Daniels v. Thistledown Racing Club, Inc.

Patton, Chief Judge. Plaintiff-employee Phyllis Ann Daniels worked as a groomer for a horse trainer at defendant Thistledown Racing Club, Inc. In addition to her salary, the trainer provided plaintiff a small room above one of the horse bams for use as sleeping quarters. During the evening of June 22, 1991, a jockey entered plaintiff’s unlocked room as she slept and raped her. Plaintiff filed this action against Thistledown, alleging Thistledown had permitted a hazardous condition to exist and further breached a statutory duty to provide a safe work place. Thistledown filed a motion for summary judgment in which it argued it had no duty to protect plaintiff from unforeseen criminal acts. The trial court granted the motion, *284 finding no evidence in the record to support the conclusion that Thistledown knew or had reason to know the jockey would commit a crime. Additionally, the trial court found plaintiff provided no evidence of any activity that would give Thistledown notice the jockey, or any other person, was likely to commit an attack upon plaintiff or any other employee. Plaintiff appeals and sets forth the following assignment of error: “The trial court erred in granting Defendant’s Motion for Summary Judgment in that there are issues of material fact regarding the duty owed by the Defendant to the Plaintiff and the Defendant’s breach of this duty.” In order to establish actionable negligence, a plaintiff must establish a duty owed her by defendants, breach of that duty, proximate cause of the injury, and an injury. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142, 539 N.E.2d 614, 616-617; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710. A Plaintiff first argues that we should adopt Section 344 of the Restatement of the Law 2d, Torts (1965), and find that Thistledown owes her a duty based upon its act of opening its premises to the public. Section 344 states: “A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animal, and by the failure of the possessor to exercise reasonable care to “(a) discover that such acts are being done or are likely to be done, or “(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Section 344 of the Restatement is inapplicable since plaintiff was not a member of the public who entered Thistledown for business purposes. She worked for a horse trainer, not Thistledown. The horse trainer paid her and gave her the use of a room at no charge. As a person who did not work for Thistledown, but had the right to enter the Thistledown premises, plaintiff had the status of a frequenter. Under R.C. 4101.01(E), a “frequenter” is defined as “every person, other than an employee, who may go in or be in a place of employment under circumstances which render him other than a trespasser.” The duty that an employer owes to a frequenter is set forth in R.C. 4101.11, which provides: *285 “Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.” The duty owed to frequenters “is no more than a codification of the common-law duty owed by an owner or occupier of premises to invitees, requiring that the premises be kept in a reasonably safe condition, and that warning be given of dangers of which he has knowledge.” Eicher v. United States Steel Corp. (1987), 32 Ohio St.3d 248, 249, 512 N.E.2d 1165, 1167, citing Westwood v. Thrifty Boy (1972), 29 Ohio St.2d 84, 58 O.O.2d 154, 278 N.E.2d 673, paragraph one of the syllabus. The owner or occupier is not an insurer of the safety of invitees and only owes a duty to the invitee to exercise ordinary care to maintain the premises in a reasonable, safe condition. Cyr v. Bergstrom Paper Co. (1982), 3 Ohio App.3d 299, 301, 3 OBR 345, 347-348, 444 N.E.2d 1349, 1351-1352. This equates to a duty of ordinary care. Debie v. Cochran (1967), 11 Ohio St.2d 38, 40 O.O.2d 52, 227 N.E.2d 603. Thistledown posts security guards at track entrances. Only persons issued a license by the Ohio Racing Commission are allowed in the track area after races. The jockey who committed the rape was a license holder. He entered the grounds in the early morning hours of June 22,1991, in a noticeably intoxicated condition. One of the security guards noted that the jockey was “feeling no pain” and told him to “settle down.” After the rape, the jockey told the police, “I can hardly remember doing all this as drunk as I was * * *.” This evidence of the jockey’s intoxication does not lead to the conclusion that Thistledown had knowledge or reason to believe he would commit a sexual assault. There is no evidence to show that the jockey had been intoxicated on other occasions and attempted to assault other persons. In fact, the unrebutted evidence showed that security guards had no previous problems with the jockey and considered him well-mannered. Plaintiff did testify that the jockey had previously made two unwelcome advances toward her, but she did not communicate this information to Thistledown stewards or security. In any event, she admitted at deposition that his reaction to her rejections was not such as to suggest the possibility he might retaliate with the use of force. Given the absence of any prior behavior or immediate concern for plaintiffs safety, we find no evidence in the record that *286 would alert Thistledown security to the possibility the intoxicated jockey would commit the sexual assault. Plaintiff submitted the affidavit of a retired city of North Randall police sergeant who averred that he had firsthand knowledge of the security measures employed by Thistledown. In the sergeant’s opinion, Thistledown provided inadequate security measures since the guards allowed an obviously intoxicated individual onto the premises. In addition, the sergeant criticized the fact that the post nearest to plaintiffs quarters had not been staffed on the evening of the rape. Had the post nearest plaintiffs quarters been staffed, the sergeant believed that security guards might have heard her cries for help. Although security incident reports in the record show prior reports of intoxicad ed individuals on Thistledown grounds, none of those intoxicated individuals were involved in criminal acts of sexual assault. The record simply fails to show that the jockey, or any other individual for that matter, gave Thistledown any reason to suspect intoxication could lead to acts of sexual assault. As to the placement of the guard posts, the record also fails to support the conclusion that the assault might have been prevented had a guard been posted nearer to plaintiffs quarters. The trial court ordered the expert’s opinion stricken because the record contains no facts showing plaintiff made any cries for help. Hence, even had the guard post nearest to plaintiffs quarter been staffed, the evidence does not permit the conclusion that a guard might have heard the sexual assault and intervened. B Plaintiff next argues that liability could be imposed for a per se violation of racetrack regulations promulgated by the Ohio Racing Commission. She cites Ohio Adm.Code 3769-4-12, requiring permit holders to provide around-the-clock patrol of the stable area; Ohio Adm.Code 3769-4-19, requiring permit holders to provide adequate and sanitary living quarters; and Ohio Adm.Code 3769-4-57, which permits the track chief of security to order any person licensed by the Ohio Racing Commission to submit to a breath test at any time the chief of security believes that person may have consumed sufficient alcohol to cause that person to fail the breath test. Where a statute does not expressly provide for civil liability, the question whether a violation of the statute constitutes negligence per se depends on the enactment itself. Mussivand v. David (1989), 45 Ohio St.3d 314, 319, 544 N.E.2d 265, 270-271. In Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440, paragraph three of the syllabus states: *287 “Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.” Where a specific requirement is made by statute and an absolute duty is imposed, no inquiry is to be made whether the defendant acted as a reasonably prudent person or exercised due care. Swoboda v. Brown (1935), 129 Ohio St. 512, 522, 2 O.O. 516, 520-521,196 N.E. 274, 278-279. A lack of reasonable care is presumed from the violation of the duty imposed by the legislative authority. The regulations cited by plaintiff do not set forth specific duties to be followed by permit holders like Thistledown. The obligations to provide safe and sanitary living quarters, around-the-clock patrols and discretionary breath tests are general requirements that may be fulfilled a variety of ways. Accordingly, we conclude that violations of the administrative regulations in the present case do not constitute negligence per se. See Jaworowski v. Med. Radiation Consultants (1991), 71 Ohio App.3d 320, 329-330, 594 N.E.2d 9, 15-16. It follows that the trial court did not err by granting summary judgment. The assigned error is overruled. The judgment is affirmed. Judgment affirmed. Dyke, J., concurs. Patricia A. Blackmon, J., dissents.