text:
    Donna L. LUNSFORD, et al., Plaintiffs-Appellants v. STERILITE OF OHIO, LLC, et al., Defendants-Appellees
    No. 2017CA00232
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT: August 24, 2018
    S. DAVID WORHATCH, Law Offices of S. David Worhatch, 4920 Darrow Road, Stow, Ohio 44224-1406, For Plaintiffs-Appellants.
    JOHN N. CHILDS, DANIEL J. RUDARY, Brennan, Manna & Diamond, LLC, 75 East Market Street, Akron, Ohio 44308, For Defendants-Appellees.
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J. and Hon. Criag R. Baldwin, J.
   Baldwin, J.

{¶ 1} This appeal arises from the trial court's dismissal of the Appellants' complaint after finding that the complaint failed to state a claim for which relief may be granted. ( Civ.R. 12(b)(6) ). As required by that Rule, we assume that the facts alleged in the complaint are true and construe all reasonable inferences in favor of the Appellants.

{¶ 2} Within that context, we set forth the relevant facts below

STATEMENT OF THE FACTS AND THE CASE

{¶ 3} Appellants Adam Keim ("Keim"), and Laura Williamson ("Williamson") were employees of Appellee Sterilite of Ohio, LLC and Appellants Donna L. Lunsford ("Lunsford"), Peter D. Griffiths ("Griffiths"), are still so employed. Appellee Sterilite of Ohio, LLC, ("Sterilite") is a limited liability company located at 4495 Sterilite Avenue, S.E., in Massillon, Ohio. Appellee Sterilite, LLC ("the Parent Company"), is a limited liability company that is the parent company of the Appellee Sterilite. Defendant U.S. Healthworks Medical Group of Ohio, Inc. ("U.S. Healthworks"), is a corporation located at 2626 Fulton Drive, N.W., Canton, Ohio.

{¶ 4} Appellee Sterilite adopted a Substance Abuse Policy, a copy of which was attached to the complaint. The Policy warned of testing for "reasonable suspicion that an employee may be impaired by the use of drugs or alcohol in violation of this policy," and that the company would conduct "random testing at periodic intervals to maintain safety and productivity." The Policy explained that Sterilite would use a urinalysis method to test for the use of illegal drugs or the improper use of prescription or over-the-counter drugs. The Policy described the procedure and the consequences of refusal or failure to take the test as follows:

Employees to be tested will be informed by their Supervisor as to when and where they are to report for testing. Employees will be granted up to two and one-half hours to produce a valid specimen for test purposes. Failure to produce a valid urine specimen within the allowed timeframe will be considered as a refusal to undergo a drug test.
Failure to properly submit to a BAT or blood alcohol test within the allowed timeframe will be considered a refusal to undergo the BAT or blood alcohol test.
5. CORRECTIVE ACTIONS FOR EMPLOYEES: Any employee who refuses to undergo a drug/alcohol test will be subject to immediate termination. Except as otherwise provided in this policy, an employee who tests positive for alcohol, illegal drugs, or prohibited use of prescription or over-the-counter drugs as described in this policy will be subject to disciplinary action, up to and including termination. An employee, (sic) who tests positive for the use of valid prescription or over-the-counter drugs will not be subject to disciplinary action if the test is the result of a random drug screen. If, however, the positive test is the result of a test based upon reasonable suspicion of impairment or a workplace accident/incident, disciplinary action will be imposed up to and including termination. A positive test for marijuana, even if based upon a prescription for medical purposes under Ohio law, will subject the employee to discipline under this Policy.

Exhibit B, Complaint.

{¶ 5} Appellants were notified by Sterilite to appear at a specified location within the Sterilite plant to submit to a urinalysis. Lunsford, Williamson and Griffiths were subject to a random screening. Keim was tested under the reasonable suspicion clause of the policy and while he objected to the assertion that there was reasonable suspicion, he complied with the directive of Sterilite as did all Appellants.

{¶ 6} Sterilite used what Appellants describe as a direct observation method of collecting the urine specimen for the test. Each employee was accompanied by an individual of the same sex to a restroom facility designated by Sterilite for the exclusive purpose of collecting urine samples pursuant to the Policy. While in the restroom, the person accompanying the Appellant was obligated to visually observe the Appellants genitals and the production of the urine sample. U.S. Healthworks completed the collection in this manner at the direction of Sterilite.

{¶ 7} The direct observation procedure was disclosed to the Appellants only immediately prior to conducting the test. Direct observation was not described in the Substance Abuse Policy maintained by Sterilite. Appellants signed a consent and release form shortly prior to the administration of the test, but the form did not reference direct observation.

{¶ 8} The Appellants had not behaved in any manner that would give Sterilite cause to believe that they would do anything to compromise the integrity of the urine sample, nor did they make any statements or take any action that might be reasonably interpreted as advocacy or threats to undermine the policy. The Appellants did not act in a way that created a concern that they might adulterate past samples, the samples taken on that date or advocate that any other employee take such an action. Appellant Lunsford was subject to urine tests at Sterilite prior to the tests at issue, but none used direct observation.

{¶ 9} Sterilite began using the direct observation method in October 2016 and it was used for all analyses without any requirement that the employee had engaged in any behavior that might alter the outcome of the urinalysis.

{¶ 10} All Appellants were subject to the direct observation method of collection. Sterilite terminated Keim's and Williamson's employment because they failed to produce a urine specimen within two and one half hours, despite their good faith effort to comply with the request. Lunsford and Griffiths were able to supply a sample, but Lunsford was particularly uncomfortable because it forced her to reveal genital scarring she suffered from a surgical procedure. Lunsford and Griffiths are still employed by Sterilite.

{¶ 11} Appellants filed a complaint on December 22, 2016 alleging Invasion of Privacy, Wrongful Discharge in Violation of Public Policy, Failure to Remit Minimum Wages, Failure to Remit Wages, Breach of Contract and seeking Declaratory Judgment, Injunctive Relief, and Certification as a Class. Appellees filed a motion to dismiss the complaint for failure to state a claim for which relief may be granted pursuant to Civ.R. 12(b)(6) and Appellants opposed the motion. The trial court granted the motion on May 9, 2017 with regard to Count One, Invasion of Privacy; Two, Wrongful Discharge in Violation of Public Policy; Three, Declaratory Judgment regarding the Direct Observation Method; Four, Injunctive Relief regarding the Direct Observation Method, and Five, Class Action for Declaratory and Injunctive Relief. On June 13, 2017 Appellant Williamson dismissed her claims in counts Six through Eight without prejudice. On November 27, 2017, after several pleadings involving an attempt to file an amended complaint and other unrelated matters, Appellants dismissed counts Six through Eight and thereafter, on November 30, 2017, the trial court entered an order noting that no claims remain pending and the order of May 9, 2017 was now a final appealable order. Appellants filed a notice of appeal on December 26, 2017 and submitted the following assignments of error:

{¶ 12} I. THE TRIAL COURT ERRED BY CONCLUDING, AS A MATTER OF LAW, THAT APPELLANTS FAILED TO STATE A CLAIM UPON WHICH RELIEF COULD BE GRANTED ON THEIR COMMON LAW TORT CLAIM FOR INVASION OF PRIVACY.

{¶ 13} II. THE TRIAL COURT ERRED WHEN IT CONCLUDED, AS A MATTER OF LAW, THAT APPELLANTS' EXECUTION OF A "CONSENT" FORM NULLIFIED ANY REASONABLE EXPECTATION OF PRIVACY THAT THEY OTHERWISE MAY HAVE CLAIMED.

{¶ 14} III. THE TRIAL COURT ERRED IN DISMISSING APPELLANTS' CLAIMS SEEKING DECLARATORY AND INJUNCTIVE RELIEF ARISING OUT OF THEIR EMPLOYER'S UNREASONABLE INTRUSION INTO THEIR PRIVATE AFFAIRS.

{¶ 15} IV. TO THE EXTENT APPELLANTS HAVE STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED UNDER COUNT THREE AND/OR COUNT FOUR OF THEIR COMPLAINT, THE TRIAL COURT ERRED IN FAILING TO ALLOW APPELLANTS TO PROCEED TO SEEK CLASS CERTIFICATION UNDER CIVIL RULE 23.

STANDARD OF REVIEW

{¶ 16} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo. Greeley v. Miami Valley Maintenance Contractors, Inc. , 49 Ohio St.3d 228, 551 N.E.2d 981 (1990), overruled in part by Tulloh v. Goodyear Atomic Corp. , 62 Ohio St.3d 541, 584 N.E.2d 729 (1992). A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 1992-Ohio-73, 605 N.E.2d 378 (1992). Under a de novo analysis, we must accept all factual allegations of the complaint as true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

{¶ 17} A trial court should dismiss a complaint for failure to state a claim on which relief can be granted pursuant to Civ.R. 12(B)(6) only when it appears "beyond doubt * * * that the [plaintiff] can prove no set of facts warranting relief." State ex rel. Crabtree v. Franklin Cty. Bd. of Health , 77 Ohio St.3d 247,248, 1997-Ohio-274, 673 N.E.2d 1281 (1997). The court may look only to the complaint itself, and no evidence or allegation outside the complaint, when ruling on a Civ.R. 12(B)(6) motion. State ex rel. Fuqua v. Alexander , 79 Ohio St.3d 206, 1997-Ohio-169, 680 N.E.2d 985 (1997). Nevertheless, the court may consider material incorporated in the complaint as part of the complaint. State ex rel. Crabtree, supra at 249, fn. 1, 673 N.E.2d 1281. Even so, because Ohio has rejected "fact pleading" in favor of "notice pleading," a plaintiff is not required to prove his or her case through the pleadings in the complaint, since the plaintiff's lack of access to relevant evidence at that stage of the proceedings would allow dismissal of many valid claims. York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 573 N.E.2d 1063 (1991).

