[Cite as LaMusga v. Summit Square Rehab, L.L.C., 2017-Ohio-6907.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 JUDITH LaMUSGA, ESQUIRE                            :
                                                    :
         Plaintiff-Appellant                        :    Appellate Case No. 27186
                                                    :
 v.                                                 :    Trial Court Case No. 2014-CV-408
                                                    :
 SUMMIT SQUARE REHAB, LLC, et al.                   :    (Civil Appeal from
                                                    :    Common Pleas Court)
         Defendants-Appellees                       :
                                                    :

                                            ...........

                                            OPINION

                            Rendered on the 21st day of July, 2017.

                                            ...........

SAM G. CARAS, Atty. Reg. No. 0016376, DAVID M. DEUTSCH, Atty. Reg. No. 0014397,
130 West Second Street, Suite 310, Dayton, Ohio 45402
     Attorneys for Plaintiff-Appellant

BRIAN L. WILDERMUTH, Atty. Reg. No. 0066303, LAUREN K. EPPERLEY, Atty. Reg.
No. 0082924, 50 Chestnut Street, Suite 230, Dayton, Ohio 45440
      Attorneys for Defendants-Appellees

                                            .............




TUCKER, J.
                                                                                       -2-




      {¶ 1} Plaintiff-appellant Judith LaMusga, Esquire, as Administrator of the Estate of

Dant’e Price, Deceased (“LaMusga”), appeals from a summary judgment rendered

against her on her claims against defendants-appellees Ivan and Christina Burke for

damages associated with the death of Price. For the reasons set forth below, we affirm.



                    I.     Factual Background And Procedural History

      {¶ 2} This case arises from the death of Dant’e Price after he was shot while on

the premises of Summit Square Apartments (“Summit”) in Dayton. On March 1, 2012

Price drove to Summit to visit his girlfriend and minor son. Price was attempting to park

his car when he was confronted by private security guards Christopher Tarbert and Justin

Wissinger.   The two guards surrounded Price's vehicle with their guns raised and

ordered him to exit the vehicle. Although Price offered to leave and asked the guards to

lower their guns, they refused to do so. Price then stated his intent to remain in his

vehicle until officers from the City of Dayton Police Department arrived. Tarbert and

Wissinger continued to shout orders and point their guns at the car, and Price attempted

to drive away. The guards fired their weapons at the vehicle approximately 17 times.

Price was hit by at least three of the shots and subsequently died.

      {¶ 3} Tarbert and Wissinger were employees of Ranger Security, LLC, which was

owned and operated by defendants Christina and Ivan Burke. The company provided

private security guards to numerous clients, including Summit. The Burkes also owned

Tactical Solutions Group (“TSG”), a sole proprietorship that provided weapons training to

individuals seeking to become private security officers. Ivan Burke was certified by the
                                                                                          -3-


Ohio Peace Officer Training Commission and The Office of The Attorney General as a

School Commander and Unit Instructor in the Ohio Private Security Basic Training

Program. TSG offered certification courses in semi-automatic weapons, revolvers and

shotguns. Once an individual successfully completed a course, Burke sent all required

paperwork to the State which would then issue certificates to the individual students.

       {¶ 4} LaMusga filed a complaint against Summit, the Wallick Companies (as

owner/operator of Summit), Ranger Security, LLC, Wissinger, Tarbert and the Burkes.

The Complaint contained seven counts including claims for assault and battery (Count I),

false imprisonment (Count II), improper hiring training, retention and supervision (Count

III), intentional infliction of emotional distress (Count IV), wrongful death (Count V),

punitive damages (Count VI), and vicarious and statutory liability (Count VII).

Subsequently, LaMusga filed an Amended Complaint, adding Dayton Metropolitan

Housing Authority dba Greater Dayton Premier Management and TSG as defendants.

The Amended Complaint also added a claim that TSG should have known the guards

had a reputation for violence (Count VIII), as well as a claim for intentional infliction of

serious emotional distress (Count IX).

