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Shivers v. University of Cincinnati

Court of Claims of Ohio

January 6, 2005


To S.C. reporter March 7, 2005

Barry D. Levy, Michael D. Weisensel, Attorneys for Plaintiff

Randall W. Knutti, Lisa M. Eschbacher Assistant Attorneys General, Attorneys for Defendant


J. Warren Bettis, Judge

{¶ 1} On September 12, 2003, following remand from the Tenth District Court of Appeals in Shivers v. University of Cincinnati, Franklin App. No. 02AP-395, 2002-Ohio-6633, the court issued an entry wherein it stated that the parties had agreed to submit this case for a determination of liability based upon written briefs and the record from the previous trial, excluding any testimony of defendant's expert witness, John Carpenter. On October 9, 2003, the court determined that live witness testimony was necessary for the trier of facts to evaluate the credibility of witnesses. The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.

{¶ 2} Plaintiff testified that in February 1998, she was a student at the University of Cincinnati (UC), residing in Daniels Hall dormitory, which houses both male and female students. Each floor of the dormitory has two communal bathrooms, one for men and one for women. Plaintiff stated that in the evening 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 investigator, testified that he interviewed plaintiff and collected what he described as a "limited amount" of physical evidence from the crime scene. Plaintiff's description of the assailant was used to make a composite drawing that was posted around campus, 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 asserts that defendant failed to exercise reasonable care because neither locks nor latches were provided on shower doors and because defendant was aware that in the past unauthorized persons had gained access to Daniels Hall.

{¶ 5} Defendant argues, conversely, that plaintiff failed to prove that defendant could have reasonably foreseen that plaintiff would be raped in the dormitory shower. Defendant insists that because plaintiff's attacker was never identified, she cannot prove that the offender obtained access to the dormitory via lax security as opposed to being someone's invited guest on the premises who nevertheless perpetrated this heinous, criminal act.

{¶ 6} 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. 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. In Ohio, the duty owed to invitees is as follows:

{¶ 7} "It is the duty of the owner or occupier of premises to exercise ordinary or reasonable care for the safety of invitees, so that the premises are in a reasonably safe condition for use in a manner consistent with the purpose of the invitation. If he directly or by implication invites others to go on the premises, it is his duty to have them reasonably safe, ." (Citations omitted.) 76 Ohio Jur.3d (1987) 18-20, Premises Liability, Section 7. See, also, Presley v. Norwood (1973), 36 Ohio St.2d 29; Light v. Ohio University (1986), 28 Ohio St.3d 66. Therefore, defendant owed plaintiff a duty to exercise ordinary and reasonable care to protect her from unreasonable risks of physical harm of which the university knew or had reason to know. Perry v. Eastgreen Realty Co. (1978), 53 Ohio St.2d 51.

{¶ 8} 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. The duty on the landlord is to take some reasonable precautions to provide reasonable security. Carmichael v. Colonial Square Apartments (1987), 38 Ohio App.3d 131, 132.

{¶ 9} Defendant's director of resident education and development, Dawn Wilson, testified that the first floor doors on the west side of the building were the primary doors to enter and exit Daniels Hall. The residents and their visitors were instructed to stop at the front desk and present identification to student-employees for authorization to proceed into the dormitory. All other exterior doors were locked to access from the outside but could be opened from the inside in the event of a fire or other emergency. According to Wilson, students and others were able to thwart safety procedures and to gain access to the dormitory stairwells by propping open exterior doors.

{¶ 10} Defendant's director of public safety, Eugene Ferrara, testified that students received printed materials during orientation to familiarize themselves with public safety measures. He stated that students were advised to walk in pairs, to be aware of their surroundings, and to lock the doors to their dormitory rooms. He admitted that various property crimes and assaults had occurred at Daniels Hall in the three years prior to plaintiff's incident. He acknowledged that there were no locks or latches on the shower doors in Daniels Hall and that latches do provide some measure of privacy by preventing someone from ...

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