[Cite as A.M. v. Miami Univ., 2017-Ohio-8586.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

[A.M.], : 

 Plaintiff-Appellant, : 

 No. 17AP-156 

v. : (Ct. of Cl. No. 2015-00190)

Miami University, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on November 16, 2017 

 

On brief: Spangenberg Shibley & Liber LLP, Jeremy A. Tor, 

and Stuart E. Scott, for appellant. Argued: Jeremy A. Tor. 

On brief: Taft Stettinius & Hollister LLP, Doreen Canton, 

and Evan T. Priestle; Michael DeWine, Attorney General, and

Peter M. DeMarco, for appellee. Argued: Evan T. Priestle. 

 

APPEAL from the Court of Claims of Ohio 

SADLER, J. 

{¶ 1} Plaintiff-appellant, A.M., appeals from the judgment entry of the Court of 

Claims of Ohio granting summary judgment in favor of defendant-appellee, Miami 

University ("Miami"). For the following reasons, we affirm the decision of the Court of 

Claims. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Unless otherwise indicated, the following facts are undisputed. On 

October 30, 2011, A.C. sexually assaulted appellant while she was at his private, offcampus residence. Both A.C. and appellant were students at Miami at the time of the 

assault. Following a hearing, Miami dismissed A.C. as a student. 
No. 17AP-156 2 

{¶ 3} On October 24, 2013, appellant filed her original complaint against Miami 

in the Butler County Court of Commons Pleas. The Butler County Court of Commons 

Pleas transferred the case to the Court of Claims on February 25, 2014. On March 13, 

2014, the Court of Claims dismissed the case without prejudice for lack of subject-matter 

jurisdiction. The instant case was refiled in the Court of Claims on March 11, 2015. 

{¶ 4} In her complaint, appellant alleges a negligence cause of action. According 

to appellant, Miami: 

[B]reached its duty of care to [appellant], by among other acts 

and omissions: failing to investigate reports and allegations of 

sexual misconduct by [A.C.]; failing to act in accordance with 

and enforce its written rules, regulations, Codes of Conduct, 

policies, and procedures regarding sexual misconduct, assault 

and abuse; failing to warn of the dangers presented by 

members of its student body – of whom it permitted to 

remain students at Miami University despite reports of sexual 

misconduct, assault, and abuse; failing to provide a safe 

environment for its students and contributing to a needlessly 

dangerous environment; and failing to act as a reasonably 

safe, careful, and prudent university, college, or institution of 

higher learning would under the circumstances then and there 

existing. 

(Compl. at 6-7.) 

{¶ 5} The complaint alleges that the sexual assault of a Miami student by A.C. was 

"foreseeable and likely" based on information Miami knew or should have known by the 

date of A.C.'s assault of appellant. (Compl. at 7.) Specifically, the complaint alleges that 

Miami had actual or constructive knowledge about a sexual assault report against A.C. in 

2008 and allegations of voyeurism against A.C. in 2009. Regarding the 2008 incident, 

the complaint alleges that a woman reported to Miami officials that she had been sexually 

assaulted by A.C. Regarding the 2009 voyeurism allegations, the complaint alleges that in 

September 2009, A.C.'s fraternity dismissed him as a member and turned him into the 

Oxford Police Department "for acts of criminal voyeurism in violation of [R.C.] 2907.08," 

arising out of "surreptitiously record[ing] numerous females * * * while they were engaged 

in sex acts with [A.C.]" and showing these videos to many of his friends without the 

females' consent. (Compl. at 3.) A female student alleged in her statement to Oxford 

police that in the beginning of the 2009-2010 school year, A.C. had acted in a manner 
No. 17AP-156 3 

consistent with the voyeurism allegations by the fraternity. The complaint alleges that the 

Miami University Police Department became a participant in the investigation of the 

voyeurism allegations, received a copy of a search warrant to search A.C.'s dormitory 

residence, was present for the search, and conducted a forensic examination of A.C.'s 

computer, which uncovered three videos of unidentified females, with their faces not 

visible, engaging in sexual acts with A.C. 

{¶ 6} As a result of the 2008 and 2009 incidents, the complaint states that Miami 

had actual and constructive knowledge that A.C. had violated its Code of Student Conduct 

and that as a student, "[A.C.] was subject to the disciplinary action and control, including 

by virtue of the power of suspension and expulsion, of Miami University." (Compl. at 2.) 

The complaint alleges that despite Miami's knowledge of multiple reports of sexual 

misconduct and violations of the Code of Conduct prior to October 2011, it "took no action 

to investigate these reports or pursue disciplinary action." (Compl. at 6.) Due to Miami's 

failure to pursue the reports and code violations, A.C. "remained an ongoing and 

substantial threat to the health, safety, and welfare of other Miami University students" 

and sexually assaulted appellant as a direct and proximate result of Miami and its 

employees' actions. (Compl. at 6.) The complaint also states that another female student 

of Miami alleged that A.C. sexually assaulted her on October 29, 2011. The complaint 

concludes that as a result of Miami's actions, appellant was caused injuries, rendering 

Miami liable under the doctrine of respondeat superior and, pursuant to R.C. 

