by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
LANDOWNER LIABILITY; SECURITY GUARDS: Nevada court holds that apartment owner who utilizes security guards has *non-delegable* duty of care in selection of such guards, even if the guards are employees of a security service.
Rockwell v. Sun Harbor Budget Suites, 1996 WL 608792 (Nev. 10/22/96)
Tenant's wife was murdered by the security guard at the end of tumultuous six month love affair between the wife and the guard, during which the wife temporarily moved into the guard's apartment. The guard was provided with the apartment as part of his employment. The wife and the guard met while the guard, off duty, was lounging at the apartment pool.
The guard was a convicted sex offender (one offense of indecent exposure at age nineteen, six years earlier) and had lied about this and several other matters in his employement application to the security company. Further, the guard had been dismissed from other security jobs for violent outbursts, a fact undiscovered by the security company.
The trial court had granted a nonsuit to the defendant apartment company because it concluded that the guard's actions, which occurred when the guard was not on duty, were the actions of a deranged rejected lover and had nothing to do with his employment as a security guard. As the guard had been hired by an independent security service, the trial court had concluded that the apartment owner had no liability for negligent hiring or supervision. (The court indicates that it was unclear whether the security company or the landlord provided the apartment, and also indicates that the security company might have been the "alter ego" of the landlord, but the case does not turn on these special facts.)
The case itself, of course, is high soap opera. But the interesting legal issues have to do with the appeals court's conclusion that the landlord had a non-delegable duty of care in the selection of the guard and that the landlord necessarily was the employee of the landlord. Another interesting analysis is that which concludes that the landlord, as employer, may have been vicariously liable for the murder even though it occurred off duty and had little to do with the guard's official responsibilities.
The court cites a Georgia decision, Peachtree-Cain Co. v. McBee, 316 S.E. 2d 9 (Ga. App., 1984) aff'd 327 S.E. 2d 188 (Ga. 1985) as authority for the proposition that a landowner who retains security guards through an independent company nevertheless is liable for careful selection of the guards. The landowner had elected to supply guards to provide security for its patrons, and therefore had a further duty to insure that these guards were properly selected.
The court goes further and states that the guards were by definition the "employees" of the landowner, regardless of the fact that they were provided by an independent security service.
The court goes on to conclude that there was sufficient evidence to overcome summary judgment that the guard was acting within the scope of his employment at the time of the murder because some evidence suggested that guards had the duty to maintain radio vigilance on premises at all times, whether on or off duty, and had a responsibility to respond to emergencies. (Indeed, after the murder, the murderer used his radio to inform another off duty guard of the incident, and that guard came to the scene and handcuffed the murderer.)
A dissenter argued that the murder in this case was totally unpredictable from any facts that the landowner knew or should have known, and that consequently there should be no liability as a matter of law.
Comment 1: A brief review of the cases involving liability of landlords and other landowners relating to security guards that are listed in prior editions of the ABA SURVEY OF RECENT DEVELOPMENTS IN REAL ESTATE LAW. There appear to be enough diverse views to justify a separate book on this topic alone.
In Trujillo v. G.A. Enterprises, Inc., 43 Cal. Rptr. 2d 36 (Cal. App. 1995), (the DD for 10/10/95 - available on the DIRT website) a California court determined that a McDonald's restaurant could be liable for negligent selection and training of security guards at its premises where a patron was injured in a criminal attack, regardless of any knowledge of danger of criminal attacks. In Holland v. Leidel, 494 N.W.2d 772 (Mich. App. 1992) a landlord was liable when it replaced a guard in its parking garage with a camera surveillance system, and a tenant subsequently was raped in the garage.
In Simmons v. Chicago Housing Auth., 641 N.E.2d 915 (Ill. App. 1994), on the other hand, the Chicago Housing Authority was not liable for negligent hiring and supervision of security guards when a tenant was raped on the premises. The court concluded that the purpose of the guards was to protect Authority property, and not the tenants. And in Ann M. v. Pacific Plaza Shopping Center, 25 Cal. Rptr. 137 (Cal. 1994), the California Supreme Court held that there was no duty on the landowner to provide security guards absent a history of on premises criminal attacks.
The ABA has recently published a book on premises liability: A. Kaminsky: "A Complete Guide to Premises Security Litigation," (ABA Press 1995). This book includes a state-by-state breakdown of the law in each jurisdiction on the subject of landowner's liability for criminal attacks as of the time of publication.
Comment 2: The editor, like the dissenter in this case, is dubious whether there was sufficient evidence to go to the jury on the question of whether any negligence in the selection of a security guard contributed to the horrible events that injured the plaintiffs. It is true that the murderer may never have met the victim had he not been retained as a security guard on the premises, but there is no other indication that the fact that he was a security guard on the premises contributed to the murder. But the editor does not pretend to comprehend the shifting policies upon which courts ground their conclusions as to who should pay for the evils that betide human existence.
Comment 3: As mentioned in the comments in the DD on Trujillo, there is a danger that stiff liability laws relating to security guards will in fact lead landowners to avoid retaining them, with the net effect of less protection and more injury to patrons. Is this an appropriate price to pay for greater access to compensation when injury occurs?
Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Laprica Mims at the ABA. (312) 988 6233 or LaPricaMims@staff.abanet.org
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