IN THE SUPREME COURT OF OHIO COLUMBUS, OHIO KAREN HAVEL, et al. Case No. 2007-0255 V. Plaintiffs-Appellants On Appeal from the Geauga County Court of Appeals Eleventh Appellate District DAVID CHAPEK, et al. Defendants-Appellants Geauga County Court of Appeals Case No. 2004-G-2609 DAVID CHAPEK AND LINDA CHAPEK'S MEMORANDUM IN OPPOSITION TO APPELLANTS' MEMORANDUM IN SUPPORT OF JURISDICTION RHYS B. CARTWRIGHT-JONES (#0078597) 46 Chagrin Place, P.M.B. 168 Chagrin Falls, OH 44022-3022 216.272.1938 Attorney for Plaintiffs-Appellants, Havel KATHERINE S. RIEDEL (#0071999) WILLIAM E. RIEDEL (#0014782) Warren and Young PLL 134 West 46th Street P. O. Box 2300 Ashtabula, OH 44004 440.997.6175 LEO J. TALIKKA (#0006613) Talidyne Building, Suite 100 2603 Riverside Drive Painesville, OH 44077-5173 440.352.8500 Co-counsel for Defendants-Appellees, David Chapek and Linda Chapek ROBERT A. PECCHIO (#0025282) 2305 East Aurora Road, Suite A-1 Twinsburg, OH 44087 330.963.6600 Attorney for Plaintiffs-Appellants, Havel WARREN S. GEORGE (#0042068) 55 Public Square, Suite 800 Cleveland, OH 44113 216.241.4100 Attorney for Plaintiff-Appellee, Grange Mutual Casualty Company lj I ICIU MAR 0 8 2007 MARCIA J. MEiNlGEL, CL1:RK SUPREME COURT Oi OHIO
TABLE OF CONTENTS I. EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION NOR IS IT OF PUBLIC OR GREAT GENERAL INTEREST... 1 II. STATEMENT OF THE CASE AND FACTS... 2 III. ARGUMENT IN OPPOSITION TO PROPOSITION OF LAW... 3 Proposition of Law No. 1: The Issue of Whether a Relationship Gives Rise to a Duty to Warn Is a Question of Law To Be Determined By The Court...:... 4 Proroosition of Law No. 2: Whether the Trial Court Properly Granted Summary Judgment to Appellees in This Case Does Not Create a Substantial Constitutional Question Or An Issue of Great Public or General Interest........................................................................... 5 CONCLUSION.............................................................................. 8 CERTIFICATE OF SERVICE... 8
I. EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION NOR IS IT OF PUBLIC OR GREAT GENERAL INTEREST. In support of their claim that this case involves a substantial constitutional question, Appellants assert that the trial court's award of summary judgment in this case violated its constitutional rights to a jury trial and to a remedy, as provided by the Ohio Constitution. Appellees do not dispute that Section 5, Article I, of the Ohio Constitution guarantees that the right of trial by jury "shall be inviolate." Section 16, Article I, of the Ohio Constitution provides, "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." However, this Honorable Court has already established that a trial court's proper grant of summary judgment does not violate either of these constitutional provisions. See Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, 713, 647 N.E.2d 507 (right to jury trial not violated by proper grant of summary judgment), citing Houk v. Ross (1973), 34 Ohio St.2d 77, 83-84, 63 0.O.2d 119, 296 N.E.2d 266. Accordingly, so long as the trial court in the instant case was found to have properly granted summary judgment in favor of Appellees, Appellant's constitutional argument is without merit. Furthermore, Appellant's assertions that this case is of great public or general interest because it "presents an original issue of law in Ohio" is without merit, as this Honorable Court has repeatedly addressed the issue of who has the duty to warn of impending third-party acts, and has repeatedly upheld lower courts' grant of summary judgment on the issue, as will be demonstrated in Appellees' Arguments in Opposition to Appellant's Propositions of Law. 1
II. STATEMENT OF THE CASE AND FACTS Jeremy Chapek, date of birth December 21, 1979, was the adult son of David Chapek and Linda Chapek who in May of 2002, resided with his parents in Thompson Township, Geauga County, Ohio. Deposition of Linda Chapek (T.p. 48). Jessica Havel, date of birth July 10, 1980, was the adult daughter of Mark Havel and Karen Havel who resided in Mt. Lebanon, Pennsylvania. Deposition of Karen Havel (T.p. 49). Jessica Havel and Jeremy Chapek were boyfriend and girlfriend in high school. Shortly after Jessica Havel graduated from high school, at eighteen years of age, she moved out of her parent's home and moved into the Chapek home. Deposition of Karen Havel (T.p. 49). Jessica Havel and Jeremy Chapek lived at the Chapek residence until. October 3, 1999, when they moved into an apartment in Mt. Lebanon, Pennsylvania. At the time, Jeremy Chapek was attending the Art Institute of Pittsburgh. Deposition of Linda Chapek (T.p. 48). Jessica Havel and Jeremy Chapek lived together in Mt. Lebanon for over two (2) years. Deposition of Linda Chapek (T.p. 48). In January of 2002, Jessica Havel and Jeremy Chapek broke up and Jessica Havel temporarily moved out of the Mt. Lebanon apartment until Jeremy Chapek could find another place to live. Deposition of Linda Chapek (T.p. 48). On or about January 19, 2002, Jeremy Chapek moved out of the apartment and returned to Thompson to live with his parents. Deposition of Linda Chapek (T.p. 48). Jessica Havel then returned to the Mt. Lebanon apartment. Deposition of Karen Havel (T.p. 49). 2