ANALYSIS

{¶ 18} The Appellants submitted four assignments of error, but the common element and lynchpin of all the assignments is the determination of whether the Appellants have stated a claim for invasion of the right of privacy. Appellants' case will survive or fail based upon the resolution of that issue alone. The first assignment of error addresses that question, and the remaining assignments assume that the first assignment is decided in Appellants' favor. If the first assignment of error is rejected, the remaining assignments are rendered moot. However, if the first assignment of error is approved, this case must be remanded to the trial court to fully address the issues described within the remaining assignments.

The right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.
An actionable invasion of the right of privacy is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.

Housh v. Peth , 165 Ohio St. 35, 133 N.E.2d 340, 341 (1956), syllabus paragraphs 1 and 2.

{¶ 19} The Appellants' claims arise out of the third category described by the Housh court, "the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities." Specifically, Appellants allege that the Appellees' direct observation of Appellant's genitals during collection of a urine sample is such an intrusion.

{¶ 20} This invasion of privacy does not rely on publication of the private information "but is akin to trespass in that it involves intrusion or prying into the plaintiff's private affairs." Killilea v. Sears, Roebuck & Co. , 27 Ohio App.3d 163, 166, 499 N.E.2d 1291 (10th Dist.1985). Consequently, this type of claim does not require that the Appellees took steps to expose the Appellants' private matters to the public, but only that the Appellants had a reasonable expectation of privacy regarding the subject matter and Appellees wrongfully intruded into the protected area. "In other words, there is no wrongful intrusion where there is no reasonable expectation of privacy. " Turner v. Shahed Ents ., 10th Dist. Franklin No. 10AP-892, 2011-Ohio-4654, 2011 WL 4090422, ¶ 21.

{¶ 21} In the case at bar, Appellants claim a "special sense of privacy in their genitals," an expectation shared by most. "The desire to shield one's unclothed figure from view of strangers * * * is impelled by elementary self-respect and personal dignity." Everson v. Michigan Dept. of Corr., 391 F.3d 737, 757 (6th Cir.2004). We find appellants did have a reasonable expectation of privacy with regard to exposure of their genitals.

{¶ 22} Ohio and federal courts have concluded that requiring a urine sample from an employee and testing that sample for drugs does not implicate the employee's right of privacy, but those courts were more concerned with the requirement of providing the sample and the testing of bodily fluid and did not focus on whether the method of collection would invade the employee's right of privacy. For example, the Court in Groves v. Goodyear Tire & Rubber Co ., 70 Ohio App.3d 656, 661-62, 591 N.E.2d 875 (3rd Dist.1991) found that:

[t]he courts appear to be supportive of employers' attempts to create a safe working environment by holding that drug-testing does not constitute an invasion of the employees' common law right to privacy. Accordingly, we conclude that there exists no genuine issue of material fact as to whether Appellee's drug testing of Appellant constituted an actionable invasion of her right to privacy.

{¶ 23} Further, an employee consenting to a drug test waives the right to complain that his urine is collected and tested. Id at 660, 591 N.E.2d 875. Employees have a reduced expectation of privacy regarding production of bodily fluids and testing of the same, but these cases are of little assistance when the issue involves the manner of collection and not simply the right to collect and test the specimen.

{¶ 24} The Appellants contend that they had an expectation of privacy with regard to their bodies and that the compelled exposure of their genitals and compelled urination before a stranger intruded upon that privacy. Appellees contend the Appellants' expectation of privacy was reduced in this context such that the direct observation method did not violate the Appellants' privacy and offer citations to several cases in support of their argument. While those cases do show that an employee has a reduced expectation of privacy regarding the composition of their bodily fluids, the precedent Appellees rely upon does not address the direct observation method implemented by Appellees and whether Appellants have a reasonable expectation of privacy in this context. Contrary to Appellees assertions, we find that relevant precedent supports a clear expectation of privacy in the circumstances presented by Appellants:

Nor can it be disputed that the process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests. As the Court of Appeals for the Fifth Circuit has stated:
There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.

Skinner v. Ry. Labor Executives' Ass'n , 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989).

{¶ 25} The Skinner Court was analyzing Fourth Amendment rights, an issue not present in the case at bar, but we cannot ignore the Court's observation regarding the privacy interests at issue and we agree that "the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable." Id at 617, 109 S.Ct. 1402.

{¶ 26} The Tenth District Court noted that Appellants have a reasonable expectation of privacy regarding their body. "What is underneath [Appellants'] clothing is private and a part of Appellant's seclusion. The intrusion upon these private matters * * * would be highly offensive to a reasonable person, and, indeed, Appellant averred that those acts caused her humiliation, embarrassment, and mental distress." Hidey v. Ohio State Hwy. Patrol, 116 Ohio App.3d 744, 751, 689 N.E.2d 89, 93 (10th Dist.1996). The Sixth Circuit has made the expectation of privacy in this context clear:

As one of our sister circuits has explained, most people "have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating." Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.1981) ; see also York v. Story , 324 F.2d 450, 455 (9th Cir.1963) ("We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one's unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.").

Everson, supra at 757.

{¶ 27} We agree that the Appellants have a reasonable expectation of privacy with regard to the exposure of their genitals. We now turn to whether the Appellants have alleged sufficient facts to state a claim for invasion of that expectation of privacy.

{¶ 28} The Appellants contend that the method utilized by Appellees required them to urinate while a representative directly and indiscreetly observed their genitals, violated their right to privacy. Appellees respond by directing us to precedent they claim undermines the Appellants' expectation of privacy. Appellees refer to the holding of the Sixth Circuit Court of Appeals that states "even accepting the plaintiffs' contention that Eagle-Picher's urine testing program may have been intrusive and objectionable to a reasonable person, summary judgment is still appropriate." Baggs v. Eagle-Picher Industries, Inc. , 957 F.2d 268, 275 (6th Cir.1992). The facts of Baggs do not clearly include direct observation of an employee's genitals while urinating: "[m]ale employees used a urinal in the presence of a male nurse. Female employees used a stall while a female nurse stood outside." Id at 270. The Bagg s Court observed that "the Michigan Court of Appeals has held that a plaintiff may recover for an intrusion into his or her solitude when performing eliminatory functions," Id at 274, suggesting that Court might reach a different conclusion on the facts as alleged in the case at bar.

{¶ 29} In fact, in Saldana v. Kelsey-Hayes Co., 178 Mich.App. 230, 234, 443 N.W.2d 382 (Mich.App.1989), one of the cases cited in Baggs, the court found that "[i]t may not be objectionable to peer through an open window where the curtains are not drawn, but the use of a powerful lens to observe the interior of a home or of a subterfuge to enter a home could be found objectionable to a reasonable person." The Saldana court determined that the plaintiff had no claim because the plaintiff did not allege facts that "show the intrusions were into matters which plaintiff had a right to keep private." Saldana, supra at 234, 443 N.W.2d 382. The case before us is distinctly different; the Appellants have alleged intrusions into matters they did have a right to keep private, the exposure of their bodies.

{¶ 30} Considering the circumstances and analysis of the courts in Saldana and Baggs, we cannot agree the holdings in those cases create the foundation for a dismissal under Civ.R. 12(b)(6) in the case at bar. Neither case addressed the expectation of the right to privacy while eliminating urine compared to the employer's legitimate interest in providing a safe and drug free work place. On the contrary, the Baggs ' court recognition that "[t]he Michigan Court of Appeals has held that a plaintiff may recover for an intrusion into his or her solitude when performing eliminatory functions" leaves serious questions as to how Michigan Courts or the Sixth Circuit Court of Appeals would address the facts of the case at bar. Baggs, supra at 274.

{¶ 31} Appellee urges us to consider holdings in cases involving persons involved in the penal system, but those cases generally involve Fourth Amendment rights not at issue in the case at bar. Further, the fact that the claimants in those cases have subjected themselves to governmental supervision creates a significant distinction that lessens the relevance of the holdings. The courts in the cases cited do note that urination is generally considered a private matter and that genital exposure can be humiliating, but, in the context of a prison or post-conviction release, a requirement that intrudes upon those matters might be permitted. The totality of the circumstances in those cases is vastly different than what is present in the case at bar.

