by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
LANDOWNER LIABILITY; LIABILITY FOR CRIMINAL ATTACKS; SECURITY GUARD: Security company that contracts to provide security guards for purpose of providing "as sense of security for residents" has no duty to invitees to protect them from criminal attacks, even when attack occurs in guard's presence.
Cassel v. Collins, 472 S.E.2d 770 (N.C. 1996)
The court reverses the court of appeals, which in turn had reversed a summary judgment for the security company. The court of appeals decision had been predicated on sections of the Restatement of Torts, imposing a duty equivalent to that of a landowner or landlord on parties charged with performing certain activities on a premises. The North Carolina Supreme Court stated pointedly: "We reemphasize that the Restatement of Torts is not North Carolina law."
The court reviews the contract with the security company and a memorandum setting forth the duties of guards. Although the memorandum stated that the guard was "to be visible both as a deterrent for vandals as well as a sense of security for residents," the court stresses that the memorandum does not state that the guards had a duty actually to protect residents or guests from criminal attacks. It emphasizes that the guards were to be unarmed - suggesting that no serious criminal intervention activity was contemplated.
The court also concludes that the mere provision of security services imposes no duty beyond that established in the contract.
Although it was not necessary to reach the question of the liability of the landlord on this appeal, the court does discuss that issue as well, apparently to provide some guidance below as the lawsuit continues. The court indicated that the established law of North Carolina imposes no duty on landlords of landowners to protect against criminal attacks except in "limited special circumstances." These include forseeability of an assaultor a special relationship between the plaintiff and defendant.
Also see: Rockwell v. Sun Harbor Budget Suites, 1996 WL 608792 (Nev. 10/22/96) (DD for 11/7/96) (landowner has non delegable duty to tenants to select carefully security guards provided by security company); Trujillo v. G.A. Enterprises, Inc., 43 Cal. Rptr. 2d 36 (Cal. App. 1995) (DD for 4/5/96) (Business owner who would not otherwise have duty to protect patrons from criminal attacks by hiring security guards nevertheless has a duty, if it does hire such guards, to exercise due care in selecting competent guards.) Also see the cases discussed in the DD for 4/11/96).
Comment: Although the editor concurs with the notion that liability for landlords for criminal attack should be limited to special circumstances, the editor is less comfortable with the conclusion reached here concerning the security company. The security guard apparently had ample notice that a criminal attack was about to occur. The court is not concluding that the security guard acted properly here, but that the security guard had no duty at all.
Inb the editor's view, a security guard company is "selling security." It would not be in business if members of the public did not rely upon parties who undertake to provide security services to do so in a reasonable fashion. Although the extent of a security company's duty to provide such security to the intended beneficiaries may be limited by circumstance, there is no justification to limit it by contract. There should be a duty of reasonable care under the circumstances to provide security to tenants and their guests. Perhaps, in this case, an unarmed guard could have done nothing to provide reasonable protection to the plaintiff, but the plaintiff should be permitted to prove otherwise.
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