       {¶ 5} The defendants filed Civ.R. 12(C) motions for judgment on the pleadings with

respect to Counts I, II, and IV of the Complaint and Count IX of the Amended Complaint,

based on the statute of limitations. The trial court granted the motions for dismissal

and/or partial judgment on the pleadings on June 28, 2014, and ordered Counts I, II, IV,

and IX dismissed with prejudice. The trial court did not include a Civ.R. 54(B) certification

with its decision.

       {¶ 6} Subsequently, in July 2014, LaMusga voluntarily dismissed TSG, without
                                                                                       -4-


prejudice. LaMusga also filed a motion asking the trial court to reconsider its decision

dismissing Counts I, II, IV, and IX. The court overruled this motion on January 31, 2015,

and added a Civ.R. 54(B) certification. However, a Civ.R. 58(B) notice was not issued

until March 5, 2015. LaMusga appealed from the order dismissing Counts I, II, IV, and

IX, and from the order overruling the motion for reconsideration. This court affirmed the

trial court’s decision in LaMusga v. Summit Square Rehab, L.L.C., 2015-Ohio-5305, 43

N.E.3d 504 (2d Dist.). Eventually, LaMusga entered into settlement agreements and

dismissed all parties except the Burkes individually.

       {¶ 7} Both parties filed motions for summary judgment. In her motion, LaMusga

argued that security services performed at Summit were provided by Ranger Security and

Investigation rather than Ranger Security, LLC. Thus, she maintained that the Burkes, as

sole proprietors of Ranger Security and Investigation, were liable for the death of Price.

LaMusga further argued that the Burkes, through TSG, were liable for failing to properly

train the guards.

       {¶ 8} The Burkes’ motion for summary judgment argued that LaMusga’s claims

regarding TSG constituted an educational malpractice claim which is not recognized in

Ohio. They also argued that they could not be held liable through TSG as no special

relationship existed between them and the guards that would result in a duty to Price.

The Burkes further argued that they did not breach any duty to Price, and that they did

not proximately cause Price’s death. Finally, they argued that their security business

was a limited liability company, not a sole proprietorship.

       {¶ 9} The trial court rendered summary judgment in favor of the Burkes, and

overruled LaMusga’s motion for summary judgment. LaMusga appeals.
                                                                                        -5-




       II.    The Trial Court Did Not Err By Concluding That There Is No Genuine

                   Issue of Material Fact Regarding the Liability of the Burkes.

      {¶ 10} LaMuga’s first and second assignments of error state:

             THE TRIAL COURT ERRED BY MAKING FACTUAL DETERMINATIONS

      IN FAVOR OF THE BURKES IN DEROGATION OF CIV.R.56(C) EVIDENTIARY

      STANDARDS OF REVIEW FOR SUMMARY JUDGMENT AND IN DEROGATION

      OF APPLICABLE SUBSTANTIVE LAW, AND SO GRANTED THE BURKES’

      MOTION FOR SUMMARY JUDGMENT.

             THE TRIAL COURT ERRED BY GRANTING THE BURKES’ MOTION FOR

      SUMMARY JUDGMENT BY FAILING TO CONSIDER THE UNCONTROVERTED

      FACTS, ADMISSIONS, AND APPLICABLE LAW, WHICH WARRANTED

      SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF-APPELLANT FOR THE

      BURKES’ NEGLIGENT TRAINING AND SUPERVISION.

      {¶ 11} LaMusga contends that the trial court erred by rendering summary judgment

in favor of the Burkes, and by failing to grant her motion for summary judgment.1 She

argues that the trial court erred by concluding that the Burkes were not personally liable

for negligent training through their sole proprietorship TSG. Second, she contends that

the trial court erred by concluding that the Burkes had no personal liability in connection

with Ranger Security and Investigation.