{¶ 32} The Appellees cite Norris v. Premier Integrity Sols ., Inc., 641 F.3d 695, 699 (6th Cir.2011) where the plaintiff objected to direct observation of urination. Norris asserted a Fourth Amendment claim, not a claim for violation of privacy. The holding is further distinguished by Norris's identity as a person subject to Kentucky's Pretrial Services Monitored Conditional Release Program where he was freed from mobility restraint upon agreeing to various judicially-imposed conditions. Id at 696. That Court noted that he had a severely reduced expectation of privacy as a participant in that program and cited to several supportive cases, including a Ninth Circuit decision that noted that "on the privacy side, probationers have sharply reduced liberty and privacy interests: Probation is a form of criminal punishment, so probationers do not enjoy the absolute liberty to which every citizen is entitled, " United States v. Scott, 450 F.3d 863, 873 (9th Cir.2006) and a United States Supreme Court Decision that held that "[t]he extent and reach of these conditions clearly demonstrate that parolees like petitioner have severely diminished expectations of privacy by virtue of their status alone," Samson v. California , 547 U.S. 843, 852, 126 S.Ct. 2193, 2199, 165 L.Ed.2d 250 (2006) and finally "[t]he probation condition * * * thus significantly diminished Knights' reasonable expectation of privacy." United States v. Knights , 534 U.S. 112, 119-20, 122 S.Ct. 587, 591-92, 151 L.Ed.2d 497 (2001). The circumstances in Norris reduces its utility significantly, though we do note that the Norris court cited with approval the observation of the District Court that "Premier's 'direct observation' method of obtaining a urine sample is 'highly intrusive.' " Norris, supra at 699.

{¶ 33} The Third Circuit Court of Appeals addressed a situation involving a private employer urine test and noted that:

If the method used to collect the urine sample fails to give due regard to the employees' privacy, it could constitute a substantial and highly offensive intrusion upon seclusion. See Mark A. Rothstein, Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law , 63 Chi-Kent L Rev 683, 729 (1987) (public policy exception to employment-at-will doctrine most likely to be applied when employer requires direct observation of urination). See also Kelley v. Schlumberger Technology Corp ., 849 F.2d 41 (1st Cir.1988) (upholding jury verdict that employer's urinalysis program involving direct observation of urination invaded common-law right of privacy under Louisiana law).

Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3d Cir.1992), as amended (May 29, 1992).

{¶ 34} While not binding on this Court, the holding of Borse provides some insight on limitations of the employers ability to use intrusive and objectionable means to obtain a urine sample and whether employers should face legal consequences for failure to give due consideration to the employees right of privacy when establishing a method for collection. The Supreme Court of Ohio addressed an analogous situation in Housh when it examined the means used by a collection company to collect a debt and held that while the company had a right to collect the debt, the Court would impose limits to its ability to invade the debtor's right of privacy. The Court found that "In our opinion the conduct of the defendant falls outside the bounds of reasonable methods which may be pursued in an effort to collect a debt, and is actionable as an invasion of plaintiff's right of privacy." Housh, supra at 41, 133 N.E.2d 340. We read the holding in Housh as applied in this context to mean that an employer may use reasonable means to accomplish its goal of providing a safe and drug free workplace, including the collection and testing of bodily fluids. However, just as in Housh, we cannot state there can never be a method of collection of bodily fluids that would fall "outside the bounds of reasonable methods which may be pursued" and that, therefore "is actionable as an invasion of plaintiff's right of privacy." Id.

{¶ 35} The trial court does not include in its analysis of precedent the Housh directive to consider the reasonableness of the intrusion, but the cases cited by the trial court recognize similar limitations on the method of collecting urine specimens. The trial court relies upon Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 658, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) for "a reduced expectation of privacy and a compelling interest advanced by random, suspicionless drug testing of high school students, which was also administered in a monitored setting (albeit perhaps less directly observed than what is alleged here)."(Judgment Entry, May 9, 2017, P. 5). We find the distinction between the two cases to be more striking than what is noted by the trial court. In Vernonia School Dist. 47J the Court noted that "These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially schoolchildren use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Id. at 657, 115 S.Ct. 2386. We cannot agree that the United States Supreme Court would arrive at the same conclusion should it be presented with the facts that are described in Appellants' complaint in the case at bar, namely the direct observation of the Appellant's genitals. The Appellants' allegations present a picture that is very different from conditions typically encountered in public restrooms.

{¶ 36} A similar distinction can be made with regard to another case cited by Appellee and the trial court, Wilcher v. City of Wilmington , 139 F.3d 366 (3d Cir.1998). In that case, the plaintiffs claimed that direct observation of their genitals occurred during the collection of the urine specimen. The Third Circuit noted that:

The firefighters claim that monitors looked at their genitalia as they urinated. SODAT and its employees, on the other hand, steadfastly maintain that they did not focus on the firefighters'
genitalia during the urine collection process. Instead, they claim that they looked in the firefighters' general direction to ensure that no tampering was taking place during the production of the urine specimen.
* * *
In light of the nature of the testimony from the SODAT employees, which the trial judge chose to credit, we cannot say that the district court's finding was clearly erroneous. Consequently, we will adopt the district court's description of the SODAT procedure as one which entails only incidental observation of a firefighters' genitals .

Wilcher at 375 (Emphasis added).

{¶ 37} The Third Circuit decided it was important to investigate the details regarding the method of collection and the level of intrusion into the firefighters privacy caused by that method. The court found only incidental observation of genitals and, therefore, found no invasion of privacy. With regard to female firefighters, the court agreed that ", the facts of this case suggest that SODAT took substantial measures to minimize the intrusion of privacy to female firefighters caused by the direct observation procedure" and that "the monitors did not look at the firefighters genitalia as the urinated, but rather in their general direction." Id. at 377.

{¶ 38} Both the United States Supreme Court and the Third Circuit Court of Appeals determined that the method utilized during direct observation was an important issue and both determined there was only incidental observation of genitals. The fact that both courts felt it important to reach that conclusion suggests that a different conclusion may be reached under different facts and, therefore, we cannot agree that the decisions in Vernonia School Dist. 47J and Wilcher provide an answer which should lead to the dismissal of the complaint for failure to state a claim.

{¶ 39} In the case before us, we are not called to determine whether direct observation of urine collection is justified or reasonable considering the circumstances. We consider justification and reasonableness to be factual issues that must not be decided in the context of a motion to dismiss for failure to state a claim. If this case was solely focused upon whether the employer invades an employee's privacy by requiring the employee to produce a sample of bodily fluids, such as urine, for appropriate testing, we would agree that issue has been resolved. Requiring the production of a specimen and consent to a test would not likely be an invasion of privacy. However, the focus of the Appellant in this case is not the fact of the production of the sample and the subsequent test, but the means of collection. To the extent the Appellant is challenging the direct observation method, the precedent Appellees rely upon is unhelpful as it does not address the method.

{¶ 40} The Southern District of New York considered a case regarding direct observation in the context of a claims of a violation of the Fourth Amendment and, while that case focused on a different basis for the challenge to the testing procedure, the courts characterization of the collection process is helpful:

I find urinalysis analogous to a blood test. Although it involves no forced penetration of body tissues, as does a blood test, it does involve the involuntary extraction of body fluids. In that sense, if not literally, it is an "intrusion beyond the body's surface." Schmerber, 384 U.S. at 769, 86 S.Ct. at 1835. Further, the "interests in human dignity and privacy," id., at 769-770, 86 S.Ct. at 1835-36, which concerned Justice Brennan in Schmerber are plainly implicated when an inmate is forced to perform in the presence of a prison guard what is ordinarily regarded as a private bodily function. In a way in which having blood extracted could never be, being forced under threat of punishment to urinate into a bottle held by another is purely and simply degrading.

Storms v. Coughlin , 600 F.Supp. 1214, 1218 (S.D.N.Y.1984)

{¶ 41} One of the few cases that addressed the issue of direct observation of urine collection decided in favor of the plaintiff. "Direct observation of employees urinating was * * * at the core of the plaintiff's complaint." Kelley v. Schlumberger Technology Corp. , 849 F.2d 41, 43 (1st Cir.1988). "During the trial [plaintiff] described himself as being "disgusted by the whole idea of someone being paid to look at [his] penis while [he] urinated." Kelley, Id. The trial court found for the plaintiff in that case and the appellate court affirmed, despite an argument by the defendant that the circumstances warranted the direct observation method.

{¶ 42} The precedent offered by Appellees in support of the conclusion that a general requirement that an employee provide a specimen for testing is not an invasion of privacy are not helpful in this context. Appellants complain of direct observation of an employee while the employee provides a urine sample, not the production of the specimen or the conduct of the test. Appellants alleged that "In the course of gathering specimens in this fashion, each employee was required to bare his or her genitals in the presence of the U.S. Healthworks monitor and to endeavor to produce a urine specimen while such monitor kept his or her eyes fixed on the employee's groin area." (Complaint, ¶ 9). The Appellant also claims "The "direct observation" process designated by the Employer and followed by U.S. Healthworks in collecting urine specimens in administering the Employer's drug screening program was highly offensive to a person of ordinary sensibilities" (Complaint, ¶ 10) and that "[t]he acts of the Employer and U.S. Healthworks, as alleged in Paragraphs 6 through 8 of this complaint, constituted an invasion into the private activities of each of the plaintiffs of a nature highly offensive to an ordinary person and in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities." (Complaint, ¶ 27). Finally, Appellants do contend Appellees' acts were wrongful. (Complaint, ¶ 28-29).

{¶ 43} Appellants have stated a valid claim for invasion of privacy pursuant to the requirement of the Supreme Court of Ohio in Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340, 341 (1956). We cannot agree that there is no set of facts upon which the Appellants may recover. Both Appellees and the trial court rely upon case law that does not foreclose the possibility that the method of collection of a urine sample could comprise a violation of the Appellants' right to privacy. We conclude that Appellants have stated a valid claim and that dismissal for failure to state a claim was not supported by a review of the pleadings and the attachments.

