Gaffney v. William J. Burns Detective Agency Intern., Inc.
| Decision Date | 25 June 1973 |
| Docket Number | No. 56541,56541 |
| Citation | 12 Ill.App.3d 476,299 N.E.2d 540 |
| Parties | Carol GAFFNEY, Plaintiff-Appellant, v. WILLIAM J. BURNS DETECTIVE AGENCY INTERNATIONAL, INC., Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Roger J. Boylan, Chicago, for plaintiff-appellant.
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, (D. Kendall Griffith, Paul L. Pawlowski, Chicago, of counsel), for defendant-appellee.
This is an appeal from an order granting summary judgment in favor of defendant, William J. Burns Detective Agency International, Inc. (hereinafter referred to as 'Burns') and gainst plaintiff, Carol Gaffney. Plaintiff appeals.
On May 14, 1969, plaintiff was assaulted by two unknown persons in the parking lot of her employer, National Biscuit Co., located at 7300 S. Kedzie Avenue, Chicago, Illinois.
Plaintiff subsequently commenced an action against both defendant, Burns and her employer, National Biscuit Co., seeking to recover for the injuries she sustained as a result of the assault. Plaintiff alleged in her complaint that defendant Burns was liable by reason of its alleged negligent failure to adequately perform its guard service under a contract with plaintiff's employer, National Biscuit Co.
The contract between defendant Burns and plaintiff's employer, National Biscuit Co., provided in pertinent part:
'Whereas, Agency (Burns) maintains a plaint protection service and has facilities for the surveillance and protection of property against fire, theft, pilferage, malicious injury and destruction, and Whereas, National desires Agency to supply such protection services to National's Bakery at 7300 S. Kedzie Ave., Chicago, Illinois property;
Now, therefore, National and Agency do mutually agree as follows:
1) The Agency will furnish uniformed guard plant protection (armed, if necessary) service for the proper protection of National's Bakery at 7300 S. Kedzie Ave., Chicago, Ill. property; the specific number, principal posts and hours of duty of guard personnel to be agreed upon between the parties hereto from time to time.
2) The Agency will furnish the guard personnel to provide such protection, complete with uniforms and necessary equipment. The guard personnel shall perform the following duties:
(a) Protect the property from fire, accident, theft, damage and trespass.
(b) Permit only duly authorized persons to enter the premises.
(c) Make regularly scheduled tours of the premises, checking all gates, doors, windows, lights and registering such tours on Detex or such other watch clock stations as may be provided by National.
(d) Report any unusual incidents or hazardous conditions as soon as practicable to representatives designated by National.
(e) Submit a written report covering all incidents or hazardous conditions at the conclusion of each tour.
(f) When requested, other miscellaneous duties under the direction of National's local plant management.
4) Agency shall assume the entire responsibility and liability for any and all damage and injury of any kind or nature whatsoever (including death resulting therefrom) to all persons, whether employees of Agency or otherwise, and to all property, caused by, resulting from, arising out of, or occurring in connection with either (1) the performance of this Agreement of (2) the presence of any persons, except an employee of National in the performance of his duties, in, on or about any part of National's premises, at or with the invitation, express or implied, of Agency, its agents, servants or employees; and if any person, including damage or injury (including death resulting therefrom) as hereinabove described, whether such claim be based upon National's alleged active or passive negligence, or participation in the wrong, or upon any alleged breach of any statutory duty or obligation on the part of National, Agency agrees to indemnify and save harmless, National, its agents, servants and employees, from and against any and all loss, expense, damage or injury that National may sustain as a result of any such claim and Agency agrees to assume, on behalf of National and at its demand, the defense of any action at law or in equity which may be brought against National upon such claim and to pay on behalf of National, upon its demand, the amount of any judgment that may be entered against National in any such action.
6) Without limiting responsibility of the Agency for the proper conduct of the guards and the protection of the Protected Property the conduct of the guards is to be guided by a set of standard rules as agreed upon between National and the Agency. . . .
7) The Agency is responsible for the direct supervision of the guards. . . .
8) The Agency agrees that the plant protection services covered by this contract shall be performed by qualified, careful and efficient employees in strictest conformity with the best practices and such standards as may be prescribed by National from time to time. . . .'
On July 23, 1971, defendant Burns filed a motion for summary judgment and attached thereto a copy of the agreement between Burns and National and also an affidavit of an administrative assistant of Burns, Donald J. Kundrot. In its motion for summary judgment defendant Burns stated that under the terms of the contract, it has no duty to protect users of the parking lot and that its obligations to furnish protection under the agreement extended only to the property of National Biscuit Co. The affidavit of Mr. Kundrot further stated that the guards provided by Burns pursuant to the agreement had no duties, instructions or orders relative to the protection of persons using the parking lot.
On August 6, 1971, the trial judge entered an order granting leave to plaintiff to file a second amended complaint and also providing that defendant Burns' motion for summary judgment would stand as to plaintiff's second amended complaint.
The plaintiff's second amended complaint also relied upon the contract between Burns and National and alleged that under this agreement Burns had a duty to protect persons lawfully on the premises of National, as well as the physical property, from unlawful conduct including assaults by unknown persons in the parking lot; that under the agreement Burns was obliged to properly perform the guard service despite the absence of any special instructions from National; that the plaintiff as an employee of National was a person who Burns could reasonably have foreseen would be endangered by the careless performance of its guard service agreement and that she relied on Burns to properly perform its guard service. This conplaint further alleged that Burns had a duty to exercise care in the performance of the agreement so as not to cause injury to persons for whose safety the agreement was made, including the plaintiff; that Burns in disregard of this duty, failed to furnish guards for the parking lot, failed to maintain a sufficient number of competent guards in the area and failed to maintain a closed circuit television surveillance in the parking lot area and as a result of which plaintiff was injured.
Plaintiff also filed on August 6, 1971, an answer to defendant Burns' motion for summary judgment. Plaintiff asserted, Inter alia, that there were genuine issues of fact as to the scope and extent of the duties of Burns with respect to the protection of persons on the premises of National. Plaintiff maintained that by virtue of the provisions of the agreement between Burns and National, considering the customary meaning of the terms used in the contract and general practices in the trade, there existed genuine issues of fact and therefore summary judgment was not warranted.
The plaintiff's answer to defendant Burns' motion for summary judgment also attached an affidavit of plaintiff's attorney reciting information obtained from one James O'Hara, whom plaintiff's attorney stated was 'a long time executive in...
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