      {¶ 12} “Summary judgment pursuant to Civ.R. 56 should be granted only if no



1
 Both motions for summary judgment focus on the same issues and facts.               Thus,
granting one motion necessarily entailed denying the other.
                                                                                           -6-


genuine issue of material fact exists, the moving party is entitled to judgment as a matter

of law, and reasonable minds can come to but one conclusion, which is adverse to the

nonmoving party.” Trutschel v. Kettering Med. Ctr., 2d Dist. Montgomery No. 22816,

2009-Ohio-3302, ¶ 9, citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66,

375 N.E.2d 46 (1978). “The moving party bears the initial burden of showing that no

genuine issue of material fact exists for trial. The burden then shifts to the non-moving

party to set forth specific facts which show that there is a genuine issue of material fact

for trial.” Id. All evidence must be construed in favor of the nonmoving party. Id. An

appellate court reviews summary judgments de novo. Koos v. Cent. Ohio Cellular, Inc.,

94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist. 1994). In other words, we review

such judgments independently and without deference to the trial court's determinations.

Id.

       {¶ 13} It is a basic rule that in order to establish actionable negligence, a plaintiff

must demonstrate “the existence of a duty, a breach of that duty and an injury proximately

resulting therefrom.” Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472

N.E.2d 707 (1984). Thus, to prevail on a motion for summary judgment, LaMusga must

demonstrate that the Burkes owed a duty to Price, a breach of that duty, and that the

breach was the proximate cause of Price’s death.

       {¶ 14} “The existence of a duty in a negligence action is a question of law for the

court, and there is no express formula for determining whether or not a duty exists.”

Adelman v. Timman, 117 Ohio App.3d 544, 549, 690 N.E.2d 1332 (8th Dist.1997).

“Ordinarily, 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
                                                                                        -7-


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.” Fed.

Steel & Wire Corp. v. Ruhlin Const. Co., 45 Ohio St.3d 171, 173, 543 N.E.2d 769 (1989).

“[A] ‘special relation’ exists when one takes charge of a person whom he knows or should

know is likely to cause bodily harm to others if not controlled.”       Littleton v. Good

Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988), citation

omitted. A special relationship has been found to exist between a business owner and

invitee. Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130,135, 652 N.E.2d 702 (1995).

Other “[r]elationships 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 employee.” Jackson

v. Forest City Ent., Inc., 111 Ohio App.3d 283, 285, 675 N.E.2d 1356 (8th Dist.1996).

      {¶ 15} Even when a special relationship exists, a defendant is not liable unless the

actions of the third party were foreseeable. Maier v. Serv-All Maintenance, Inc., 124

Ohio App.3d 215, 221, 705 N.E.2d 1268 (8th Dist. 1997).           The test to determine

foreseeability is “[w]hether a reasonably prudent person would have anticipated that an

injury was likely to result from the performance or nonperformance of an act.” Menifee,

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

      {¶ 16} LaMusga contends that the Burkes, acting as sole proprietors of TSG, had

a duty to prevent harm to Price because they had a special relationship with Tarbert and

Wissinger.   Specifically, she argues that the Burkes employed the guards through

Ranger Security, LLC, and the terms of that employment required that the guards receive

their training through the Burkes’ sole proprietorship, TSG. Thus, she argues that there
                                                                                         -8-


is a nexus between the training and employment which creates a special relationship; i.e.,

an employment relationship. She further argues that the Burkes breached their duty to

Price by negligently training the guards through TSG. Specifically, she claims that TSG

improperly instructed on the use of force and on the detention of individuals.2 She also

argues that because the Burkes had knowledge of prior instances in which the guards

acted improperly in discharging their duties as security guards, it was reasonably

foreseeable that an individual such as Price would suffer harm.

      {¶ 17} The elements necessary to establish a claim for negligent training and/or

negligent supervision are: “(1) the existence of an employment relationship; (2) the

employee's incompetence; (3) the employer's actual or constructive knowledge of such

incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5)

the employer's negligence in hiring or retaining [or training or supervising] the employee

as the proximate cause of plaintiff's injuries.” Sheldon v. Kettering Health Network, 2015-

Ohio-3268, 40 N.E.3d 661, ¶ 41 (2d Dist.), appeal not allowed, 144 Ohio St.3d 1477,

2016-Ohio-467, 45 N.E.3d 244 (2016), quoting Evans v. Ohio State Univ., 112 Ohio

App.3d 724, 739, 680 N.E.2d 161 (10th Dist.1996).