{¶ 44} Because the remaining assignments of error have at their foundation the claims of invasion of privacy, because the complaint was dismissed for failure to state a claim of invasion of privacy and because we find that decision in error, consideration of the remaining assignments of error at this junction would be premature.

{¶ 45} For the forgoing reasons, the decision of the Stark County Court of Common Pleas is reversed, the judgment vacated and the matter remanded to the trial court for further proceedings consistent with this opinion.

Gwin, P.J. and Hoffman, J. concur.


source: Caselaw Access Project

author: CALLAHAN, Judge.

license: Public Domain

text:
    STATE of Ohio, Appellee v. Jocquez I. ROSS, Appellant
    No. 17CA011220
    Court of Appeals of Ohio, Ninth District, Lorain County.
    Dated: September 4, 2018
    JACK W. BRADLEY, Attorney at Law, for Appellant.
    DENNIS P. WILL, Prosecuting Attorney, and NICHOLAS A. BONAMINIO, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Defendant-Appellant, Jocquez Ross, appeals from an order of the Lorain County Court of Common Pleas, disqualifying his retained counsel of choice. This Court affirms.

I.

{¶ 2} Mr. Ross was charged with a litany of offenses, including two counts of capital murder, following the deaths of a man ("the first victim") and the man's wife ("the second victim"). He chose to retain counsel and, over the next few months, either his retained counsel or his retained counsel's law partner appeared on his behalf at several pre-trials. At one of those pre-trials, the State notified the court that it had become aware of a potential conflict of interest. It was the State's position that retained counsel had a conflict of interest because: (1) he had represented the first victim on a drug-trafficking case in 2009; (2) his law partner was representing the first victim on a drug-trafficking case at the time of his death; and (3) his law partner previously had represented both the second victim and the first victim's mother, a potential witness in this matter.

Following the State's pronouncement, the court set the matter for a disqualification hearing, and the State filed a written motion to disqualify. Based on the arguments presented at the disqualification hearing, the State's written motion, and the relevant case law, the court granted the motion to disqualify.

{¶ 3} Mr. Ross now appeals from the trial court's order, disqualifying his retained counsel of choice. He raises one assignment of error for review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT DISQUALIFIED DEFENDANT'S COUNSEL OF CHOICE, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION [.]

{¶ 4} In his assignment of error, Mr. Ross argues that the trial court erred when it granted the State's motion to disqualify. He contends that his retained counsel had no conflict of interest and the State failed to prove that retained counsel would not act competently and diligently on his behalf. On review, this Court does not agree that the trial court erred in its disqualification order.

{¶ 5} Criminal defendants enjoy a constitutional right to counsel. Sixth Amendment; Ohio Constitution, Article I, Section 10. "[One] element of [that] right is the right of a defendant who does not require appointed counsel to choose who will represent him." United States v. Gonzalez-Lopez , 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). If a defendant has the ability to retain a qualified attorney, the Sixth Amendment generally protects his choice of counsel. Caplin & Drysdale, Chartered v. United States , 491 U.S. 617, 625, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). "A court commits structural error when it wrongfully denies a defendant his counsel of choice, so a defendant need not demonstrate further prejudice." State v. Miller , 9th Dist. Summit No. 27048, 2015-Ohio-279, 2015 WL 340936, ¶ 8, citing Gonzalez-Lopez at 150, 126 S.Ct. 2557. The wrongful denial "entitles [the defendant] to an automatic reversal of his conviction." State v. Chambliss , 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, ¶ 18. Moreover, because the right to one's choice of counsel is fundamental, a pretrial ruling that removes one's retained counsel of choice is immediately appealable. See id. at syllabus. Accord State v. Rivera , 9th Dist. Lorain Nos. 16CA011057, 16CA011059, 16CA011060, 16CA011061, 16CA011063, 16CA011073, 16CA011075, 2017-Ohio-8514, 2017 WL 5330062, ¶ 5.

{¶ 6} Though fundamental, the constitutional right to one's counsel of choice is not absolute. Miller at ¶ 9, quoting Wheat v. United States , 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). A defendant has no right to " 'an attorney with a conflict of interest * * *.' " Miller at ¶ 9, quoting State v. Howard , 5th Dist. Stark No. 2012CA0061, 2013-Ohio-2884, 2013 WL 4781932, ¶ 39. Both an actual conflict and "a showing of a serious potential for conflict" justify a trial court's removal of a defendant's counsel of choice. Wheat at 164, 108 S.Ct. 1692. That is because trial courts have an " 'independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.' " Gonzalez-Lopez at 152, 126 S.Ct. 2557, quoting Wheat at 160, 108 S.Ct. 1692.

Thus, "[t]rial courts have the inherent authority to regulate the conduct of attorneys, including the disqualification of attorneys in accordance with the Ohio Rules of Professional Conduct."
Harold Pollock Co., LPA v. Bishop , 9th Dist. Lorain No. 12CA010233, 2014-Ohio-1132 [2014 WL 1344581], ¶ 7. See also Avon Lake Mun. Utils. Dep't v. Pfizenmayer , 9th Dist. Lorain No. 07CA009174, 2008-Ohio-344 [2008 WL 281837], ¶ 13. They enjoy broad discretion when considering motions to disqualify counsel and, therefore, " '[w]e review a trial court's determination regarding a motion to disqualify counsel for an abuse of discretion.' " In re E.M.J. , 9th Dist. Medina No. 15CA0098-M, 2017-Ohio-1090 [2017 WL 1148610], ¶ 5, quoting Pfizenmayer at ¶ 13.

Rivera at ¶ 8. An abuse of discretion indicates that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 7} The Ohio Rules of Professional Conduct provide, in relevant part, that a conflict of interest exists "if * * * there is a substantial risk that [a] lawyer's ability to consider, recommend, or carry out an appropriate course of action for [a] client will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by the lawyer's own personal interests." Prof.Cond.R. 1.7(a)(2). With regard to former clients,

[a] lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter do either of the following:
(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known;
(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.

Prof.Cond.R. 1.9(c)(1)-(2). The Rules of Professional Conduct "impute conflicts of interest to all lawyers 'associated in a firm .' " (Emphasis sic.) Carnegie Cos. v. Summit Properties, Inc. , 183 Ohio App.3d 770, 2009-Ohio-4655, 918 N.E.2d 1052, ¶ 32 (9th Dist.), quoting Prof.Cond.R. 1.10(a). " 'Firm' * * * denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law * * *." Rule 1.0(c).

{¶ 8} It is undisputed that, during the timeframe relevant to this appeal, Mr. Ross' retained counsel had a law partner, and his partner appeared in his stead at several of Mr. Ross' pre-trials. The State informed the trial court that the first victim was a former client of retained counsel and, at the time of his death, a current client of the law partner. In both instances, the first victim had been facing drug-trafficking charges; a serious point of concern for the State because drugs were a possible motive for his murder. The State noted that, at the time of the first victim's death, the law partner had already been representing him for two years. The law partner also had represented the second victim in a prior criminal matter and, following the first victim's death, had represented the first victim's mother on a civil matter. Because the mother was a potential witness in this case, the State argued that her status as a former client was another point of conflict. Indeed, prosecutors divulged that the law partner had shared with them his discomfort at appearing on behalf of Mr. Ross when the first victim's mother was present. The State noted that the mother also had come forward to express her discomfort with the arrangement.

{¶ 9} Based on the foregoing relationships and the concerns cited by the State, the trial court found that there was "a serious potential conflict of interest that exist[ed] which could affect [retained] counsel's representation of [Mr. Ross]." Accordingly, it granted the State's motion to disqualify. Mr. Ross argues that the court erred by doing so because there was no conflict. He notes that, pursuant to Prof.Cond.R. 1.7(a)(2), a conflict only exists if there is a "substantial risk" that an attorney's relationship with a former client will materially limit him or her in fulfilling his or her duties as counsel. He argues that, at best, the State set forth evidence of "a minor risk" in this matter. According to Mr. Ross, the State failed to allege "any reason that [his retained] counsel [would] not [have] provide[d] competent and diligent representation to [him] in his case * * *."

{¶ 10} Having reviewed the record, this Court cannot conclude that the trial court abused its discretion when it granted the State's motion to disqualify. See In re E.M.J. , 2017-Ohio-1090, at ¶ 5, quoting Pfizenmayer , 2008-Ohio-344, at ¶ 13. Because retained counsel and his law partner practiced law together, they were considered a "firm" for purposes of the Rules of Professional Conduct. See Prof.Cond.R. 1.0(c). Thus, any conflict of interest that arose for one was, by law, imputed to the other. See Carnegie Cos. , 183 Ohio App.3d 770, 2009-Ohio-4655, 918 N.E.2d 1052, at ¶ 32, quoting Prof.Cond.R. 1.10(a). Even if retained counsel's representation of the first victim back in 2009 was not a cause for concern, the trial court reasonably could have concluded that there was a substantial risk his duties to Mr. Ross would be materially limited by the duties he owed to his partner's former clients. See Prof.Cond.R. 1.7(a)(2), 1.9(c)(1)-(2). As noted, both the victims and the first victim's mother, a potential witness in this matter, were his partner's former clients. The first victim's case, in particular, was a drug-trafficking case, and drugs were a possible motive for his murder. If any pertinent, privileged information came to light during the two-year period that the law partner acted as the first victim's counsel, both he and retained counsel would be prohibited from revealing or using that information to the disadvantage of the first victim, even if it would benefit Mr. Ross. See Prof.Cond.R. 1.9(c)(1)-(2). Moreover, if the first victim's mother testified in this matter, retained counsel would be placed in the position of cross-examining her despite her status as a former client. There was evidence that both the law partner and the victim's mother had already expressed their discomfort as a result of the partner acting as substitute counsel at various pre-trials. While Mr. Ross claims that there is only "a minor risk" that all the foregoing concerns will impede his retained counsel in the performance of his duties, the record supports the trial court's conclusion to the contrary.

