[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-Ohio-
3845 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 defendant-
appellee'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. 06AP-
209, 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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