Shivers v. Univ. of Cincinnati
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[Cite as Shivers v. Univ. of Cincinnati, 2002-Ohio-1690.]
IN THE COURT OF CLAIMS OF OHIO
JAMILA SHIVERS
Plaintiff
:
v.
UNIVERSITY OF CINCINNATI
:
CASE NO. 2000-02461
:
DECISION
:
Judge Fred J. Shoemaker
Defendant :
:::::::::::::::::
{¶1} Plaintiff brought this action against defendant alleging negligence. The case was tried
to the court on the sole issue of liability.
{¶2} In February 1998, plaintiff was a student at defendant university, residing in Daniels
Hall dormitory. Daniels Hall houses both male and female students. Each floor of the dormitory has
two communal bathrooms, one for men and one for women. Plaintiff alleges that on February 26,
1998, she was preparing to take a shower in the women’s bathroom on the twelfth floor of Daniels
Hall when an unknown male entered the shower area and raped her.
{¶3} Ralph L. Trost, defendant’s on-call investigator, interviewed plaintiff and collected
physical evidence from the crime scene. Plaintiff’s description of the assailant was used to make a
composite drawing that was posted in the community and featured on local television reports.
Despite police efforts, the assailant was never apprehended.
{¶4} Plaintiff alleges that defendant was negligent in failing to provide adequate security for
Daniels Hall. Specifically, plaintiff maintains that defendant failed to exercise reasonable care in
that locks were not provided on either the bathroom or shower doors and because defendant was
aware that in the past unauthorized persons had gained access to Daniels Hall.
BUILDING SECURITY
{¶5} In order for plaintiff to prevail upon her claim of negligence, she must prove, by a
preponderance of the evidence, that defendant owed her a duty, that it breached that duty, and that
the breach proximately caused her injuries. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285.
As the landlord of its dormitory, defendant has “a duty to take those steps which are within [its]
power to minimize the predictable risk to [its] tenants.” Doe v. Flair Corp. (1998), 129 Ohio App.3d
739, 751, quoting, Kline v. 1500 Massachusetts Avenue Apartment Corp. (C.A., D.C. 1970), 439
F.2d 477. Defendant is obligated “only to take some reasonable precautions to provide reasonable
security.” Carmichael v. Colonial Square Apartments (1987), 38 Ohio App.3d 131, 132.
{¶6} Both parties presented expert testimony regarding whether defendant took “reasonable
precautions.” Plaintiff’s security expert, James Clark, testified that it would be prudent for defendant
to conduct periodic security surveys to determine whether its security measures were adequate;
however, he was not aware of any such analysis having been performed by defendant. Based upon
his own analysis, Clark concluded that defendant’s written security procedures were adequate but
“inconsistently implemented.” Clark identified what he believed to be areas of vulnerability to crime
including persons who could enter the dormitory without proper identification. Clark opined that the
bathroom door should have been equipped with a lock and that defendant’s failure to put a lock on
either the bathroom door or the shower door constituted an unreasonable lack of security. According
to Clark, having a lock on either the bathroom door or the shower door would have significantly
reduced the risk of plaintiff being assaulted.
{¶7} In contrast to Clark’s opinion, defendant offered the expert testimony of John
Carpenter, the Chief of Police at San Diego State University. Carpenter opined that defendant’s
dormitory security system was more than adequate. Specifically, Carpenter testified that defendant’s
use of residence hall staff and student employees to monitor dormitory residents was a reasonable
and effective security measure. Carpenter observed that the main entrance to Daniels Hall was
monitored by two student-staffed security stations. Additional security was provided by a dormitory
advisor, resident assistants who were assigned to each floor, and a “roaming patrol” by resident-life
staff who periodically visited Daniels Hall.
{¶8} Although plaintiff contends that defendant failed to provide adequate security, her own
expert testified that defendant’s dormitory security plan was well-designed. Plaintiff also failed to
establish that the standard of care required installation of either keyed locks on the exterior bathroom
door or shower locks in the shower area. Clark testified that he was not aware of any university that
had installed locks on all exterior dormitory bathroom doors. Clark conceded that the shower stalls
must remain accessible in case of emergencies even if “privacy locks” were installed on the shower
vestibule door. Clark did not offer an opinion about whether there was a breach of security by an
unauthorized person in Daniels Hall on the night of the incident.
{¶9}
With regard to plaintiff’s claim that the attacker gained entrance to the dormitory
through a negligently maintained entrance, several theories were offered to support this contention.