{¶ 11} Notably, both an actual conflict and "a showing of a serious potential for conflict" justify a trial court's removal of a defendant's counsel of choice. Wheat , 486 U.S. at 164, 108 S.Ct. 1692. The trial court, acting in its sound discretion, reasonably could have concluded that there was a serious potential for conflict if retained counsel continued to represent Mr. Ross. See id. Accordingly, this Court cannot conclude that it erred in its decision to disqualify retained counsel. Mr. Ross' sole assignment of error is overruled.

III.

{¶ 12} Mr. Ross' sole assignment of error is overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.

Judgment affirmed.

TEODOSIO, P.J.

CARR, J.

CONCUR.


author: MARY J. BOYLE, J.:

text:
    Scott SCHEEL, Plaintiff-Appellant v. ROCK OHIO CAESARS CLEVELAND, L.L.C., et al., Defendants-Appellees
    No. 106531
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: September 6, 2018
    Robert D. Kehoe, Kevin P. Shannon, Kehoe & Associates, L.L.C., 900 Baker Building, 1940 East Sixth Street, Cleveland, Ohio 44114-2210, ATTORNEYS FOR APPELLANT
    Elizabeth M. Midgley, Anspach Meeks & Ellenberger, L.L.P., 350 Main Street, Suite 2400, Buffalo, New York 14202, Joseph S. Center, Anspach Meeks & Ellenberger, L.L.P., 300 Madison Avenue, Suite 1600, Toledo, Ohio 43604-2633, For Atlantis Security Company
    Robert H. Nichols, Juan Jose Perez, Andrew D. Wachtman, Perez & Morris L.L.C., 8000 Ravine's Edge Court, Suite 300, Columbus, Ohio 43235, For Rock Ohio Caesars Cleveland, L.L.C.
    BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Appellant, Scott Scheel, appeals the trial court's order granting summary judgment to appellee, Atlantis Security Company ("Atlantis"). He raises two assignments of error for our review:

1. The trial court erred in granting Atlantis's motion for summary judgment on Scheel's negligence claim where there is a question of fact about whether Atlantis had both a contractual and common law duty to provide police services and breached that duty, proximately causing Scheel's injury.
2. The trial court erred in granting Atlantis's motion for summary judgment on Scheel's spoliation of evidence claim where there is a question of fact about whether Atlantis was on notice of potential litigation and intentionally destroyed video footage which was necessary for Scheel to prove his case.

{¶ 2} Finding no merit to his assignments of error, we affirm.

I. Procedural History and Factual Background

{¶ 3} Rock Ohio Caesars Cleveland, L.L.C. ("the Casino") is a company that owned a casino located in downtown Cleveland. The Casino opened in May 2012. Prior to its opening, the Casino realized that it could not have armed security personnel on its payroll. As a result, on May 14, 2012, the Casino entered into a contract ("the Security Agreement") with Atlantis, "a contract security management service [ ] in Northeastern Ohio [that employs] primarily security officers and Cleveland police officers."

{¶ 4} The Security Agreement stated that Atlantis will "provide the armed security services ('Services') as listed in Exhibit B." Exhibit B states that Atlantis is to "[p]rovide police services upon request of the [Casino.]"

{¶ 5} As part of accepting the bid, Atlantis also had to engage with One Six Security. One Six Security provided logistical support and training to the Casino, including "[o]fficer training that's outside the typical general practices of a police officer[, including] getting the [officers] to stay in the salutation of the day, making eye contact. More of a hospitality type of training."

{¶ 6} Under its agreement with the Casino, Atlantis officers were to man seven stations around the Casino, including two parking lots. Commander Deon McCaulley, who worked for Atlantis and was responsible for creating a schedule for Atlantis officers, stated that the Casino did not want Atlantis officers patrolling the gaming floors and that the Casino's own security staff patrolled the gaming floors. McCaulley stated that, instead, Atlantis officers were to "respond when * * * asked to do so" through the Casino's dispatch system.

{¶ 7} According to Scheel, on the evening of June 29, 2012, he and his then-fiancée, Christine, went to the Casino. Around 1:45 a.m., Scheel sat down at a blackjack table next to Scott Greggor. While sitting at the table, Greggor began commenting on Scheel's polo shirt. Scheel stated that Greggor appeared intoxicated and slurred his words. Scheel stated that he tried to mind his own business and ignore Greggor who continued making comments about Scheel to another man who was also sitting at the table.

{¶ 8} Eventually Christine came over, and after hearing Greggor's continued comments, began exchanging words with Greggor, causing the conversation to escalate. At one point, Scheel told Greggor not to talk to Christine, to which Greggor responded, "How about I take you outside and kick your ass?"

{¶ 9} During this time, Alex Rotuno, an unarmed security guard employed by the Casino and wearing the Casino's tan security uniform, approached the men as the conversation continued to escalate and tried speaking with both men and Christine.

{¶ 10} Video footage from the Casino's surveillance cameras shows that seconds after Rotuno approached the table, Scheel stood up and got into Greggor's face. Scheel stated that he told Greggor that he "might want to stop doing what [he was] doing." Greggor then immediately stood up and pushed Scheel over his chair, causing Scheel to fall down and land with "all of [his] weight on [his] wrist[.]" According to Scheel, Greggor had pushed him over "within a minute or two" of the argument starting.

{¶ 11} The video shows that Greggor and Scheel wrestled with one another and that Christine also involved herself in the altercation, grabbing Greggor's head and throwing punches. The video shows that the fight lasted approximately 27 seconds and was eventually broken up by the Casino's security personnel. Atlantis officers did not arrive at the location until after the fight was over.

{¶ 12} Once the men were separated, Scheel and Christine were escorted to an interview room by the Casino's security personnel. During the interview, security personnel from both the Casino and Atlantis spoke with them. At one point, a Casino employee informed Scheel that video surveillance showed that both men were responsible for the altercation. As a result, Scheel and Christine became upset and raised their voices, and Stephanie Maye, employed by Atlantis, entered the room and asked them to settle down. At one point, Maye took Christine's phone.

{¶ 13} During the interview, Scheel made a number of comments suggesting that he was going to file a lawsuit as a result of the incident and stated that he had legal counsel that would take care of the situation. He also told Christine that she did not know "how much [they] were going to make off of this."

{¶ 14} Thomas Lett, an Atlantis employee, also interviewed Scheel and Christine. Lett stated that the Casino had the incident on tape and that Scheel and Christine could get the Casino's reports later. The Casino permanently banned Scheel and Christine and escorted them out of the Casino.

{¶ 15} On August 19, 2015, Scheel refiled a complaint against the Casino and Atlantis for his injuries. He set forth claims for negligence, false imprisonment, respondeat superior, and spoliation of evidence against the Casino and Atlantis. He also set forth claims for premises liability and dram shop liability against the Casino.

{¶ 16} The Casino and Atlantis filed answers denying wrongdoing and asserting affirmative defenses. Additionally, Atlantis set forth counterclaims against Scheel for spoliation of evidence and frivolous conduct under R.C. 2323.51. Scheel filed a reply denying Atlantis's counterclaims and asserting affirmative defenses.

{¶ 17} The Casino and Atlantis filed motions to dismiss Scheel's false imprisonment claims, and the trial court granted both motions.

{¶ 18} The Casino and Atlantis also separately filed motions for summary judgment as to Scheel's remaining claims. Scheel opposed both motions. In support of his argument that genuine issues of material fact existed as to his claims, he attached an expert report from Terry Hulse, a private investigator who had previously worked as a corporate director of investigations and security for Harrah's Corporation, which owned gaming properties. In drafting his report, Hulse reviewed a number of depositions, video footage from the Casino, an "excerpt of the security plan," incident reports and daily logs from the Casino, and other documents. After reciting the factual background of the incident, Hulse concluded that "Atlantis security officers are hired to provide security services at the [Casino] and have a duty to protect [Casino] patrons." Noting that Atlantis officers were not permitted to "patrol the casino" and "took their direction from the [Casino's] security department[,]" Hulse believed that "Atlantis should have insisted that its officers be empowered to patrol the floor, rather than being confined to seven specific locations." He stated, "I believe that Atlantis officers had a duty to actually and actively ensure the safety of [the Casino's] patrons." He also stated that the altercation between Greggor and Scheel and Scheel's injury were foreseeable based on the prior incidents that occurred at the Casino.

{¶ 19} On August 9, 2016, the trial court granted Atlantis' motion for summary judgment, but denied the Casino's motion.

{¶ 20} The matter proceeded to trial on Scheel's claims against the Casino. A few days later, before trial concluded, however, the Casino and Scheel settled, and the trial court dismissed the case.

{¶ 21} On October 3, 2016, Scheel appealed the trial court's decision granting Atlantis summary judgment. In Scheel v. Rock Ohio Caesars Cleveland, L.L.C., d.b.a. Horseshoe Casino Cleveland , 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, 2017 WL 3432672, we dismissed Scheel's appeal for lack of jurisdiction. Specifically, we found that there was not a final, appealable order because Atlantis' counterclaims against Scheel were unresolved. Id. at ¶ 21. As a result, we remanded the case to the trial court where Atlantis voluntarily dismissed its counterclaims against Scheel.

