[Cite as Davis v. Hollins, 2019-Ohio-1789.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Diana Davis, as Administrator of the : 

Estate of Jason Barry et al., 

 : 

 Plaintiffs-Appellants, 

 : No. 17AP-716 

v. (C.P.C. No. 15CV-10049)

 : 

Montez D. Hollins et al., (REGULAR CALENDAR) 

 : 

 Defendants-Appellees. 

 : 

 

D E C I S I O N 

Rendered on May 9, 2019 

 

Piscitelli Law Firm, and Eric W. Henry, for appellants. 

Molly G. Vance, for appellees. 

 

ON APPLICATION FOR RECONSIDERATION 

NELSON, J. 

{¶ 1} Appellees the owner and its managing member and their property manager 

of Consumer Square West Shopping Center (BAI Consumer Square West, LLC; BAI 

Consumer Square West Mezz, LLC; and Zamias Services, Inc.; together, "BAI/Zamias" or 

"appellees") seek reconsideration of this court's decision reversing the summary judgment 

that the trial court had granted in their favor. Because certain passages in paragraphs 15 

through 18 of the panel's original decision may tend to muddy the initial requirement that 

to establish liability by a business owner for failure to warn or protect its business invitees 

against criminal acts by third parties, " 'one must demonstrate that the specific harm at 

issue was foreseeable,' " Heimberger v. Zeal Hotel Group, Ltd., 10th Dist. No. 15AP-99, 

2015-Ohio-3845, ¶ 25, quoting Maier v. Serv-All Maintenance, Inc., 124 Ohio App.3d 215, 

224 (8th Dist.1997), "clarification is appropriate, [and] we grant the application for 
No. 17AP-716 2 

reconsideration and clarify our prior opinion," In re T.B., 10th Dist. No. 06AP-769, 2006-

Ohio-5300. But because the record here indeed would permit reasonable minds to 

conclude that the "totality of the circumstances" were "somewhat overwhelming" in 

demonstrating that BAI/Zamias knew or should have known of a substantial risk of violent, 

criminal physical harm to persons in the shopping center parking lot; because that 

assessment would meet the necessary level of specificity (in considering the threat of 

physical violence, as opposed, say, to petty offenses or crimes against property); and 

because such a conclusion could be reached even without consideration of the "police run" 

reports included in the initial panel litany of evidence that "if believed * * * would satisfy 

the 'somewhat overwhelming' standard," we reach the same conclusion as our initial panel 

decision and reverse the trial court's grant of summary judgment as predicated on the 

foreseeability issue. 

{¶ 2} That is, when the record is examined in the light most favorable to the 

nonmoving party on summary judgment, this is not a case where "a reasonable fact-finder 

could only conclude that the incident was not foreseeable." Compare Wheeler v. Ohio State 

Univ., 10th Dist. No. 11AP-289, 2011-Ohio-6295, ¶ 19 (adding that "[t]here was no evidence 

to support an inference that OSU had any knowledge that a threat existed, and OSU had no 

way to foresee the events"). Here, in this case involving a parking lot altercation that 

escalated into a driver running down two people, killing one and injuring the other, there 

is competent evidence by which one could reasonably find that BAI/Zamias should have, 

and did, know of a significant risk that shopping center customers would become victims 

of violence in the parking lot. Compare, e.g., Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 

45 Ohio St.3d 171, 173 (1989) (directed verdict improper because, construing the evidence 

most strongly in favor of the nonmoving party, "reasonable minds could have concluded 

that Ruhlin had a duty toward Federal to take adequate measures to protect against 

vandalism"); Allison v. McDonald's Restaurants, 8th Dist. No. 63170, 1993 Ohio App. 

LEXIS 5264, *4 (Nov. 4, 1993) (reversing summary judgment against business because 

viewing the evidence "most strongly in appellant's favor, we conclude that reasonable 

minds could find the attack on [the business invitee] was foreseeable"). 

{¶ 3} Among other things, a fact finder could conclude that BAI/Zamias were told

by a security consultant whom they themselves had retained (but on whose report they did 
No. 17AP-716 3 

not act) that parking lot violence was a real threat the year before the horrific events of 2013. 