      {¶ 18} At issue in this case is the first element; whether the special relationship of

employer-employee exists between the Burkes, operating as TSG, and the guards.         The

trial court found that the guards were not employed by TSG. Instead, the trial court found

that the guards were employed by Ranger Security, LLC, and were engaged in that



2
 The Burkes argue, as a cross-assignment of error, that this amounts to an educational
malpractice claim which is not recognized in Ohio. Thus, they argue that the trial court
erred by finding that it did not constitute an educational malpractice action. Given our
resolution of both assignments of error, we conclude that this argument is moot.
                                                                                       -9-


employment at the time Price was killed. Thus, the trial court found that no special

relationship existed between the Burkes, as sole proprietors of TSG, and Tarbert and

Wissinger.

      {¶ 19} We agree. The record is devoid of any evidence to support a finding that

Tarbert and Wissinger were employed by TSG. Instead, the record demonstrates that

TSG merely provided training to the guards.

      {¶ 20} We are not completely unsympathetic to the claim that the Burkes created

a nexus between the guards’ employment with Ranger Security, LLC and their training

with TSG as the record does support a finding that Ranger Security, LLC required its

guards to train at TSG.     However, the record also supports a finding Tarbert and

Wissinger did not train exclusively with TSG. The evidence also indicates that individuals

other than those employed by Ranger Security, LLC took courses through TSG; and that

some individuals trained by TSG worked for competitors of Ranger Security, LLC.     More

significantly, we have not found, and LaMusga does not cite, any authority to support a

finding that this type of link is sufficient to create an employment or other special

relationship between the Burkes operating as TSG and the guards. Thus, the Burkes,

acting through TSG, had no duty to control the actions of the guards.

      {¶ 21} Additionally, we cannot conclude, even assuming the existence of a special

relationship, that TSG provided improper training to Tarbert and Wissinger. Simply put,

LaMusga failed to present any evidence or competent authority to support the claim that

TSG should not have instructed the guards on the use of force, or on the topic of search

and seizure. Indeed, the evidence demonstrates that the curriculum set forth by the Ohio

Peace Officer Training Council Private Security Training Course provides for such
                                                                                         -10-


instruction. Specifically, there is evidence in this record that a portion of the training

course includes instruction on the use, and necessity, of force and deadly force. Further,

the Peace Officer Training Commission mandates 100% attendance at all security guard

courses covering the topics of search, seizure and arrest. OAC 109:2-3-07. On this

record, LaMusga failed to demonstrate a question of fact regarding whether the training

provided by TSG was improper. Thus, we conclude that the trial court did not err in

rendering summary judgment in favor of the Burkes with regard to TSG.

       {¶ 22} We next address the claim that the trial court erred by failing to hold the

Burkes individually liable for their security business. This portion of LaMusga’s argument

first rests upon the claim that the Burkes were actually providing security guard services

to Summit through a sole proprietorship known as Ranger Security and Investigation, and

were thus, individually liable for the acts of the guards. LaMusga alternatively argues

that even if the guards were employed by Ranger Security, LLC, rather than the sole

proprietorship, there is evidence to support piercing the corporate veil of Ranger Security,

LLC.

       {¶ 23} We begin with LaMusga’s claim that the Burkes were not operating their

security guard business as a limited liability company, but rather as a sole proprietorship

known as Ranger Security and Investigation. In support, she cites the fact that the

service contract executed by Summit listed Ranger Security and Investigation as the

provider of services. She also notes that checks for payments received from clients were

made payable to Ranger Security and Investigation. Also, payments made to the guards

were drawn on a checking account titled “Ivan Burke dba Ranger Security and

Investigation.” LaMusga further argues that because the name Ranger Security and
                                                                                      -11-


Investigation was not registered as a fictitious name as required by R.C. Chapter 1329,

the Burkes are estopped from claiming that Ranger Security, LLC was merely doing

business under the fictitious name of Ranger Security and Investigation.

      {¶ 24} The trial court found that the facts cited by LaMusga were not sufficient to

raise a genuine issue of material fact. We agree.

