I respectfully dissent.
The majority opinion cites Carmichael v. Colonial SquareApts. (1987), 38 Ohio App. 3d 131, 528 N.E.2d 585, for the proposition that R.C. 5321.04 applies only to physical defects of a premises. The facts and holding of that case, however, are of interest when compared to the cause sub judice. InCarmichael, an assailant armed with a shotgun forced his way into the plaintiff's apartment from a common hallway, and assaulted and robbed the plaintiff. At the time of the assault, the landlord was in the process of installing a security system on the main entrance of the apartment building, but had not yet completed the installation.1 The tenant sued the landlord for negligence in failing to provide security to the common areas of the apartment building. In affirming the trial court's grant of summary judgment in favor of the landlord, the Court of Appeals for Franklin County observed:
"* * * [W]hile the landlord has some duty to provide secure common areas in an apartment complex, he is not an insurer of the premises against criminal activity. * * * Thus, the duty on the landlord is only to take some reasonable precautions to provide reasonable security." Id. at 132, 528 N.E.2d at 586 (citation omitted).
The court reasoned that, even if the landlord had breached its duty to provide reasonable security, the granting of summary judgment was proper because the tenant failed to present any evidence upon which reasonable minds could differ concerning whether such breach was the proximate cause of the tenant's injuries. There was no evidence which demonstrated how theunknown intruder entered the apartment building or whether a locked front door would have prevented such entry. Id. at 133,528 N.E.2d at 587.
I find the reasoning of Carmichael and its predecessor,Sciascia v. Riverpark Apts. (1981), 3 Ohio App. 3d 164, 3 OBR 188, 444 N.E.2d 40, that a landlord has some duty reasonably to provide secure common areas in an apartment complex, to be persuasive under the present set of facts. This court has previously stated in Thomas v. Hart Realty, Inc. (1984), 17 Ohio App. 3d 83,84, 17 OBR 145, 146, 477 N.E.2d 668, 670, that there is "no common-law duty imposed by Ohio case law on landlords to afford reasonable protection against entry into separately rented apartments in a multiple occupancy building, even in the face of foreseeable entries in a `high crime area.'" This court in Thomas, however, proceeded to note that the case before it did "not involve criminal entry through, or criminal activity in, *Page 387 common entrances, hallways or other parts of the building under the control of the landlord." Id. In the instant cause, the lobby of the apartment building was clearly under the control of the landlord and its management company.
In the cause sub judice, the record demonstrates that the appellees were on notice that Protich was staggering around a common area frequented by elderly residents. Applying the reasoning of Carmichael to the instant case, I am convinced that such knowledge creates a genuine issue of material fact as to whether Protich posed a reasonably foreseeable danger to the other tenants and, if so, whether there was some reasonable precaution by which the appellees could have legally removed the danger. A further question of material fact — whether the appellees' failure to take precautions constituted a breach of duty which was an intervening, proximate cause of the appellant's injuries — should also preclude summary judgment. See Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; Civ.R. 56(C).
Accordingly, I would reverse the judgment of the court below and remand this cause for trial.
1 Although the door of the tenant's apartment was equipped with two locks, a chain lock and a peephole, the tenant failed to ascertain the caller's identity before opening the door.