2743.02(A)(2), the state's waiver of immunity. 

{¶ 7} Miami moved to dismiss the complaint in April 2015 citing the statute of 

limitations and the inability of appellant to establish that Miami owed the requisite duty 

of care to A.M. on the facts of the case. Appellant filed a reply the following month. On 

December 15, 2015, appellant filed notice of service of her first set of interrogatories and 

requests for production of written discovery. Miami responded several days later by filing 

a motion for a protective order arguing that because the pending motion to dismiss 

"addresses purely legal issues, discovery will serve no useful purpose at [that] time." 

(Dec. 18, 2015 Mot. for Protc. Order at 2.) On February 4, 2016, the Court of Claims 

denied the motion to dismiss, noting that the determination relied on materials outside of 

the pleadings and denied Miami's motion for a protective order as moot. Miami filed an 
No. 17AP-156 4 

answer to the complaint on February 17, 2016, denying it was negligent and breached a 

duty of care to appellant and setting forth affirmative defenses. 

{¶ 8} The Court of Claims set the case for trial on April 10-12, 2017. After a 

March 9, 2016 case management conference, the Court of Claims ordered that no 

discovery would be allowed after November 28, 2016 without leave of the court and that 

"[a]ny dispositive motions shall be filed on or before December 9, 2016, and shall be 

heard pursuant to L.C.C.R. 4." (Emphasis omitted.) (Mar. 23, 2016 Entry at 1.) On 

September 7, 2o16, appellant filed a motion for a telephone conference to discuss 

deadlines and the schedule of the case in light of pending discovery matters. 

{¶ 9} On September 8, 2016, Miami moved for summary judgment on two 

grounds: the statute of limitations and Miami's entitlement to judgment as a matter of 

law because it had no legal duty to protect appellant from a sexual assault taking place at 

the private, off-campus residence of her attacker. Miami supported its motion for 

summary judgment with supplemental answers to its first set of interrogatories and 

request for production, the affidavit of David Creamer averring that the residence where 

the sexual assault took place was not owned by Miami and was not a part of the Miami 

University campus, and the affidavit of Miami's attorney, Doreen Canton, pertaining to 

the procedural history of the case. The same day, Miami filed a motion for a protective 

order to stay further discovery pending resolution of the motion for summary judgment, 

since the motion for summary judgment addressed "purely legal issues" based on 

undisputed facts. (Sept. 8, 2016 Mot. for Protc. Order at 2.) 

{¶ 10} The Court of Claims filed a notice of non-oral hearing on the motion for 

summary judgment to be held on October 6, 2016 pursuant to Civ.R. 56 and L.C.C.R. 

4(C). On September 15, 2015, the Court of Claims denied Miami's motion for a protective 

order and denied appellant's motion for a telephone conference as moot. 

{¶ 11} On September 22, 2016, appellant moved to compel Miami to produce 

witnesses and depositions and moved for a continuation of the time to respond to 

summary judgment, pursuant to Civ.R. 56(F), as "[s]ubstantial discovery is needed to 

proceed to trial and defend against [Miami's] Motion for Summary Judgment." (Sept. 22, 

2016 Mot. at 1.) The Court of Claims granted appellant's motion, indicating that appellant 

"shall respond to [Miami's] motion for summary judgment on or before November 7, 
No. 17AP-156 5 

2016" and rescheduled the non-oral hearing on the motion for summary judgment on that 

date. (Emphasis sic.) (Oct. 5, 2016 Entry at 1.) 

{¶ 12} Appellant filed her brief in opposition to Miami's motion for summary 

judgment at 8:13 a.m. on November 8, 2016. Later that same day, appellant filed an 

amended brief in opposition to summary judgment. A footnote to the amended brief in 

opposition states that appellant served Miami's counsel with a copy of the original brief in 

opposition on November 7, 2016, Miami's counsel recognized that some of the exhibits 

attached to the brief in opposition had been marked confidential and were subject to a 

stipulated protective order, and that after conferring with Miami's counsel, appellant 

agreed to submit an amended filing that removed the potentially confidential exhibits. 

The footnote indicates that appellant requested that the clerk's office not place the 

original brief in opposition on the public docket. By separate motion the same day, 

appellant requested leave of the Court of Claims to file certain exhibits under seal. Miami 

did not move for another continuance to pursue further discovery pursuant to Civ.R. 

56(F). 

{¶ 13} On November 14, 2016, Miami filed a motion to strike or, in the alternative, 

motion for leave to file a reply brief to appellant's brief in opposition to summary 

judgment. Appellant replied, acknowledging the brief in opposition was filed late but 

arguing Miami's counsel was served with the original motion on November 7 and agreed 

to the submission of an amended version the following morning. Appellant likewise 

acknowledged that the brief exceeded the page limit without leave of the court but denied 

Miami's further contention that attachments to the motion for summary judgment were 

not properly authenticated. 