Theodore Owens recites in his affidavit that in 2012: "I advised Mr. Carr [of Zamias 

Services] that the condition of the Consumer Square West parking lot created a significant 

risk that its customers using the parking lot would be victims of violence." (July 10, 2017 

Pls.' Memo Contra Defs.' Mot. for Summ. Jgmt., Ex. 1, Owens Aff. at ¶ 10.) 

{¶ 4} A fact finder on this record also could conclude that BAI/Zamias already had 

expressed their own understanding of these sorts of concerns. Ryan Temple (a video 

surveillance provider whose services BAI/Zamias apparently did not purchase) avers in his 

affidavit that Mr. Carr of Zamias Services "was concerned about the dangerous area in 

which the Consumer Square West Shopping Center was located and concerned about the 

safety of customers in the shopping center's parking lot." (Pls.' Memo Contra Defs.' Mot. 

for Summ. Jgmt., Ex. 2, Temple Aff. at ¶ 5.) 

{¶ 5} BAI/Zamias are frank to "acknowledge" that "the admissible evidence speaks 

to" the "reputation" of "the area in and around the shopping center at Consumer Square 

West" as "a high crime area." (Appellees' Brief at 24-25.) They then further concede as 

beyond peradventure that "occasional physical altercations not amounting to homicide" 

were a "repeating theme in the Consumer West Shopping Center." Id. at 25 (emphasis 

added); see also, e.g., id. at 15, fn. 3 (footnoting as "admissible evidence" testimony of 

"miscellaneous altercations in the subject parking lot"). To the same effect, BAI/Zamias 

advised the trial court that: "it is undisputed that altercations have occurred in the parking 

lot at Consumer Square West. The events identified by Plaintiffs are endemic of crime in 

the area." (July 21, 2017 Defs.' Reply in Support of Pls.' Mot. for Summ. Jgmt. at 4; 

emphasis added.) 

{¶ 6} And against the additional evidentiary backdrop suggesting—when read in 

the light most favorable to the nonmoving Plaintiffs—that the area in which the shopping 

center is located is known to be dangerous, see, e.g., Dep. of Officer Brian Newsome at 15 

(precinct is considered "among the most dangerous in the city"); Jul. 10, 2017 Pls.' Memo 

Contra Defs.' Mot. for Summ. Jgmt., Ex. 5, Leonard Aff. at ¶ 46, 47 (citing 2013 Crime Cast 

report indicating that the likelihood of crimes against persons at the shopping center and 

of aggravated assault there exceeds six times the national average), BAI/Zamias stated to 

the trial court that the shopping center parking lot itself was "no * * * less dangerous" than 
No. 17AP-716 4 

the surrounding area. (Aug. 6, 2017 Defs.' Opp. to Pls.' Mot. for Leave to File Sur-Reply at 

4: "The parking lot at Consumer Square West was no more or less dangerous than any of 

the immediately surrounding areas.") BAI/Zamias has reiterated to this court that the 

shopping center parking lot was every bit as dangerous as its surroundings in what they 

concede was a "high crime" locale: "It is clear that it is no more or less likely that a crime 

would occur in the Consumer West parking lot than would occur in the immediately 

surrounding area, and Plaintiffs-Appellants fail to demonstrate otherwise." (Appellees' 

Brief at 13.) 

{¶ 7} The Supreme Court of Ohio has instructed 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." Simpson v. Big Bear Stores 

Co., 73 Ohio St.3d 130, 135 (1995); see also, e.g., Federal Steel, 45 Ohio St.3d at 173, 178 

("reasonable minds could have determined that Ruhlin had a duty toward Federal to take 

measures to protect against vandalism"; "reasonable minds could have concluded that 

Ruhlin had a special duty in this case to maintain the protective measures undertaken"). 

That principle is binding on us as an intermediate court, and our precedents consistently 

have outlined the required analysis. See, e.g., Heimberger, 2015-Ohio-3845; Desir v. 

Mallett, 10th Dist. No. 14AP-766, 2015-Ohio-2124; Wheeler, 2011-Ohio-6295; Shivers v. 

