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Posted on: May 12, 2020

On May 13, 2020, the Supreme Court of Ohio will hear oral argument in the case of Diana Davis, as Administrator of the Estate of Jason Barry, et al. v. Montez D. Hollins, et al., 2019-0850. The issue in the case is whether a premises owner has a heightened duty to warn or protect business invitees based on the occurrence of previous violent crime on those premises.

Case Background

The issue in this case arose from an altercation in the parking lot of Consumer Square West Shopping Center (“Consumer Square West”) in Columbus on November 15, 2013. That evening, Montez Hollins (“Hollins”) and Ellen Hill (“Hill”) went to Consumer Square West to buy cocaine, and upon arrival drove around the parking lot. Jason Barry (“Barry”) and Kristina Petree (“Petree”) were walking back to their car after shopping at Kroger in Consumer Square West and yelled at Hill for driving at a high speed. Hill told Hollins about the altercation, and Hollins then drove his car over to where Barry and Petree were loading groceries into their car. After driving around them in circles at high speed, Hollins then struck Barry and Petree with his car, killing Barry and injuring Petree.

On November 10, 2015, Barry’s estate and Petree (Collectively, “Plaintiffs”) sued Hollins, Hill, shopping center owner BAI Consumer Square West, LLC; managing member BAI Consumer Square West Mezz, LLC; property manager Zamias Services, (Collectively, “BAI”), the Kroger Company and Gilbert Group Inc. Real Estate in the Franklin County Court of Common Pleas.

Plaintiffs alleged negligence, negligent and intentional infliction of emotional distress, and wrongful death. The crux of Plaintiffs’ action against BAI alleged that BAI was aware of rampant criminal activity in the Consumer Square West parking lot, and did not take action to warn or protect invitees on its property. In June of 2017, all defendants except Gilbert Group, which had previously been dismissed, filed a motion for summary judgment, which Judge Julie Lynch granted. Plaintiffs then voluntarily dismissed all remaining defendants except the BAI defendants from the suit.

Barry’s estate and Petree appealed.

The Appeal

In a 2-1 decision, with the majority opinion authored by former Judge Timothy S. Horton and joined by since retired judge Gary Tyack, the Tenth District Court of Appeals reversed.

The majority first noted that a premises owner generally owes a business invitee a duty to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition, including by warning or protecting invitees from criminal acts of third parties that the business owner knows or should know pose a substantial risk of harm. If the third party’s criminal acts are not foreseeable, however, then no duty arises. The foreseeability determination considers the totality of the circumstances, including the existence of prior similar incidents, the propensity of criminal activity on or near the location of the business, and the character of the business. Additional factors to examine are spatial separation between previous crimes and the crime at issue, a difference in degree between previous crimes and the crime at issue, and evidence of the owners’ actual knowledge of violence.

The majority held that Judge Lynch applied an incorrect standard when she required plaintiffs to show that BAI knew or should have known that the exact same situation had previously occurred—a standard of specific acts and specific harm as opposed to similar incidents and general harm— in the totality of circumstances analysis.  Foreseeability of a specific harm is not required.

Construing the facts in favor of Barry’s estate and Petree on summary judgment, the evidence shows that BAI was fully aware of the threat of harm in the parking lot and completely ignored the warnings of their own security experts and that BAI should have taken some precautions to prevent serious violent harm at Consumer Square West. This evidence included tenant questionnaires that indicated fear of violent crime, BAI’s surveillance vendor stating that he was concerned about customer safety, and BAI declining to implement security and warning measures despite being advised to do so. Further, Consumer Square West is located in an area known for its high violent crime rate—and indeed, police had been dispatched to Consumer Square West more than 1,300 times between January 2010 and November 2013, including for vehicular assault incidents. That translated into about one police run per day.

With this evidence in the record, Judge Lynch should not have granted summary judgment in favor of BAI.

