Unfortunately, criminal activity occurs at many retail and hospitality establishments. When a patron is attacked and suffers injury, the patron often looks to the establishment for compensation. The determination of whether the retailer is liable requires an analysis of numerous factors.
Multiple appellate districts in Ohio use the totality of circumstances test. The Tenth District and the Fifth District consider three main factors in determining whether a crime is foreseeable as a matter of law. The three factors are:
1. Spatial separation between previous crimes and the crime at issue;
2. Difference in degree and form between previous crimes and the crime at issue; and
3. Lack of evidence revealing the defendant’s actual knowledge of violence.
Because crime is so unpredictable, courts require the totality of the circumstances to be “somewhat overwhelming” before the court will impose a duty to warn or protect upon a business owner.
The Fifth District reaffirmed the test in McLaughlin v. Speedway, LLC, 2016-Ohio-3280. In that case, plaintiff was a patron in defendant’s store. Plaintiff asked defendant’s sole employee for a sandwich, requiring the employee to go into the back cooler. While the employee was in the cooler, another patron approached plaintiff, punched her in the head and demanded her keys and money. When plaintiff resisted, the other patron dropkicked her, striking her in the chest. Plaintiff threw her keys at the other patron, who took the keys and stole her car. Plaintiff sued Speedway alleging negligence for failing to protect plaintiff on their premises.
Ohio has long adhered to the rule that there is no duty to control the conduct of a third person by preventing him or her from causing harm to another. The only exception is a situation where there exists a special relationship between the actor and the third party, which gives rise to a duty, or between the actor and another which gives the other the right to protection. Such a special relationship can exist between a business owner and an invitee. However, a business owner generally owes a duty to an invitee only to exercise ordinary care and to protect the invitee by maintaining the premises in a reasonably safe condition.
As to criminal acts, a business owner owes a duty to warn or protect its patrons only where the business owner knows or should know that there is a substantial risk of harm to its invitees on the premises. Where a business owner does not, and could not in the exercise of ordinary care, know of a danger that causes injury to its invitees, he is not liable for injuries suffered by the patron.
In this case, the manager of the store testified that the store was located in a low crime area. However, a police log was presented during her deposition showing 16 incidents in approximately seven months. Nevertheless, the court relied upon a Tenth District Court of Appeals case that cautioned against the use of police reports.
The Tenth District found that police reports are problematic as summary judgment evidence. The reports are not accompanied by an affiant qualified to read them, and only indicate that the police have been called. The reports do not indicate whether any of the calls were found to have merit. As such, the Tenth District found that police reports are insufficient summary judgment evidence on the issue of foreseeability. Heimberger v. Zeal Hotel Group, Ltd., 2015-Ohio-3845, 42 N.E. 3d 323.
In McLaughlin, the Fifth District viewed the testimony of the manager and likewise concluded that the police reports were insufficient. The police reports did not indicate any of the details of any of the calls or whether any of the calls had merit.
The court did note that one of the police reports reflected an armed robbery. The offender used a gun during the robbery and money was taken from the cash register. However, there was no testimony or other evidence that a customer was present at the time, or that a customer or employee was assaulted.
In further analyzing the police reports, the court relied upon a Fourth District case, Wheatley v. Marietta College, 2016-Ohio-949, 48 N.E. 3d 587, addressing foreseeability under a totality of the circumstances standard. The Fourth District noted that even where multiple crimes occur, courts have been reluctant to find foreseeability when the crimes have been non-violent and differ from the type of criminal act at issue for a particular case. The court also found numerous other cases in several Districts where courts had concurred that non-violent crimes are not indicative of the foreseeability of a future violent crime.
The court then confirmed the summary judgment. The court, while considering the armed robbery, did not find it to be “somewhat overwhelming” evidence to show that it was foreseeable that a violent criminal act would occur in the future.
The totality of the circumstances test requires somewhat overwhelming evidence of the foreseeability of a violent crime. Police reports in and of themselves are insufficient without more detail to establish foreseeability. Further, non-violent criminal acts will not generally be found sufficient to create an issue of fact against allegations of negligence on a claim where a patron is injured by a third party at a retail or hospitality establishment.
If you have any questions or wish to have a copy of the opinion, or have any other question with respect to retail, hospitality or habitation risk, please contact one of our Retail and Hospitality Liability Practice Group members.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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