I concur with the majority's determination that the trial court properly awarded summary judgment to defendants on plaintiffs' claims for fraud, breach of contract, and promissory estoppel/detrimental reliance. I also concur with the majority's determination that the trial court did not err in refusing to permit plaintiffs to file a second amended complaint. However, I believe that there are genuine issues of material fact that should have precluded the entry of summary judgment on plaintiffs' negligence claim. I would therefore reverse the judgment and remand the cause for further proceedings on this cause of action.
Summary judgment is a procedural device used to terminate litigation and must therefore be awarded with caution, resolving all doubts in favor of the party opposing the motion. Osborne v.Lyles (1992), 63 Ohio St. 3d 326, 333, 587 N.E.2d 825. In order for summary judgment to be properly rendered, it must be determined:
"(1) No genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, viewing such evidence most strongly in favor of the party against whom the motion for *Page 751 summary judgment is made, that conclusion is adverse to the party." Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317,327, 364 N.E.2d 267, 273. See, also, State ex rel. Zimmerman v.Tompkins (1996), 75 Ohio St. 3d 447, 448, 663 N.E.2d 639, 640-641.
The burden of establishing that there are no genuine issues of material fact to be litigated is upon the party moving for summary judgment. Turner v. Turner (1993), 67 Ohio St. 3d 337,340, 617 N.E.2d 1123, 1125-1126. If the moving party meets this burden, the nonmoving party must then produce evidence pursuant to Civ.R. 56 setting forth specific facts which show that there is a genuine triable issue. State ex rel. Zimmerman v. Tompkins at 449, 663 N.E.2d at 641-642.
Within their second assignment of error, plaintiffs assert that the trial court erroneously determined that the crime perpetrated against Jane Doe was not foreseeable. Plaintiffs also assert that there are genuine issues of material fact as to whether, having undertaken to provide security at the complex, defendants were negligent in the manner in which they did so.
In order to establish actionable negligence, a plaintiff must establish a duty owed by the defendants, breach of that duty, proximately resulting in injury. See Jeffers v. Olexo (1989),43 Ohio St. 3d 140, 142, 539 N.E.2d 614, 616-617.
As to duty, in the landmark case of Kline v. 1500 MassachusettsAve. Apartment Corp. (C.A.D.C. 1970), 439 F.2d 477, the United States Court of Appeals for the District of Columbia Circuit held that where a landlord had actual and constructive notice that tenants were being subjected to crimes against their persons and their property in and from common hallways and that in a period just prior to time of criminal assault of plaintiff in common area, there was a wave of criminal activity, landlord was liable for injuries to plaintiff. The Kline court stated:
"The rationale of the general rule exonerating a third party from any duty to protect another from a criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling houses. The; landlord is no insurer of the tenant's safety, but he certainly is no bystander. And where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants.
"* * *
"We now turn to the standard of care which should be applied in judging if the landlord has fulfilled his duty of protection to the tenant. Although in many *Page 752 cases the language speaks as if the standard of care itself varies, in the last analysis the standard of care is the same — reasonable care in all the circumstances." Id. at 481-485.
In Ohio, a landlord has the duty to take reasonable measures for the safety of tenants in the common areas of an apartment complex. Carmichael v. Colonial Square Apts. (1987), 38 Ohio App. 3d 131,132, 528 N.E.2d 585, 586-587; cf. Sciascia v.Riverpark Apts. (1981), 3 Ohio App. 3d 164, 166, 3 OBR 188,190-191, 444 N.E.2d 40, 42.
Thus, as this court noted in Kelly v. Bear Creek Invest. Co. (Feb. 14, 1991), Cuyahoga App. No. 58011, unreported,1991 WL 19152, liability results where the landlord should have reasonably foreseen the criminal attack and nonetheless failed to take reasonable precautions to prevent it, and this failure was the proximate cause of the tenant's harm.