{¶ 14} On November 21, 2016, the parties filed a joint motion to extend discovery 

deadlines, including a request for a new fact discovery deadline of December 30, 2016, 

which the Court of Claims granted. On November 22, 2016, appellant filed a motion for 

leave to supplement her amended brief in opposition to summary judgment to include a 

new deposition, which Miami opposed. 

{¶ 15} On January 30, 2017, the Court of Claims filed a decision granting Miami's 

motion to strike appellant's briefs in opposition to summary judgment and granting 

summary judgment in favor of Miami. Regarding Miami's motion to strike, the Court of 
No. 17AP-156 6 

Claims noted that even after appellant had been granted extra time to file her brief in 

opposition by the Court of Claims, she filed both her original brief, which accidentally 

contained confidential documents, and her amended brief after the deadline and without 

leave of the court. The Court of Claims further agreed with Miami's argument that if the 

Court of Claims chose to accept the brief in opposition, it would strike exhibits 1, 3, 4, 7, 9, 

and 10 as unauthenticated and strike exhibits 6 and 8 as witnesses not previously revealed 

in discovery. The Court of Claims additionally denied appellant leave to supplement her 

untimely brief in opposition and denied Miami leave to file a reply brief. 

{¶ 16} Regarding summary judgment, the Court of Claims stated that it considered 

appellant's brief in opposition and attached exhibits and found that even if it had allowed 

the untimely brief and exhibits, its decision on the disposition of the case would not 

change. The Court of Claims did not find the standard of care used in premises liability 

cases applicable to appellant's allegations but, rather, found the instant case to be based 

on the existence, or lack thereof, of a special relationship Miami had with appellant and 

the foreseeability of harm caused by Miami's alleged negligence. The Court of Claims 

disagreed with appellant that foreseeability alone creates that special duty and explained 

that a court must first determine whether a special relationship exists by considering a 

limited number of such established relationships under Ohio law, and then, if such a 

special relationship exists, proceed to consider whether the alleged harm was foreseeable 

to impose liability. 

{¶ 17} Ultimately, the Court of Claims found that none of the special relationships 

established under Ohio law, including those between business owners and invitees and 

those imposed by statutory or judicial determination, applied to the case. Specifically, the 

Court of Claims found that acting contrary to an institution's own policies, put in place to 

prohibit conduct, is insufficient to impose a duty of care for negligence claims and also 

found no authority confirming that an "in loco parentis" relationship exists between 

universities and its college-aged students. (Jan. 30, 2017 Decision at 9.) As a result, the 

Court of Claims found that Miami had no duty to protect appellant under negligence law. 

The Court of Claims added the alternative finding that even if a duty existed, a review of 

the record showed that A.C.'s criminal act against appellant was not foreseeable based on 

Miami's awareness of unestablished allegations of sexual assault and voyeurism several 
No. 17AP-156 7 

years prior to appellant's assault. The Court of Claims disagreed with Miami's argument 

regarding the action being barred by the statute of limitations. 

{¶ 18} Appellant filed a timely appeal to this court. 

II. ASSIGNMENTS OF ERROR 

{¶ 19} Appellant presents two assignments of error: 

[1.] The trial court erred by granting summary judgment in 

favor of Defendant-Appellee Miami University on PlaintiffAppellant's negligence claim. 

[2.] The trial court erred by striking Plaintiff-Appellant's brief 

in opposition to Defendant-Appellee's motion for summary 

judgment, as well as certain exhibits attached to the brief, and 

by denying Plaintiff-Appellant's motion for leave to 

supplement her brief in opposition. 

III. DISCUSSION 

A. Second Assignment of Error 

{¶ 20} For purposes of clarity, we will begin by addressing appellant's second 

assignment of error. Under her second assignment of error, appellant contends that the 

Court of Claims abused its discretion by striking appellant's brief in opposition to Miami's 

motion for summary judgment, as well as certain exhibits attached to the brief, and by 

denying appellant's motion for leave to supplement her brief in opposition. 

{¶ 21} Trial courts have inherent power to manage their own dockets and the 

progress of the proceedings before them. Canady v. Rekau & Rekau, Inc., 10th Dist. No. 

09AP-32, 2009-Ohio-4974, ¶ 16. As a result, an appellate court reviews challenges related 

to "control of the docket and consideration of motions by the trial court" for an abuse of 

discretion. Jarvis v. Hasan, 10th Dist. No. 14AP-578, 2015-Ohio-1779, ¶ 55. "Abuse of 

discretion" implies that the court's attitude is unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 22} Under L.C.C.R. 4(D), in the Court of Claims, all motions for summary 

judgment filed pursuant to Civ.R. 56 are set for a non-oral hearing date on the 28th day 

following the filing of the motion for summary judgment and are deemed submitted to the 

judge on that date. See also Civ.R. 56(C) (allowing for service of responsive pleading to a 

motion for summary judgment as provided by local rule or by order of the court). 
No. 17AP-156 8 