      {¶ 25} The Burkes submitted affidavits in which they averred that their security

guard business is named and registered as Ranger Security, but that they sometimes

conducted its business under various other names.3 The trial court noted that the record

contains evidence that the Burkes purchased a company named Ranger Security, Inc.,

which they converted to an LLC. There is evidence that some of the forms left over from

the original company used the name Ranger Security and Investigation, and that the

Burkes utilized those forms from time to time. There is evidence that the Burkes also

conducted some business under the names Ranger Security and Investigations, LLC, as

well as Ranger Security and Investigations. There is also evidence that some of the

forms utilized merely referred to the company as Ranger Security.

      {¶ 26} Importantly, the record demonstrates that business licenses for the private

security guard services were issued by the State to Ranger Security, LLC.          State

quarterly reports, as well as reports on employee rosters, were submitted under the name

Ranger Security, LLC. Identification cards bearing the Ranger Security, LLC moniker

were issued by the State to the guards, including Tarbert and Wissinger. The record



3
 LaMusga argued that the trial court should strike the affidavits because they contradict
prior deposition testimony. The trial court rejected this argument, concluding that the
affidavits were not inconsistent with the Burkes’ depositions. We find no abuse of
discretion in this regard.
                                                                                          -12-


demonstrates that the LLC, prior to the date of Price’s death, began using a payroll

company, and that the checks issued to the guards were then issued in the name of

Ranger Security, LLC.       Ranger Security, LLC paid for, and carried a workers’

compensation policy with the State, as well as a policy of liability insurance with Great

Midwest Insurance Company.         Both Tarbert and Wissinger testified that they were

employed by Ranger Security, LLC. LaMusga sued, and settled with, Ranger Security,

LLC.

       {¶ 27} The mere fact that the Burkes utilized variations on the Ranger Security,

LLC name does not establish that they were acting as a sole proprietorship rather than a

limited liability company. Further, the failure to register the fictitious name does not act

to create a sole proprietorship in that name. R.C. 1329.01 defines “fictitious name” as “a

name used in business or trade that is fictitious and that the user has not registered or is

not entitled to register as a trade name * * *.” Failing to register the fictitious name as

required by R.C. 1329.10(B) merely prevents a person from commencing or maintaining

an action under the fictitious name until the person has registered the name with the

Secretary of State; it does not convert the business using the fictitious name into a sole

proprietorship.

       {¶ 28} At most, the evidence establishes that Ranger Security, LLC on occasion

operated under a fictitious name, or variation of the corporate name, that was not

registered with the State. But such operation did not turn Ranger Security, LLC into a

proprietorship. Therefore, the trial court did not err in finding no genuine issue of fact on

this issue.

       {¶ 29} We next turn to the claim that the trial court should have pierced the
                                                                                         -13-


corporate veil in order to hold the Burkes liable for the conduct of Ranger Security, LLC.,

Tarbert and Wissinger. “A corporation is a separate legal entity from its shareholders

even where there is only one shareholder in the corporation.” Zimmerman v. Eagle Mtg.

Corp., 110 Ohio App.3d 762, 771, 675 N.E.2d 480 (2d Dist.1996).                 “Therefore,

shareholders, officers, and directors will generally not be held personally liable for the

acts of a corporation.” Charvat v. Farmers Ins. Columbus, Inc., 178 Ohio App.3d 118,

2008-Ohio-4353, 897 N.E.2d 167, ¶ 21 (10th Dist.). However, in certain circumstances,

the corporate form may be disregarded and the corporate veil may be pierced.

Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274,

287, 617 N.E.2d 1075 (1993), modified by Dombroski v. WellPoint, Inc., 119 Ohio St.3d

506, 2008-Ohio-4827, 895 N.E.2d 538. In order to reach the personal assets of the

corporation's individual shareholders, the creditor must show that “(1) control over the

corporation by those to be held liable was so complete that the corporation has no

separate mind, will, or existence of its own, (2) control over the corporation by those to

be held liable was exercised in such a manner as to commit fraud or an illegal act against

the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted

to the plaintiff from such control and wrong.” Id. at 289, 617 N.E.2d 1075. The burden

of proving these elements rested with LaMusga. Zimmerman at 772, 675 N.E.2d 480.