Univ. of Cincinnati, 10th Dist. No. 06AP-209, 2006-Ohio-5518. 

{¶ 8} As our initial panel decision here recited, "[i]f a third party's criminal act is 

not foreseeable, then no duty arises, and a business owner cannot be held liable in 

negligence." Heimberger at ¶ 17, citing Shivers at ¶ 6. "Foreseeability of harm usually 

depends on a defendant's knowledge," Wheeler at ¶ 16, and, " 'examined under the test of 

whether a reasonably prudent person would have anticipated an injury was likely to occur, 

will depend upon the totality of the circumstances,' " Heimberger at ¶ 18, quoting Shivers 

at ¶ 7. " 'The totality of the circumstances test considers prior similar incidents, the 

propensity for criminal activity to occur on or near the location of the business, and the 

character of the business.' " Id. " 'Three main factors contribute to a court's finding the 

evidence insufficient to demonstrate the foreseeability of a crime as a matter of law: (1) 

spatial separation between previous crimes and the crime at issue; (2) difference in degree 
No. 17AP-716 5 

and form between previous crimes and the crime at issue; and (3) lack of evidence revealing 

defendant's actual knowledge of violence.' " Id., quoting Shivers at ¶ 9. " 'Because criminal 

acts are largely unpredictable, the totality of the circumstances must be "somewhat 

overwhelming" in order to create a duty.' " Id., quoting Shivers at ¶ 7, quoting Reitz v. May 

Co. Dept. Stores, 66 Ohio App.3d 188, 194 (8th Dist.); Desir at ¶ 25 (same citations); 

Wheeler at ¶ 17 (same citations). 

{¶ 9} "[A] business owner is not an absolute insurer of his invitees' safety," and the 

owner's special duty to warn or protect therefore arises only when the owner knows or 

should know of the substantial risk of harm to invitees from criminal conduct. Sullivan v. 

Heritage Lounge, 10th Dist. No. 04AP-1261, 2005-Ohio-4675, ¶ 24, citing Howard v. 

Rogers, 19 Ohio St.2d 42, 46-47 (1969); Simpson, 73 Ohio St.3d 130, at the syllabus. Thus, 

as we have emphasized from Wheeler on, " '[t]he foreseeability of criminal acts depends 

upon the knowledge of the business owner.' " See, e.g., Desir at ¶ 25, quoting Sullivan at 

¶ 24. 

{¶ 10} And the "totality of the circumstances" gauged to elucidate the existence of 

such knowledge means just that—"the 'totality of the circumstances, including the 

occurrence of previous similar crimes and the specifics of the incident itself.' " Id. at ¶ 25, 

13 (finding that attack could not be found foreseeable where "the evidence demonstrated 

that no crime had ever occurred" at the business location and could not reasonably have 

been anticipated). Heimberger is to the same effect: " 'To show foreseeability, one must 

demonstrate that the specific harm at issue was foreseeable.' " 2015-Ohio-3845 at ¶ 25, 

quoting Maier, 124 Ohio App.3d at 224. 

{¶ 11} But how "specific" is specific enough? BAI/Zamias hinge their motion for 

reconsideration on the fact that "there is no evidence that can point to a single prior incident 

where a vehicular homicide occurred at Consumer Square West making the subject incident 

foreseeable and thereby creating a duty on Appellees." (Mot. for Recons. at 7; see also id. 

at 8: "no previous vehicular homicides or attempted vehicular homicides.") That argument 

overreads Heimberger. 

{¶ 12} Heimberger involved the theft of a handbag from a hotel lobby. 2015-Ohio3845 at ¶ 2. Contrary to the analysis that BAI/Zamias urge here, we did not confine our 
No. 17AP-716 6 

assessment in Heimberger to stolen purses alone. Rather, we explicitly defined "the 

specific harm here–theft of a personal item from the lobby." Id. at ¶ 25. 

{¶ 13} Heimberger's analysis, that is, extended to whether under the totality of the 

circumstances there was a known substantial threat of theft crimes involving any guest 

personal property, of any value or description, taken from the relevant area, the lobby. 