L.C.C.R. 4(B) provides that "[a]ll extensions of time shall be made by written motion 

which states the specific basis of the extension and which is supported by documentation 

and, if appropriate, affidavit [and] shall be accompanied by a proposed order which states 

the duration of the extension." Civ.R. 6(B) governs a trial court's discretion to allow 

untimely filings. It provides, in pertinent part: 

When by these rules or by a notice given thereunder or by 

order of court an act is required or allowed to be done at or 

within a specified time, the court for cause shown may at any 

time in its discretion (1) with or without motion or notice 

order the period enlarged if request therefor is made before 

the expiration of the period originally prescribed or as 

extended by a previous order, or (2) upon motion made after 

the expiration of the specified period permit the act to be done 

where the failure to act was the result of excusable neglect. 

"[I]f a party could have prevented the circumstances from occurring, the neglect is not 

excusable." Law Offices of James P. Connors v. Cohn, 10th Dist. No. 08AP-1031, 2009-

Ohio-3228, ¶ 19. 

{¶ 23} In general, a trial court does not abuse its discretion in not considering or 

denying a motion for an extension when that motion is filed beyond the applicable 

deadline, particularly where the movant offers no explanation for the untimely filing. See

Hillman v. Edwards, 10th Dist. No. 08AP-1063, 2009-Ohio-5087, ¶ 8 ("Allowing a 

defendant to file an answer out of rule without moving for leave to file and showing 

excusable neglect under Civ.R. 6(B) is an abuse of discretion."); Ayers v. Demas, 10th 

Dist. No. 95APE10-1296 (Mar. 28, 1996) (finding the trial court did not err when it to 

refused to consider motions for extension and memorandum contra summary judgment 

filed past the non-oral hearing date); Pilgrim v. Ohio Dept. of Rehab. & Corr., 10th Dist. 

No. 01AP-50 (Oct. 11, 2001); Dan Eynon Ents. v. Mid-Am. Diesel, 12th Dist. No. CA2014-

06-140, 2015-Ohio-1089, ¶ 17. 

{¶ 24} Furthermore, "[w]here a party does not file a Civ.R. 56(F) motion, it is not 

error for the trial court to rule on a motion for summary judgment" where discovery is 

pending. Grenga v. Youngstown State Univ., 10th Dist. No. 11AP-165, 2011-Ohio-5621, 

¶ 22, appeal not allowed, 132 Ohio St.3d 1411, 2012-Ohio-2454, citing BMI Fed. Credit 

Union v. Burkitt, 10th Dist. No. 09AP-1024, 2010-Ohio-3027, ¶ 17-18 ("since appellant 
No. 17AP-156 9 

failed to file a Civ.R. 56(F) motion asking the trial court to delay ruling on appellee's 

motion for summary judgment pending completion of the outstanding discovery requests, 

appellant cannot argue on appeal that the trial court erred by ruling on the motion for 

summary judgment"). 

{¶ 25} In this case, Miami filed its motion for summary judgment on September 8, 

2016. On October 5, 2016, the Court of Claims granted appellant leave to file her response 

to Miami's motion for summary judgment on or before November 7, 2016. Appellant 

admits that she did not actually file her initial brief in opposition until the morning of 

November 8, 2016, and filed her amended brief that same day. Appellant did not seek 

leave from the Court of Claims to file an untimely response, did not address excusable 

neglect, and did not move for additional discovery under Civ.R. 56(F). Considering the 

above, we disagree with appellant that the Court of Claims acted in an unreasonable, 

arbitrary, or unconscionable manner on the facts of this case and, instead, find that the 

Court of Claims acted within its discretion to strike appellant's brief in opposition to 

summary judgment. 

{¶ 26} Lastly, although appellant alludes to the Court of Claims' subsequent 

consideration of appellant's brief in opposition to summary judgment and attached 

exhibits in its decision, we find and appellant offers no authority to support overturning a 

trial court's grant of a motion to strike an untimely response to summary judgment 

because of the trial court's consideration of the response and exhibits as a part of the 

court's alternative, "even if" style of analysis. (Jan. 30, 2017 Decision at 2.) As such, 

appellant has not met her burden to affirmatively demonstrate error in this regard on 

appeal. Watkins v. Holderman, 10th Dist. No. 11AP-491, 2012-Ohio-1707, ¶ 11; see also

App.R. 16(A). 

{¶ 27} Because we find the Court of Claims did not err in striking appellant's brief 

in opposition to summary judgment, appellant's arguments regarding the exhibits 

attached to the brief and her attempt to supplement her brief are moot. We will not 

consider appellant's memorandum in opposition to summary judgment and exhibits in 

deciding appellant's first assignment of error regarding the merits of summary judgment. 

{¶ 28} Accordingly, appellant's second assignment of error is overruled. 

 
No. 17AP-156 10 

B. First Assignment of Error 

{¶ 29} Under her first assignment of error, appellant asserts that the Court of 

Claims erred in granting summary judgment in favor of Miami on her negligence claim. 

