
    Daily et al. v. K-Mart Corporation et al. 
    (No. CV 80-07-0644
    Decided September 2, 1981.)
    Court of Common Pleas of Butler County.
    
      Mr. David Green and Mr. John Holcomb, for plaintiffs.
    
      Mr. James H. Scheper, for defendant K-Mart Corp.
    
      Mr. Michael Fulton, for defendants Marlou Realty Co., Gordon Smith, Jr., Mary Lee Smith Epps and Karen Ann Smith.
    
      Mr. James J. Slattery, Jr., for defendant Butler Improvement Co.
   Stitsinger, J.

This matter is before the court pursuant to motions for summary judgment made by the plaintiffs, Susan and David Daily, and by the defendants, K-Mart Corporation, Butler Improvement Company, and. Marlou Realty Company. The occurrence which led to the filing of this suit is basically not in dispute. On July 19, 1979, the plaintiff, Susan Daily, was abducted by two men at gunpoint from defendant K-Mart’s parking lot at approximately 1:30 p.m. The plaintiff was then taken to a deserted area in Butler County and was shot twice, once in the neck and once in the head. The plaintiffs claim in their complaint that K-Mart, the possessor and occupier of the real estate, Butler Improvement, the lessor of the building and the sublessor of the land to K-Mart, and Marlou Realty, the lessor of the land to Butler Improvement, all breached their duties to the plaintiffs by not providing security in the parking lot even though they knew or had reason to know of prior criminal activities in the parking lot. The plaintiffs cite forty-nine separate incidents of serious crime which have occurred on or about the K-Mart parking lot since March 1968, and claim that these incidents were sufficient notice to defendants to obligate them to provide security personnel in such lot. This case raises novel questions which have never been addressed directly by the Ohio Supreme Court.

However, first addressing the motion for summary judgment made by Marlou Realty, the court finds that this motion is well-taken. The law is well-settled that a landlord out of possession and control of the premises is not liable for injuries to its tenants (recently affirmed in Thrash v. Hill [1980], 63 Ohio St. 2d 178 [17 O.O.3d 109]). Here, the injury was not even to Marlou Realty’s tenant, Butler Improvement, but to a business invitee of Butler Improvement’s lessee, K-Mart. In addition, according to Anthony Palazzolo, vice-president of Butler Improvement, Marlou Realty had no responsibility in relation to the management of the property at all. Even using Section 344 of the Restatement of the Law, Torts 2d (1965), arguendo, as a standard to impose liability on Marlou Realty would not be successful. Marlou Realty was in no sense a “possessor of land” at the time of the incident and this is required by Section 344. Since Marlou Realty had no possession or any control over the use of the parking lot, it is not a proper party to this suit, and the claim against it should be dismissed.

The motions for summary judgment of the defendants K-Mart and Butler Improvement both present the threshold issue of whether any duty at all extended from these defendants to protect the plaintiffs from criminal acts of third persons on their land. Susan Daily was undoubtedly a business invitee or visitor to the K-Mart lot on the day in question. Restatement of the Law, Torts 2d, Section 332, cited in Holdshoe v. Whinery (1968), 14 Ohio St. 2d 134 [43 O.O.2d 240], states in part at page 167:

“(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land.”

The evidence presented shows that Susan Daily was entering the K-Mart store to do some shopping when she was abducted. The law is well-established in Ohio that an owner and occupier of land owes a duty of ordinary care to maintain the land in a reasonably safe condition for the protection of any invitees. The question is whether this duty also extends to protect invitees against the criminal acts of third persons.

The plaintiffs base their case on K-Mart’s failure to provide security even though it had knowledge of prior criminal activities in the parking lot and the store. Counsel for the plaintiffs claims that this duty exists because Section 344 of the Restatement of the Law, Torts 2d, has been adopted in Ohio. This section of the Restatement provides at pages 223-224:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by accidental, negligent or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

“(a) discover that such acts are being done or are likely to be done, or

“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it.”

Comment / to Section 344 provides further guidance on what the possessor of land must do to avoid liability for harm caused to its invitees by criminal acts of third persons. This comment states in part at page 226:

“If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”

This comment imposes a duty on the possessor of land to police business premises to protect invitees, although no such duty previously existed under the common law. The case law in Ohio must now be examined to determine whether Section 344 has been adopted by this state in its entirety.

