Pamer v. Pritchard Bros.

• Decision Date: 06 September 1990
• Docket Number: No. 89-CV-0668,89-CV-0668
• Citation: Pamer v. Pritchard Bros., 575 N.E.2d 900, 61 Ohio Misc.2d 150 (Ohio Ct. Com. Pl. 1990)
• Parties: PAMER et al. v. PRITCHARD BROTHERS.
• Court: Ohio Court of Common Pleas

Page 150

61 Ohio Misc.2d 150

575 N.E.2d 900

PAMER et al. v. PRITCHARD BROTHERS.

No. 89-CV-0668.

Court of Common Pleas of Ohio Clermont County.

Decided Sept. 6, 1990.

Syllabus by the Court

1. As a general rule, landlords have no duty to protect their tenants from the criminal acts of third persons; however, landlords have a duty to take reasonable precautions to provide security in the common areas.

2. Where a landlord undertakes a duty to supply security to its tenants, a tenant who relies, to his detriment, on the landlord's assurance that security is being provided, may bring an action against his landlord for the negligent performance of that duty. (2 Restatement of the Law 2d, Torts [1965] 135, Section 323, applied and followed.)

3. The legislature did not intend to make landlords liable for the criminal acts of third persons in enacting R.C. 5321.04, but instead, sought to protect tenants from the structural defects within the demised premises.

Gary A. Rosenhoffer, Batavia and R. Scott Croswell III, Cincinnati, for plaintiffs.

James M. Moore, Cincinnati, for defendant.

ROBERT P. RINGLAND, Judge.

This matter comes before the court on defendant's motion for summary judgment, with oral argument being heard on August 17, 1990, at which time the matter was taken under advisement. Upon consideration of oral argument as well as the memoranda, depositions, and other evidence submitted by the parties, the court hereby renders the following decision.

This action arose as the result of the plaintiff, Mindy Pamer, being physically and sexually assaulted by an intruder who entered her apartment through her bedroom window on May 18, 1989. Pamer was leasing said apartment located in Milford Commons from defendant Pritchard Brothers under an oral month-to-month tenancy at the time that this assault occurred. Four causes of action are asserted against defendant as follows: (1) infliction of extreme emotional distress upon plaintiff Philip Pamer, who was present in the apartment when his mother was attacked; (2) common law negligence; (3) negligence per se (for alleged violation of R.C. 5321.04); and (4) fraud.

As a basis for her claim sounding in common law negligence, plaintiff opines that defendant undertook to provide full-time security for the common areas of the apartment complex as well as for the benefit of the individual tenants, and that defendant was negligent in failing to maintain this specific security measure. Plaintiff states that the defendant was on notice of criminal activity within the area due to the fact that a child had been abducted from the parking lot of Milford Commons around September 1988, and that the "prior similar incidents rule" should be applied.

Defendant contends that it simply had no duty to the plaintiff since the assault complained of did not occur in a common area of Milford Commons and plaintiff's oral lease contained no provisions regarding security.

As a general rule, landlords have no duty to protect their tenants from the criminal acts of third persons, Thomas v. Hart Realty, Inc. (1984), 17 Ohio App.3d 83, 17 OBR 145, 477 N.E.2d 668; however, landlords have a duty to take reasonable precautions to provide security in the common areas, Carmichael v. Colonial Square Apts. (1987), 38 Ohio App.3d 131, 528 N.E.2d 585; Sciascia v. Riverpark Apts. (1981), 3 Ohio App.3d 164, 3 OBR 188, 444 N.E.2d 40. A landlord may obligate himself, by means of contractual provisions, to provide security for his tenants. Blair v. Property Mgmt. Consultants (1987), 40 Ohio App.3d 103, 531 N.E.2d 752. Akin to this general principle is the Restatement of the Law 2d, Torts (1965) 135, Section 323, which provides as follows:

"Negligent Performance of Undertaking to Render Services

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

"(a) his failure to exercise such care increases the risk of such harm, or

"(b) the harm is suffered because of the other's reliance upon the undertaking."

This general principle has been cited with approval in Ohio. Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 172, 51 O.O.2d 232, 235, 258 N.E.2d 597, 602. Although this rule of law goes beyond the current Ohio case law on landlord liability by allowing detrimental reliance to serve as a substitute for consideration, the court finds no reason why Section 323 is not applicable to the case sub judice, noting that other jurisdictions have applied Section 323 in similar situations. See, e.g., Lay v. Dworman (Okla.1987), 732 P.2d 455, 459; Feld v. Merriam (1984), 506 Pa. 383, 392-394, 485 A.2d 742, 746-747; and Jardel Co., Inc. v. Hughes (Del.1987), 523 A.2d 518, 524.

The abduction of a child from Milford Commons' parking lot, as well as the heavy flow of traffic in the immediate vicinity of the complex, and numerous people congregating in its parking lot and other common areas, frequently culminating in fights or acts of vandalism, are facts from which a duty on the part of defendant can be reasonably inferred, since under this set of facts, defendant may very well have found it necessary to provide security in order to protect its tenants. Further, one could infer that it was reasonably foreseeable for criminal acts to occur upon the premises again, thus satisfying the element of proximate cause.

Plaintiff has presented facts from which it can be inferred that she detrimentally relied upon ...