Holshouser v. Shaner Hotel Group Properties

• Decision Date: 03 August 1999
• Docket Number: No. COA98-814.,COA98-814.
• Citation: 518 S.E.2d 17,134 NC App. 391
• Court: North Carolina Court of Appeals
• Parties: Fredericka HOLSHOUSER, Plaintiff, v. SHANER HOTEL GROUP PROPERTIES ONE LIMITED PARTNERSHIP, Shaner Operating Corporation, Ben Robinson, and Loss Prevention Services, Inc., Defendants.

518 S.E.2d 17

134 NC App. 391

Fredericka HOLSHOUSER, Plaintiff, v. SHANER HOTEL GROUP PROPERTIES ONE LIMITED PARTNERSHIP, Shaner Operating Corporation, Ben Robinson, and Loss Prevention Services, Inc., Defendants.

No. COA98-814.

Court of Appeals of North Carolina.

August 3, 1999.

McCall Doughton & Blancato, PLLC, by Thomas J. Doughton, Winston-Salem, for plaintiff-appellant.

Young Moore and Anderson, P.A., by John A. Michaels and Reed N. Fountain, Raleigh, for defendant-appellee Shaner Operating Corporation.

Davis & Hamrick, L.L.P., by Kent L. Hamrick, Winston-Salem, for defendants-appellees Loss Prevention Services, Inc., and Ben Robinson.

TIMMONS-GOODSON, Judge.

Fredericka Holshouser ("plaintiff") appeals from orders granting summary judgment to Shaner Operating Corporation ("Shaner Operating"), Ben Robinson ("Robinson"), and Loss Prevention Services, Inc. ("LPS") on plaintiff's claims for negligence and breach of contract. Having carefully examined plaintiff's arguments, we reverse in part, affirm in part, and remand this case for further appropriate proceedings.

The relevant factual and procedural background is as follows: On 23 October 1996, plaintiff was employed as a waitress at the Holiday Inn Select Hotel ("the hotel") in Winston-Salem, North Carolina. The hotel was owned by Shaner Hotel Group Properties One Limited Partnership ("Shaner Hotel Group") and was operated by Shaner Operating. Robinson was working as a security guard for the hotel pursuant to a contract between Shaner Hotel Group and Robinson's employer, LPS.

At 4:40 a.m. on 23 October 1996, plaintiff arrived at the hotel for her work shift and parked in the rear parking lot, as required by her employer, Shaner Operating. The purpose of this requirement was to make front parking spaces available for hotel guests. As plaintiff approached the back door of the hotel, an unknown assailant grabbed her from behind, pulled her into an adjacent area overgrown with trees and shrubbery, and raped her.

Plaintiff filed a complaint on 23 June 1997 against Shaner Hotel Group alleging that it was negligent in failing to provide adequate security and proper lighting and in failing to cut back the shrubbery and trees. Thereafter, plaintiff filed an Amended and Second Amended Complaint adding Robinson, LPS, and Shaner Operating as defendants. Plaintiff alleged two theories of recovery against Robinson and LPS: (1) that they were negligent in failing to provide proper security and protection to plaintiff; and (2) that plaintiff was a direct beneficiary of the contract between the hotel and LPS.

After the parties had conducted extensive discovery, Robinson, LPS, Shaner Hotel Group, and Shaner Operating filed motions for summary judgment. On 30 March 1998, before the discovery period had expired, the trial court held a hearing on the motions. The court entered summary judgment for Robinson and LPS on 31 March 1998 and for Shaner Operating on 14 April 1998. Plaintiff's claim against Shaner Hotel Group, however, is still pending. Plaintiff filed timely notice of appeal.

Plaintiff raises several issues on appeal: (1) whether Robinson and LPS owed any duty to plaintiff to protect her from the criminal attack committed against her by an unknown assailant; (2) whether plaintiff was a third-party beneficiary of the contract for security services between LPS and Shaner Hotel Group; (3) whether the injuries sustained by plaintiff during the attack were compensable under the Workers' Compensation Act; and (4) whether the trial court erred in granting summary judgment to Robinson, LPS, and Shaner Operating while discovery was still pending. We will examine each of these issues in turn.

Plaintiff argues first that the trial court improvidently granted summary judgment for Robinson and LPS on plaintiff's claim that they were negligent in failing to properly secure and protect her against criminal assaults. We agree.