The case of Holdshoe v. Whinery, supra, was the first case in which liability was imposed on a defendant for the conduct of a third person pursuant to Section 344. In that case, the defendant was the owner and operator of 'a recreation area in which he rented picnic tables to his invitees. The defendant did not provide a parking area per se, but did allow his patrons to park their cars on a slope over the picnic area. While the plaintiff was seated at a picnic table, the car of one of the defendant’s patrons, who had negligently parked his vehicle, came down the slope and struck the plaintiff. The plaintiff claimed that the defendant was negligent in allowing cars to park over the picnic area, and that this was just as much the proximate cause of her injuries as the negligent act of the patron. The Supreme Court adopted Section 344 of the Restatement of the Law, Torts 2d, but deleted, the language of accidental or intentional acts of third persons in its citation. Therefore, arguably, the Supreme Court only imposed a duty on a possessor of land to protect its invitees against the negligent acts of third persons and not for the criminal acts of third persons.

The law in Ohio was further developed, however, in the case of Howard v. Rogers (1969), 19 Ohio St. 2d 42 [48 O.O.2d 52]. In that case, the plaintiff was accidentally injured at a teenage dance when a fight broke out on the dance floor. The plaintiff claimed that the defendants, who were holding the dance for profit, should be liable for her injuries because they did not provide “ ‘police, chaperon or other security protection for paying guests, including the plaintiff.’ ” Id. at 44. The Supreme Court stated that:

“* * * [A]n occupier of premises for business purposes may be subject to liability for harm caused to such a business invitee by the conduct of third persons that endangers the safety of such invitee, just as such occupier may be subject to liability for harm caused to such invitee by any dangerous condition of those premises.” Id. at 46-47.

The court went on to state that the occupier of premises for business purposes was not the insurer of its invitees' safety, and found that since there was no evidence that fighting at teenage dances was a common occurrence, the court could not take judicial notice of the likelihood of such fighting. The court quoted Comment f, in part, in support of its opinion:

“ ‘Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of third persons are occurring or about to occur.’ ” Id.

The question which presents itself from this quotation is whether the Supreme Court intended to limit the operation of Section 344 only to acts of third persons which “are occurring or about to occur,” and not to criminal acts which could be reasonably anticipated from past experience, as referred to later in Comment/

At least one other state supreme court has, in fact, limited the application of Section 344 to criminal acts of third persons that are occurring or about to occur and which pose an imminent probability of harm to an invitee. Cornpropst v. Sloan (Tenn. 1975), 528 S.W.2d 188, 93 A.L.R. 3d 979, 993. See, also, the annotation following, at 93 A.L.R. 3d 999. The Tennessee Supreme Court in the Com-propst case in a factual setting very similar to the case before the court today found that no duty existed to protect a business invitee of a shopping center from an assault in the parking lot unless the proprietors knew the act was occurring or about to occur. However, the Howard v. Rogers determination rested on the question of- foreseeability rather than on whether any duty existed at all. A duty to provide security would have arisen if the likelihood of fights at teenage dances could have been foreseen. The duty which exists to protect business invitees in Ohio depends on the foreseeability of the act by the-.third person, and not whether the act of the third person was occurring or about to occur.

The case of Townsley v. Cincinnati Gardens, Inc. (1974), 39 Ohio App. 2d 5 [68 O.O.2d 72], a case decided in the First Appellate District, is illustrative of this point. In the Townsley case, the plaintiff was criminally assaulted and beat up in the defendant’s restroom. The court found that as a matter of law no duty existed since there was “no evidence in the record that would show that the defendant, because prior activities upon the premises during any given performance, could have anticipated the act of the assailants in injuring the plaintiff herein.” (Emphasis added.) Townsley, supra, at 9. The court of appeals went on to state in dicta that it may now be a reality of life that additional security forces should be provided to protect business invitees since the Cincinnati Gardens is now on notice of such incidents. Again, the question of defendant’s duty arises from the question of whether prior criminal incidents have occurred to give rise to that duty.

Although the Supreme Court has never imposed a duty as here claimed expressly, it has implied through its decision that Section 344 has been adopted in its entirety. The decision in Townsley which is binding on this court also provides expressly that a duty may arise if the criminal act of a third person is foreseeable. Other jurisdictions have also recognized this duty in their opinions. See Murphy v. Penn Fruit Co. (1980), 274 Pa. Super. 427, 418 A. 2d 480; Atamian v. Supermarkets General Corp. (1976), 146 N.J. Super 149, 369 A. 2d 38.

The only question that remains for this court then is whether it can grant summary judgment for the defendants K-Mart and Butler Improvement on the basis that the criminal acts of third persons were not foreseeable to the defendants. The defendants are claiming in their motions that the criminal acts of third persons were the intervening, superseding cause of Susan Daily’s injuries, and therefore defendants should not be liable. “An intervening cause is one which comes into active operation in producing the result after the negligence of the defendant.” Prosser, Law of Torts (4 Ed. 1971), at 271. It is also stated:

“In order to excuse the defendant, however, this intervening cause must be either a superseding or responsible cause. It is a superseding cause, whether intelligent or not, if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury. 39 Ohio Jurisprudence 2d 543, Negligence, Section 38.”

