Simpson v. Big Bear Stores Co.

[This opinion has been published in Ohio Official Reports at 73 St.3d 130.]




SIMPSON, EXR., APPELLANT, v. BIG BEAR STORES COMPANY, APPELLEE, ET AL.
             [Cite as Simpson v. Big Bear Stores Co., 

1995-Ohio-203

.]
Torts—Business owner's duty to warn or protect its business invitees from criminal
        acts of third parties does not extend to premises not in possession and
        control of the business owner.
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. The duty does not extend to
        premises not in the possession and control of the business owner.
       (No. 94-517—Submitted April 18, 1995—Decided August 16, 1995.)
      APPEAL from the Court of Appeals for Franklin County, No. 93AP-852.
                                  __________________
        {¶ 1} On July 5, 1991, Mary E. Falkenberg was physically attacked after
she left the Big Bear supermarket at Graceland Shopping Center. Her purse was
stolen and she was thrown to the ground, striking her head against the exterior wall
of the supermarket. She was about to load her groceries into her car, which was
parked immediately to the west of the Big Bear store, when the attack occurred.
Her assailant was never found. Plaintiff maintains that this is not the first mugging
to occur in the west parking lot and that Big Bear was aware of at least five other
incidents that had occurred in the same area where Falkenberg was robbed. Big
Bear disputes this figure, but given the procedural posture of this action we must
construe the evidence in favor of plaintiff.
        {¶ 2} Graceland is a fifty-three-acre, eighty-store shopping center located
in the city of Columbus near the intersection of High Street and Morse Road. The
shopping center is owned and operated by Graceland Shoppers Limited
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Partnership.   The relationship between Graceland Shoppers and Big Bear is
governed by a written lease. Article 9 addresses responsibility for common areas,
including parking lots.
       {¶ 3} Falkenberg filed suit against appellee Big Bear and Graceland
Shoppers Limited Partnership. Her complaint alleged inadequate security and
failure to warn. After suit was filed Falkenberg died and Brucia Simpson, executor
of Falkenberg's estate, was substituted as plaintiff, and an amended complaint was
filed that included a count for wrongful death.
       {¶ 4} Thereafter, both Big Bear and Graceland filed motions for summary
judgment. The trial court sustained both motions. The court of appeals affirmed
summary judgment for Big Bear but reversed as to Graceland. Graceland is not a
party to this appeal and, therefore, only those issues pertaining to Big Bear are
before this court.
       {¶ 5} This cause is now before the court upon the allowance of a
discretionary appeal.
                              __________________
       Clark, Perdue, Roberts & Scott Co., L.P.A., and Edward L. Clark, for
appellant.
       Lane, Alton & Horst, Karen K. Rosenberg and Theodore M. Munsell;
Berlon & Timmel and Michael J. McLane, for appellee.
       Allen Schulman & Associates and Allen Schulman, Jr., urging reversal for
amicus curiae, Ohio Academy of Trial Lawyers.
                              __________________
       MOYER, C.J.
       {¶ 6} The issue presented is whether a business owner's duty to provide a
safe environment for its invitees may extend to criminal acts of third parties
occurring in an area adjacent to the business premises, but not under the control of
the business owner. Plaintiff argues that this court should expressly adopt 2




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Restatement of the Law 2d, Torts (1965), Section 344, which addresses the liability
of a business owner for acts of third parties on premises under the control of a
business owner and then extends liability to areas adjacent to the business premises,
but not under the control of the business owner. Plaintiff contends that an exception
to the requirement of possession and control should be made in circumstances
where the owner knows or should know of criminal activity occurring near the
business premises that endangers the safety of invitees.
       {¶ 7} 2 Restatement of the Law 2d, Torts (1965) 223-224, Section 344
provides:
       "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 the accidental,
negligent, or intentional 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 to protect them against it."
       {¶ 8} This court has twice addressed Section 344 of the Restatement. The
first case, Holdshoe v. Whinery (1968), 

14 Ohio St. 2d 134

, 43 O.O. 2d 240, 

273 N.E. 2d 127

, involved injuries sustained by an invitee when a car rolled down an
embankment and struck the plaintiff as she was picnicking. This court affirmed the
judgment of the court of appeals reversing a directed verdict for the defendant.
Paragraph four of the syllabus provides: "Such an owner and occupier of land
breaches his duty to invitees who are injured by the negligent acts of third persons,
where such owner and occupier fails to exercise reasonable care to discover that
such negligent acts of third persons are being done or are likely to be done and fails
to give a warning adequate to enable such invitees to avoid harm, or fails to act to
protect such invitees against such negligent acts of third parties." We remanded,




