I must respectfully dissent. Keeping in mind that this case comes to us from a summary judgment of the trial court, we must look to Civ. R. 56. After consideration of this rule, I differ with my colleagues as to whether a genuine issue of fact, to be decided by triers of the fact, does in fact exist. I am of the opinion that an issue of fact exists from the record below.
There is no dispute as to status of the decedent. She was a business invitee. There is no dispute that her estranged husband came upon the premises of defendant-appellee and, subsequently, shot and killed her, for which he was convicted and sentenced for aggravated murder.
The issue below and here is: What is (was) the duty of the defendant-appellee to insure the safety of business invitees?
Admittedly, no incident of this nature had happened on these premises before. Does that factor automatically absolve the defendant-appellee? I think not. There is a first time for everything. In reliance on their position, the majority cites the decision of the Ohio Supreme Court in Howard v. Rogers (1969),19 Ohio St. 2d 42, 48 Ohio Op. 2d 52, 249 N.E.2d 804, at paragraph three of the syllabus, as follows:
"Where an occupier of premises for business purposes does not, and could not in the exercise of ordinary care, know of a danger which causes injury to his business invitee, he is not liable therefor."
The question of fact in the case sub judice is whether or not the security guards at defendant-appellee's business site (a hospital) had knowledge, in the exercise of ordinary care, of a danger which was likely to cause injury to its business invitees. In Howard, supra, the Ohio Supreme Court held that the owner of the premises did not, and could not, in the exercise of ordinary care, know of a danger which would cause injury to his business invitee. The facts in the Howard case are easily distinguishable from the facts in the case sub judice.
In this case the security guard was well aware of the condition of the assailant. The guard had watched the assailant jump over a wall from the second floor to the ground, falling as he landed. The assailant, Andrews, approached Knapp, the security guard and said, "I can't believe I done it but I've done it." When Knapp asked him what he had done, Andrews replied that he had lost his car (in the parking garage) and that he was "half fucked-up." Knapp, the security guard, told Andrews "to stay where you are and I will assist you." Next, a crucial event happened. Knowing he had a person with a problem whom he had promised to assist, the security officer left that person, under directions from the control tower from a security supervisor, and proceeded to the psychiatric ward to help other officers control an unruly patient. Knapp knew and advised his superiors that he was with an intoxicated person (Andrews). The supervising officer ordered another officer to watch Andrews on the monitor and Knapp left the intoxicated person and went to the psychiatric ward, leaving Andrews in the "custody" of the monitor. Sometime later, Andrews came upon his estranged wife, and shot and killed her.
Admittedly, no such incident had occurred on these premises. Yet, in view of the actions of Andrews, his condition, his conduct by way of action and words, the fact that he was under control of the security officer (and in all probability could not have committed the act he did), and then subsequently was left "on his own," when he committed the act he did, leads me to the conclusion that in fact the *Page 95 defendant-appellee owed a duty of reasonable care, not only to the decedent, but to anyone else in the parking garage, knowing that some harm to someone could result from Andrews being in the condition he was.
The Howard court determined, under the facts of that case, that there was no evidence from which reasonable minds could conclude that the defendants knew or in the exercise of ordinary care should have known of the likelihood that a fight would break out. From an examination of the facts in the case sub judice, I am of the opinion that sufficient facts were presented to the trial court, and to this court, upon review of the record, that clearly distinguish Howard, supra, and that summary judgment was improvidently granted to defendant-appellee. Reasonable minds could differ as to whether or not, based upon the facts in this case, the servants of the defendant-appellee, in the exercise of reasonable care, could have anticipated that Andrews, in his condition, was in such a state to cause injury of some sort, not necessarily murder, to someone, and should have taken steps to prevent that eventuality.
For the above-stated reason, I respectfully dissent, and would reverse the granting of summary judgment, and remand the case to the trial court for further proceedings.
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