[Cite as Wheeler v. Ohio State Univ., 2011-Ohio-1423.]

Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us

MIRIAM WHEELER 

 Plaintiff 

 v. 

OHIO STATE UNIVERSITY 

 Defendant 

Case No. 2009-08748 

Judge Clark B. Weaver Sr. 

DECISION

{¶ 1} On December 28, 2010, defendant, The Ohio State University (OSU), filed 

a motion for summary judgment pursuant to Civ.R. 56(C).1

 On January 25, 2011, 

plaintiff filed a response. The case is now before the court for a non-oral hearing on 

defendant’s motion. Civ.R. 56(C) states, in part, as follows: 

{¶ 2} “Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence, and written stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. No evidence or stipulation may be considered except as 

stated in this rule. A summary judgment shall not be rendered unless it appears from 

the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to 

have the evidence or stipulation construed most strongly in the party’s favor.” See also 

Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean 

United, Inc. (1977), 50 Ohio St.2d 317. 

{¶ 3} On November 6, 2008, plaintiff was a student at OSU’s Mansfield campus 

when she was allegedly assaulted by Jesse Wolfe, another student who was sitting 

behind plaintiff during a lecture. Plaintiff alleges that Wolfe suddenly and violently 

kicked her chair with sufficient force to cause plaintiff to fall to the floor and sustain 

serious injuries. Plaintiff relates that when she turned and warned Wolfe that he should 

“not try that again,” Wolfe gestured to indicate that another student had kicked the chair. 

According to plaintiff, the professor who was teaching the class observed plaintiff fall but 

did not comment on the incident. Plaintiff did not discuss the incident with her 

professor; however, the next day she returned to campus and informed Donna Hight, 

the Chief Student Life Officer at OSU’s Mansfield campus, that Wolfe had assaulted 

her. Plaintiff also alleges that Wolfe subsequently attempted to intimidate her by staring 

at her. 

{¶ 4} In her four-sentence complaint, plaintiff alleges that defendant breached a 

duty owed to her both by failing to prevent the assault and by tolerating “intimidation” 

against her after the incident. 

{¶ 5} In her response to defendant’s motion, plaintiff argues that defendant 

committed a breach of a contractual duty to protect her from harmful conduct of other 

students. However, plaintiff did not attach a copy of any document to her complaint, nor 

did she present any other evidence of a contractual duty that was owed to her. 

{¶ 6} Civ.R. 10(D)(1) requires that “[w]hen any claim or defense is founded on 

an account or other written instrument, a copy of the account or written instrument must 

be attached to the pleading. If the account or written instrument is not attached, the 

reason for the omission must be stated in the pleading.” Furthermore, plaintiff has failed 

to introduce “other” documentary evidence for consideration by way of a properly 

framed affidavit pursuant to Civ.R. 56(E). 

 1

Defendant’s December 17, 2010 motion for an extension of time to file a dispositive motion is hereby 

GRANTED instanter. 
{¶ 7} Civ.R. 56(E) provides in relevant part: “When a motion for summary 

judgment is made and supported as provided in this rule, an adverse party may not rest 

upon the mere allegations or denials of the party’s pleadings, but the party's response, 

by affidavit or as otherwise provided in this rule, must set forth specific facts showing 

that there is a genuine issue for trial. If the party does not so respond, summary 

judgment, if appropriate, shall be entered against the party.” 

{¶ 8} Inasmuch as plaintiff has failed to respond to defendant’s motion with any 

evidence to support her argument regarding a contractual duty that was owed to her, 

she cannot prevail on her breach of contract claim. 

{¶ 9} Plaintiff also alleges that defendant owed a duty to protect her from 

Wolfe’s tortious conduct. However, “‘[o]rdinarily, there is no duty to control the conduct 

of a third person by preventing him or her from causing harm to another, except in 

cases where there exists a special relationship between the actor and the third person 

which gives rise to a duty to control, or between the actor and another which gives the 

other the right to protection. Thus, liability in negligence will not lie in the absence of a 

special duty owed by a particular defendant.’” Evans v. Ohio State Univ. (1996), 112 

Ohio App.3d 724, 740, quoting Fed. Steel & Wire Corp. v. Ruhlin Const. Co. (1989), 45 

Ohio St.3d 171, 173-174. 