For the following reasons, we disagree. 

{¶ 30} Pursuant to Civ.R. 56(C), summary judgment is appropriate only under the 

following circumstances: (1) no genuine issue of material fact remains to be litigated, 

(2) the moving party is entitled to judgment as a matter of law, and (3) viewing the 

evidence most strongly in favor of the nonmoving party, reasonable minds can come to 

but one conclusion, that conclusion being adverse to the nonmoving party. Harless v. 

Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). "When seeking summary 

judgment on grounds that the non-moving party cannot prove its case, the moving party 

bears the initial burden of informing the trial court of the basis for the motion and 

identifying those portions of the record that demonstrate the absence of a genuine issue of 

material fact on an essential element of the non-moving party's claims." Lundeen v. 

Graff, 10th Dist. No. 15AP-32, 2015-Ohio-4462, ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 

280, 293 (1996). Once the moving party meets its initial burden, the nonmovant must set 

forth specific facts demonstrating a genuine issue for trial. Dresher at 293. The 

nonmoving party may not rest on the mere allegations and denials in the pleadings but 

instead must point to or submit some evidentiary material that shows a genuine dispute 

over the material facts exists. Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991). 

{¶ 31} Appellate review of summary judgment is de novo. Gabriel v. Ohio State 

Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12, citing Byrd v. Arbors E. 

Subacute & Rehab. Ctr., 10th Dist. No. 14AP-232, 2014-Ohio-3935, ¶ 5. "When an 

appellate court reviews a trial court's disposition of a summary judgment motion, it 

applies the same standard as the trial court and conducts an independent review, without 

deference to the trial court's determination." Gabriel at ¶ 12, citing Byrd at ¶ 5, citing 

Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th Dist.1992). "We must 

affirm the trial court's judgment if any of the grounds raised by the movant in the trial 

court are found to support it, even if the trial court failed to consider those grounds." 

Gabriel at ¶ 12, citing Helfrich v. Allstate Ins. Co., 10th Dist. No. 12AP-559, 2013-Ohio4335, ¶ 7, citing Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995). 
No. 17AP-156 11 

{¶ 32} To prevail on her negligence claim, appellant must prove (1) the existence of 

a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach. 

Beair v. KFC Natl. Mgt. Co., 10th Dist. No. 03AP-487, 2004-Ohio-1410, ¶ 8; Menifee v. 

Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). " 'If the party moving for 

summary judgment in a negligence action can point to evidence illustrating that the 

nonmoving party will be unable to prove any one of these elements, then the movant is 

entitled to judgment as a matter of law.' " Chilton-Clark v. Fishel, 10th Dist. No. 16AP-76, 

2016-Ohio-7135, ¶ 11, quoting Second Natl. Bank of Warren v. Demshar, 124 Ohio 

App.3d 645, 648 (11th Dist.1997). 

{¶ 33} Miami moved for and the Court of Claims granted summary judgment 

based on appellant being unable to prove duty as a matter of law. "The existence of a duty 

is a question of law for a court to decide, even if resolving that question requires the court 

to consider the facts or evidence." Martin v. Lambert, 4th Dist. No. 12CA7, 2014-Ohio715, ¶ 17. Generally, "[a] defendant's duty to a plaintiff depends on the relationship 

between the parties and the foreseeability of injury to someone in the plaintiff's position." 

Quaye v. N. Mkt. Dev. Auth., 10th Dist. No. 15AP-1102, 2017-Ohio-7412, ¶ 22, citing 

McCoy v. Kroger Co., 10th Dist. No. 05AP-7, 2005-Ohio-6965, ¶ 7, and Menifee at 77. 

{¶ 34} Ordinarily, under Ohio law, there is no duty to prevent a third person from 

causing harm to another absent a special relationship between the parties or a duty 

imposed by statute. Slagle v. White Castle Sys., Inc., 79 Ohio App.3d 210, 216 (10th 

Dist.1992) (explaining that, typically, a person has no duty to act affirmatively for the 

protection of others); Desir v. Mallett, 10th Dist. No. 14AP-766, 2015-Ohio-2124, ¶ 22; 

Wheeler v. Ohio State Univ., 10th Dist. No. 11AP-289, 2011-Ohio-6295, ¶ 17. If a special 

relationship exists by statute or common law, then a party may be subjected to liability for 

harm caused to another only if the criminal act of the third party was foreseeable. 

Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 134 (1995) ("[f]oreseeability alone is 

insufficient to create liability"); Wagner v. Ohio State Univ. Med. Ctr., 188 Ohio App.3d 

65, 2010-Ohio-2561, ¶ 24 (10thDist.) ("Even if an injury is foreseeable, there may not be a 

duty to act."); Slagle at 216 ("[t]he mere fact that harm to another is a foreseeable 

consequence of one's failure to act does not, in and of itself, impose a duty to [act 

affirmatively for the protection of others]"). "Furthermore, '[b]ecause criminal acts are 
No. 17AP-156 12 

largely unpredictable, the totality of the circumstances must be "somewhat 

overwhelming" in order to create a duty.' " Wheeler at ¶ 17, quoting Shivers v. Univ. of 

Cincinnati, 10th Dist. No. 06AP-209, 2006-Ohio-5518, ¶ 7, quoting Reitz v. May Co. 

