McKenna v. Alliedbarton Sec. Servs., LLC

• Decision Date: 17 June 2015
• Docket Number: 1–13–3415,1–13–3416 & 13–3417.,Nos. 1–13–3414,s. 1–13–3414
• Citation: 35 N.E.3d 1007
• Parties: Suzanne E. Malec McKENNA, as Executor and Personal Representative of the Estate of Michael R. Malec McKenna, Deceased; Louise E. Hoover, as Executor of the Estate of Allen J. Hoover, Deceased; Teiji Abe, as Executor of the Estate of Paul Goodson, Deceased; and Ruth Zak Leib, Plaintiffs–Appellants, v. ALLIEDBARTON SECURITY SERVICES, LLC a/k/a AlliedBarton Security Services; UST–GEPT, a Joint Venture; GE Asset Management, Inc.; NACA Madison, LLC; MB Real Estate Services, LLC; Robert Brown, Individually and as Agent of AlliedBarton Security Services, LLC, a/k/a AlliedBarton Security Services and as of Agent of UST–GEPT; GE Asset Management Inc.; NACA Madison, LLC; and MB Real Estate Services, LLC; Sidney Chambers, Individually and as Agent of AlliedBarton Security Services, LLC, a/k/a AlliedBarton Security Services and as of Agent of UST–GEPT; GE Asset Management, Inc.; NACA Madison, LLC; and MB Real Estate Services, LLC; Gregory J. Jenkins Sr., Individually and as of Agent of UST–GEPT; GE Asset Management, Inc.; NACA Madison, LLC; and MB Real Estate Services, LLC (Susan Gitelson, Special Administrator of the Estate of Joseph Jackson, Deceased, Defendant).
• Court: United States Appellate Court of Illinois

35 N.E.3d 1007

Suzanne E. Malec McKENNA, as Executor and Personal Representative of the Estate of Michael R. Malec McKenna, Deceased; Louise E. Hoover, as Executor of the Estate of Allen J. Hoover, Deceased; Teiji Abe, as Executor of the Estate of Paul Goodson, Deceased; and Ruth Zak Leib, Plaintiffs–Appellants

v.ALLIEDBARTON SECURITY SERVICES, LLC a/k/a AlliedBarton Security Services; UST–GEPT, a Joint Venture; GE Asset Management, Inc.; NACA Madison, LLC; MB Real Estate Services, LLC; Robert Brown, Individually and as Agent of AlliedBarton Security Services, LLC, a/k/a AlliedBarton Security Services and as of Agent of UST–GEPT; GE Asset Management Inc.; NACA Madison, LLC; and MB Real Estate Services, LLC; Sidney Chambers, Individually and as Agent of AlliedBarton Security Services, LLC, a/k/a AlliedBarton Security Services and as of Agent of UST–GEPT; GE Asset Management, Inc.; NACA Madison, LLC; and MB Real Estate Services, LLC; Gregory J. Jenkins Sr., Individually and as of Agent of UST–GEPT; GE Asset Management, Inc.; NACA Madison, LLC; and MB Real Estate Services, LLC (Susan Gitelson, Special Administrator of the Estate of Joseph Jackson, Deceased, Defendant).

Nos. 1–13–3414

1–13–3415

1–13–3416 & 13–3417.

Appellate Court of Illinois, First District, Third Division.

June 17, 2015.

Joseph A. Power, Jr., Larry R. Rogers, Devon C. Bruce, and Brian LaCien, all of Power, Rogers & Smith, P.C., Chicago, for appellants.

Robert M. Burke, David M. Macksey, Garrett L. Boehm, Jr., and Brian P. Gainer, all of Johnson & Bell, Ltd., Chicago, for appellees.

OPINION

Justice LAVIN delivered the judgment of the court, with opinion.

¶ 1 On December 8, 2006, four tenants of the Citigroup Center/ Ogilvie Transportation Center were shot (three fatally) by an interloper who was initially denied access to the office tower portion of the building by security personnel. This individual persisted in his effort to get up to a private office in the building and was taken there by a security guard after telling him he was holding a gun inside a large, manila envelope in his hand. Thus, despite various security measures that were in place to protect the tenants of this office building, an armed killer was brought to an office on the thirty-eighth floor where he went on a shooting rampage that claimed three lives while injuring another person. After exhaustive discovery and extensive motion practice, defendants¹ AlliedBarton Security Services, LLC (AB) and NACA Madison, LLC (NACA) successfully obtained summary judgment in the trial court, after convincing the motion judge that they owed no duty to protect these plaintiffs and that their conduct could not, as a matter of law, be considered a proximate cause of the injuries and deaths. We disagree on both bases and reverse and remand to the trial court for further proceedings.

¶ 2 BACKGROUND

¶ 3 The complex at 500 West Madison Street in Chicago is a multi-use development, consisting of a Metra train station, a three-level commercial space for the general public and a private office tower for floors 4 through 40. Its elevator lobby was accessible only on the third floor after one was screened. The screening was principally achieved by a concierge desk, where identification from a potential visitor was required to be shown and concomitant authorization was required from the involved tenant. Tenants and those in their employ were provided preapproved keycards to get through the electronic turnstiles. The very public nature of the adjacent train station and public dining and shopping space as contrasted with the office tower with private and governmental agency offices created various challenges for the owners and managers of the building, which, acting in a responsible fashion, contracted with an established security contractor to work jointly to ensure the safety of those lawfully using the premises for whatever reasons.