       {¶ 30} In Springfield v. Palco Invest. Co., Inc., 2013–Ohio–2348, 992 N.E.2d 1194

(2d Dist.), this court addressed the first prong of the Belvedere test:

       In determining whether a corporation is an individual's alter ego, Ohio appellate

       courts consider various factors, such as (1) whether corporate formalities were

       observed, (2) whether corporate records were kept, (3) whether corporate funds
                                                                                         -14-


       were commingled with personal funds, (4) whether corporate property was used

       for a personal purpose, and (5) gross undercapitalization. These factors are non-

       exclusive.

(Citations omitted). Id. at ¶ 84.

       {¶ 31} The trial court found that LaMusga had established that corporate funds

were commingled with personal funds. However, the trial court went on to find that

LaMusga failed to establish any other evidence that would satisfy the first prong of

Belvedere.   We agree.      The evidence demonstrates that the LLC filed articles of

incorporation with the State, and that it maintained an agent for service of process. The

evidence further shows that Ranger Security, LLC kept records of its State licensing,

employee rosters, contracts, and personnel files. The company maintained policies of

insurance for both liability and workers’ compensation. There is no evidence of gross

undercapitalization. Thus, we conclude that the trial court did not err in finding that

LaMusga failed to satisfy this prong.

       {¶ 32} The trial court also found that LaMusga failed to establish the second

prong of the Belvedere test. However, as noted by LaMusga, it appears that the trial court

misstated the requirements of the second prong. Specifically, the second prong was

modified by the Supreme Court of Ohio in Dombroski v. WellPoint, Inc., 119 Ohio St.3d

506, 2008-Ohio-4827, 895 N.E.2d 538, wherein the court stated, “we hold that to fulfill the

second prong of the Belvedere test for piercing the corporate veil, the plaintiff must

demonstrate that the defendant shareholder exercised control over the corporation in

such a manner as to commit fraud, an illegal act, or a similarly unlawful act. Courts should

apply this limited expansion cautiously toward the goal of piercing the corporate veil only
                                                                                                  -15-

in instances of extreme shareholder misconduct.” Id. at ¶ 29.

       {¶ 33} We conclude that the trial court did not err in finding no issue of genuine

fact with regard to this second prong. LaMusga contends that the Burkes violated the

second prong because Tarbert and Wissinger were not properly trained, and because

they had previous incidents involving improper detentions and interactions with

individuals for which they were not disciplined. As noted above, we found no genuine

issue of fact regarding improper training. Further, we cannot say that failing to discipline

an employee rises to the level of an illegal act. In short, nothing in this record leads to a

finding that the Burkes operated or controlled Ranger Security, LLC so as to commit fraud,

an illegal act, or any similarly unlawful act. We cannot say that LaMusga demonstrated

any extreme misconduct that rises to the level necessary to invoke the rare use of piercing

the corporate veil.

       {¶ 34} Finally, during oral argument, LaMusga clarified and expounded upon an

issue that was not apparent from her appellate briefing. Specifically, she argued that

even if the corporate veil is not pierced, Ivan Burke should be held personally liable for

his actions in supervising the guards.            In support, she cites Bowes v. Cincinnati

Riverfront Coliseum, Inc., 12 Ohio App.3d 12, 465 N.E.2d 904 (1st Dist. 1983), for the

proposition that “[a] corporate officer is individually liable [in tort] for injuries to a third party

when the corporation owes a duty of care to the third person, the corporation delegates

that duty to the officer, the officer breaches that duty through personal fault (whether by

malfeasance, misfeasance, or nonfeasance), and the third person is injured as a

proximate result of the officer's breach of that duty.” Id. at 18, quoting Schaefer v. D & J

Produce, Inc., 62 Ohio App.2d 53, 403 N.E.2d 1015 (6th Dist. 1978), paragraph three of
                                                                                        -16-


the syllabus.