The intervening cause of the plaintiff’s injuries in this case was the brutal abduction and shooting of Susan Daily. The question is whether this act so overcomes the defendants’ allegedly negligent act that the defendants’ liability is superseded.

The case of Taylor v. Webster (1967), 12 Ohio St. 2d 53 [41 O.O.2d 274], will be of some assistance in this determination. The second paragraph of the syllabus of that case provides:

“Where a defendant, the owner or having control of an air gun, is negligent in permitting its use by his ten-year-old son, and such negligence is followed by the independent act of a third person which directly results in injury to plaintiff, defendant’s earlier negligence may be found to be the proximate cause of the injury, if according to human experience and in the natural and ordinary course of events defendant could reasonably have foreseen that the intervening act was likely to happen.”

Although this case did not involve the liability of an owner and occupier of land for the criminal acts of third persons, it does pronounce the correct law that all intervening acts would not relieve the defendant of liability, but only those which could not be foreseen. This point was again made in Holdshoe v. Whinery, supra, at 141, where the court stated:

“ ‘The intervening act of a third person does not necessarily relieve the author of an earlier negligent act from responsibility when the intervening cause of an injury is of such nature as could reasonably have been anticipated, in which case the earlier negligent act, if it contributed to the injuries, may be regarded as the proximate cause or as a proximately contributing cause. * * *’ ” (Quoting from Marquardt v. Cernocky [1958], 18 Ill. App. 2d 135, 144, 151 N.E.2d 109.)

Of course, the Holdshoe case involved the liability of owners and occupiers of land for the negligent acts of third persons, and therefore is more directly applicable to the facts of the pending case.

When considering a motion for summary judgment, the facts must be taken most strongly against the moving party. In the motions of the defendants K-Mart and Butler Improvement, the facts must be taken most strongly against them. The existence of prior criminal activity in K-Mart’s parking lot shows that K-Mart could have possibly anticipated subsequent criminal attacks, and therefore a duty may have arisen to provide a reasonable number of servants in the parking lot to provide for the patron’s safety. Certainly, the enumeration of prior criminal incidents allows the plaintiffs to avoid summary judgment with regard to K-Mart and raises a jury question as to whether it acted reasonably in relationship to its patrons in this regard. The question that the jury will have to determine is whether K-Mart acted reasonably in the security measures it did take. Geraldine Stout’s deposition demonstrates that she knew of at least a few prior criminal incidents, and that no action to provide additional security or post warning signs was taken by K-Mart.

The court would here also note the lengths the concept of foreseeability has been extended in a recent Supreme Court case, Strother v. Hutchinson (1981), 67 Ohio St. 2d 282 [21 O.O.3d 177], In that case, the court, in a four to three decision, found that a directed verdict was not warranted where an employee of the defendant gas station fired a shot at the car of escaping robbers, this shot hit the driver of the escaping car, and the car went out of control and ran into the plaintiff’s automobile causing the plaintiff’s injuries. The court found that if reasonable minds could arrive at different conclusions concerning the issues of negligence and proximate cause (or reasonable foreseeability of injury) when construing the evidence most strongly for the plaintiffs, then a question of fact for the jury arose. This court finds that reasonable minds could differ as to the issue of foreseeability as to whether K-Mart should have provided security in its parking lot. Therefore, K-Mart’s motion for summary judgment is hereby overruled.

As to defendant Butler Improvement, there is some evidence in the deposition of Anthony Palazzolo and in the lease that they had responsibilities in regard to the parking lot. Anthony Palazzolo states in his deposition that “we have the responsibility of maintaining the parking lot, keeping it lit and keeping it in good repair.” Also, Geraldine Stout, security director of K-Mart, indicates in her deposition that incident reports are sent to Butler Improvement about activities in the parking lot. Therefore, Butler Improvement was not a landlord completely out of control and may have had some knowledge of criminal activities in the parking lot although the evidence is scant that they had this knowledge. Also, Butler Improvement may be liable pursuant to an indemnification clause in its lease with K-Mart.- This lease provides that the “landlord shall keep tenant insured against all statutory and common law liabilities for damages on account of injuries to property or person, including death, sustained by any person or persons while within said common areas.” The parking lot is one of the common areas listed in the lease. For the above reasons, Butler Improvement should not be dismissed from this suit, and its motion for summary judgment is hereby overruled.

The plaintiffs’ motion for summary judgment is also not well-taken since this court cannot find as a matter of law that K-Mart and Butler Improvement did not act reasonably in not providing security in the parking lot. All the evidence must be presented to a jury to let them determine the reasonableness of the defendants’ conduct.

Therefore, the motion for summary judgment for Marlou Realty is hereby granted, and the motions for summary judgment by the plaintiffs and the defendants K-Mart and Butler Improvement are hereby overruled.

Judgment accordingly.  