Dept. Stores, 66 Ohio App.3d 188, 193-94 (8th Dist. 1990). 

{¶ 35} Both parties in this case do not dispute that Ohio courts recognize that an 

institution of higher learning has a special relationship to its students as a property 

owner; students are deemed "business invitees" of the institution. Desir at ¶ 23, citing 

Wheeler at ¶ 17 (using, in a case of student-on-student sexual assault, a student victim's 

legal status as a business invitee while on campus to analyze her negligence claim). Under 

premises liability law, "a business owner has a duty to warn or protect its business invitees 

from criminal acts of third parties when the business owner knows or should know that 

there is a substantial risk of harm to its invitees on the premises in the possession and 

control of the business owner." Simpson at 135. However, "[t]he duty does not extend to 

premises not in the possession and control of the business owner." Id.; Albright v. Univ. 

of Toledo, 10th Dist. No. 01AP-130 (Sept. 18, 2001) (holding that, regardless of 

foreseeability of a traffic accident following a campus event, the university's duty of care to 

a business invitee no longer existed once that business invitee left the campus). 

{¶ 36} In the instant case, appellant argues that Miami "owed a duty of care to 

protect appellant from foreseeable criminal conduct." (Appellant's Brief at 31.) 

Specifically, appellant first contends that under the established law whereby universities 

and students act within a premises owner/business invitee relationship, Miami had a legal 

duty to warn her of or protect her from A.C.'s foreseeable criminal conduct "every time 

she stepped onto campus" or into the class that she shared with A.C. (Appellant's Brief at 

33.) 

{¶ 37} Contrary to appellant's argument, it is apparent from Simpson and its 

progeny that a plaintiff's presence on premises in the possession and control of the 

defendant at the time of the injury determines whether a negligence cause of action under 

a premises liability theory is applicable. Id. at 135. See also Martin at ¶ 35-36 (finding 

premises liability theory had no application to fact pattern where property owner did not 

have possession and control of premises where injury occurred). Here, while it is true 

that Miami owed appellant a duty as a business invitee while she was on campus, the 
No. 17AP-156 13 

harm in this case occurred off campus at a location not in the possession and control of 

Miami. Therefore, appellant's status as a business invitee while on campus cannot serve 

as a special relationship under negligence law on these facts. As a result, under Simpson, 

we need not reach whether A.C.'s off-campus sexual assault of appellant in 2011 was 

foreseeable based on the 2008 and 2009 allegations of sexual misconduct. 

{¶ 38} Appellant next contends that Miami owed her a duty of care, 

notwithstanding the fact the sexual assault occurred off campus at a location not in the 

possession and control of Miami, due to (1) the student-university relationship, (2) the 

fact that Miami's code of conduct extended to A.C.'s off-campus conduct and A.C. was 

subject to the university's discipline and control, (3) Miami's obligation pursuant Title IX 

of the Educational Amendments of 1972, 20 U.S.C. 1681 et seq. ("Title IX"), to protect 

students from off-campus assaults, and (4) Miami's enabling of A.C.'s misconduct by not 

following its own code of conduct and permitting A.C. to remain as a student when it had 

knowledge of A.C.'s sex crimes.1

{¶ 39} Regarding her first contention, appellant cites to the Restatement of the 

Law 3d, Torts: Physical & Emotional Harm, Section 40 (2012), as legal support for the 

student-university relationship as a source to find a duty here. Under that section, "a 

school with its students" is one of the enumerated special relationships which give rise to 

an affirmative duty of reasonable care. Restatement, Section 40(b)(5). However, the 

restatement text also provides that duty only arises "within the scope of the relationship." 

Restatement, Section 40(a). The comments explain that this duty generally arises for 

students while at school or involved in school activities and specifies that as to higher 

education institutions, courts have imposed such a duty "at least with regard to risks from 

conditions on the college's property or risks created by the acts of others on the confines 

of college property," likening the relationship back to the premises liability context. 

Restatement, Section 40, Comment l. Appellant provides and we find no legal support 

that Ohio has adopted the Restatement, Section 40(b)(5), to impose a duty in negligence 

on a higher education institution with regard to its students which reaches beyond 

university activities or premises under its possession and control. 

 

1 We have grouped the arguments set forth in appellant's appellate brief for clarity. 
No. 17AP-156 14 

{¶ 40} Relatedly, as discussed by Miami and the Court of Claims, we find no 

authority establishing that colleges and universities act "in loco parentis" with respect to 

their students to impose a duty in negligence out of that relationship alone. See Evans v. 