{¶ 22} With the jurisdictional issue now aside, Scheel refiled his appeal of the trial court's decision granting Atlantis' motion for summary judgment as to his claims for negligence and spoliation of evidence only. He is not appealing the trial court's order granting summary judgment to Atlantis on his claims for false imprisonment and respondeat superior.

II. Law and Analysis

{¶ 23} In Scheel's assignments of error, he argues that the trial court erred in granting summary judgment to Atlantis. His first assignment of error concerns his claim for negligence and his second concerns his claim for spoliation of evidence.

{¶ 24} An appellate court reviews a trial court's decision to grant summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). De novo review means that this court independently "examine[s] the evidence to determine if as a matter of law no genuine issues exist for trial." Brewer v. Cleveland Bd. of Edn. , 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal , 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980). In other words, we review the trial court's decision without according the trial court any deference. Smith v. Gold-Kaplan , 8th Dist. Cuyahoga No. 100015, 2014-Ohio-1424, 2014 WL 1327890, ¶ 9, citing N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. , 121 Ohio App.3d 188, 699 N.E.2d 534 (8th Dist.1997).

{¶ 25} Under Civ.R. 56(C), summary judgment is properly granted when (1) "there is no genuine issue as to any material fact"; (2) "the moving party is entitled to judgment as a matter of law"; and (3) "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[.]" Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). Because it ends litigation, courts should carefully award summary judgment only after resolving all doubts in favor of the nonmoving party and finding that "reasonable minds can reach only an adverse conclusion" against the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

{¶ 26} "The burden of showing that no genuine issue exists as to any material fact falls upon the moving party. Once the moving party has met his burden, it is the nonmoving party's obligation to present evidence on any issue for which that party bears the burden of production at trial." Robinson v. J.C. Penney Co. , 8th Dist. Cuyahoga Nos. 62389 and 63062, 1993 WL 172981, 5 (May 20, 1993), citing Harless and Wing v. Anchor Media, Ltd. of Texas , 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). "The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Brandon/Wiant Co. v. Teamor , 125 Ohio App.3d 442, 446, 708 N.E.2d 1024 (8th Dist.1998), citing Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A. Duty

{¶ 27} To establish a claim for negligence, a plaintiff must show that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the plaintiff suffered an injury and damages as a direct and proximate result of that breach. Texler v. D.O. Summers Cleaners & Shirt Laundry Co. , 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998). If a defendant demonstrates that the plaintiff cannot prove any one of those elements, then the defendant is entitled to summary judgment. Feichtner v. Cleveland , 95 Ohio App.3d 388, 394, 642 N.E.2d 657 (8th Dist.1994).

{¶ 28} First, we examine whether Atlantis owed a duty to Scheel. " 'If there is no duty, then no legal liability can arise on account of negligence. Where there is no obligation of care or caution, there can be no actionable negligence.' " Jeffers v. Olexo , 43 Ohio St.3d 140, 142, 539 N.E.2d 614 (1989), quoting 70 Ohio Jurisprudence 3d, Negligence, Section 13, at 53-54 (1986). The existence of a duty is a question of law. Wallace v. Ohio Dept. of Commerce , 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22.

{¶ 29} Scheel raises two points to establish that Atlantis owed him a duty. First, he argues that Atlantis had a duty "to ensure that the [Casino's security] plan was adequate" based on the Security Agreement between Atlantis and the Casino. As an alternative to his first argument, Scheel also argues that, at the very least, there "are genuine issues of material fact * * * related to the duties the parties intended Atlantis to perform" under the Security Agreement, specifically because the Security Agreement's term, "police services," is ambiguous.

{¶ 30} Second, pointing to Hulse's expert report, Scheel argues that Atlantis owed him a duty to provide security services and prevent his injury because the altercation and his injury were foreseeable.

1. Security Agreement

{¶ 31} "Whether a security company owes a duty to a person injured by criminal activity on the premises, depends on the terms of the security company's contract with the premises owner." Maier v. Serv-All Maintenance , 124 Ohio App.3d 215, 221, 705 N.E.2d 1268 (8th Dist.1997), citing Hill v. Sonitrol of S.W. Ohio , 36 Ohio St.3d 36, 521 N.E.2d 780 (1988), and Eagle v. Mathews-Click-Bauman, Inc. , 104 Ohio App.3d 792, 663 N.E.2d 399 (10th Dist.1995). Courts have analyzed whether a security company, hired by a business, had a duty to the plaintiff by examining the contract or agreement between the security company and the hiring business. See Hill at 39, 521 N.E.2d 780 ; McCullion v. State Valley Mall Co. , 7th Dist. Mahoning No. 97 CA 175, 2000 WL 179368 (Feb. 10, 2000) ; Tomaro v. Brooklyn Shopping Ctr. Assocs. , 8th Dist. Cuyahoga No. 74494, 1999 WL 632907, 5-6 (Aug. 19, 1999) ; Adelman v. Timman , 117 Ohio App.3d 544, 551, 690 N.E.2d 1332 (8th Dist.1996) ; Askew v. ABC Check Cashing , 8th Dist. Cuyahoga No. 69906, 1996 WL 563710, 5-6 (Oct. 3, 1996).

a. The Casino Did Not Ask Atlantis to Ensure That Its Security Plan was Adequate.

{¶ 32} First, Scheel argues that Atlantis had a duty to "ensure that the [Casino's security] plan was adequate." The Security Agreement states that Atlantis employees are to provide "police services upon request of the [Casino]." (Emphasis added.) Scheel has set forth no evidence-and we can find none in the record-showing that the Casino requested Atlantis to take part in developing the security plan or to review or modify its security plan.

{¶ 33} Further, we will not place such a duty on a security company hired to perform specific contractual obligations by another company, unless specifically set forth in the contract between the parties. See Maier at 221, 705 N.E.2d 1268 ("Whether a security company owes a duty to a person injured by criminal activity on the premises, depends on the terms of the security company's contract with the premises owner."). As a result, there are no genuine issues of material fact as to whether Atlantis had a duty under the Security Agreement to ensure that the Casino's security plan was adequate.

b. The Security Agreement is Not Ambiguous

{¶ 34} Scheel further argues that the contract is ambiguous because it is unclear if "police services" included ensuring that the Casino's security plan was adequate.

{¶ 35} Here, the first page of the Security Agreement states, "[The Casino] hereby engages [Atlantis] to provide the armed security services ('Services') as listed in Exhibit B." Exhibit B, titled "Description of Services," states, under "Scope of Services," that Atlantis employees are to "[p]rovide police services upon request of the client , in accordance with this Service Agreement." (Emphasis added.)

{¶ 36} In support of his argument that the Security Agreement is ambiguous, Scheel cites to Adelman , where we analyzed whether a security company negligently provided security services to the plaintiff, who suffered injury and was an intended beneficiary of the security contract between the security company and the owner of the premises. We stated that to determine if there was "a duty to prevent a third person from causing harm to another[,]" it was necessary to examine the security contract. Adelman , 117 Ohio App.3d at 549-550, 690 N.E.2d 1332. The contract stated that the security company would "furnish * * * Security Personnel and will render services at such location or locations[.]" Id. at 550, 690 N.E.2d 1332. The plaintiff and the security company disagreed as to whether that language required the security company's employees to protect the plaintiff from the injury that he suffered. We stated,

Contracts are to be construed so as to give effect to the intent of the parties, and that intent is presumed as a matter of law to be fully revealed in the language the parties choose to incorporate into the agreement. * * * If the terms of a contract are clear and unambiguous, then its interpretation is a matter of law, and there is no issue of fact to be determined. * * * However, if a term cannot be determined from the four corners of the document, factual determination of intent may be necessary to supply the missing term.

Id. at 550, 690 N.E.2d 1332.

{¶ 37} We found that "the intent of the agreement [was] not readily ascertainable from the four corners of the agreement[,]" and was "ambiguous as a matter of law." Id. We concluded that "[w]ithout knowing the intent of the contracting parties, it is not possible to determine whether a special relation existed between [the security company and the plaintiff] that would impose a duty upon the [security company]." Id. at 551, 690 N.E.2d 1332. We therefore found that the trial court improperly granted summary judgment over the plaintiff's claim for negligence. Id.

{¶ 38} We find Adelman to be distinguishable because the evidence shows that the parties to the Security Agreement here, the Casino and Atlantis, did not intend for "police services" to include ensuring that the Casino's security plan was adequate. In fact, neither the Casino nor Atlantis, who were the only parties to the Security Agreement, dispute the fact that Atlantis was not permitted to or in charge of checking or modifying the security plan and that such a responsibility did not fall under "police services."

{¶ 39} Evidence submitted by Scheel's own expert supports this conclusion. Hulse's expert report notes that "despite their uniforms and firearms, Atlantis officers had very little actual authority at the time of Scheel's injuries. They could not patrol the casino floor or make arrests. Although hired to provide security for the casino, Atlantis took their direction from the [Casino's] security department." Hulse's report continued to state, "Thus, it is my opinion that Atlantis officers should have been permitted to patrol the casino, rather than being stationed at seven specific sites at the casino." (Emphasis added.)