         {¶ 35} LaMusga contends that Ivan Burke acted as the guards’ supervisor and that

he was aware of prior incidents in which the guards acted in an illegal or improper manner

by detaining people and by using their firearms while on Summit’s property. LaMusga

contends that these incidents, along with Burke’s knowledge of these incidents, satisfy

the second and third elements of a negligent training/supervision claim; i.e. evidence of

the employee's incompetence and the employer's actual or constructive knowledge of

such incompetence.

         {¶ 36} First, LaMusga cites an incident that occurred on November 26, 2011. At

that time, Tarbert and another guard were on duty at Summit. The guards were in front

of a vehicle when the driver put the vehicle into drive and attempted to drive off. Tarbert

and the other guard pulled their guns and aimed them to make the driver stop. They

then gave the driver a criminal trespass notice.

         {¶ 37} On December 3, 2011, Tarbert and the same guard were at Summit when

they noticed three men who smelled of marijuana. The guards approached the men and

checked them for weapons. Dayton police were called to the scene.

         {¶ 38} The next day, Tarbert and the same guard returned to work at Summit when

they received a call from Ivan Burke telling them to make a domestic violence check at

apartment 755.4 The guards went to the apartment and were able to hear yelling. They

called Dayton police. The police attempted to make contact with the people in the

apartment, but no one answered their knock. Tarbert then observed Price leave through

the back door. Tarbert told Price to stop. He then cuffed Price’s left hand and escorted


4
    This apartment was rented by Price’s girlfriend.
                                                                                      -17-


him to the police.

       {¶ 39} On February 8, 2012, Tarbert and Wissinger were at Summit when they

observed Price on the premises. Price had been given a trespass notice by the Dayton

police. Price saw the guards and ran into his girlfriend’s apartment. He did not answer

the door. The guards called Dayton police who responded to the scene.

       {¶ 40} That same day, Tarbert and Wissinger observed a man parked at the

complex.    They noticed him making furtive movements as they approached.          They

asked the man what he was doing, and they observed an empty syringe in his lap. The

guards told the man to remove the keys from the ignition and to exit the vehicle. They

conducted a pat-down for safety and placed him in handcuffs. The man informed him

that he was there to purchase heroin. He told the guards that he would show them his

dealer if they uncuffed him. The guards called the Dayton police. They then observed

a man approach the car. They ordered the man to show his hands. The man instead

put his hands in his pockets. The guards drew their guns, and the man ran away.

Tarbert caught him. Both men were turned over to the police.

       {¶ 41} On February 25, 2012, Tarbert and Wissinger were again at work at Summit

when they observed Price run into apartment 755. Price then exited the apartment and

got into a vehicle. He drove the vehicle toward Wissinger but then reversed and drove

back toward Tarbert.    He then went forward again toward Wissinger.        The guards

ordered Price to get out of the car, but Price just revved the engine. Wissinger drew his

gun at which time Price drove toward him up onto the curb and the grass.

       {¶ 42} Although Ivan Burke was made aware of these incidents, the guards were

not reprimanded. LaMusga argues the failure to reprimand constituted a ratification of
                                                                                          -18-


the guards’ conduct. Thus, she argues that Burke was not only aware of the improper

behavior, he condoned it.

       {¶ 43} LaMusga does not cite any authority to indicate that the cited incidents

constitute incompetent or illegal conduct. The three times that a gun was used involved

incidents where the guards reasonably perceived a threat to their safety. As noted, the

training forms provided to TSG indicate that a guard may have to use force as part of the

job. The times that the guards conducted a pat-down involved situations in which it was

reasonable to suspect that the individuals involved might be armed. We simply cannot

say that this record supports a finding that the guards acted improperly or incompetently

on the dates cited. Thus, the elements of negligent supervision/training have not been

established. We find the claim that Ivan Burke is personally liable in tort is without merit.

       {¶ 44} We conclude that the trial court did not err in rendering summary judgment

in favor of the Burkes.        Accordingly, the first and second assignments of error are

overruled.



                                         III.   Conclusion

       {¶ 45} Both of LaMusga’s assignments of error are overruled, and the judgment of

the trial court is affirmed.

                                           .............



HALL, P.J. and WELBAUM, J., concur.
                         -19-




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