Judge William A. Klatt dissented. He wrote that the central issue was whether it was foreseeable that a third party would commit vehicular homicide by purposefully running down a customer in his or her car, not whether violent crime was generally foreseeable. Because such a crime was not foreseeable, Klatt would hold that BAI owed no duty to protect customers from vehicular homicide.

In the context of criminal acts by third parties, plaintiffs must demonstrate that the specific harm was foreseeable, even in a totality of the circumstances analysis. And, the evidence showing a lot of general crime in the neighborhood and at Consumer Square West is not enough to create a duty to warn or protect because there was no evidence that BAI was aware of the police reports at issue and the reported conduct did not involve the kinds of injuries at issue in this case. Because of the lack of evidence of prior criminal conduct of this nature, no reasonable jury could conclude that the risk of harm here was foreseeable.

BAI applied for, and was granted, reconsideration. On reconsideration, in another split decision authored by Judge Fred Nelson, joined by Judge Laurel Beatty Blunt, the appeals court clarified the original majority opinion while still reversing Judge Lynch’s grant of summary judgment for BAI.

While agreeing that the totality of the circumstances analysis was appropriate, and clarifying the foreseeability requirement in that equation, the majority found that the record in this case would permit reasonable minds to conclude that BAI knew or should have known of a substantial risk of harm to invitees in the parking lot because of past incidents of violent crimes. Therefore, Judge Lynch was incorrect to grant BAI’s motion for summary judgment.

On reconsideration, Judge Klatt again dissented, again finding that the vehicular homicide in this case was not specifically foreseeable because it was of such a different degree and form from previous crimes reported at Consumer Square West.

BAI Appealed.

Votes to Accept the Case

Yes: Justices DeWine, Fischer, French, and Kennedy

No: Chief Justice O’Connor, Justices Donnelly and Stewart

BAI’s First Proposition of Law Accepted for Review

A heightened duty of a premises owner to warn or protect business invitees from criminal activity on its premises is not inferred based solely upon the occurrence of a previous violent crime on those premises, particularly a crime different in form.

BAI’s Second Proposition of Law Accepted for Review

Not all forms of violent criminal activity automatically become foreseeable. Otherwise, a business owner would become the insurer of a business invitee’s safety, an obligation the law does not impose.

Key Statutes and Precedent

Debie v. Cochran Pharmacy-Berwick, Inc., 11 Ohio St. 2d 38 (1967) (“[A] business owner’s superior knowledge of existing dangers or perils to persons going upon the property . . . is the basis of liability.”)

Mussivand v. David, 45 Ohio St.3d (1989) (“There is no formula for ascertaining whether a duty exists. Duty . . . is the court’s expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”)

Rush v. Lawson Co., 65 Ohio App.3d 817 (3d Dist. 1990) (Testimony of a former employee about property owner’s knowledge of criminal conduct on premises sufficient to reverse summary judgment.)

Reitz v. May Co. Dept. Stores, 66 Ohio App.3d 188 (8th Dist. 1990) (“The foreseeability of criminal acts, whether a reasonably prudent business would have anticipated that an injury was likely to occur, will depend upon the knowledge of the defendant-business.”)

Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130 (1995) (Business owners have a duty to warn or protect their business invitees from criminal acts of third parties when the business owners know or should know that there is a substantial risk of harm to invitees on their premises.)

Maier v. Serv-All Maintenance, 124 Ohio App.3d 215 (8th Dist. 1997) (Foreseeability of third-party criminal acts depends on the knowledge of the defendant and is determined from the totality of the circumstances.)

Heimberger v. Zeal Hotel Group, 2015-Ohio-3845 (10th Dist.) (“If a third party’s criminal act is not foreseeable, then no duty arises, and a business owner cannot be held liable in negligence.”)

Wheatly v. Marietta College, 2016-Ohio-949 (4th Dist.) (Rape by a criminal entering a dorm room was not foreseeable based upon a prior rape by a student.)