Ohio State Univ., 112 Ohio App.3d 724, 737 (10th Dist.1996) ("the relationship of in loco 

parentis is established when a person assumes the responsibilities incident to a parental 

status, including custody and support of the child"); State v. Funk, 10th Dist. No. 05AP230, 2006-Ohio-2068, ¶ 54-71 (discussing meaning of in loco parentis in context of 

defining an offender under a criminal sexual battery statute). Rather, this court has 

instead characterized the student-university relationship in business terms. See, e.g., 

Savoy v. Univ. of Akron, 10th Dist. No. 13AP-696, 2014-Ohio-3043, ¶ 23 ("When a 

student enrolls in a college or university, pays his or her tuition and fees, and attends such 

school, the resulting relationship may reasonably be construed as being contractual in 

nature."); Simpson at 135 (describing business invitee status of students on a university's 

premises). Considering the above, we disagree that appellant's status as a student of 

Miami establishes a special relationship under negligence law. 

{¶ 41} Appellant's second contention focuses on Miami's relationship to A.C. 

Appellant implies that a university's ability to consider a student's off-campus conduct in 

disciplining the student correspondingly imposes to an ability and/or duty in negligence 

to control its students' actions off campus. While we agree that a university's policies or 

code of conduct may reach a student's off-campus conduct, we do not believe that a 

university's ability to discipline a student for off-campus behavior equates to the 

university assuming a duty to others under negligence law for its students' off-campus 

criminal activity. As provided above, we find no authority establishing that a university 

acts "in loco parentis" with respect to their students to impose a duty to control the 

conduct of the student in negligence. Evans; Savoy. Appellant fails to explain or support 

her argument with legal authority to the contrary. As such, appellant has not met her 

burden to affirmatively demonstrate error in this regard on appeal. Watkins at ¶ 11; see 

also App.R. 16(A). 

{¶ 42} Appellant's third contention suggests that Miami's statutory responsibilities 

under Title IX establish a duty actionable under a civil negligence cause of action. 

Appellant argues that Title IX extends to off-campus conduct and that federal court cases 
No. 17AP-156 15 

have ruled that a student who is a victim of sexual harassment by another student has a 

private cause of action against the school under Title IX. She cites to the Restatement of 

the Law 3d, Torts, Section 38 (2012), Davis v. Monroe Cty. Bd. of Edn., 526 U.S. 629 

(1999), and Vance v. Spencer Cty. Pub. School Dist., 231 F.3d 253, 258 (6th Cir.2000), in 

support of her argument. 

{¶ 43} Title IX provides, with certain exceptions, that "[n]o person in the United 

States shall, on the basis of sex, be excluded from participation in, be denied the benefits 

of, or be subjected to discrimination under any education program or activity receiving 

Federal financial assistance." 20 U.S.C. 1681(a). The Restatement, Section 38, states that 

"[w]hen a statute requires an actor to act for the protection of another, the court may rely 

on the statute to decide that an affirmative duty exists and to determine the scope of the 

duty." The comments to that section provide that state courts may rely on federal statute 

or regulations to recognize an affirmative duty in tort law but only if the federal provision 

does not preempt state tort-law liability. The comments distinguish implied private 

causes of action under a statute from judicially recognized common-law tort claims, 

noting that each may have different remedies and affirmative defenses. Restatement, 

Section 38, Comment c. See also Restatement, Section 40, Comment l. 

{¶ 44} The cases cited by appellant in support of her argument establish that a 

student who is sexually harassed by another student has a private cause of action against 

the school under Title IX in certain circumstances. In Davis, the petitioner alleged that 

the county school board and school officials' deliberate indifference to her classmate's 

persistent sexual advances created an intimidating, hostile, offensive, and abusive 

school environment that violated Title IX. In reversing the federal district court's 

dismissal of the petitioner's action, the United States Supreme Court held that "[a] 

private Title IX damages action may lie against a school board in cases of student-onstudent harassment, but only where the funding recipient is deliberately indifferent to 

sexual harassment, of which the recipient has actual knowledge, and that harassment is so 

severe, pervasive, and objectively offensive that it can be said to deprive the victims of 

access to the educational opportunities or benefits provided by the school." Id. at 

paragraph one of the syllabus. Vance, also cited by appellant, likewise addresses a Title 

IX claim based on student-on-student sexual harassment. 
No. 17AP-156 16 

{¶ 45} Like the Restatement, Section 38, Ohio law has recognized that the duty 

element of negligence may be established by legislative enactment. Kleisch v. Cleveland 

State Univ., 10th Dist. No. 05AP-289, 2006-Ohio-1300, ¶ 10; Slagle at 216. However, the 

cases cited by appellant only establish that in certain severe circumstances, a private cause 

of action exists under Title IX for student-on-student sexual assaults. Appellant provides 

no precedent establishing that Title IX also gives rise to a common-law tort duty for an 

off-campus assault under Ohio negligence law and provides no argument or legal support 

regarding federal preemption. In her complaint, appellant does not bring a cause of 

action under Title IX, allege a duty under Title IX, or mention the federal statutes 

whatsoever. Considering all the above, we find appellant's argument unpersuasive and 

decline to find that Miami's responsibilities under Title IX gave rise to a common-law 

duty to support appellant's negligence claim in this case. 

