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In the context of a premises owner's duty to protect its invitees from a third person's criminal conduct, The totality of the circumstances test allows consideration of all relevant evidence, which may include (1) prior similar incidents; (2) other criminal activity occurring on or near the premises; and (3) the location and character of the business. However, criminal behavior of third persons is not predictable to any degree of certainty and is thus generally unforeseeable. Consequently, the totality of the circumstances must be somewhat overwhelming before a business will be held to be on notice of and therefore under the duty to protect against the criminal acts of others. A lack of prior similar incidents, prior incidents that are too remote in time, a lack of violent crime, and a lack of crime in general tend to establish the unforeseeability of a violent criminal act. Moreover, even if multiple crimes occurred on a given set of premises, courts have been unwilling to find foreseeability when those offenses were non-violent and differed in nature from the criminal conduct at issue. Additionally, courts have been reluctant to find foreseeability if the past violent crimes are different in form, i.e., dissimilar to the violent crime that caused the plaintiff's injury.
Former Marietta College student Brandon Marino attended a party at a fraternity house on the Marietta College campus. After Marino consumed copious amounts of alcohol, he decided to prowl the campus to find a prospective sexual assault victim. Marino went to Parsons Hall, and found appellant’s suite room door, where he raped the appellant. Subsequently, appellant filed a complaint and alleged that appellee, Marietta College, was negligent by failing to protect her from Marino, by failing to have adequate security in place, and by maintaining Parsons Hall in an unsafe and dangerous manner. Appellant’s complaint further alleged that appellee breached its contractual duty to provide her with a safe environment. Appellant also sought punitive damages. Appellee requested summary judgment, asserting that appellant could not establish that appellee possessed a duty to protect appellant from Marino's criminal conduct. Appellee admitted that it owed appellant, a business invitee, a duty to exercise ordinary care and to protect her by maintaining the premises in a safe condition, but argued that this duty did not include protecting appellant from Marino's unforeseeable criminal act. The trial court entered summary judgment in appellee’s favor. The court determined that the evidence failed to show that Marino's criminal act was foreseeable and, thus, the appellee did not have a duty to protect appellant from Marino's criminal act. Appellant challenged the decision.
Did the school have the duty to protect appellant from Marino’s criminal conduct, thereby making the grant of summary judgment in favor of the school unwarranted?
The Court noted that in the context of a premises owner's duty to protect its invitees from a third person's criminal conduct, 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. In the case at bar, the Court held that the trial court properly determined that Marietta College did not have a duty to protect appellant from a former student's criminal act, as the totality of the circumstances did not reveal that the college should have foreseen that the former student would rape appellant. According to the Court, past, dissimilar, crimes did not suggest that a criminal was substantially likely to trespass in a residence hall and commit a rape or other random violent crime against a resident.