CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2011-05-1658.
Haughey & Deters, LLC, Dennis P. Deters, Laura A. Tholke, for plaintiff-appellant.
Droder & Miller Co., L.P.A., A. Dennis Miller, Bradley A. Powell, Zachary D. Bahorik, for defendant-appellee, Towne Properties Asset Management Co., LTD.
Courtney Haynes, #638-479, Chillicothe Correctional Institution, defendant-appellee, pro se.
(¶ 1} Plaintiff-appellant, Lindsay P. (Lindsay), appeals a decision of the Butler County Court of Common Pleas, granting summary judgment in favor of defendant-appellee, Towne Properties Asset Management Co., LTD (Towne Properties).
(¶ 2} Lindsay, a single mother, moved into an apartment complex operated by Towne Properties with her young daughter. Lindsay occupied an apartment above the one leased to Rhonda Schmidt. Schmidt's boyfriend, Courtney Haynes, lived in Schmidt's apartment even though he was not on the lease. Soon after Lindsay moved above Schmidt and Haynes, she began to complain to Town Properties management about the noise coming from Schmidt's apartment. Oftentimes, the rap music coming from Schmidt's apartment was so loud that it woke Lindsay's young daughter from naps and scared the child.
(¶ 3} On multiple occasions, management would warn Schmidt about the noise, and Schmidt would assure management that the noise would cease. However, it did not. In addition to the loud music, Lindsay could also hear Schmidt and Haynes fighting loudly. Several times, management told Lindsay to call the police when the noise was too loud, which Lindsay did on multiple occasions. Lindsay also placed notes on Schmidt's door, asking that the noise stop. In response to the complaints, Schmidt and Haynes began retaliating against Lindsay by banging on her door and trying to confront her for reporting them to management and the police and for leaving notes. Lindsay reported the banging and intimidating behavior of Schmidt and Haynes to Town Properties management, and management was aware that Lindsay was afraid of her downstairs neighbors.
(¶ 4} Late one night, Lindsay received a message that someone was contacting her through her Facebook account. When Lindsay logged on, Haynes, who was using the alias Curtis Foru, began conversing with her through messages. Haynes began the exchange by stating that he knew the two had had their differences, that he had seen Lindsay upset and crying, and that he knew that things were not "easy for a single mom." Haynes went on to say, "leave all your worries and concerns and troubles behind and have fun with me, let things go beyond and experience excitement together like never before. * * * You will really like having a friend so close that can satisfy you in so many great ways * * * Forget the notes this time and just come in." At the end of this first message, Haynes included a link to a pornographic website, which depicted a large African-American man who looked similar to Haynes having sexual relations with a smaller white woman who looked similar to Lindsay. Haynes then commented, "I'm more than willing to do all of that for you in the video. Lets [sic] stop fighting and just enjoy being so near."
(¶ 5} Lindsay immediately suspected that Haynes was the person messaging her, and tried in vain to have Haynes state his real name. On multiple occasions during the exchange, Lindsay tried to have Haynes use his real name, and on multiple occasions throughout the exchanges, Lindsay expressed to Haynes that she was afraid because of the contents of his message. When Lindsay insisted that the messenger identify himself, Haynes turned up the music in his apartment and asked if Lindsay could hear it. Haynes also made several references to their disagreements regarding the loud music, and told Lindsay that his messaging her was "the only way to talk to [her] without all the hostility * * *." Haynes also told Lindsay, "to be real honest, I did all of this cause I can't get you out of my mind, even your voice is so beautiful in my head! I just honestly had to take a chance, even tho its [sic] pretty weird."
(¶ 6} The morning after the Facebook incident occurred, Lindsay went to Towne Properties management and reported what had occurred. Management printed out the Facebook exchange, and told Lindsay to go to the police, which Lindsay did. Lindsay then asked to be let out of her lease because she was afraid of Haynes, and did not feel safe at the apartment complex. Management told Lindsay that it was not possible for her to break the lease, and told Lindsay instead that she could move to a different apartment a few streets over. Lindsay expressed concern that the apartment offered was on the first floor because of safety and accessibility reasons. According to Lindsay, Towne Properties showed her a different possible apartment, which was located in the "same grouping" as her original apartment. Lindsay considered the apartment so close to her original one "out of the question, " and agreed to move into the first-floor apartment. Management then told Schmidt and Haynes that Lindsay was moving and to not have any additional contact with her.
(¶ 7} During the time that Lindsay reported her complaints regarding Schmidt and Haynes, management had become aware that Haynes was not on Schmidt's lease. After the Facebook incident, management told Schmidt that Haynes would have to vacate the property because he was not on the lease. Schmidt then told management that she wanted to add Haynes to the lease, and management began to take steps to add Haynes to the lease, even after being informed of the Facebook incident and being aware of the other complaints. Haynes came into the office and filled out an application, which was intended to include a credit and criminal background check. However, when the credit application came back as indicating a negative credit history, the criminal background check was not performed. Haynes was not added to Schmidt's lease.
(¶ 8} A few days after Lindsay was moved and while he was still living with Schmidt, Haynes broke into Lindsay's apartment and raped her. Lindsay's daughter was also in the apartment and heard her mother being raped by Haynes. Lindsay sustained multiple physical injuries in addition to the psychological impact the rape had on her and her daughter. Haynes was apprehended by police, and was tried and convicted of rape and aggravated burglary. The trial court sentenced Haynes to nine years in prison, and Haynes was classified as a Tier III sexual offender.
(¶ 9} Lindsay filed a civil action against Towne Properties alleging negligence, negligent infliction of emotional distress, and breach of contract. Towne Properties answered, and the two parties engaged in discovery. During discovery, Lindsay gave a deposition, as did several employees of Town Properties who were involved in the happenings pertinent to Lindsay's suit. Deponents included Erin Fulmer, the complex manager; Nancy Marquez, the assistant manager; Shawna Wieland, a corporate trainer of Towne Properties' policies; Erick Grossl, the District Manager; Jeff Robbins, a former Maintenance Manager for the complex; and Carol Case, a leasing agent.
(¶ 10} Both parties moved for summary judgment, and the trial court granted Towne Properties' motion. In its decision, the trial court found that Haynes' rape of Lindsay was not foreseeable and that Towne Properties did not fail to take reasonable precautions. The trial court also granted summary judgment regarding the negligent infliction of emotional distress and breach of contract claims. Lindsay now appeals the trial court's decision, raising three assignments of error. Lindsay has not addressed the trial court's grant of summary judgment regarding negligent infliction of emotional distress in her brief, and also acknowledged at oral arguments that she is not challenging the trial court's grant of summary judgment regarding the breach of contract claim. Therefore, we will confine our analysis to the trial court's decision regarding negligence. For ease of discussion, and because they are interrelated, we will discuss Lindsay's first and second assignments of error together.
(¶ 11} Assignment of Error No. 1:
(¶ 12} THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE THERE WERE MATERIAL ISSUES ...