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holding that the risk of a car rolling down the embankment was foreseeable, since
the owner had provided no level parking, nor had he taken steps, such as providing
parking blocks, to ensure that cars would not roll.
        {¶ 9} We addressed Section 344 again the following year in Howard v.
Rogers (1969), 

19 Ohio St. 2d 42

, 48 O.O. 2d 52, 

249 N. E. 2d 804

. Howard was
injured in a fight that occurred during a for-profit dance held at a junior high school.
Howard brought suit under a theory of inadequate security and was awarded
damages by a jury. We affirmed the reversal by the court of appeals and held that
a directed verdict should have been entered for the defendant. We again based our
decision on the forseeability of the injury and held that absent evidence that the
defendants knew or should have known of the danger that a fight could take place,
judgment for the plaintiff was improper.
        {¶ 10} In both cases, the injury to the plaintiff occurred on the premises
owned or occupied by the defendant, and, in both cases, we cited the Restatement
position but did not elevate it to syllabus law. Plaintiff now argues that a fair
reading of these cases would support an inference that Restatement Section 344 is
already the law of Ohio and placing it in syllabus form would merely be a
clarification.   However, the present case is factually at odds with the cited
authorities. The Restatement, Holdshoe, and Howard all involve the liability of a
defendant in actual possession and control of the property at issue. While Section
344 may accurately reflect the law of Ohio, it is inapplicable to this action because
the area in which the attack on decedent occurred was not under the control of the
defendant.
        {¶ 11} It is fundamental that to have a duty to keep premises safe for others
one must be in possession and control of the premises. Wills v. Frank Hoover
Supply (1986), 

26 Ohio St. 3d 186

, 26 OBR 160, 

497 N.E. 2d 1118

. The test to be
applied in determining control has been expressed as "the power and right to admit
people to the premises and to exclude people from it, and involves a substantial




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                                January Term, 1995




exercise of that right and power." 

Id. at 188

, 20 OBR at 162, 

497 N.E.2d at 1120

.
In the present case the area in which plaintiff's decedent was injured was not under
the control of Big Bear. Falkenberg had left the store and entered a common area
of the shopping center. This common area was expressly under the control of
Graceland Shoppers Limited Partnership.
       {¶ 12} Big Bear and Graceland have specifically addressed the issue of
ownership and control of the common areas in the lease between the two parties.
Under the lease, the common areas, including the sidewalks and parking areas, are
for the joint use of all tenants, their customers, and their employees. This limited
right is one of common use and not control. Article 31of the lease does allow Big
Bear the right to display and sell merchandise on the sidewalk, but this right is
subordinate to the rights of shopping center customers and again does not meet the
criteria necessary to establish control. Article 9 also assigns responsibility for
maintenance of common areas to Graceland and expressly includes security as a
component of that maintenance.
       {¶ 13} The element of control has its origins at common law. McKinney v.
Hartz & Restle Realtors, Inc. (1987), 

31 Ohio St.3d 244

, 31 OBR 449, 

510 N.E. 2d 386

.   This element has been continually reiterated in our decisions and is
incorporated into the Restatement position. Holdshoe; Howard. Under similar
circumstances we have also refused to extend a political subdivision's liability to
areas outside its territorial limits, applying this same reasoning. See Ruwe v. Bd. of
Springfield Twp. Trustees (1987), 

29 Ohio St. 3d 59

, 29 OBR 441, 

505 N.E. 2d 957

,
Mitchell v. Cleveland Elec. Illum Co. (1987), 

30 Ohio St. 3d 92

, 30 OBR 295, 

507 N.E. 352

.
       {¶ 14} Courts of other states, when addressing Section 344, have likewise
held that control is a necessary predicate to liability. In Craig v. A.A.R. Realty
Corp. (Del.Super.1989), 

576 A. 2d 688

, the Superior Court of Delaware, New
Castle County, held that a lessee could be liable for injuries received by a mall




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employee resulting from criminal activity if the lessee had the right of control under
the terms of the lease and failed to take any preventive action. The same rational
was applied by the Supreme Court of Iowa in Galloway v. Bankers Trust Co. (Iowa
1988), 

420 N.W. 2d 437

, in assigning liability for criminal conduct at a shopping
mall. Courts have consistently required control as a predicate to liability because
the possessor of land is in the best position to diminish the danger to invitees.
       {¶ 15} Plaintiff argues that even in the absence of control the general duty
of Big Bear to its invitee under Restatement Section 344 should be extended under
a theory of foreseeability. Plaintiff reasons that since Big Bear was on notice of
criminal activity in an area near its store there logically arose a duty to protect
invitees against or at least warn invitees of possible dangers of attack.
       {¶ 16} Generally, under Ohio law, there is no duty to prevent a third person
from causing harm to another absent a special relation between the parties. Littleton
v. Good Samaritan Hosp. & Health Ctr. (1988), 