In considering whether the harm should have been foreseen, the court in Koch v. Lind (1997), 121 Ohio App. 3d 43, 54,698 N.E.2d 1035, 1042, stated as follows: "[A]ssuming the existence of a duty to protect, such duty would only encompass reasonably foreseeable criminal activity. Rescigno v. Heyduk (Aug. 15, 1996), Cuyahoga App. No. 69172, unreported, 1996 WL 465374." TheKoch court explained:
"`It is true that in some circumstances, one may be charged with a duty of care to take precautions to protect others from intentional criminal acts or reckless conduct of third persons. * * * Such a duty arises, however, when one should realize through special facts within his knowledge or a special relationship that an act or omission exposes someone to an unreasonable risk of harm through the conduct of another.'" Id. at 55, 698 N.E.2d at 1043, quoting Irby v. St. Louis Cty. Cab Co. (Mo.App. 1977), 560 S.W.2d 392, 395.
For business owners, this court has held that the business owner's knowledge of criminal acts must be determined from the totality of the circumstances, keeping in mind that the circumstances must be "somewhat overwhelming." See Feichtner v.Cleveland (1994), 95 Ohio App. 3d 388, 396, 642 N.E.2d 657,662-663. However, it is not necessary that the defendant foresee the particular injury or particular method of injury that in fact results from the negligence; the issue of whether the harm should have been foreseen involves an, inquiry of whether the negligent act "is likely to result in injury to someone." Strother v.Hutchinson (1981), 67 Ohio St. 2d 282, 287, 21 O.O.3d 177,180-181, 423 N.E.2d 467, 471; Queen City Terminals, Inc. v. Gen.Am. Transp. Corp. (1995), 73 Ohio St. 3d 609, 619, 653 N.E.2d 661,670.
In determining whether the defendant took "reasonable precautions" in this instance, it is clear that in general, where a duty is undefined or is defined only in *Page 753 abstract or general terms, it is for the jury to ascertain and determine the reasonableness of the defendant's acts and conduct. Cf. Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367; 374-378,53 Ohio Op. 274, 277-278, 119 N.E.2d 440, 444. Poiry v. Schneider (Mar. 31, 1987), Lucas App. No. L-86-294, unreported, 1987 WL 8922. However, if the plaintiffs injury was not foreseeable, then the defendant cannot be liable as a matter of law. Allison v. FieldLocal School Dist. (1988), 51 Ohio App. 3d 13, 14,553 N.E.2d 1383, 1384-1385.
Proximate cause is established when the plaintiff shows that from the original wrongful or negligent act, a "natural and continuous sequence produces a result which would, not have taken place without the [original] act." Strother v. Hutchinson, supra,67 Ohio St.2d at 286, 21 O.O.3d at 180, 423 N.E.2d at 470. To find that a "natural and continuous sequence produces a result," the inquiry is whether the injury could have been foreseen or reasonably anticipated from the negligent act. Id.; cf. Reed v.Weber (1993), 83 Ohio App. 3d 437, 441, 615 N.E.2d 253, 255-256. Generally, proximate cause is a question of fact for the jury unless reasonable minds could not differ. Leibreich v. A.J.Refrigeratio Inc. (1993), 67 Ohio St. 3d 266, 269,617 N.E.2d 1068, 1071. It is possible to have more than one proximate cause of an injury. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St. 3d 585,591, 575 N.E.2d 828, 831.
In determining whether a defendant's actions were the proximate cause of a plaintiffs injury where there have been acts by a third party, it is clear that if the intervening acts are of "such a kind that no foresight could have been expected to look out for them, the defendant is not to blame for having failed to do so." Jeffers v. Olexo, supra, 43 Ohio St.3d at 144-145,539 N.E.2d at 618. Similarly, when a criminal act of a third person intervenes between the defendant's conduct and a plaintiffs injuries, the defendant's negligence is the proximate cause of the plaintiffs injuries if the defendant could have reasonably foreseen the intervening act of the third person. Feichtner v.Ohio Dept. of Transp. (1995), 114 Ohio App. 3d 346, 359,683 N.E.2d 112, 120-121. Cf. Knor v. Parking Co. of Am. (1991),73 Ohio App. 3d 177, 190, 596 N.E.2d 1059, 1067.