Where there had been "no prior lobby thefts" and " [t]he only incident located in the lobby 

occurred seven months prior to the handbag theft, and involved escorting an unruly person 

out of the lobby," there was no "genuine issue of material fact." Id. at ¶ 22, 25, 26. 

Comparable analysis here must look to whether under the totality of the circumstances 

there was a known substantial threat of crimes of violence against persons in the shopping 

center parking lot. But see Snow v. Fraternal Order of Eagles, Post No. 336, 5th Dist. No. 

93-CA-22, 1993 Ohio App. Lexis 5762, * 3, 6 (Nov. 18, 1993) (genuine issue of material fact 

exists as to whether knowledge of vandalism and theft incidents in parking lot was sufficient 

to make assault foreseeable; summary judgment reversed). 

{¶ 14} Heimberger's citation to Maier further embellishes the point. Maier held 

that "a series of thefts of portable computers" from an office building did not make a murder 

there foreseeable where "[n]o assaults had taken place in the building." 124 Ohio App.3d 

at 218-19. The court juxtaposed these "nonviolent crimes" with "assaults": "The totality of 

the circumstances [was] not 'somewhat overwhelming.' No assaults had ever taken place 

in the building, and the building was not located in a high crime area." Id. at 222. Again, 

foreseeability did not depend on foreknowledge of threatened crimes fitting the precise 

description of the crime that materialized, but the analysis instead looked to knowledge 

regarding the likelihood of crimes involving violence to or assaults on persons. See also, 

e.g., Shivers, 2006-Ohio-5518 at ¶ 10 ("specific" warning required was not of rape in 

particular, but rather of "the likelihood that a violent crime would occur in Daniels Hall"); 

King v. Lindsay, 87 Ohio App.3d 383, 387 (10th Dist.1993) (arising under statute governing 

establishments serving alcohol; "[a]lthough appellee may not have known specifically of 

[the particular defendant's] violent propensity, it was aware that acts of physical violence 

were likely to occur"); Allison, 1993 Ohio App. Lexis at 2 (two past robberies, expert 

testimony that criminal acts should have been anticipated given type, design, and location 

of business, and company policy against employees being behind building alone at night 
No. 17AP-716 7 

because of concerns for their safety, would allow reasonable minds to find abduction and 

rape foreseeable; summary judgment for business reversed). 

{¶ 15} That makes particular sense because other showings that plaintiffs in such 

cases must make—showings that the trial court in this case has not yet addressed and that 

are not now before us—are that in addition to the foreseeability-dependent duty, there has 

been a breach of that duty and "an injury proximately resulting therefrom." See, e.g., 

Federal Steel, 45 Ohio St.3d at 173. As in Doe v. System Parking, 79 Ohio App.3d 278, 279-

80 (8th Dist.1992), where the court found that "a material issue of fact exists regarding the 

foreseeability of the abduction, and subsequent rape and robbery * * * in defendantappellee's attended parking facility" on the basis of the attendant's safety concerns, the 

anticipated potential for customer attacks, and the lot's location in a "high-crime area [that 

had known] incidents of violent crimes," we understand that subsequent questions of 

whether there was a breach of duty "and whether such breach is the direct and proximate 

cause of appellant's injuries, as well as various defenses to a negligence action, are better 

left for another day." 

{¶ 16} What ultimately may be required of a business owner will depend on a fit 

between knowledge of the specific harm, steps needed to address that kind of harm, and 

the sorts of injury that proximately result from a breach of that duty. If the known 

substantial danger is of pick-pocketing, for example, specific measures that might be 

necessary to warn or guard against violent assault will not be required. (Thus, our panel's 

original statement that "if all indicators point to a premise being unreasonably dangerous, 

the responsible parties must take reasonable measures to warn or protect invitees" prompts 

the question: against what? And the answer must be, against the sort of danger that has 

been identified and is known: that opinion thus implicitly incorporates its own specificity 

requirement, albeit at a higher level of generality [or lower level of specificity] than that on 

which the panel might have reckoned.) 