{¶ 40} During Hulse's deposition, he admitted that in forming his expert opinion, he never received the Casino's security plan and only reviewed an excerpt. When asked if he "assign[ed] any responsibilit[y] for [the altercation between Scheel and Greggor] to Atlantis[,]" Hulse said he did not.

{¶ 41} Further, Section 11(q) of the Security Agreement states

[Atlantis'] employees shall comply with [the Casino's] security procedures at all times, and if any of [Atlantis'] employees is found to be in violation of such procedures by [the Casino], [the Casino] may remove them from [the Casino's] account or * * * property immediately, in [the Casino's] sole discretion.

{¶ 42} Moreover, Commander Deon McCaulley's testimony shows Atlantis' employees had little authority under the Security Agreement. McCaulley said he was hired by Atlantis immediately after it entered into the agreement with the Casino. He stated that it was his job "to determine how many officers [the casino] would need in order to staff the schedule that they were giving us" and that he was responsible for interviewing police officers to work at the Casino, making sure that those officers "abided by the rules and regulations by the Cleveland division of police or the Cuyahoga County Sheriff's Office[,]" and "mak[ing] sure that they did the functions that the casino was asking us to perform."

{¶ 43} Discussing the weeks leading up to the Casino's opening, McCaulley said that he worked on deciding "how many police officers would be needed on a shift and where those police officers would be placed within the casino." He stated that in doing this, he worked with Joslyn Pennywell, the Casino's director of security, who was terminated prior to the Casino's opening. McCaulley explained that Brad Hirsch, Pennywell's supervisor, took over her security responsibilities. When asked what his "understanding of the role that Atlantis CPD would play versus the role that casino security would play[,]" McCaulley stated that "Mr. Hirsch * * * did make clear the role that he wanted CPD to play. He wanted us to certainly be friendly and inviting to the guests[.]"

{¶ 44} When asked whether the position he interviewed for "was to be in charge of security" at the casino, McCaulley stated,

Not to be in charge of security. They have a security director at the Horseshoe. My position was to organize or put together a schedule of Cleveland police officers and Cuyahoga County sheriff's deputies, put together a schedule that would allow those officers and deputies to work inside of the casino.

He explained, "I wasn't part of putting together their overall security plan. But my understanding [was] that a component of that plan involved sworn police officers." McCaulley stated that he did not participate in developing the Casino's security plan and did not know if one existed.

{¶ 45} When asked about the locations of where Atlantis' employees were to stand in the Casino, McCaulley stated that he took "direction from the [Casino] management security staff as to where they thought [Atlantis officers] were best utilized as police officers." McCaulley also explained that in June 2012, the Casino "did not want a roving patrol[,] [s]o [Atlantis] did not patrol the gaming floor."

{¶ 46} Further, when asked about the interface between Atlantis and the Casino's own security personnel, McCaulley explained that Atlantis employees "respond when * * * asked to do so. [The Casino's security personnel has] a dispatcher that will call [Atlantis personnel's] attention to wherever it's needed." He also stated that "[a]n [Atlantis] officer will respond to wherever an altercation or argument is taking place." He stated that "if there is information that needs to be shared with [Atlantis] police officers, it was shared [through the dispatch system]." He explained that Atlantis security would respond to a location in the Casino if someone, through dispatch, communicated that they were needed. He also stated that dispatch did not share every report with Atlantis security personnel because "it was [not] necessary for [Atlantis] officers to see every incident that [the Casino's] security staff handled."

{¶ 47} When asked to explain what the Casino's request for a third-party security company called for, Kevin Jaite, Atlantis' senior vice president of operations, explained the Casino could not directly employ Cleveland police officers so it was "looking for a third party to administer the contract[.]" Jaite stated the Casino drafted the Security Agreement. When asked what the Casino's expectations of Atlantis officers were, Jaite stated that Atlantis officers "had these fixed post positions[,]" including one officer at each door to the Casino, one officer in the poker room on the third floor, and one officer near the escalators on the second floor. In his affidavit attached to Atlantis' motion for summary judgment, Jaite also stated that "the casino determines where the CPD officers are stationed in the casino and how many." He also explained that while the Cleveland police officers "have stations [that they] are asked to be at[,]" the Casino's internal security patrol the floor. Jaite explained that the Cleveland police officers hired by Atlantis use general police practices while working at the Casino in addition to some general "dos and don'ts," which covered "their posture, not texting while they are working, how to report on and off the shift[,] [and] [w]here to stand." Jaite stated that the officers are in their full police uniforms, which includes their service weapons.

{¶ 48} As to the security plan, Jaite said the following during his deposition:

Q. [W]as there a security plan that somebody adopted? As you were going through this push training, did somebody have a plan for how the security of the casino would work and where CPD and Atlantis would fit in and where everybody else would fit in?
A. Yeah. We were working with Brad Hirsch from the casino at the time. He was the assistant general manager.
Q. Okay. My question was, did he have a plan?
A. Yes.
* * *
Q. Let's go back to Brad Hirsch and his plan, the one that wasn't in the book, but the plan that he had.
Tell me about how you * * * got an understanding of what Atlantis was supposed to be doing. So, for example, you told me there were going to be officers at different locations. How did you know that?
A. That was disseminated to us by either Brad or the casino.
* * *
Q. Okay. And Brad Hirsch is orchestrating BCI and One Six and casino people and Atlantis people and CPD, and somewhere in that training, you got an understanding from Brad that your Atlantis police officers were supposed to be stationed at four or five locations in the casino?
A. I think we had - I think we had maybe seven at the time, inside and outside. We had them all set out in the parking lot, in the Asher lot.
* * *
Q. All right. So at this initial training session that lasted a couple of days, via Brad Hirsch, you understood that Atlantis was supposed to be placing seven officers at seven locations throughout the casino and the parking lot; is that right?
A. That's primarily where we got our post positions from.
* * *
Q. All right. And I understand that the security plan did not call for Atlantis CPD to be patrolling?
A. Correct.

{¶ 49} Jaite explained that the Casino's security director determined the Casino's security officers' responsibilities versus those of the officers hired by Atlantis. Jaite stated that if the Casino's internal security "observe[s] something out of the ordinary or need[s] assistance, they will call or radio the police officer." He also explained that Atlantis employees are told to address situations the same way they would as if they were on duty and that "[i]f a situation arises, they are required to respond accordingly."

{¶ 50} The following exchange also took place during Jaite's deposition:

Q. Did you have a hand in developing a security plan for the casino?
A. No.
Q. Have you ever seen a security plan for the casino?
A. No.
Q. Do you know if one exists?
A. No.

{¶ 51} Contrary to Scheel's argument that "police services" is ambiguous, the above evidence shows that there is no factual issue as to what "police services" meant in the Security Agreement. Neither the Casino nor Atlantis intended "police services" to mean developing, reviewing, or modifying the Casino's security plan. The evidence shows that the Casino developed the security plan, such as deciding that Atlantis would not patrol the gaming floor and would remain at seven designated locations until summoned by the Casino's dispatch system, and that Atlantis took no part in that development. Therefore, "while factual determination of intent may be necessary" in some cases, unlike Adelman, that is not the case here. Neither Scheel nor his expert created genuine issues of material fact by arguing that a term of a contract, to which Scheel was not a party, meant something other than what the actual parties involved intended the term to mean. Therefore, we disagree with Scheel that the Security Agreement is ambiguous.

c. Atlantis Was Not Required to Perform More than Their Duties Under the Security Agreement.

{¶ 52} Scheel also argues, pointing to his expert report, that Atlantis was negligent because its failure to involve itself in developing, modifying, or ensuring that the security plan was adequate was unreasonable. Scheel's argument seems to suggest that Atlantis should have contracted to do more under the Security Agreement and demanded that the Casino allow it to review and/or modify the security plan. We disagree.

{¶ 53} To find that Atlantis officers had a duty to protect Scheel by demanding that the Casino let them review or modify the security plan would go beyond the extent of Atlantis' contractual obligations. See Deeds v. Am. Sec. , 39 Ohio App.3d 31, 33-34, 528 N.E.2d 1308 (1st Dist.1987) ("[T]he agreement between Olde Montgomery and American Security * * * expressly limited Justice's security objective to the reduction of vandalism[.] We, therefore, find that Deeds failed to demonstrate the existence of a duty on the part of Justice in the execution of his employment duties as a security guard which would extend to her or would encompass the protection of her person on the premises."). Scheel's expert report does not create a genuine issue of material fact as to what the Security Agreement actually required Atlantis to do. See id. ("[T]he expert testimony and opinion sought to be elicited by Deeds * * * as to the generally accepted standard of conduct for a security guard and Justice's adherence to that standard would not have been helpful to the jury" based on the fact that the security guard's responsibilities were "expressly limited" by contract.). As a result, we find that Atlantis did not have a duty to modify or ensure that the Casino's security plan was adequate under the Security Agreement.

