Assaulted in an Apartment Complex, Bar, or Parking Lot? Ohio Negligent-Security Claims

Published February 16, 2016 · Injury Law Basics

A woman walking to her car in an apartment complex parking lot at night is attacked near a broken security gate that has been propped open for months. A man is beaten outside a bar that has had police called to it a dozen times in the past year. In both cases, the attacker may be arrested, prosecuted and sent to prison. And in both cases, the victim is left with hospital bills, lost work, and lasting trauma that the criminal case does nothing to pay for.

Ohio law gives some of those victims a second path: a civil claim against the owner or operator of the property where the attack happened. These are called negligent-security or inadequate-security claims, and they are among the least understood areas of injury law. This post explains when they exist and what it takes to win one.

The criminal case does not compensate you

A conviction punishes the attacker. A judge may order restitution, but restitution is limited to what the defendant can pay, and the person who assaulted you in a parking lot at 2 a.m. rarely has assets or insurance. For most victims, the only realistic source of compensation is a party that had a duty to keep the premises reasonably safe and the insurance to back that duty: the landlord, the bar, the hotel, the shopping center, the parking-lot operator.

The legal rule: foreseeable danger on property the owner controls

The Supreme Court of Ohio set out the governing rule in Simpson v. Big Bear Stores Co., 73 Ohio St.3d 130, 1995-Ohio-203. A shopper was attacked after leaving a supermarket, in a shopping-center common area that the store did not control. The Court held that a business owner has a duty to warn or protect its invitees from criminal acts of third parties when the owner knows or should know that there is a substantial risk of harm to them on premises in the owner's possession and control. The claim against the supermarket failed only because the attack happened on common ground the supermarket did not control.

Two elements come out of that decision, and every negligent-security case turns on them.

Control. The defendant must have possession and control of the place where the attack happened. In Simpson, that meant the shopping-center landlord, not the store, was the party responsible for the parking lot. In an apartment complex, the landlord controls the common areas: hallways, stairwells, lots, entry doors and gates. In a bar, the operator controls the inside and usually the patio and any lot it leases. Identifying who controlled the spot where you were hurt is the first job.

Foreseeability. The owner must have known, or should have known, of a substantial risk of criminal harm. This is where the evidence is won or lost. Courts look at things like:

• prior similar crimes on the property or immediately around it;
• police calls for service to the address;
• complaints from tenants or customers about safety, lighting or trespassers;
• the owner's own security assessments, incident reports and internal emails;
• security measures the owner promised but did not provide (an advertised "gated community" with a gate that never closed, a "security patrol" that did not exist).

A single, unprecedented attack in a quiet location is hard to pin on an owner. A pattern of violence the owner ignored is a different case entirely.

What "reasonable security" looks like

Once a duty exists, the question is whether the owner acted reasonably in light of the known risk. There is no statute listing required measures; it depends on the property and its history. Common failures we see in Dayton-area cases include:

• burned-out or missing lighting in parking lots, stairwells and breezeways;
• broken locks on building entry doors, or doors propped open with no follow-up;
• access gates that are broken, left open or never installed despite being promised;
• no security staff, or untrained staff, at a bar or club with a history of fights;
• failure to evict or bar a known violent tenant or customer;
• ignoring tenant complaints about trespassers, drug activity or specific threats.

For apartment complexes, there is an additional source of duty: Ohio's landlord-tenant statute requires landlords to keep common areas safe and in good repair, and the Supreme Court has extended that protection to a tenant's guests, as I discussed in this post on the Mann v. Northgate decision.

Why the owner's insurance matters

Commercial property owners and bar operators carry general liability insurance that typically covers negligence claims, including negligent security. That coverage is what makes these cases worth pursuing. Two cautions, though. Some commercial policies contain assault-and-battery exclusions, which insurers invoke to deny coverage for exactly these claims; the wording of the exclusion and the facts of the attack determine whether it applies. And when a property owner's conduct rises to conscious disregard of a known danger, punitive damages may be available, which most liability policies do not cover and which the owner must pay itself. Identifying every policy, and reading every exclusion, is part of evaluating the case.

A local example

Last fall I wrote about a Dayton truck-stop shooting in which the family of a murdered trucker sued the security company whose guard had been on duty. The court of appeals allowed the family's case to move forward even though the guard refused to testify. You can read about it in Sojic v. Karp. That case illustrates both the promise of these claims and how hard-fought they are.

What to do if you were attacked on someone else's property

Evidence in these cases disappears fast. Within days, if you are able, or through a family member if you are not:

1. Report the attack to police and get the report number. The report fixes the date, time and location.
2. Photograph the scene as it was: the lighting, the broken gate, the propped door, the missing camera.
3. Write down every prior incident you know of and the names of neighbors, co-workers or regulars who complained before.
4. Keep every communication with the landlord or business, including texts and emails about safety.
5. Do not give a statement to the property owner's insurer until you have talked to a lawyer.

A preservation letter from our office demanding surveillance video, incident reports, police-call logs and maintenance records goes out as soon as we are retained. Video is routinely overwritten within weeks.

What this means for you

If you were assaulted at an apartment complex, bar, hotel, gas station, parking lot or store in the Dayton area, do not assume the only case is the criminal one. The question is whether the owner knew the danger and failed to act. Our premises liability and personal injury practices investigate the property's history, identify who controlled the location, and find the insurance coverage that can actually compensate you.