Plaintiff speculated how an intruder might have entered the dormitory based upon the testimony of
her friend, Nicole Wilkinson, who admitted to entering the building prior to the incident without
identification. Plaintiff also theorized that the attacker could have entered through one of many
alarmed pedestrian doors that are locked but can be opened from the inside in case of an emergency.
However, plaintiff did not offer any evidence establishing how her assailant gained access to the
dorm, nor did the criminal investigation reveal any such evidence. The court finds that plaintiff
failed to prove that defendant’s security plan or its implementation fell below the standard of care for
dormitory security.
CRIMINAL ACTS OF A THIRD PARTY
{¶10}
Ordinarily there is no duty to prevent a third person from harming another unless a
“special relationship” exists between the parties. Eagle v. Mathews-Click-Bauman, Inc. (1995), 104
Ohio App.3d 792; Fed. Steel & Wire Corp. v. Ruhlin Constr. (1989), 45 Ohio St.3d 171, 173. Where
a special relationship does exist, the duty to protect against injury caused by third parties is an
exception to the general rule of no liability. Fed. Steel at 174. A “special relationship” exists when a
duty is imposed upon one to act for the protection of others. Gelbman v. Second Natl. Bank of
Warren (1984), 9 Ohio St.3d 77, 79. Such a “special relationship” exists between a business and its
invitees. Reitz v. May Co. Dept. Stores (1990), 66 Ohio App.3d 188. Similarly, the duty of care
owed to plaintiff as a student of a state university is that of an invitee. Baldauf v. Kent State Univ.
(1988), 49 Ohio App.3d 46; Shimer v. Bowling Green State Univ. (1999), 96 Ohio Misc.2d 12, 16.
{¶11}
To find liability in negligence against a defendant based upon the criminal act of a
third party, an invitee must demonstrate that the criminal act was foreseeable. Reitz, supra, at
191-192; Howard v. Rogers (1969), 19 Ohio St.2d 42, paragraphs one and two of the syllabus. The
duty to warn or protect invitees from criminal acts of third persons arises when the defendant knows
or should know that there is a substantial risk of harm to its invitees on the premises in possession
and control of the owner. Simpson v. Big Bear Stores Co. (1995), 73 Ohio St.3d 130, syllabus.
Although a landlord has some duty to provide security in common areas, he is not an insurer of the
premises against criminal activity. Doe v. Beach House Dev. Co. (2000), 136 Ohio App.3d 573, 580.
{¶12}
Under certain circumstances, Ohio courts have found, as a matter of law, that
criminal acts are not foreseeable. See Flair Corp., supra (finding that a sexual assault is an
unforeseeable criminal act which supersedes alleged negligence for failing to provide adequate
building security). A landlord will be liable for a criminal attack only when it should have been
reasonably foreseen and there was a failure to take reasonable precautions to prevent it. Id. at 751.
The foreseeability of criminal acts occurring on premises is determined by using a totality of the
circumstances test.
Reitz, supra.
The totality of the circumstances must be “somewhat
overwhelming” before a criminal act will be considered foreseeable. Id. at 194.
{¶13}
Although plaintiff asserts that defendant had notice of “ongoing criminal activity”
at Daniels Hall, the evidence offered to show that the assault was foreseeable was not proven. Both
experts agreed that most reported crime on campus involved theft offenses committed by students
and that the vast majority of sexual assaults against dormitory students were perpetrated by
acquaintances. Plaintiff’s expert was not aware of any other “stranger rape” that had occurred in
Daniels Hall. Contrary to plaintiff’s assertion, the court finds that defendant’s literature addressing
rape prevention, which warned students to watch for strangers in the dormitories, is not persuasive
evidence that the attack was foreseeable. Considering the totality of the circumstances, the court
concludes that the attack on plaintiff was not foreseeable.
{¶14}
Foresight, not retrospect, is the standard of diligence. It is nearly
always easy, after an accident has happened, to see how it could have been avoided.
But negligence is not a matter to be judged after the occurrence. It is always a question
of what reasonably prudent men under the same circumstances would or should, in the
exercise of reasonable care, have anticipated ***.
{¶15}
Hetrick v. Marion-Reserve Power Co. (1943), 141 Ohio St. 347, 358-359. Absent
any evidence of other similar crimes at Daniels Hall, and in light of the security procedures in place,
the imposition of liability for random criminal attacks would render defendant an insurer of the
safety of its dormitory residents.
{¶16}
For the foregoing reasons, judgment shall be rendered in favor of defendant.
FRED J. SHOEMAKER
Judge
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