{¶ 17} So Heimberger retains its full vitality and is consistent with the result we 

reach here. The initial panel decision in this matter, perhaps somewhat tangled in inchoate 

distinctions between "a 'specific acts and harm' requirement, as opposed to similar 

incidents and general harm," found that the "requirement that a 'specific harm' be foreseen 

is limited, in premises liability context, to Maier and Heimberger." Davis v. Hollins, 10th 
No. 17AP-716 8 

Dist. No. 17AP-716, 2019-Ohio-385, ¶ 15. We now conclude that, properly understood and 

as explicated above, those cases are not so limited; like the Supreme Court precedent 

invoked by our first panel decision, they support or fit comfortably with our reversal of 

summary judgment. 

{¶ 18} The trial court did not elaborate much on this score. Rather, it stated simply 

that "[w]hile Plaintiffs have submitted a plethora of evidence of the general crime present 

in the area, there is nothing in the record that would indicate that Defendants knew or 

should have known that the specific acts and harm perpetrated in this case were likely to 

occur." (Sept. 11, 2017 Decision & Entry at 6.) That finding does not account for the 

evidence that BAI/Zamias were on notice from their own security consultant "that the 

condition of the Consumer Square West parking lot created a significant risk that its 

customers using the parking lot would be victims of violence." (Owens Aff. at ¶ 10.) It does 

not account for evidence that they themselves said they were "concerned about the safety 

of customers in the shopping center's parking lot." (Temple Aff. at ¶ 5.) It does not account 

for their acknowledgement of "undisputed" fact "that altercations have occurred in the 

parking lot at Consumer Square West * * * endemic [sic] of crime in the area." (July 21, 

2017 Defs.' Reply in Support of Pls.' Mot. for Summ. Jgmt. at 4.) And, even beyond the 

expert witness testimony of Thomas Lekan, for example, that "any experienced security 

consultant would conclude that security measures were needed in the parking lot at 

Consumer Square West" and that BAI/Zamias failed to follow industry standards of care 

(Jul. 10, 2017 Pls.' Memo Contra to Defs.' Mot. for Summ. Jgmt., Ex. 6., Lekan Aff. at ¶ 8, 

16), it does not account for evidence such as various surveys of store owners advising 

BAI/Zamias that they felt "unsafe," or perceived "[n]o security. Not always feeling safe." 

(Jul. 10, 2017 Pls.' Memo Contra to Defs.' Mot. for Summ. Jgmt., Ex. 3A, Snyder Aff. 

attachments.) 

{¶ 19} BAI/Zamias urge, correctly, that being located in a "high crime area" is not 

in and of itself sufficient to establish foreseeability, (see Mot. for Recon. at 11, 12) but they 

are wrong to any extent they suggest that the admissible evidence here relates only to the 

general surroundings or general knowledge. The record reflects evidence going to 

knowledge of the likelihood of violent crime in the specific venue at issue, the parking lot 

itself. As noted above and as the earlier panel decision also observed, "Appellees do not 
No. 17AP-716 9 

dispute that they were aware of the violence in their parking lot." Davis at ¶ 21. This sort 

of knowledge is not the same thing as simple awareness of high crime rates in the area 

generally. Warnings they received and concerns they expressed related to the parking lot 

in particular, and could be found to go well beyond general knowledge of generalized 

threats. To re-cite but one of the examples, security consultant Owens avers that in 2012, 

he "advised Mr. Carr that the condition of the Consumer Square West parking lot created a 

significant risk that its customers using the parking lot would be victims of violence." 

(Owens Aff. at ¶ 10). Moreover, for good or ill, longstanding precedent as invoked by 

BAI/Zamias themselves and incorporated by this court in Heimberger, Shivers, and other 

decisions does explicitly include the prevalence of crime in an area as one consideration 

encompassed by the totality of the circumstances test. We cannot lightly disregard those 

established precedents even should we share a policy unease about the possibility of 

deterring economic growth and jobs that might help overcome a neighborhood's reputation 

for crime. 

{¶ 20} Finally, the record evidence goes well beyond the disputed police run and 

incident reports, which may not have been properly authenticated and which could 

constitute hearsay as advanced with regard to the truth of the particular matters reported. 