{¶ 46} Appellant's fourth contention encompasses several arguments centered on 

Miami's alleged failure to act on its knowledge of A.C.'s prior sex crimes. Appellant 

implies that either Miami's failure to act in accordance with its own polices in and of itself 

imparts a duty or that Miami's inaction essentially created a dangerous condition such 

that a duty of care arose to appellant. Appellant cites to Restatement of the Law 3d, Torts, 

Section 19 (2010), and Restatement of the Law 2d, Torts, Section 302(B) (1965), for the 

proposition that the conduct of a defendant, for example bringing a person into contact 

with a third party the defendant knows or should know to be likely to commit intentional 

misconduct, can increase the likelihood of injury so as to impose a duty under negligence 

law. 

{¶ 47} At the outset, we disagree with appellant's characterization of Miami's 

knowledge of A.C.'s "history of committing sex crimes." (Appellant's Brief at v, 1.) This is 

not a case where a plaintiff alleges that a university failed to act on information that one of 

its students had been convicted of a sex crime or failed to act on its own internal finding 

that one of its students had committed a sex crime. The evidence, viewed in a light 

favorable to appellant, is that Miami knew about allegations of several previous sex 

crimes and did not protect or warn other students based on those allegations. 

{¶ 48} Furthermore, the essence of appellant's argument is Miami's alleged failure 

to act in accordance with its own written code of conduct, rules, and procedures. In Ohio, 
No. 17AP-156 17 

a college or university that receives state funding is statutorily obligated to adopt, publish, 

and provide for the administration and enforcement of rules regulating the conduct of its 

students, faculty, staff, and visitors and may provide for the ejection, suspension, or 

expulsion of a person who violates such regulations. R.C. 3345.21. Only arrest or 

conviction of one of its students or employees triggers a statutory obligation to take 

certain, minimum actions. R.C. 3345.22 and 3345.23. For example, on arrest for any 

"offense of violence," including rape, sexual battery, and gross sexual imposition, the 

student must be afforded a hearing to determine whether the student should be 

immediately suspended from the college or university, and if found to have committed 

such an offense, the student is suspended unless conditions favoring strict disciplinary 

probation apply. R.C. 3345.22 and 3345.23(D). If the student is ultimately convicted, the 

student is dismissed. R.C. 3345.22(E) and 3345.23. The statute specifies that a student's 

commission of an offense of violence, including rape, sexual battery, and gross sexual 

imposition, is cause for dismissal or suspension where the offense "is committed on or 

affects persons or property on such college or university, or which offense is committed in 

the immediate vicinity of a college or university with respect to which an emergency has 

been declared and is in effect." R.C. 3345.23(D). The statutes are expressly written as 

base requirements rather than modifications or limitations on the college's or university's 

authority to impose and enforce rules and procedures not inconsistent with the statutes. 

R.C. 3345.23 and 3345.24. 

{¶ 49} Appellant does not provide any argument or legal support showing that in 

Ohio, institutions of higher learning that adopt written rules and procedures aimed at 

protecting its students thereby assume a duty of care under negligence law or that the 

duty extends to criminal acts committed on premises and at activities outside the control 

of the university. We independently find no support for imposing such a duty in this case 

and note that this district recognizes a breach of contract claim for students challenging a 

university's disciplinary process per its own written rules and policies. Savoy at ¶ 23-26; 

Behrend v. State, 55 Ohio App.2d 135 (10th Dist.1977), paragraph two of the syllabus. 

Moreover, as provided by Miami, to find otherwise could have the undesirable effect of 

discouraging universities from establishing such rules and procedures to protect and 

provide a fair process to students. 
No. 17AP-156 18 

{¶ 50} "If there is no duty, then no legal liability can arise on account of 

negligence." Jeffers v. Olexo, 43 Ohio St.3d 140, 142 (1989). Considering all the above, 

we find because appellant was sexually assaulted on premises not within the possession or 

control of Miami, was not assaulted at a Miami-controlled activity, and no other special 

relationship or statutorily derived duty applies in this case, the threshold element of duty 

in appellant's negligence action cannot be established as a matter of law. Furthermore, 

Miami met its initial burden on summary judgment, and appellant has not set forth 

specific facts demonstrating a genuine issue for trial. Dresher at 293. Since no genuine 

issue of material fact remains to be litigated, Miami is entitled to judgment as a matter of 

law, and viewing the evidence most strongly in favor of appellant, reasonable minds can 

come to but one conclusion, that conclusion being adverse to appellant, summary 

judgment in favor of Miami is appropriate. Civ.R. 56. 

{¶ 51} Accordingly, appellant's first assignment of error is overruled. 

IV. CONCLUSION 

{¶ 52} Having overruled appellant's two assignments of error, we affirm the 

judgment of the Court of Claims of Ohio. 

Judgment affirmed.

BROWN and KLATT, JJ., concur. 

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