Jeremy Chapek never returned to Mt. Lebanon until May 16, 2002, when it is alleged that Jeremy Chapek left his parents' home in Thompson and drove to Jessica Havel's apartment in Mt. Lebanon, where he caused the death of Jessica Havel. Deposition of Linda Chapek (T.p. 48). On the same day, Jeremy Chapek took his own life. On November 4, 2003, Mark Havel and Karen Havel, as Ancillary Co- Administrators of the Estate of Jessica Havel, Deceased, filed a Complaint against David Chapek and Linda Chapek alleging that, as the parents of Jeremy Chapek, David Chapek and Linda Chapek had a responsibility to supervise and control Jeremy Chapek's activities and to warn the Appellants' decedent of Jeremy Chapek's alleged conduct prior to the events of May 16, 2002. Complaint (T.p.3). On or about April 5, 2004, Mark Havel withdrew his Complaint against David Chapek and Linda Chapek, and on or about May 18, 2004, an Amended Complaint was filed in Karen Havel's name only. (T.p. 29). On or about October 1, 2004, Appellees filed a Motion for Summary Judgment asserting that no duty may be imposed upon Appellees, David Chapek and Linda Chapek, either to have controlled or supervised their adult son, or to have warned Appellants' decedent of acts which were unforeseeable. (T.p. 52). On November 2, 2004, Appellant filed a Brief in Opposition to the Motion for Summary Judgment alleging that an issue of fact existed as to whether David and Linda Chapek had a duty to control their son's conduct and to warn Appellant's decedent of their son's conduct. (T.p. 58). On November 18, 2004, the Trial Court granted Appellees' Motion for Summary Judgment. (T.p. 63). On December 16, 2004, Appellants filed a timely Notice of Appeal. (T.p. 67). Qn December 29, 2006;the Eleventh District Court of Appeals upheld the award of sunimary judgment in favor of Appellees, finding that Appellees had no duty to control the conduct of their, adult son, and noduty to warn the victim of conduct which was unforeseeable to Appellees. 3
ARGUMENT IN OPPSOSITION TO PROPOSITIONS OF LAW Proposition Of Law No. 1 The Issue of Whether a Relationship Gives Rise To A Duty To Warn is a Ouestion of Law To Be Determined By The Court. In the instant case, Appellants have not only failed to offer any legal authority to support their assertion that the existence of a duty is an issue of fact, but all the legal precedent in Ohio is to the contrary. This Honorable Court has held that, in tort law, whether a defendant owes a duty to a plaintiff depends upon the relationship between them. Commerce & Industry Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98, 543 N.E.2d 1188, 1192. Whether a duty exists depends on the foreseeability of injury. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180, 472 N.E.2d 707, 710. Injury is foreseeable if a defendant knew or should have known that his act was likely to result in harm to someone. Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 39, 410.0. 117, 121, 90 N.E.2d 859, 863. See also, Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217. Unlike the issue of the proximate cause of an injury, which presents an issue of fact for the jury to detennine, foreseeability of harm and the existence of a duty of which foreseeability is an element presents an issue of law for the court to decide. Mussivand v. David (1989), 45 Ohio St.3d 314, 544 N.E.2d 265. When no genuine issue of material fact exists which shows that a duty exists which was breached, the defendant is entitled to summary judgment on its motion. Civ.R. 56(C). Pursuant to this Honorable Court's precedent, both the trial court and the Appellate Court in the instant case properly evaluated the existence of a duty as an issue of law, and properly granted and affinned summary judgment where Appellant presented no genuine issue of 4
material fact that would establish a duty on the part of Appellees to warn of the unforeseeable acts of their adult, emancipated son. Accordingly, Appellant's First Proposition of Law is without merit and presents no substantial Constitutional question or question of great public or general interest which this Court needs to address. Proposition of Law No. 2 Whether the Trial Court Prouerlv Granted Summary Judgment to Appellees In This Case Does Not Create a Substantial Constitutional Question Or An Issue of Great Public Or General Interest. Appellant's Second Proposition of Law is simply a re-assertion of the arguments already made before the trial court and the Eleventh District Court of Appeals in this case; to wit: why Appellees should have a duty to warn a potential victim of impending acts. In Huston v. Konieczny (1990), 52 Ohio St.3d 214, 217, this Court emphasized that the existence of a duty owed to another depends primarily on the foreseeability of the injury. In Haefele v. Phillips (April 23, 1991), 10u' Dist. No. 90AP-1331, 1991 WL 64896, the Franidin County Court of Appeals explained: "To establish the foreseeability of the act or injury, Appellant must prove that specific instances of prior conduct were sufficient to put a reasonable person on notice that the act complained of was likely to occur." Id. at p. 1. Appellants allege that Appellees knew that their son had certain violent propensities, that Appellees knew of their son's intent to kill Appellants' decedent, and that Appellees, therefore, had a duty to warn Appellants' decedent of the danger of injury which could occur as a result of Jeremy Chapek's conduct. In support of their claim that Jeremy Chapek had violent 5