On appeal from an order granting summary judgment, this Court's review is confined to two questions: "(1) whether there is a genuine issue of material fact, and (2) whether the moving party is entitled to judgment as a matter of law." Robinson, Bradshaw & Hinson v. Smith, 129 N.C.App. 305, 314, 498 S.E.2d 841, 848, disc. review denied, 348 N.C. 695, 511 S.E.2d 649, and disc. review dismissed, 348 N.C. 695, 511 S.E.2d 650 (1998). The party moving for summary judgment bears the burden of proving that the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, establish the absence of any triable issue of fact. Lamm v. Bissette Realty, 94 N.C.App. 145, 379 S.E.2d 719 (1989). In ruling on a motion for summary judgment, the trial court must examine the evidence in the light most favorable to the non-moving party, and the non-moving party is entitled to have all factual inferences drawn in her favor. Davis v. Town of Southern Pines, 116 N.C.App. 663, 666, 449 S.E.2d 240, 242 (1994).

"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." Cassell v. Collins, 344 N.C. 160, 163, 472 S.E.2d 770, 772 (1996). To establish a prima facie case of negligence liability, the plaintiff must show: (1) that the defendant owed her a duty of care; (2) that the conduct of the defendant breached that duty; (3) that the breach actually and proximately caused the plaintiff's injury; and (4) that the plaintiff sustained damages as a result of the injury. Lamm, 94 N.C.App. at 146, 379 S.E.2d at 721. "When there are factual issues to be determined that relate to the defendant's duty, or when there are issues relating to whether a party exercised reasonable care, summary judgment is inappropriate." Ingle v. Allen, 71 N.C.App. 20, 26, 321 S.E.2d 588, 594 (1984).

Plaintiff contends that under the terms of the Contract For Guard Service executed by the President of LPS and the Vice President of Operations for Shaner Hotel Group, LPS and Robinson owed plaintiff a duty to protect her from criminal affronts. LPS and Robinson argue, however, that an obligation to protect hotel employees from harm did not originate from any of the promises contained in the agreement; therefore, the court was correct in entering summary judgment in favor of the security company and its employee. For the following reasons, we hold that the contract was ambiguous with respect to the nature of LPS' duties under the contract, that this ambiguity raised an issue of material fact to be resolved by the jury with the help of extrinsic evidence, and that summary judgment was, therefore, inappropriate.

In North Carolina, it is well settled that an injured third party need not be in privity of contract to recover against a contracting party for negligently performing services for another. Id. at 26, 321 S.E.2d at 594. To that end, our courts have adopted the following principle of tort law, as set forth in Condominium Assoc. v. Scholz Co., 47 N.C.App. 518, 268 S.E.2d 12 (1980):

[U]nder certain circumstances, one who undertakes to render services to another which he should recognize as necessary for the protection of a third person, or his property, is subject to liability to the third person, for injuries resulting from his failure to exercise reasonable care in such undertaking.

Id. at 522, 268 S.E.2d at 15. Determining whether a party who has contracted to provide services for another has assumed a duty to protect third parties from harm requires balancing the following factors:

"(1) the extent to which the transaction was intended to affect the other person; (2) the foreseeability of harm to him; (3) the degree of certainty that he suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury; (5) the moral blame attached to such conduct; and (6) the policy of preventing future harm."

Ingle, 71 N.C.App. at 27, 321 S.E.2d at 594 (quoting Leasing Corp. v. Miller, 45 N.C.App. 400, 406-07, 263 S.E.2d 313, 318 (1980)). "If the evidence, direct or circumstantial, is sufficient as to any of these factors, it will create a jury question as to whether such a duty exists and whether it was breached by the defendant." Id.

In Cassell, our Supreme Court held that the extent of the duty, if any, owed by a security company to a guest who was stabbed at an apartment complex the company was hired to patrol, is governed by the contract between the security company and the property owner. Cassell, 344 N.C. at 163-64, 472 S.E.2d at 772. The contract in question provided that the company's security guard was responsible for "closing and securing the complex pool, tagging cars that were parked improperly, making rounds on the property, and preventing tenants from `hanging out' in common areas." Id. at 164, 472 S.E.2d at 772-73. The memorandum from the complex management to the security company further provided that the security guard "was `to be visible both as a deterrent to potential vandals as well as a sense of security for residents.'" Id. at 164, 472 S.E.2d at 773. Because neither the contract nor the memorandum imposed a duty on the security company to protect tenants or their guests, the Court concluded that the security company could not be held liable to the plaintiff for negligence in failing to protect him.

Recently, this Court, in Hoisington v. ZT-Winston-Salem Assoc., ___ N.C.App. ___, 516 S.E.2d 176 (1999), considered the issue of liability for negligently performing security services. That case involved a brutal assault against an employee of Silas Creek Shopping Center. While working in one of the stores on the night of 9 December 1995, the plaintiff's ward, Jill Marker, was severely beaten, resulting in serious and permanent injuries. The owner of Silas Creek had contracted with Wackenhut Corporation to provide security guard services for the shopping center. Under the contract, the "Scope of Work" was as follows:

Vehicular and

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