Hunter v. BPS Guard Services, Inc.

• Citation: 654 N.E.2d 405,100 Ohio App.3d 532
• Decision Date: 31 January 1995
• Docket Number: No. 94APE05-771,94APE05-771
• Parties: HUNTER, Appellant, v. BPS GUARD SERVICES, INC., d.b.a. Burns International Security Services et al., Appellees. *
• Court: United States Court of Appeals (Ohio)

Page 532

100 Ohio App.3d 532

654 N.E.2d 405

HUNTER, Appellant, v. BPS GUARD SERVICES, INC., d.b.a. Burns International Security Services et al., Appellees. ^*

No. 94APE05-771.

Court of Appeals of Ohio,

Tenth District, Franklin County.

Decided Jan. 31, 1995.

Blumenstiel, Huhn, Wood & Adams, J.B. Blumenstiel and C. Richard Grieser, Columbus, for appellant.

Porter, Wright, Morris & Arthur and Thomas A. Young, Columbus, for appellee BPS Guard Services, Inc., d.b.a. Burns Intern. Sec. Services.

Crabbe, Brown, Jones, Potts & Schmidt, Luis M. Alcalde and Francesca M. Tosi, Columbus, for appellee Gary J. Sephel, d.b.a. Certified Burglar Alarm Systems.

Ulmer & Berne and Edwin J. Hollern, Columbus, for appellee Guardian Sec. Systems, Inc.

C. Thomas Leighton, Columbus, for appellee Brookshire Cardinal Supermarkets, Inc., d.b.a. Ken's Cardinal Food Store.

BOWMAN, Judge.

On January 31, 1992, plaintiff-appellant, Shawna L. Baker, was working as a cashier at Brookshire Cardinal Supermarket, Inc., d.b.a. Ken's Cardinal Food Store ("Ken's Cardinal" or "the store"), when she was severely injured by a "With respect to summary judgment in favor of defendant, BPS Guard Services, Inc., dba Burns International Security Services:

shotgun blast during a robbery. Appellant filed this action against BPS Guard Services, Inc., d.b.a. Burns International Security Services ("Burns"), the company which had previously provided security guard service to the store; Gary Sephel, d.b.a. Certified Burglar Alarm Systems ("Certified"), the installer of the alarm system at the store; Guardian Security Systems, Inc. ("Guardian"), the alarm monitoring company; and Ken's Cardinal. Ken's Cardinal confessed judgment in the amount of $1,250,000 and a judgment in favor of appellant in the amount of $1,250,000 was entered against Ken's Cardinal. Burns, Certified and Guardian each moved for summary judgment. The trial court granted Burns's and Guardian's motions ¹ and appellant is appealing those judgments raising the following assignments of error:

"1. The trial court erred in granting summary judgment for said defendant.

"2. The trial court erred in holding as a matter of law that the obligations of said defendant to provide guard service at the store of plaintiff's employer under a written contract with the employer were extinguished and that the written contract was abandoned.

"3. The trial court erred in holding as a matter of law that the said written contract was replaced by an oral arrangement between plaintiff's employer and one Robert Thomas to provide guard service as an individual when such activity was in violation of and prohibited by Ohio Rev.Code §§ 4749.01 et seq. and said violation was a criminal offense.

"4. The trial court erred in so holding and ignoring the undisputed evidence that said defendant authorized its agent Thomas to perform such prohibited and unlawful activity and thereby said defendant also committed a violation of law and said violation was a criminal offense.

"5. The trial court erred in so holding and ignoring the evidence of fraud in the inducement in the alleged oral arrangement between plaintiff's employer and Robert Thomas.

"6. The trial court erred in holding as a matter of law that the agreement between said defendant and plaintiff's employer purporting to relieve said defendant from liability and to require the employer to indemnify said defendant's liability was valid and enforceable against the plaintiff.

"7. The trial court erred in holding as a matter of law that no issues of liability of said defendant to plaintiff for breach of contract, negligence and interference with contract were presented for the jury."

Appellant has also raised the following assignments of error:

"With respect to summary judgment in favor of defendant, Guardian Security Systems, Inc.:

"1. The trial court erred in granting summary judgment for said defendant.

"2. The trial court erred in granting defendant's motion for summary judgment holding that the '$250' limitation of liability clause in the contract between defendant and plaintiff's employer was reasonable, valid and enforceable against plaintiff.

"3. The trial court erred in granting motion for summary judgment on the issues of breach of contract and negligence.

"4. The trial court erred in granting defendant's motion for summary judgment and dismissing plaintiff's complaint in failing to address the issue of breach of contract.