{¶ 10} In that plaintiff was a student at OSU, her legal status was that of a 

business invitee. Kleisch v. Cleveland State Univ., Franklin App. No.05AP-289, 2006-

Ohio-1300; Baldauf v. Kent State Univ. (1988), 49 Ohio App.3d 46. “Generally, a 

business owner owes no duty to an injured invitee for the criminal conduct of a third 

person because such conduct is usually beyond reasonable expectation and a business 

owner is not an absolute insurer of his invitees’ safety. However, when a business 

owner knows or should know that there is a substantial risk of harm to his invitees from 

the criminal acts of third persons, the business owner owes a duty to warn or protect his 

invitees. In other words, the existence of a duty to warn or protect turns upon the 

foreseeability of harm to an invitee from a criminal act. The foreseeability of criminal 

acts depends upon the knowledge of the business owner.” (Citations omitted.) Sullivan 

v. Heritage Lounge, Franklin App. No. 04AP-1261, 2005-Ohio-4675, ¶24. Furthermore, 

“[b]ecause criminal acts are largely unpredictable, the totality of the circumstances must 
be ‘somewhat overwhelming’ in order to create a duty.” Shivers v. Univ. of Cincinnati, 

Franklin App. No. 06AP-209, 2006-Ohio-5518, ¶7, citing Reitz v. May Co. Dept. Stores 

(1990), 66 Ohio App.3d 188, 194. 

{¶ 11} In support of its motion, defendant submitted the deposition testimony of 

plaintiff wherein she conceded that she had no interaction with Wolfe prior to the 

incident. (Transcript, Pages 36-37.) Indeed, plaintiff admitted that she had never had 

“a problem with a single student or instructor” before the assault. (Transcript, Page 

128.) Under these circumstances, the incident was not foreseeable inasmuch as there 

is no evidence which would support an inference that defendant had any knowledge 

that Wolfe had threatened to harm plaintiff before the incident. 

{¶ 12} Accordingly, plaintiff has failed to show that defendant owed her any duty 

under the law, that defendant failed to act in accordance with any duty, or that 

defendant’s conduct proximately caused any injury to plaintiff. 

{¶ 13} Plaintiff also has failed to prove intentional infliction of emotional distress. 

Specifically, plaintiff did not prove that defendant’s conduct was extreme or outrageous 

or that defendant intentionally or recklessly caused her severe emotional distress. See 

Yeager v. Local Union 20, Teamsters (1983), 6 Ohio St.3d 369. 

{¶ 14} Furthermore, a plaintiff claiming tortious infliction of emotional distress 

must present some “guarantee of genuineness” in support of her claim, such as an 

expert opinion, or the testimony of lay witnesses who are acquainted with plaintiff to 

prevent summary judgment in favor of the defendant. Powell v. Grant Med. Ctr., 148 

Ohio App.3d 1, 6, 2002-Ohio-443. Plaintiff failed to present any evidence, other than 

her own self-serving testimony, to establish that she suffered the “severe and 

debilitating emotional distress” required of such claims. Id. 

{¶ 15} For the foregoing reasons, the court finds that there is no genuine issue as 

to any material fact and that defendant is entitled to judgment as a matter of law. 

Defendant’s motion for summary judgment shall be granted and judgment shall be 

rendered in favor of defendant. 
Court of Claims of Ohio

The Ohio Judicial Center 

65 South Front Street, Third Floor 

Columbus, OH 43215 

614.387.9800 or 1.800.824.8263 

www.cco.state.oh.us 

MIRIAM WHEELER 

 Plaintiff 

 v. 

OHIO STATE UNIVERSITY 

 Defendant 

Case No. 2009-08748 

Judge Clark B. Weaver Sr. 

JUDGMENT ENTRY

 A non-oral hearing was conducted in this case upon defendant’s motion for 

summary judgment. For the reasons set forth in the decision filed concurrently 

herewith, defendant’s motion for summary judgment is GRANTED and judgment is 

rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk 

shall serve upon all parties notice of this judgment and its date of entry upon the journal. 

 _____________________________________ 

 CLARK B. WEAVER SR. 

 Judge 

cc: 

 
Peter E. DeMarco 

Assistant Attorney General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Thomas L. Mason 

153 West Main Street 

P.O. Box 345 

Ashland, Ohio 44805-0345 

AMR/cmd

Filed March 4, 2011 

To S.C. reporter March 22, 2011