      17


cases where there exists a special relationship between the actor and the third party,

which gives rise to a duty to control, or between the actor and another which gives the

other the right to protection. Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 45 Ohio

St.3d 171, 173, 543 N.E.2d 769 (1989). A defendant's duty to a plaintiff depends upon

the relationship between the parties and the foreseeability of injury to someone in the

plaintiff's position. Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642, 64, 597 N.E.2d

504 (1992). The Havel court concluded there was no special relationship between

Jeremy and his parents to create the existence of a duty. Further, the court found there

was no genuine issue of material fact that the violent act committed against Jessica by

Jeremy was not foreseeable by Jeremy’s parents.

      {¶47} In the present case, we affirm the trial court’s decision finding there was

no duty owed by the Estate of Richard Hartman to White/Heckerd or Blevins/Johnson

for the acts of Jerry Hartman. The facts of this case are tragic and becoming all too

common in the daily news. However, we must apply the facts before us to the law. In

this case, there is no genuine issue of material fact that on May 26, 2006, Jerry

Hartman was 44 years old and an emancipated adult. He did not reside in his parents’

home but lived independently at Mansfield Manor. There is no factual dispute that the

shotgun used by Jerry Hartman was in the parents’ home before May 26, 2006.

Richard Hartman’s affidavit does not dispute that he may have been aware of his son’s

mental illness, but suffering from a mental illness does not automatically equate violent

behavior. The issue is whether Jerry Hartman’s violent behavior was foreseeable to

Richard Hartman. Jerry Hartman’s criminal record prior to May 26, 2006 consisted of

one charge of domestic violence of which there is no Civ.R. 56 evidence of its
Richland County, Case No.12CA115                                                     18


disposition. Richard Hartman averred that he was not aware of Jerry Hartman’s violent

tendencies towards others. As the trial court held, the experts’ opinions as to what

Richard Hartman should have known were speculative and did not create a genuine

issue of material fact. The record in this case does not support a finding that Richard

Hartman and Jerry Hartman were in a special relationship such that Richard Harman

took charge of his adult son or that the criminal behavior was foreseeable to Richard

Hartman, thereby creating a duty to prevent the senseless acts caused by Jerry

Hartman.

      {¶48} The Assignment of Error of Plaintiff-Appellant Denise L. White, Individually

and Executor of the Estate of Geraldine Heckerd (Case No. 12CA115) as to the

summary judgment motion of Defendant-Appellee Jeffrey Hartman, Administrator of the

Estate of Richard Hartman is overruled.

                SUMMARY JUDGMENT AS TO MANSFIELD MANOR

      {¶49} White/Heckerd argues in the next Assignment of Error the trial court erred

in granting summary judgment in favor of Mansfield Manor when White/Heckerd could

not respond because Mansfield Manor would not produce its witnesses (October 10,

2012 Judgment Entry). We disagree.

      {¶50} Mansfield Manor filed a motion for summary judgment against

White/Heckerd on January 3, 2011. In its motion, Mansfield Manor argued Geraldine

Heckerd was a business invitee on the property on May 26, 2006 and as such,

Mansfield Manor did not owe a duty to Geraldine Heckerd because Jerry Hartman’s

criminal act was not foreseeable. In support of its motion, Mansfield Manor attached the

affidavit of Fred Kane, property manager of Mansfield Manor.
Richland County, Case No.12CA115                                                       19


        {¶51} On May 31, 2011, White/Heckerd and Blevins/Johnson filed a joint motion

to modify response dates to the summary judgment motions. Appellants stated the

motion was not a Civ.R. 56(F) motion. The trial court modified the scheduling order to

give White/Heckerd and Blevins/Johnson until September 15, 2011 to complete

discovery. Appellants’ response to the motions for summary judgment was due on

September 26, 2011.       White/Heckerd filed a motion to compel discovery against

Mansfield Manor on August 8, 2011.

        {¶52} On October 3, 2011, the trial court issued a scheduling order. Mansfield

Manor’s discovery responses were due on November 11, 2011. White/Heckerd and

Blevins/Johnson were to respond to the motions for summary judgment on January 10,

2012.    The trial court would hold a non-oral hearing on the motions for summary

judgment on January 30, 2012.

        {¶53} Mansfield Manor filed a supplemental motion for summary judgment

against White/Heckerd on December 22, 2011. In the motion, Mansfield Manor argued

White/Heckerd failed to argue Mansfield Manor was liable under a theory of gross

negligence.

        {¶54} White/Heckerd never filed a response to Mansfield Manor’s motion for

summary judgment.       On October 10, 2012, the trial court granted the motion for

summary judgment filed by Mansfield Manor against White/Heckerd.

        {¶55} In her merit brief, White/Heckerd argues not the substantive merits of the

trial court’s decision on the issue of duty to a business invitee or gross negligence, but

rather argues to this court that White/Heckerd could not respond to summary judgment

due to Mansfield Manor’s refusal to comply with discovery requests. Her Assignment of
Richland County, Case No.12CA115                                                       20


Error states, “[t]he trial court erred as a matter of law when it granted summary

judgment to MRM on its motion against the Geraldine Heckerd estate where MRM

couldn’t produce any of its witnesses who answered plaintiff’s discovery for

depositions.” In her reply brief, however, she argues the trial court’s decision as to the

law of negligence was in error. A reply brief is not the place for briefing new arguments

that were not raised in appellant's merit brief. See App.R. 16(C). See, also, State ex

rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008–Ohio–5041, 896 N.E.2d 979, ¶ 61.

We decline to address the arguments raised for the first time in the reply brief.

CSAHA/UHHS-Canton, Inc. v. Aultman Health Found., 5th Dist. No. 2010CA00303,

2012-Ohio-897, ¶ 106.

       {¶56} The record in this case shows the trial court made significant allowances

for White/Heckerd to timely respond to Mansfield Manor’s motion for summary

judgment. Further, White/Heckerd had a vehicle to address her inability to respond to

Mansfield Manor’s motion for summary judgment through Civ.R. 56(F). The rule states,

“Should it appear from the affidavits of a party opposing the motion for summary

judgment that the party cannot for sufficient reasons stated present by affidavit facts

essential to justify the party's opposition, the court may refuse the application for

judgment or may order a continuance to permit affidavits to be obtained or discovery to

be had or may make such other order as is just.” White/Heckerd did not file such

motion.

       {¶57} The Assignment of Error of Plaintiff-Appellant Denise L. White, Individually

and Executor of the Estate of Geraldine Heckerd (Case No. 12CA115) is overruled.
Richland County, Case No.12CA115                                                 21


                                  CONCLUSION

       {¶58} The Assignments of Error of Plaintiff-Appellant Denise L. White,

Individually and Executor of the Estate of Geraldine Heckerd (Case No. 12CA115) are

overruled.

       {¶59} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.



                                      HON. PATRICIA A. DELANEY




                                      HON. WILLIAM B. HOFFMAN



                                      HON. CRAIG R. BALDWIN




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