"5. The trial court erred in holding as a matter of law that defendant, Guardian Security Systems, Inc., and defendant, Gary J. Sephel, dba Certified Burglar Alarm Systems, were not engaged in a joint venture."

THE BURNS ISSUES ²

Because of a number of robberies that had occurred at the store, Kenneth Adkinson, President and sole shareholder of Brookshire, which owns and operates Ken's Cardinal, decided to hire security guards to work at the store. To that end, on December 17, 1991, Adkinson entered into a written contract with Burns in which Burns was to provide uniformed, unarmed security guard service at the store. The contract was titled "Temporary Service Authorization" and was signed by both Adkinson and Robert W. Thomas, Jr., a Burns client-service manager. Dennis Armstrong, another Burns' employee, and Thomas were the security guards who would be providing guard service at the store beginning December 17, 1991.

After a robbery at the store on December 21, 1991, in which Thomas was disarmed by a robber, ³ Thomas contacted Gilbert S. Wyche, District Manager of Burns's Columbus office, to discuss the security at Ken's Cardinal. Because it was Thomas's opinion that having a uniformed Burns security guard at the store would not deter armed robberies, Wyche directed Thomas to contact Adkinson to terminate the Temporary Service Authorization.

On December 27, 1991, Thomas held a meeting with Adkinson to discuss the Temporary Service Authorization. The result of the meeting was that Burns would no longer provide guard service at the store and, instead, Thomas and Armstrong, as independent contractors, would provide armed security guard service in their police uniforms. ⁴ Although there was nothing in writing changing, terminating or modifying the Temporary Service Agreement entered into between Burns and Adkinson, Burns's last day of providing guard service to the store was December 27, 1991, and Burns did not bill Adkinson or Brookshire for service after that date. Beginning on December 28, 1991, when Thomas and Armstrong worked at the store, they punched time cards at the store and were paid directly by Ken's Cardinal. Both Thomas and Armstrong continued to also work and be employed by Burns.

On January 31, 1992, Thomas, dressed in a suit, ⁵ was on duty at the store armed with a .380 automatic weapon when a robbery occurred. Before the robbery, the two robbers, Jerri Jones and Shantella Ferguson, were told by Mark Strickland to go into the store to look for a security guard. After going up and down all of the aisles and not seeing a security guard, Jones and Ferguson left the store and informed Strickland that they did not see a guard, so he told them to go back in and rob the store. During the robbery, Jones pulled out a shotgun and shouted in a very loud voice for everyone to get on the ground. As appellant was getting the money out of her register, she was shot by Jones. During the Around 7:00 p.m., and just prior to the robbery, Belinda Kay Cofer, a Burns area manager who frequently visited Thomas at Ken's Cardinal to deliver messages concerning Burns business, arrived at the store to deliver a message to Thomas about a Burns job at Red Lobster. After receiving the messages delivered by Cofer, Thomas was to arrange for a Burns employee to be assigned to the jobs detailed on the messages, or to arrange for replacements for Burns employees who could not work. Thomas was Cofer's immediate supervisor at Burns and Cofer made deliveries of notes to Thomas virtually every evening that he worked at the store. Thomas would usually take care of the business related to these notes by using the telephone in the store office or back by the meat counter. When Cofer was not delivering notes concerning Burns business, she would often come to Ken's Cardinal to chat with Thomas and drink coffee. At the time the gunshot was fired, Cofer was talking to another Burns employee, Becky Sloan, who was also in the store. After the robbery occurred, Cofer rendered medical aid to appellant which assisted in saving appellant's life.

robbery, Thomas was not near the registers but was by the bread section where his attention had been diverted by two men. Thomas did not hear Jones's command for the customers to get on the floor, nor did he see store customers on the floor. It was as he was observing the two men that Thomas heard the gunshot.

Appellant filed a complaint against Burns asserting that Burns breach of the Temporary Service Authorization contract proximately caused her injuries. Burns answered the complaint and filed a motion for summary judgment to which appellant responded. After an oral hearing, the trial court sustained Burns motion finding that, although appellant was an intended third-party beneficiary of the Temporary Service Authorization contract, Burns and Ken's Cardinal abandoned the written contract and, therefore, appellant could not recover under the contract. In addition, since there was no contract in effect at the time of appellant's injury, Burns owed her no duty and, thus, her claim for negligence was denied. Further, there was no evidence that Burns interfered with the performance of any contract whether it was between Burns and Ken's Cardinal or Ken's Cardinal and Thomas. Finally, the court found that appellant's claims, based on violation of Ohio statute, must also be denied. Judgment to this effect was entered on May 4, 1994, with the additional finding that there was no just reason for delay.

Appellant's...