See, e.g., Newsome Depo. at 24 ("These [dispatch run reports], I'm guessing, come from 

the logs from our computers * * * I have at times pulled up * * * a summary for an address"), 

26 ("I'm guessing the row itself means the * * * number of dispatch runs"), 34 ("That 

[incident report] looks like * * * what * * * the call taker would have been dispatching"), 35 

("I don't know if we can pull this up on the computer the way it looks, so my guess, it was 

dispatch"). Again, the admissible evidence referenced earlier does go directly to the 

knowledge of BAI/Zamias. 

{¶ 21} The original panel decision determined that "Appellants introduced 

significant evidence, if believed, to convince a reasonably prudent person that unless 

appellees took some precautions, serious violent harm was likely" to occur in the parking 

lot and that such foreseeability would give rise (as a matter of law) to a duty to warn or 

protect business invitees. Davis, 2019-Ohio-385 at ¶ 19. We adhere to that conclusion, with 

the attendant reversal of the trial court's grant of summary judgment. 
No. 17AP-716 10 

CONCLUSION AND DISPOSITION

{¶ 22} Appellees' motion for reconsideration is granted to permit necessary 

clarification of the initial panel opinion. The court specifically notes that its 2015 

Heimberger opinion retains its full vitality and is not limited to its facts. Appellants' sole 

assignment of error is sustained. The summary judgment of the Franklin County Court of 

Common Pleas and the resulting dismissal with prejudice of plaintiffs' complaint are 

reversed, and this cause is remanded for further proceedings consistent with this decision. 

{¶ 23} The court notes that its decision here is limited exclusively to the question of 

whether summary judgment for appellees BAI/Zamias was appropriate on this record as 

based on the issue of foreseeability. This decision does not address questions that belong 

in the first instance with the trial court, including those briefly adverted to in the briefing 

here involving claims for punitive damages and any application of R.C. 2125.01. 

Reconsideration granted; 

judgment reversed; case remanded. 

BEATTY BLUNT, J., concurs. 

KLATT, P.J., concurring in part and dissenting in part. 

KLATT, P.J., concurring in part and dissenting in part. 

{¶ 24} Although I agree with the majority decision to grant reconsideration, I would 

affirm the trial court's judgment. Therefore, I respectfully dissent in part. 

{¶ 25} The central issue in this case is whether the appellees, as the 

owners/managers of a large shopping center, should have foreseen that a third party would 

commit vehicular homicide and seriously injure another shopper by purposefully running 

them down with a car in the parking lot of a Kroger store. I would conclude that such a 

crime is not foreseeable, and therefore, appellees owed no duty to protect appellants from 

this type of criminal attack. 

{¶ 26} " '[T]o recover on a negligence claim, a plaintiff must prove (1) that the 

defendant owed the plaintiff a duty, (2) that the defendant breached that duty, and (3) that 

the breach of the duty proximately caused the plaintiff's injury.' " Desir v. Mallett, 10th 

Dist. No. 14AP-766, 2015-Ohio-2124, ¶ 19, quoting Chambers v. St. Mary's School, 82 Ohio 

St.3d 563, 565 (1998). "When the alleged negligence occurs in the premises-liability 
No. 17AP-716 11 

context, the applicable duty is determined by the relationship between the landowner and 

the plaintiff." Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, ¶ 10. 

{¶ 27} Generally, a premises owner owes a business invitee a duty to exercise 

ordinary care and to protect the invitee by maintaining the premises in a safe condition. 

Desir at ¶ 23. However, a business owner is not an insurer of its business invitees' safety. 

Lang at ¶ 11. In the context of criminal acts, a business owner only "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." Simpson v. Big Bear Stores, Co., 73 

Ohio St.3d 130, 135 (1995). Such a duty arises when the criminal act is foreseeable. If a 

third party's criminal act is not foreseeable, then no duty arises, and the business owner 

cannot be held liable in negligence. Shivers v. Univ. of Cincinnati, 10th Dist. No. 06AP209, 2006-Ohio-5518, ¶ 6.

