Simpson v. Big Bear Stores Co.

• Decision Date: 16 August 1995
• Docket Number: No. 94-517,94-517
• Citation: 73 Ohio St.3d 130,652 N.E.2d 702
• Parties: SIMPSON, Exr., Appellant, v. BIG BEAR STORES COMPANY, Appellee, et al.
• Court: Ohio Supreme Court

Page 130

73 Ohio St.3d 130

652 N.E.2d 702

SIMPSON, Exr., Appellant, v. BIG BEAR STORES COMPANY, Appellee, et al.

No. 94-517.

Supreme Court of Ohio.

Submitted April 18, 1995.

Decided Aug. 16, 1995.

SYLLABUS BY THE COURT

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.

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.

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 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.

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.

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.

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, Columbus, for appellant.

Lane, Alton & Horst, Karen K. Rosenberg and Theodore M. Munsell, Berlon & Timmel, and Michael J. McLane, Columbus, for appellee.

Allen Schulman & Associates, and Allen Schulman, Jr., Columbus, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

MOYER, Chief Justice.

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 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.

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."

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, 237 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, 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.

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 foreseeability 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.

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.

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 exercise of that right and power." Id. at 188, 26 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.

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 31 of 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.

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.2d 352.

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 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 rationale 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.

Plaintiff argues that even in the absence of control the general...