39 Ohio St. 3d 86, 92

, 

529 N.E. 2d 449, 455

. In Gelbman v. Second Natl. Bank of Warren (1984), 

9 Ohio St. 3d 77

, 9
OBR 280, 

458 N.E. 2d 1262

, we addressed the special relation concept within the
context of a business owner's duty to protect third parties. Gelbman was involved
in an automobile collision with a Burger King customer who was exiting the
parking lot of the restaurant. Gelbman sued the restaurant and the owner of the
land upon which it was located under the theory that they had a duty to control their
invitees. The court, in concluding that no duty existed absent a special relationship
between the parties, cited 2 Restatement of the Law 2d, Torts (1965) 116, 122,
Sections 314 and 315, with approval. Section 315 provides:
       "There is no duty so to control the conduct of a third person as to prevent
him from causing physical harm to another unless
       "(a) a special relation exists between the actor and the third person which
imposes a duty upon the actor to control the third person's conduct, or




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                                   January Term, 1995




        "(b) a special relation exists between the actor and the other which gives to
the other a right to protection"
        {¶ 17} Section 314 states:
        "The fact that the actor realizes or should realize that action on his part is
necessary for another's aid or protection does not of itself impose upon him a duty
to take such action." See, also, Hill v. Sonitrol of Southwestern Ohio, Inc. (1988),

36 Ohio St. 3d 36

, 

521 N.E. 780

.
        {¶ 18} Thus, unless a special relationship existed between Big Bear and
Falkenberg, imposed by statute or common law, no duty existed. Forseeability
alone is insufficient to create liability. The special relationship that arose between
Big Bear and Falkenberg was that of business owner and invitee. Big Bear owed a
duty of care to Falkenberg while she was on Big Bear's premises. However, once
she finished her business and left the supermarket that relationship no longer
existed. Falkenberg then became an invitee of Graceland, the entity which retained
possession and control over the areas in which the attack occurred.
        {¶ 19} Foreseeability may still be determinative of liability, but the question
is foreseeable to whom. When the burden is placed on the entity in control,
allocation of responsibility is more clearly defined.        If we were to rely on
foreseeability alone there could conceivably be no limit to any mall business
owner's liability. At what geographic point would Big Bear's liability end? What
if Falkenberg had left Big Bear and then visited several other stores in the center?
Would all businesses in the center be liable for the attack, or only those visited by
plaintiff? Simply put, it is difficult to create a test that would not subject every
store owner to liability.
        {¶ 20} This is not a case in which the law should be extended to provide a
remedy where none exists. Under the current standard each business owner is
responsible for the area of its leasehold and the entire common area is the




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responsibility of the entity in possession and control of the common area. Any
extension of current law would only add confusion and unpredictability.
        {¶ 21} We conclude that 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. The duty does not extend to
premises not in the possession and control of the business owner.
        {¶ 22} Accordingly, we affirm the court of appeals.
                                                                  Judgment affirmed.
        WRIGHT, PFEIFER And COOK, JJ., concur.
        DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.
                                __________________
        ALICE ROBIE RESNICK, J., dissenting.
        {¶ 23} Because I disagree with both the conclusions that 2 Restatement of
the Law 2d, Torts (1965), Section 344, is inapplicable to the instant action and that
Big Bear owed no duty to protect Mrs. Falkenberg from the vicious attack she
suffered, I respectfully dissent from the majority's opinion.
        {¶ 24} As set forth in the majority lead opinion, Section 344 imposes
liability on business possessors of land for the physical harm inflicted by third
parties on business invitees when the possessor fails 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 to protect
them against it." I believe, as appellant asserts, that a fair reading of Holdshoe v.
Whinery (1968), 

14 Ohio St.2d 134

, 

43 O.O.2d 240

, 

273 N.E.2d 127

, and Howard
v. Rogers (1969), 

19 Ohio St.2d 42

, 

48 O.O.2d 52

, 

249 N.E.2d 804

, reveals that
Section 344 accurately reflects the law of Ohio. To conclude otherwise would be
to torture the obvious import of those decisions. Therefore, I would adopt Section
344 in its entirety and elevate it to syllabus law.




