## Facts

- Marie G. Kleisch, a Cleveland State University (CSU) student, studied alone in a CSU lecture hall around 9:00 a.m. on August 3, 2001, about an hour before a scheduled final exam.
- A stranger entered the otherwise empty classroom, attacked Kleisch, and raped her.
- The classroom doors were capable of being locked, but CSU’s practice was not to lock classrooms between classes.
- Evidence showed that in the five years preceding the assault there had been one other rape on campus, about 16 months earlier, in a restroom in a different building.
- Kleisch sued CSU alleging negligence (including res ipsa loquitur) and a statutory violation of Ohio’s “frequenter” statute, R.C. 4101.11.
- After a bifurcated bench trial, the Court of Claims entered judgment for CSU; Kleisch appealed as to CSU’s liability.

## Issues

1. Whether CSU breached its duty of ordinary care to a student invitee by failing to prevent a third-party criminal sexual assault that Kleisch claimed was reasonably foreseeable.
2. Whether CSU violated R.C. 4101.11 by failing to protect a “frequenter” from a reasonably foreseeable danger.
3. Whether res ipsa loquitur permitted an inference of CSU’s negligence from the occurrence of the assault.

## Decision

- The appellate court affirmed judgment for CSU.
- The court held the assault was not reasonably foreseeable based on the limited and dissimilar prior incidents and the circumstances of the attack.
- The court held CSU did not violate R.C. 4101.11 because the statute did not impose insurer-like liability for unforeseeable third-party criminal acts.
- The court rejected res ipsa loquitur because the harm resulted from intentional acts of an unknown third party, not an instrumentality within CSU’s exclusive control.

## Legal Principles

- A premises owner owes invitees ordinary or reasonable care to maintain reasonably safe premises, but is not an insurer of invitee safety.
- A premises owner is generally not liable for criminal acts of third parties unless the criminal conduct was reasonably foreseeable.
- Foreseeability is typically shown by prior similar incidents sufficiently frequent, recent, and proximate to place the owner on notice that additional protective measures are required.
- R.C. 4101.11 requires an employer to provide a safe place and protect frequenters from hazards within the employer’s control that are known or reasonably foreseeable; it does not impose strict liability for unforeseeable criminal acts.
- Res ipsa loquitur requires, among other elements, that the instrumentality causing harm be within the defendant’s exclusive control and that the event is of a type that ordinarily does not occur absent negligence; intentional third-party criminal assaults generally do not satisfy these requirements.

## Conclusion

The court held that CSU was not liable for the rape because the attack was not reasonably foreseeable under Ohio premises-liability standards, the same foreseeability analysis defeated the R.C. 4101.11 claim, and res ipsa loquitur could not substitute for proof of negligence where an unknown third party committed the criminal act.


Kleisch v. Cleveland State Univ., 2006-Ohio-1300 (Ohio Ct. App. 10th Dist. 2006)