{¶ 28} "The foreseeability of criminal acts, examined under the test of whether a 

reasonably prudent person would have anticipated an injury was likely to occur, will depend 

upon the totality of the circumstances." Id. at ¶ 7. "The totality of the circumstances test 

considers prior similar incidents, the propensity for criminal activity to occur on or near 

the location of the business, and the character of the business." Id. "Three main factors 

contribute to a court's finding the evidence insufficient to demonstrate the foreseeability of 

a crime as a matter of law: (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 defendant's actual knowledge of violence." Id. at ¶ 9. 

"Because criminal acts are largely unpredictable, the totality of the circumstances must be 

'somewhat overwhelming' in order to create a duty." Id. at ¶ 7, quoting Reitz v. May Co. 

Dept. Stores, 66 Ohio App.3d 188, 194 (8th Dist.1990); Heimberger v. Zeal Hotel Group, 

Ltd., 10th Dist. No. 15AP-99, 2015-Ohio-3845, ¶ 18.

{¶ 29} Determining what risks are reasonably foreseeable and what risks are not for 

purposes of deciding whether a duty is owed in a negligence action is a question of law for 

the court to determine. Mussivand v. David, 45 Ohio St.3d 314, 318 (1989); Wallace v. 

Ohio DOC, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶ 22. Wheatley v. Marietta College, 4th 

Dist. No. 14CA18, 2016-Ohio-949, ¶ 84 (in the context of determining the existence of a 
No. 17AP-716 12 

duty, foreseeability is a question of law for the court to decide). Moreover, a question of law 

does not become a question of fact simply because a court must consider facts or evidence. 

Wheatley at ¶ 55, citing Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 68 (1982), and 

O'Day v. Webb, 29 Ohio St.2d 215 (1972), paragraph two of the syllabus. But see Fed. Steel 

& Wire Corp. v. Ruhlin Constr. Co., 45 Ohio St.3d 171, 178 (1989) (determining whether a 

special duty is owed is an issue that should have been submitted to the trier of fact). We 

review a determination of duty on summary judgment de novo. Heimberger at ¶ 11.

{¶ 30} In the case at bar, I would conclude that the evidence presented by appellants 

in opposition to appellees' motion for summary judgment is insufficient as a matter of law 

to establish that appellees should have foreseen a third party would use a vehicle to 

purposefully run down two innocent victims in the parking lot of this large shopping center. 

The evidence does demonstrate that the appellees were aware of the general threat of 

criminal activity involving "physical altercations" in the shopping center's parking lot based 

upon (1) the shopping center's location in a high crime neighborhood; (2) appellees' 

security consultant's assessment; and (3) statics showing a higher incidence of violent 

crime consistent with the surrounding neighborhood. Nevertheless, interpreting these 

undisputed facts in favor of the appellants, I do not find this evidence sufficiently 

"overwhelming" to impose a duty on appellees to protect business invitees from the type of 

criminal conduct at issue here.

{¶ 31} There is a significant difference in degree and form between the previous 

crimes reported at the shopping center and the heinous crime at issue here. There is no 

evidence that any of the previous crimes involved homicide or the use of an automobile as 

a weapon. A significant difference in degree and form between the previous crimes 

reported and the crime at issue is one of the significant factors this court has considered in 

determining that a particular criminal act was not foreseeable, and therefore, no duty was 

owed. Shivers, 10th Dist. No. 06AP-209, 2006-Ohio-5518, ¶ 9; Wheatley at ¶ 67 (listing 

Ohio appellate decisions finding no duty when past violent crimes are different in form, i.e., 

dissimilar to the violent crime that caused the plaintiff's injury). In addition, the parking 

lot of the shopping center is large and serves many retail establishments. There is no 

evidence showing that there was a spatial relationship between previous crimes and the 

crime at issue other than the fact that some of the reported crimes occurred somewhere in 
No. 17AP-716 13 

the parking lot. This is also a factor that mitigates against finding that the risk of vehicular 

homicide and/or vehicular assault was foreseeable. Shivers at ¶ 9. Lastly, there was no 

evidence that appellees were aware that the risk of harm to its business invitees was any 

greater than the risk posed in the immediate area surrounding the shopping center. Boyd 