2. Foreseeability

{¶ 54} Scheel also argues that Atlantis owed him a duty because his injury was foreseeable based on six incidents that occurred during the opening four weeks at the Casino prior to his fight with Greggor. While the incident reports are not detailed, the first six incidents can be summarized as follows:

1. May 31, 2012, 8:17 p.m.: A fight occurred in the poker room between three patrons. All were escorted out of the Casino.
2. June 3, 2012, 3:30 a.m.: An altercation occurred in the Ontario Street parking garage.
3. June 14, 2012, 2:42 a.m.: An intoxicated guest in the World Series Poker Room began "behaving disorderly." Security officers from both the Casino and Atlantis engaged the intoxicated guest and escorted him to the cashier and eventually the bathroom, where he became hostile. The guest was eventually escorted out of the Casino and put on a 24-hour eviction. The guest returned later that day, where he was again escorted out of the Casino and placed on a permanent eviction.
4. June 16, 2012, 3:57 a.m.: An altercation occurred on the gaming floor between two patrons, who were permanently evicted.
5. June 16, 2012, 10:57 p.m.: While a patron waited for his girlfriend to exit the restroom, another patron walked by and "slightly brush[ed] his arm." The patrons, along with another male, began fighting near the Casino's food court. After the fight was broken up, all three men were escorted out of the Casino and permanently banned.
6. June 16, 2012, 11:10 p.m.: An altercation occurred between multiple patrons on the second floor of the Casino.

{¶ 55} Those incidents, however, do not show that Scheel's injury was foreseeable to Atlantis: first, because Atlantis officers were not present before or during the fight because they did not receive a dispatch until after the fight was over and, second, because Atlantis was not even provided the reports of the above-described incidents.

{¶ 56} With respect to the incident in this case, Hulse's expert report states

The fight between the three participants (Scheel, Speigel and Greggor) lasted approximately 27 seconds and was witnessed by as many as six Horseshoe security officers who were standing idly by in the immediate area. None of the security officers present made any attempt to stop the fight until a break in the action occurred that allowed the officers to step between the fighting guests. Atlantis Security (CPD) appears to arrive on the scene a full ten seconds after the fight ends and the participants are separated.

(Emphasis added.) Hulse's statement shows that Atlantis employees were not aware of the verbal dispute, did not know that the altercation was occurring, and did not arrive at the location until after the altercation ended. In fact, Scheel has not offered any evidence showing that Atlantis employees were made aware of circumstances suggesting that a physical altercation was imminent before Scheel had already suffered his injury. Atlantis employees' lack of awareness was not their fault. Instead, as noted earlier, Atlantis employees were stationed at seven spots throughout the Casino and parking areas, could not patrol the floors, and only left their designated stations when dispatched. This was part of the Casino's security plan, under which, as Commander McCaulley stated, Atlantis security personnel would "respond when * * * asked to do so * * * [because the Casino] did not want a roving patrol."

{¶ 57} Further, as to the prior incidents at the Casino, the record shows that Atlantis employees did not receive every incident report. Commander McCaulley explained that whether Atlantis employees receive an incident report "depends on the circumstance." He said

[I]f there is information that needs to be shared with police officers, it was shared. But I don't think that it was a situation with every report that [the Casino] made, [it] actually, shared it with CPD. I don't think it was necessary for our officers to see every incident that their security staff handled.

{¶ 58} Moreover, Hulse's report states, "Perhaps even more egregious is the fact that Atlantis was unaware of any incidents at the casino at the time of Scheel's injuries. Jaite said that Atlantis does not receive or review reports of fights or arrests, and that it does not have access to the casino's i-Track system."

{¶ 59} Thus, the evidence establishes that, if anything, Scheel's injury was foreseeable to the Casino, whose security personnel and gaming employees were present during the verbal altercation and had access to the reports detailing the prior incidents. Therefore, we reject Scheel's argument that Atlantis owed him a duty to prevent his injury because it was foreseeable.

{¶ 60} Accordingly, we find that Atlantis did not owe Scheel a duty, overrule his first assignment of error, and affirm the trial court's order granting Atlantis summary judgment as to Scheel's claim for negligence.

B. Spoliation of Evidence

{¶ 61} Turning to his claim for spoliation of evidence, Scheel argues that the trial court should not have granted Atlantis' motion for summary judgment because Atlantis "was responsible for investigating incidents and preserving evidence at the casino" and "intentionally deleted" surveillance footage of the moments leading up to his physical altercation with Greggor.

{¶ 62} To establish a claim for spoliation of evidence, a plaintiff must prove the following: (1) pending or probable litigation involving the plaintiff, (2) that the defendant knew that litigation exists or is probable, (3) willful destruction of evidence by the defendant designed to disrupt the plaintiff's case, (4) actual disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's actions. Elliott-Thomas v. Smith , --- Ohio St.3d ----, 2018-Ohio-1783, --- N.E.3d ----, ¶ 10, citing Smith v. Howard Johnson Co. , 67 Ohio St.3d 28, 29, 615 N.E.2d 1037 (1993).

{¶ 63} In its motion for summary judgment, Atlantis conceded that Scheel established the first and second elements, but argued that Scheel could not show or create a genuine issue of material fact as to the third element - that Atlantis willfully destroyed surveillance footage. Atlantis argued in its motion for summary judgment and in its appellate brief that it could not have willfully destroyed the evidence because it did not own, control, or have any influence over the surveillance footage.

{¶ 64} Scheel cites to Abbott v. Marshalls of MA, Inc. , 8th Dist. Cuyahoga No. 87860, 2007-Ohio-1146, 2007 WL 764545, in support of his argument. In that case, a loss prevention specialist from the store physically apprehended a customer after he suspected that she was trying to steal perfume. The customer eventually sued the store and asserted a number of claims, including spoliation of evidence. That claim was based on missing video footage of the customer in the store as well as the loss prevention specialist's confrontation and interview of the customer. Further,

[d]uring the time of the incident, Marshalls had a highly sophisticated multiplex video surveillance system that recorded Abbott's entire visit in the store. Footage had been recorded of Abbott while she was in the domestics department, allegedly in a "blind spot" where Ladwig stated she placed the bottle of perfume in her purse; however, Ladwig taped over the footage the very next day, despite Marshalls' policy that all multiplex tapes must be kept for a minimum of 31 days.

Id. at ¶ 13.

{¶ 65} On an appeal from a jury verdict in favor of the customer, the appellant-store argued that the court erred in denying its motion for summary judgment as to the customer's spoliation claim. We disagreed and found that the customer provided "more than sufficient evidence to support her claim for spoliation, showing that genuine issues of material fact remained to litigate at trial." Id. at ¶ 57.

{¶ 66} The instant case is distinguishable from Abbott. Here, Atlantis officers were not Casino employees, and unlike the employee in Abbott , McCaulley stated that Atlantis employees did not have access to the Casino's surveillance cameras. Jaite explained that Atlantis would have to get surveillance tapes from the Casino. In his affidavit, Jaite stated that "CPD officers do not control video surveillance or the surveillance cameras, and do not have a fixed position in the surveillance room."

{¶ 67} Despite offering no evidence that Atlantis had access to or control of the video surveillance, Scheel argues that whether Atlantis had access or control should be determined by a jury. We disagree.

"[C]auses of action for spoliation of evidence are designed to place responsibility and accountability on parties who were actually in possession of evidence that existed at one time but who later do not provide this evidence and do not provide an adequate explanation for failing to do so."

(Emphasis added.) Wheatley v. Marietta College , 2016-Ohio-949, 48 N.E.3d 587, ¶ 105, quoting Keen v. Hardin Mem. Hosp. , 3d Dist. Hardin No. 6-03-08, 2003-Ohio-6707, 2003 WL 22939453. "A spoliation claim cannot be based upon conjecture that evidence might have existed and that a party might have destroyed it." Id. , citing Keen. Here, Scheel has offered no evidence creating a genuine issue of material fact as to whether Atlantis had possession or control of the surveillance video. As a result, summary judgment was appropriate, and we overrule Scheel's second assignment of error.

{¶ 68} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., CONCURS;

PATRICIA ANN BLACKMON, J., DISSENTS IN PART WITH SEPARATE OPINION

PATRICIA ANN BLACKMON, J., DISSENTING IN PART:

{¶ 69} I respectfully dissent in part from the majority opinion affirming the trial court's granting summary judgment to Atlantis Security Company.

{¶ 70} Although I appreciate the court's well-reasoned concerns, I do not agree with its determination that Atlantis owed Scheel no duty because his injury was not foreseeable. Years ago, Judge Benjamin Cardozo wrote, "The risk reasonably to be perceived defines the duty to be obeyed * * *." Palsgraf v. Long Island R.R. Co. , 248 N.Y. 339, 344, 162 N.E. 99 (1928).

{¶ 71} Atlantis has a duty to provide "police services" per its agreement with the Casino, and in my opinion, there is a foreseeable risk of fights occurring in a casino. Consequently, security is needed. Otherwise, why hire a security company? Having established a duty based on the foreseeability of fights resulting in injuries at a casino, I would find that factual issues exist as to whether Atlantis breached this duty given the circumstances in Scheel's case. For example, where were Atlantis employees assigned to be, and was this altercation visible to any employees at the time? These are factual issues to be decided by factfinders.

{¶ 72} I agree with the majority's finding that Atlantis did not have a duty to ensure that the Casino's security plan was adequate. However, I would sustain Scheel's first assigned error in part, and find that summary judgment was improperly granted regarding whether Atlantis breached its duty to provide "police services" as related to Scheel's injuries.

      Scheel and Christine are now married.

      Scheel filed a complaint in June 2013, but voluntarily dismissed it in August 2014.

      Also during Hulse's deposition, he reviewed the Ohio Gaming Commission's meeting notes from April 18, 2012, which stated that the security plans submitted by the Casino "meet the requirements for minimum internal controls as established."