Cassell v. Collins

• Decision Date: 31 July 1996
• Docket Number: No. 566A95,566A95
• Citation: 472 S.E.2d 770,344 N.C. 160
• Court: North Carolina Supreme Court
• Parties: Keith John CASSELL v. Samuel L. COLLINS and American Security and Investigation Systems, Inc.

Page 770

472 S.E.2d 770

344 N.C. 160

Keith John CASSELL v. Samuel L. COLLINS and American Security and Investigation

Systems, Inc.

No. 566A95.

Supreme Court of North Carolina.

July 31, 1996.

Virginia R. Hager, Wilmington, and Mark W. Morris, Raleigh, for plaintiff-appellee.

Yates, McLamb & Weyher, L.L.P. by Andrew A. Vanore, III, and Travis K. Morton, Raleigh, for defendant-appellant American Security and Investigation Systems, Inc.

MITCHELL, Chief Justice.

Plaintiff was stabbed by defendant Samuel L. Collins on 23 May 1991 while plaintiff was visiting a tenant of The Pines of Wilmington, an apartment complex managed by NPI Property Management Corporation (NPI). The assault occurred in the presence of a security guard who was an employee of defendant American Security and Investigation Systems, Inc. (ASI). By a contract with NPI, ASI had agreed to provide security guard services at The Pines of Wilmington. The contract provided that an unarmed, uniformed security guard was to patrol the apartment complex between the hours of 8:00 p.m. and 2:00 a.m. A memorandum from the management of the apartment complex to ASI specified that ASI's guard "was to be visible both as a deterrent to potential vandals as well as a sense of security for residents."

On 22 May 1992, plaintiff filed suit against both defendants, alleging that ASI was negligent in that its security guard "was present and observed the events immediately preceding the stabbing assault, but made no effort to intervene, speak to [the assailant], or prevent the assault." Default judgment was ordered against Collins on 3 November 1992. No appeal was taken from that judgment. On 1 November 1993, the trial court granted ASI's motion for summary judgment, finding that no genuine issue as to any material fact existed with respect to the liability of ASI.

A divided panel of the Court of Appeals reversed. Writing for the court, Judge Greene concluded that plaintiff was a licensee; that ASI was subject to the same liability as the owner of the complex; and that by providing a security guard, ASI "had assumed an affirmative duty to provide some protection to the plaintiff." Cassell v. Collins, 120 N.C.App. 798, 800, 463 S.E.2d 782, 783 (1995). Taking the evidence in the light most favorable to plaintiff, the majority concluded that a genuine issue existed as to whether ASI breached its duty to plaintiff. In a concurring opinion, Judge Wynn stated that the "security guard's negligence cannot fairly be characterized as a condition or activity upon the land or premises of the apartment complex," id. at 801, 463 S.E.2d at 784 and thus, plaintiff's status as a licensee was not determinative. However, Judge Wynn also determined that plaintiff's forecast of evidence did present a genuine issue as to ASI's negligence because "a security guard's duties entail keeping the premises and persons on the premises safe and free from injury." Id. at 802, 463 S.E.2d at 784. In a dissenting opinion, Judge John C. Martin agreed with the conclusion that the duty owed to plaintiff was determined by his status as a licensee but disagreed that plaintiff's forecast of evidence tended to show that ASI had breached any duty. Judge Martin noted that neither ASI's contract with the apartment complex nor the memorandum from the apartment complex management imposed a duty upon ASI's security guards to protect licensees.

At issue before us is whether ASI, through its security guard, owed any duty to plaintiff such that ASI can be held liable in tort for the criminal assault committed by Collins. We conclude that ASI owed no duty to plaintiff. Therefore, we reverse the Court of Appeals and remand this case for reinstatement of summary judgment for defendant ASI.

Negligence is the failure to exercise proper care in the performance of a legal duty owed by a defendant to a plaintiff under the circumstances. Clarke v. Holman, 274 N.C. 425, 428, 163 S.E.2d 783, 786 (1968); see also 22 Strong's North Carolina Index 4th Negligence § 1 (1993) and cases cited therein. In the absence of a legal duty owed to the plaintiff by ASI, ASI cannot be liable for negligence.

Neither party in the present case disputes the fact that as a social guest of a tenant of The Pines of Wilmington, plaintiff was a licensee. Common law distinctions between licensees and invitees, however, are not determinative in the present case. We are not presented with the issue of the duties owed a tenant of The Pines of Wilmington by the owner or possessor of the complex, cf. Shepard v. Drucker & Falk, 63 N.C.App. 667, 306 S.E.2d 199 (1983) (affirming jury verdict for landlord in negligence suit by tenant when tenant was sexually assaulted at gunpoint on landlord's property), nor are we presented with the issue of any duty owed plaintiff by NPI. While plaintiff's status as a licensee might be a factor in defining the extent of any obligation owed him by such parties, it does not determine the duty owed him by ASI under the facts presented.

Citing section 383 of the Restatement of Torts, both the majority and the dissent concluded that ASI owed the same duties to plaintiff, and thus was subject to the same liability in tort, as the landowner. Section 383 provides:

One who does an act or carries on an activity upon land on behalf of the possessor is subject to the same liability, and enjoys the same freedom from liability, for physical harm caused thereby to others upon and outside of the land as though he were the possessor of the land.

Restatement (Second) of Torts § 383 (1965). We reemphasize yet again that the Restatement of Torts is not North Carolina law. Cf. Mickles v. Duke Power Co., 342 N.C. 103, 110, 463 S.E.2d 206, 211 (1995) (disavowing an illustration from section 8A of the Restatement of Torts as authority). While section 383 may be persuasive in other contexts, we reject it in the context of this case with respect to the duties owed the guest of an apartment complex tenant by a security services company. Rather, the extent of ASI's duty to plaintiff, if any, is governed by the contract between ASI and NPI. Thus, in determining whether the trial court erred in granting summary judgment for ASI, we turn to the contract and any other evidence in the record that might tend to present a genuine issue with respect to the duties owed plaintiff by ASI under the contract.

We conclude that the pleadings, depositions, and affidavits fail to present any genuine issue of material fact. Neither the contract between ASI and NPI nor the memorandum from the complex management imposed a duty on ASI to protect social guests of tenants at the complex. Rather, the evidence, taken in the light most...