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                                 January Term, 1995




       {¶ 25} I agree with the majority's determination that Section 344 and
previous decisions of this court indicate that one must be in possession and control
of the premises in order to have a duty to keep the premises safe. Wills v. Frank
Hoover Supply (1986), 

26 Ohio St.3d 186

, 26 OBR 160, 

497 N.E.2d 1118

. The
lower courts, in granting summary judgment in favor of Big Bear, concluded as a
matter of law that Big Bear did not "occupy or control" the sidewalk on the west
side of the store where Falkenberg was attacked. I believe that this conclusion was
premature, and that the determination of whether Big Bear had exercised
possessory rights over the sidewalk was a question for the trier of fact to resolve.
       {¶ 26} Construing the evidence most strongly in favor of appellant, in
accordance with Civ. R. 56, I conclude that reasonable minds could differ on the
issue of whether Big Bear had assumed some control over the sidewalk surrounding
its store. The sidewalk on the west side of the building is routinely used by patrons
of Big Bear both to enter and to exit the store. There are several parking spaces
immediately contiguous to the west side of the store that are frequently used by Big
Bear customers in general, and senior citizen customers in particular. Big Bear's
baggers deliver groceries to the west parking area by using the sidewalk where the
instant attack occurred. Further, Big Bear, under the terms of the lease, is permitted
to exercise dominion over the sidewalk surrounding the store for use in sidewalk
sales. Based upon the foregoing, I believe that the record indicates that the issue of
who controlled the premises on which Falkenberg was attacked should have been
submitted to the trier of fact for consideration.
       {¶ 27} In addition to the question of control, this case raises the issue of
whether Big Bear owed a duty to Falkenberg to protect her from the criminal attack
she suffered. The duty imposed upon a business owner to protect business invitees
from the criminal acts of third parties has been defined in several contexts. In
Howard, this court determined that "[w]here an occupier of premises for business
purposes does not, and could not in the exercise of ordinary care, know of a danger




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which causes injury to his business invitee, he is not liable therefore." 

19 Ohio St.2d 42

, 

48 O.O.2d 52

, 

249 N.E.2d 804

, paragraph three of the syllabus.
       {¶ 28} Comment f to Section 344 states: "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 the third person are occurring,
or are about to occur. He may, however, know or have reason to know, from past
experience, that there is a likelihood of conduct on the part of third persons in
general which is likely to endanger the safety of the visitor, even though he has no
reason to expect it on the part of any particular individual.          ***"
       {¶ 29} Furthermore, our decision in Fed. Steel & Wire Corp. v. Ruhlin
Constr. Co. (1989), 

45 Ohio St.3d 171

, 

543 N.E.2d 769

, provides additional insight
into liability for third-party criminal acts. In holding a construction company
responsible for vandalism which occurred on a construction site, due to the
company's knowledge of such activities, this court stated:
       "If a person exercises control over real or personal property and such person
is aware that the property is subject to repeated third-party vandalism, causing
injury to or affecting parties off the controller's premises, then a special duty may
arise, to those parties whose injuries are reasonably foreseeable, to take adequate
measures under the circumstances to prevent future vandalism." 

Id.

 at syllabus.
       {¶ 30} The record in the case sub judice indicates that at least nine prior
purse-snatchings had occurred at Graceland in the four-year period leading up to
the attack on Falkenberg. Five of these incidents occurred at the precise location
where Falkenberg was attacked. Of those five attacks, four occurred within a six-
month period during the same year in which Falkenberg was attacked -- 1991. Two
of these attacks occurred within one week of the attack on Falkenberg. Finally, at
least three of the five attacks which occurred on the west side of the Big Bear store
were reported to Big Bear prior to the attack on Falkenberg.




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                                 January Term, 1995




       {¶ 31} Based on the history of reported criminal activity, Big Bear clearly
had knowledge of the fact that patrons who used the parking lot and the sidewalk
on the west side of the store were at risk of being attacked. Yet Big Bear chose to
take no action to protect its business invitees from the criminal activity it knew had
occurred and could foreseeably occur again. The store failed to pursue even simple
safety measures such as posting warning signs or employing security personnel.
Nor did the store notify Graceland that these attacks had occurred. By choosing to
do nothing, Big Bear ignored its obligation as a business proprietor to protect its
business invitees from the foreseeable criminal acts of third parties.
       {¶ 32} For all of the foregoing reasons, I would adopt Section 344 of the
Restatement in its entirety, reverse the judgment of the court of appeals, and remand
this cause to the trial court for further proceedings.
       DOUGLAS and F.E. SWEENEY, JJ., concur in the foregoing dissenting
opinion.
                               __________________




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