propensities which should have put Appellees on notice that he would cause harm to Jessica Havel, Appellant alleges that Jeremy Chapek was in therapy and on psychotherapeutic medications; that he had written particularly violent essays in school; that he had unusual items in his room at his parents' house, including satanic symbols, a satanic bible, swastikas, and weapons including a knife and brass knuckles; that he repeatedly harassed Jessica Havel through threatening phone calls; and that Appellees witnessed all of the above-described "extreme and unusual behavior." Finally, Appellants allege that Jeremy Chapek actually told his mother, Linda Chapek, of his intent to kill Jessica Havel. Even if all the foregoing allegations were supported by the evidence in the record, which they are not, in order for any duty to be imposed upon Appellees, Appellants must establish that: (1) Appellees knew or had reason to know of these instances of "prior conduct"; and (2) the specific instances of prior conduct are sufficient to have put Appellees on notice that their son was going to injure or murder Jessica Havel. Haefele v. Phillips (April 23, 1991), 10`h Dist. No. 90AP-1331, 1991 WL 64896, at 1. In the instant case, both the trial court and the Eleventh District Court of Appeals found that the facts of the instant case do not support such a finding. Jeremy Chapek's conduct in causing the death of Jessica Havel was not reasonably foreseeable to Appellees based on the alleged "extreme and unusual" behavior cited in Appellant's Amended Complaint, or any other instances of prior conduct known to Appellees. As this Court is well aware, Civ.R. 56(C) provides that summary judgment is appropriate when: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511. 6
The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293. Once the moving party satisfies its initial burden, the nonmoving party has the reciprocal burden of setting forth specific facts showing that there is a genuine issue for trial. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385. The nonmoving party must come forward with documentary evidence rather than resting on unsupported allegations in the pleadings. Kascak v. Diemer (1996), 112 Ohio App.3d 635, 638. If the nonmoving party does not then meet its burden, summary judgment shall be entered against the nonmoving party. Dresher v. Burt, at 293. The lower courts in this case reviewed all the affidavits, exhibits, and testimony in the record, and found that there was no material issue of fact as to any specific prior instances of violence or threats of physical harm by Jeremy Chapek which would have made his actions on May 16, 2002 foreseeable to Appellees. As such, the lower courts found that Appellees owed no duty to control their son or to warn the decedent against their son's unforeseeable conduct, and that an award of summary judgment in favor of Appellees was therefore proper. As the lower courts properly evaluated and decided Appellees' Motion for Summary Judgment pursuant to this Court's established precedent, this case does not involve any substantial Constitutional question or involve any great public or general interest, and Appellant's Second Proposition of Law is therefore without merit. 7
CONCLUSION Based on all the evidence in the record and applicable legal authority, Appellants have presented no basis upon which this Honorable Court should accept their appeal, and Appellants' Memorandum in Support of Jurisdiction should be denied. Respectfully submitted, WARREN AND YOUNG PLL 134 West 46th Street P. O. Box 2300 Ashtabula, OH 44004 'William E.'Riedel (#0014782) Tel: 440.997.6175 Katherine S. Riedel (#0071999) Fax: 440.992.9114 Attorneys for Appellees, David Chapek and Linda Chapek CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Memorandum in Opposition to Appellants' Memorandum in Support of Jurisdiction was mailed March 7, 2007, to the following: Robert A. Pecchio, 2305 East Aurora Road, Suite A-1, Twinsburg, OH 44087, as cocounsel for plaintiffs-appellants; Rhys B. Cartwright-Jones, 46 Chagrin Place, P.M.B. 168, Chagrin Falls, OH 44022-3022, as co-counsel for plaintiffs-appellants; Warren S. George, 55 Public Square, Suite 800, Cleveland, OH 44113, as attorney for intervening plaintiff, Grange Mutual Casualty Company; Leo J. Talikka, Talidyne Building, Suite 100, 2603 Riverside Drive, Painesville, OH 44077-5173, as co-counsel for defendants, David Chapek and Linda Chapek. 8 Katherine S.'Riedel