In this matter, defendants focused upon the unpredictability of the assailant's criminal act. Defendants asserted that Doe's assailant was a serial rapist who preyed upon women in Cuyahoga and Medina Counties before being apprehended in Medina. Defendants asserted that the assailant was not a resident of the apartment and was not visiting friends there, and that his presence was unforeseen. Defendants further asserted that there had never been an abduction or rape at the complex prior to this incident, and there were no reports of any unusual activity or suspicious individuals on the premises the night Doe was assaulted. Defendants indicated that Doe, who worked as a dancer, came home very late at night and picked up her children at another building on the complex, *Page 754 had never expressed any fears regarding her safety or requested any additional security measures. Defendants therefore maintained that it could not reasonably have been foreseen that a serial rapist would prey upon a resident and they therefore owed no duty of protection against this unforeseeable criminal conduct.
Defendants also demonstrated that the area from which Doe was abducted has three lights at the entranceway, lighting within the apartment itself and the carport, an entranceway containing an unlocked outer door, a locked inner door and buzzer system. Finally, defendants demonstrated that on the night of September 16, 1995, an off-duty police officer patrolled the grounds from 10:30 p.m. until 4:00 a.m. and that the Middleburg Heights Police patrolled the area on their regular city patrols.
In opposition to summary judgment on the negligence claims, plaintiffs maintained that a crime against a person was foreseeable. Plaintiffs presented evidence that from 1992 into 1995, there were approximately three hundred eighty police department incident reports at the nine-hundred-fifty-unit complex. According to the records of the Middleburg Heights Police Department, these incidents included two stranger-on-stranger assaults, one concerning the stalking of a woman, ten apartment burglaries, eleven miscellaneous thefts and two reports of voyeurism. Plaintiffs further indicated that they were in the process of obtaining all of the incident reports maintained internally by the apartment complex which may not have had police involvement.
In addition, plaintiffs submitted the expert report of Daniel B. Kennedy, Ph.D., a professor of criminal justice and a Certified Protection Professional. Kennedy opined that a "crime against the person was foreseeable" at the complex. He also opined that it was not "patrol friendly" and had many hiding places within which potential criminals can lurk. Kennedy stated:
"I believe a crime against the person was foreseeable and that such foreseeability should have precluded Donna Chensky from representing to Jane Doe that she was unaware of the crime problems and otherwise making comments concerning the safety of the premises.
"Apartment living presents security problems due to the large numbers of people living in proximity who are often more youthful and who are more anonymous to each other due to the relatively high turnover experienced at such multiple-occupancy developments. These problems are exacerbated when a property is not `patrol friendly' and has poor sight lines and many hiding places in which potential criminals can lurk. This is the case at The Islander Apartments.
"That such criminogenic conditions exist at The Islander Apartments is evidenced by the Middleburg Heights Police Department reports I reviewed for the *Page 755 period 7/20/92 to 7/23/95. These documents revealed, among other crimes, at least 2 stranger-on-stranger assaults (one involving the stalking of a woman), 11 miscellaneous burglaries, 10 apartment burglaries, and 2 reports of voyeurism (Peeping Toms). It is more likely than not that any person such as [Doe], who was particularly concerned about personal safety, would have wanted this information before making a rental decision and in deciding how to approach her apartment building at night.
"Burglaries are troublesome from a security point of view because the U.S. Department of Justice reports that in about one-third of cases where a dwelling is occupied when a burglar enters, there will be an injury. Voyeurism is problematic because voyeurs often suffer from more than one paraphilia and can present a physical danger to their targets. I note that criminologists have documented that more and more women are living alone or with their children in apartment complexes and are thus exposed to greater risks than in the past. Finally, I note that criminologists estimate that only 50 percent of actual crimes are ever reported. We are, therefore, dealing with the very minimum of crimes here. In other words, I believe more crimes actually occurred at this apartment complex than were formally reported.
"In conclusion, I believe a crime against the person was reasonably foreseeable on 9/16/95 due to the nature of apartment living in general combined with the actual offense data concerning The Islander Apartments in particular."
I believe that this conflict in the evidence creates a genuine issue of material fact as to whether the attack on Doe was foreseeable, and I believe that the trial court erred in concluding that the attack was not foreseeable as a matter of law.