¶ 4 Joseph Jackson entered the building in the late morning hours and was observed loitering in different areas of the building on a couple occasions by AB security guard Sidney Chambers. In mid-afternoon, he attempted to gain access to the thirty-eighth floor to “visit” Michael McKenna, an attorney who rented space in the Wood, Phillips office on that floor. It was subsequently learned that Jackson was convinced that McKenna had “stolen” his idea to secure a patent for a truck “port-a-potty.” Earlier that morning, he had left notes at his home indicating his mental distress, implying that he would not be around at day's end.

¶ 5 Given that he did not have an appointment and would not provide identification, Jackson was rebuffed by concierge personnel at the third-floor reception desk, when he attempted to get a temporary keycard to access the elevators. He was directed to the down escalator, instead of being taken out of the building. He later reappeared at the third floor area. Jackson showed Brown a large manila envelope in his hands and told him there was a gun inside it. Brown, who was uniformed but unarmed, did not observe a weapon at that time. Jackson demanded that Brown take him to the thirty-eighth floor. This exchange was seen, but not heard, at a distance by Brown's supervisor, the aforementioned Sidney Chambers, who was then concerned that there might be trouble, so he approached the pair. As he got closer, Jackson whispered to Brown to “get rid of him [Chambers].” In response to Chambers' inquiry, Brown indicated that there was no problem and Chambers left to go to the control room. Even though Chambers felt Jackson was acting suspiciously, he neither continued to watch the two men nor, as we discuss in more detail below, did he take any number of available precautions to prevent Jackson from gaining access to the office tower. Brown then proceeded to swipe his own pass twice on an electronic turnstile to get himself and Jackson onto the elevator and then to the thirty-eighth floor. Once on the elevator, Jackson told Brown, “[d]on't be a hero” and that he wanted Brown to see his family later that night. Brown also told Jackson that there was a guy “up there” who owed him some money.

¶ 6 The following events were observed at various times and testified to by Brown, an office receptionist, and McKenna's assistant, plaintiff Ruth Lieb. While their testimony is not entirely consistent, it can be fairly summarized, in pertinent part, as follows. When Brown and Jackson arrived at the Wood, Phillips law office, they were buzzed in by the office receptionist, Starla Hargita, who saw the uniformed guard at the door. Once inside, Jackson demanded to see McKenna, but was told that he was in a meeting. Hargita motioned to Lieb, who was in a nearby conference room (apparently visible through glass partition walls) with McKenna and a client, Morris Danzig. Soon thereafter, Lieb appeared at the reception desk and, as Jackson pulled out the gun, Brown exclaimed, “Why is this happening on my watch?” Presumably seeking to diffuse the situation, Brown then asked if Jackson could just “leave a message.” Jackson responded, “Yeah, I'm gonna to [sic ] leave a message,” pulled an envelope or a bag out of his jacket which contained a gun and a chain which he used to chain the office door shut. Lieb saw that Jackson also had a hammer that he took out of what she described as a “gym bag.” She was not entirely sure if the gun came from the bag or from his pocket, but he then pointed it at Lieb's head and told her to “go get McKenna” or she would be killed. She complied. As she walked, hand in hand with McKenna back toward the reception area, she whispered that the man out in the reception area was armed and that McKenna should be careful.

¶ 7 McKenna was soon at the reception area where Jackson told McKenna that he owed him money. After a brief conversation in which McKenna asked how he could “help” him, Jackson pointed his gun at McKenna and shot him, fatally, in the head. The receptionist hid under her desk with another employee. Lieb ran into the office and ducked under a desk. Jackson found her and again pointed a gun to her head. She pleaded for her life, telling the shooter that she had babies at home. She said he seemed puzzled, as if she were too old to have babies, and asked her if she really had babies. She responded affirmatively. He seemed to momentarily process that information and then moved the gun from her head, shooting her instead in the foot.

¶ 8 Jackson walked further into the office where he shot and killed Allen Hoover. He then took Paul Goodson hostage and walked to the firm's lobby, where they were confronted by Chicago Police Department (CPD) officers who had been called to the scene. He was told to drop his weapon, but he quickly moved out of the officers' view and killed Goodson. Jackson then grabbed the 81–year–old Danzig and used him as a human shield. At some point, Jackson opened fire on the officers, who returned fire. Jackson then knelt on the ground with Danzig in front of him and alternately pointed the gun at his own head and at Danzig's. This prompted a CPD “SWAT” officer to shoot Jackson, with the bullet “whizzing” by the war veteran Danzig's head. Another officer then shot Jackson in the chest and he died. Danzig was unharmed.

¶ 9 The one surviving victim and the estates of the three victims who were killed filed wrongful death and survival action complaints against AB and NACA, the owners and/or the management company of the building. NACA was sued individually and as an agent of AB, which was sued for the alleged negligence of its security operation, both in its scope and in its allegedly negligent execution on and before the date of the incident. Discovery before the motions for summary judgment revealed the following information about the security-related activities of defendants.

¶ 10 NACA hired AB to provide security at the 500 West Madison building. The parties entered into a contract the stated goal of which was to “insure the safety of all persons and...