Security Guards and the Independent Contractor Rule

In Estate of Cunningham v. Epstein Enterprises LLC, No. W2015-00498-COA-R3-CV (Tenn. Ct. App. June 30, 2016), the Court of Appeals affirmed summary judgment in a premises liability case where an armed security guard was shot and killed while on duty at an apartment complex.

The guard worked for a security company, and the company contracted with the apartment. The contract between the two entities provided that the security company was making “no representations that the security requested is reasonably adequate for the Client’s purpose,” and that the apartment was “relying upon its own knowledge and investigation as to the number and type of security personnel required.” On the night in question, the armed guard was on duty when “criminals, apparently fleeing from a nearby apartment complex, shot and killed [him].”

The guard’s wife filed a premises liability suit against the apartment, and the defendant apartment filed a motion for summary judgment. Defendant argued that “they did not owe a duty of care to [the guard] because the risk by which he was fatally injured was inherent in the performance of his duties as a security guard.” Defendant filed a statement of undisputed, material facts, to which plaintiff did not respond. Instead, plaintiff filed a memorandum stating that she did not dispute the facts and arguing that the apartment “owed [the guard] a duty as an employee of an independent contractor working within the bounds of an invitation to perform work,” and that because the criminal acts here were foreseeable, the apartment “owed a duty to protect [the guard] from such acts.” The trial court granted summary judgment to defendant, holding that the apartment had “no duty to [the guard] to protect him from a risk inherent in the task which he was hired to perform,” and the Court of Appeals affirmed.

In Tennessee, “an owner generally owes an independent contractor hired to perform work on the premises a duty to provide a reasonably safe place in which to work.” (internal citation omitted). Tennessee courts have acknowledged an exception to this rule, however, “for dangers that arise from, or are intimately connected with, defects of the premises or of machinery or appliances located thereon which the contractor has undertaken to repair.” (internal citation and quotation omitted). According to the Court, this independent contractor exception “recognizes that one assumes the risk of a known danger or of an undertaking which is inherently dangerous.” (internal citation and quotation omitted).

Here, the trial court applied the independent contractor exception to find that, because the injuries the guard “suffered were inherent in the work that he was contracted to perform,” the exception applied and no duty of care was owed by the apartment. Plaintiff argued, though, that the exception was inapplicable here, pointing out that it had only previously been applied to contracts for repair. Ultimately, the Court held that the independent contractor exception could be applied to security guards, though it used some unclear reasoning to get to that conclusion. In its analysis, the Court first noted that Tennessee was potentially moving towards a more modern analysis of premises liability wherein, “notwithstanding an entrant’s knowledge of a dangerous condition or its obviousness, a landowner is liable for harm resulting therefrom, if the landowner should anticipate the harm despite such knowledge or obviousness.” (internal citation omitted). According to the Court, this modern trend “requires balancing foreseeability and gravity of harm with feasibility and availability of alternatives that would have avoided the harm.” (internal citation omitted). After considering this modern trend, however, the Court went on to state that the independent contractor exception had not been supplanted and was still good law in Tennessee. Without much fanfare or analysis, the Court then held that the exception could apply to security guards. The Court did not, however, really go into whether the exception would or should apply to the facts of this matter.

Next, the Court looked at plaintiff’s argument that the service agreement between the security company and the apartment “imposed an affirmative duty upon the [apartment] to determine the appropriate amount of security measures necessary to ensure the safety of those that visit its premises, including [the guard].” The Court rejected this assertion, finding that the language used therein did not result in the apartment “contractually assum[ing] any legal duty to the employees of [the security company],” and that the agreement made “no representations…regarding the premises or criminal activity on or near the premises.”

Finally, plaintiff requested to present proof regarding what the apartment knew about nearby criminal activity. The Court denied this request, noting that plaintiff did not sufficiently respond to the defendant’s motion for summary judgment, as she did not submit an affidavit, did not respond to the material facts, and did not present “facts essential to justify her opposition to the motion.”

Having rejected all of plaintiff’s assertions of error, the Court affirmed summary judgment.

Justice Stafford wrote a very lengthy concurrence in this case, noting that he was writing to “address a concern with how the majority reaches [its] conclusion.” Justice Stafford agreed that the independent contractor exception could apply to security guards, but he noted that the majority opinion “does not endeavor to explain whether it is indeed applying the exception to the case-at-bar.”  In determining that the exception should in fact apply here, the concurrence noted the following:

There can be no dispute that [the guard] was on notice that the job he was hired to perform was inherently dangerous. …[He] was hired to provide not just basic security, but armed security…[He] was similarly on notice of potential criminal activity as his job necessarily required him to attempt to prevent and deter such activity. Such risk was implicit in his job’s purpose, and, by the fact that he was armed, a confrontation with a potentially dangerous or violent criminal actor was inherent in his job as a security guard. [Plaintiff] admitted in her amended complaint that the subject premises are located ‘in a high crime area’ and that it was ‘foreseeable…that the criminal attacks could occur due to incidences of crime that had occurred at the premises and within close proximity.’

Based on these facts, Justice Stafford concluded that the exception should apply.

Next, Justice Stafford addressed plaintiff’s argument that the apartment assumed a duty of care in the contract with the security company. Justice Stafford pointed out that plaintiff did not make this argument to the trial court and did not include this argument in her response to the summary judgment motion. Thus, the concurrence determined that the argument was waived by virtue of it not being presented to the trial court and that the majority should therefore not have analyzed this assertion by plaintiff. In discussing this waiver, Justice Stafford discussed in detail plaintiff’s inadequate response to defendant’s motion for summary judgment. He noted that while the contract was part of the record via discovery, plaintiff did not raise it in her response to the statement of facts. Interestingly, Justice Stafford seems to insinuate that there were facts that might have changed the result of this case—he noted “the existence of a contract which may have bearing on the relationship between parties,” as well as deposition testimony from the apartment owner regarding his knowledge of dangerous criminal activity. None of these facts, however, were raised by plaintiff in her summary judgment response. Justice Stafford thus stated that he was “constrained to follow established precedent regarding waiver,” and that arguments relying on these facts were waived and could not be analyzed by the Court of Appeals.

This case is notable for its holding that the independent contractor exception in premises liability cases can apply to security guards (and thus can reach beyond the traditional repairman), but it’s also notable as a cautionary tale for plaintiffs’ attorneys. Based on the language employed in the concurrence, it seems that plaintiff may have had some valid arguments against summary judgment. Plaintiff lost her opportunity to use those arguments, however, when she failed to raise them in the trial court in opposition to the motion for summary judgment. This decision shows the vital importance of ardently contesting summary judgment motions and making sure to get all of your evidence and arguments in front of the trial court in your initial briefing.

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