Further, although defendants outlined their security measures, they presented absolutely no evidence that these measures constituted "reasonable precautions" under the circumstances. In opposition, plaintiffs maintained that the defendants' measures were unreasonable since ingress to and egress from the premises were not monitored, there was no guardhouse and there were no security cameras. Accordingly, in my view, there are genuine issues of material fact as to whether defendants took reasonable precautions for safety in common areas,
Moreover, it is essential to observe that plaintiffs alleged that defendants failed to "provide adequate security." Thus, plaintiffs raised the issue of whether the security was undertaken in a reasonable manner. Cf. Meier v. Vistula HeritageVillage (1992), 62 Ohio Misc.2d 632, 638, 609 N.E.2d 1360,1364-1365. In their motion for summary judgment, defendants outlined the security measures implemented on the premises, but they did not present evidence to demonstrate that these measures were undertaken with reasonable care on the night that Doe was attacked. Defendants presented no evidence to indicate what actions the security *Page 756 officer undertook on the night of the abduction and rape, and defendants presented no evidence to indicate why the shift was terminated at 4:00 a.m.
In opposition to the motion, plaintiffs argued that there was a genuine issue of material fact as to whether defendants were negligent in the manner in which they actually undertook to provide security. Plaintiffs demonstrated that on the night Doe was attacked, there was a single guard on duty from 10:30 p.m. until 4:00 a.m.1 In this connection, plaintiffs questioned the rationale for terminating the security shift at 4:00 a.m.2 Plaintiffs additionally presented some evidence that the assailant was in a carport, smoking and waiting for a woman to approach.
In ruling upon this aspect of the motion, the trial court stated as follows:
"There has been no suggestion by the plaintiffs that the security precautions taken by the defendants were not reasonable or that any of the security devices used by the defendants were malfunctioning on the night of this incident. The plaintiff does allege that the incident might have been avoided if the off duty patrol officer on duty did not end his shift at 4:00 a.m., slightly before this incident occurred. Yet, given the vast size of this complex it would be pure speculation to assert that the security officer on duty could have prevented this incident.
"There has been no case law offered by the plaintiff which suggests that the defendants were obligated to provide security on the complex 24 hours a day. Plaintiffs admit that the landlord provided more security to safeguard the common area than required by law. There are no allegations that the security guard left early, that any door was unlocked, or that the security measures provided failed in any other way. Thus, it can be said as a matter of law that the defendants did not negligently perform its voluntarily assumed duty to provide security."
I believe that this conclusion reflects an erroneous application of Civ.R. 56. As noted previously, it is the moving party which bears the burden of demonstrating that no genuine issue of material fact remains to be litigated, and that it is entitled to judgment as a matter of law. Temple v. Wean United,Inc., supra, 50 Ohio St. 2d 317, 4 O.O.3d 466, 364 N.E.2d 267;State ex rel. Zimmerman v. Tompkins, supra, 75 Ohio St. 3d 447,663 N.E.2d 639. If the moving party meets this burden, the nonmoving party must then produce evidence pursuant to Civ.R. 56 setting forth specific facts which show that there is a genuine triable issue. Id. *Page 757
Thus, as the movants herein, defendants were required to demonstrate that there were no genuine issues of material fact as to plaintiffs' claim that defendants negligently failed to provide adequate security. If defendants had met this burden, plaintiffs would then be required to produce evidence to show that there is a genuine triable issue.
As previously noted, defendants merely outlined their general security measures and did not demonstrate that these measures were undertaken with reasonable care on the night Doe was attacked. In opposition, plaintiffs presented evidence which, in my view, raised serious questions as to whether defendants' security efforts were undertaken with reasonable care on the night that Doe was abducted from a common area and raped. Accordingly, I cannot accept the majority's conclusion that the trial court properly awarded summary judgment to defendants on plaintiffs' claim that defendants failed to provide adequate security. I would reverse the judgment and remand the cause for further proceedings on this claim.
1 Middleburg Heights Police received the 911 call in this matter at 4:04 a.m.
2 Some documents of record indicate a later time for completing the shift. See, e.g., report of Officer Gavula.