v. Lourexis, Inc., 8th Dist. No. 98028, 2012-Ohio-4595, ¶ 21 (high crime area not enough 

for defendants to have foreseen the violent unprovoked brutal attack). In fact, the evidence 

presented indicates that the general risk of violent crime in the parking lot was similar to 

the risk presented in the surrounding neighborhood. As noted in Wheatley, the basis of 

liability in a premises-liability context is the owner's superior knowledge of existing dangers 

or perils to persons going on the property. "It is only when there are perils or dangers 

known to the owner and not known to the person injured that liability may be established 

and recovery permitted." Id. at ¶ 57. Moreover, evidence of past physical altercations in 

the parking lot does not distinguish between victims who were business invitees and those 

who were on the premises for other purposes.

{¶ 32} The Supreme Court of Ohio has stated:

"Duty, as used in Ohio tort law, refers to the relationship 

between the plaintiff and the defendant from which arises an 

obligation on the part of the defendant to exercise due care 

toward the plaintiff." Commerce & Industry Ins. Co., 45 Ohio 

St.3d at 98, 543 N.E.2d 1188; see, also, Huston v. Konieczny

(1990), 52 Ohio St.3d 214, 217, 556 N.E.2d 505. This court has 

often stated that the existence of a duty depends upon the 

foreseeability of harm: if a reasonably prudent person would 

have anticipated that an injury was likely to result from a 

particular act, the court could find that the duty element of 

negligence is satisfied. Texler v. D.O. Summers Cleaners & 

Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 

271; Commerce & Industry, 45 Ohio St.3d at 98, 543 N.E.2d 

1188; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio 

St.3d 75, 77, 15 OBR 179, 472 N.E.2d 707. In addition, we have 

also stated that the duty element of negligence may be 

established by common law, by legislative enactment, or by the 

particular circumstances of a given case. Chambers v. St. 

Mary's School (1998), 82 Ohio St.3d 563, 565, 697 N.E.2d 198; 

Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274, 

119 N.E.2d 440, paragraph one of the syllabus. Admittedly, 

however, the concept of duty in negligence law is at times an 

elusive one. As this court explained in Mussivand [v. David, 45 

Ohio St.3d 314 (1989]: 
No. 17AP-716 14 

"There is no formula for ascertaining whether a duty exists. 

Duty '* * * is the court's 'expression of the sum total of those 

considerations of policy which lead the law to say that the 

particular plaintiff is entitled to protection." (Prosser, Law of 

Torts (4th ed.1971) pp. 325-326.) Any number of 

considerations may justify the imposition of duty in particular 

circumstances, including the guidance of history, our 

continually refined concepts of morals and justice, the 

convenience of the rule, and social judgment as to where the 

loss should fall. (Prosser, Palsgraf Revisited (1953), 52 

Mich.L.Rev. 1, 15).' " Id., 45 Ohio St.3d at 318, 544 N.E.2d 265, 

quoting Weirum v. RKO Gen., Inc. (1975), 15 Cal.3d 40, 46, 123 

Cal.Rptr. 468, 539 P.2d 36. See, generally, Palsgraf v. Long 

Island RR. Co. (1928), 248 N.Y. 339, 162 N.E. 99. 

Wallace, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶ 23-24. 

{¶ 33} When a retail establishment is located in a high crime area and there is a 

history of criminal activity involving business invitees on the premises, further criminal 

activity against business invitees consistent with that history is foreseeable, and therefore, 

may give rise to some duty to warn or protect business invitees from such activity. 

Nevertheless, not all forms of violent criminal activity automatically become foreseeable. 

Otherwise, a business owner essentially would become the insurer of a business invitees' 

safety, an obligation the law does not impose. Moreover, such liability exposure would 

create a further disincentive for businesses to locate in high crime neighborhoods. 

{¶ 34} Given the absence of any evidence of prior criminal conduct of the nature at 

issue here, I would conclude as a matter of law that such conduct was not foreseeable. 

Therefore, I would affirm the trial court's grant of summary judgment for appellees. 

Because the majority reaches a different conclusion, I respectfully dissent to that aspect of 

the majority decision. 

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