BAI’s Argument

The Tenth District incorrectly refused to consider the specific nature of the harm that occurred in this case in its totality of the circumstances analysis. For violent crimes, the court should have considered whether there were previous vehicular homicides or attempted vehicular homicides. Instead, the court broadened the inquiry to include all violent crime. This imposed a heightened duty on premises owners to warn and protect business invitees if a previous violent crime, regardless of type, had occurred on their premises. This makes the business owner essentially an insurer of invitees’ safety from violent crime.

There are different types of violent crime, and the vehicular homicide at issue in this case is beyond the scope of anything that occurred previously at Consumer Square West. Past violent crimes that are different from what caused a plaintiff’s injury do not render that plaintiff’s injuries foreseeable to a property owner. The totality of the circumstances must consider the particular circumstances of past violent crimes. The property owner must have something greater than general knowledge of violent crime to have some specific harm be reasonably foreseeable.

Because the Tenth District departed from the totality of the circumstances test by only requiring the property owner to have general knowledge of potential for violent crime, the Supreme Court of Ohio should reverse the Tenth District and reinstate summary judgment in favor of BAI.

Barry’s Estate and Petree’s Argument

The Court should affirm the Tenth District’s reversal of summary judgment. Establishing a duty of care to warn or protect invitees is necessary when a business owner has superior knowledge of the risk of third-party criminal activity. This duty exists when harm is foreseeable. Evidence demonstrating a business owner’s actual knowledge of a substantial likelihood of criminal harm to its invitees makes subsequent harm foreseeable. In the absence of evidence of actual knowledge, a court should examine the totality of the circumstances to determine whether harm was foreseeable. An owner’s constructive knowledge of the foreseeability of harm can be inferred from the totality of the circumstances.

As construed in Barry Estate’s and Petree’s favor on summary judgment, the evidence clearly establishes that BAI had actual knowledge of a substantial likelihood of criminal harm which they did nothing about.  BAI’s own tenants and security experts advised BAI to increase security measures, and they did not.

Additionally, the totality of the circumstances test does not require a plaintiff’s exact harm to have occurred in the past on the owner’s premises. Courts must consider all factors to determine whether a harm was foreseeable, rather than be limited by the exact type of harm suffered. The clearest evidence of this will be prior criminal acts on the premises and surrounding property. This standard requires that the facts be analyzed on a case-by-case basis rather than under a bright-line standard.

BAI’s propositions of law are nothing more than restatements of black letter premises liability law and not actually at issue in the case because at no time has any court in this case applied a heightened duty. Instead, the Tenth District merely found that property owners have some duty proportionate to foreseeable threats to their invitees. Further, the Tenth District’s opinion did not state that past violent crime makes future violent crime automatically foreseeable. Rather, a trial court must consider the totality of the circumstances to determine whether any third-party criminal act is foreseeable.

Barry’s Estate and Petree’s Proposed Counter Propositions of Law

1.A business owner has a duty to warn or protect its business invitees from the foreseeable criminal acts of third parties. See, e.g., Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 1995-Ohio-203, syllabus, approved.

2. A business owner foresees a third party’s criminal act if the evidence reveals that owner had actual knowledge criminal acts pose a substantial risk of harm to invitees.

3. In the absence of evidence of a business owner’s actual knowledge, a trial court must consider the totality of circumstances to determine whether the criminal harm was foreseeable.

Amicus in Support of Barry’s Estate and Petree

Ohio Association for Justice

The Ohio Association for Justice (“OAJ”) is Ohio’s largest plaintiffs’ attorneys’ association, comprised of 1,200 attorneys devoted to strengthening the civil justice system to ensure that individuals can get justice through their claims. OAJ argues that the Court’s grant of jurisdiction was improvidently granted, as the issue here really deals with proximate cause instead of any heightened duty. On the merits of the case, OAJ adopts the Tenth District’s reasoning and urges the Court to reverse summary judgment.

Shared by Marianna Brown Bettman

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