Sharp v. W.H. Moore, Inc., 16667

• Decision Date: 31 July 1990
• Docket Number: No. 16667,16667
• Citation: 118 Idaho 297,796 P.2d 506
• Parties: Patricia SHARP, Plaintiff-Appellant, v. W.H. MOORE, INC., an Idaho corporation; Anthony "Mike" Barbero, d/b/a Security Investments; and Robert Goold, d/b/a Security Police, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 506

796 P.2d 506

118 Idaho 297

Patricia SHARP, Plaintiff-Appellant, v. W.H. MOORE, INC., an Idaho corporation; Anthony "Mike" Barbero, d/b/a Security Investments; and Robert Goold, d/b/a Security Police, Defendants-Respondents.

No. 16667.

Supreme Court of Idaho.

July 31, 1990.

Wilson & Carnahan, Boise, for plaintiff-appellant. Robert R. Chastain, argued.

Quane, Smith, Howard & Hull, Boise, for defendants-respondents W.H. Moore, Inc. and Anthony Barbero. Robert C. Moody, argued.

Moffatt, Thomas, Barrett, Rock & Field, Boise, for defendant-respondent Robert Goold. Mark S. Prusynski, argued.

BISTLINE, Justice.

ON REHEARING

A rehearing was granted; counsel reargued; the Court has reconsidered, and has determined to substitute this opinion for the Court in place of 1989 Opinion No. 134, which is in significant respects different, and is now withdrawn.

On May 12, 1985, Patricia Sharp was an employee of the Jess Swan Insurance Agency, whose offices were located in a building leased by Swan Insurance from W.H. Moore, Inc. W.H. Moore had contracted with Security Investment to act as property manager for the building. Security Investment, in turn, contracted with Security Police to provide the protective patrols for the building.

On the Sunday morning in question, Sharp was working alone in her office at 1199 Shoreline Drive, Boise, Idaho. While there, she was assaulted and raped by an unknown assailant who may have gained access to the building through an unlocked third floor fire escape door.

Sharp filed her complaint and demand for a jury trial on January 24, 1986. W.H. Moore, Inc. and Security Investments filed a motion for summary judgment on May 28, 1986. Security Police filed its motion for summary judgment on June 26, 1986. The district court granted both motions on the basis that, under the circumstances of this case, the defendants owed no duty of care to Sharp.

The sole issue is whether the district judge erred in this determination. Judge Newhouse discussed the matter in the following terms It is a matter of law to determine whether a duty of care is owed in the factual circumstances pled by the plaintiff.... In this case the plaintiff has alleged the breach of the duty of care occurred when the defendants Moore and Barbero allowed a third floor fire escape door to have a faulty lock that could be left unlocked. The plaintiff alleges that Robert Goold and his security company breached a duty of care in not inspecting the lock to make sure the door was locked on the night of May 11, 1985, and the morning of May 12, 1985. It is speculated by the plaintiff and the police that the intruder gained entry into the building by going in through the third floor fire escape door. The rape and assault in this cause of action occurred in the secured area of the plaintiff's employer's offices on the second floor. The plaintiff has admitted in her deposition that she left unlocked the back door of her employer's second floor offices when she went to the bathroom. Sometime thereafter, the assault and rape occurred inside the offices. To further complicate this issue is the deposition of Lowell E. Michael, taken on May 28, 1986, in which Mr. Michael states he was the security guard on duty that night and had the job of checking the doors to make sure they were secured. Mr. Michael, in his deposition, swore under oath that he checked the third floor fire escape door and it was secured at the time of his check around midnight and 1:00 a.m. This court is of the belief that even if the third floor door had been negligently left unlocked and had not been inspected by the security guard on the night of May 11, 1985, this court can not as a matter of law determine that the security company breached its duty of care owed to the plaintiff. The plaintiff herself could have prevented the injury if she had not negligently left the door unlocked to her offices on the second floor. This court in reviewing the totality of the circumstances does not believe that the alleged breach of the duty by the defendants is of a high enough degree of foreseeability to warrant a finding of a breach of duty that can be imposed against the defendants. Therefore this court grants the motion for summary judgment on behalf of all the defendants in this case.

Memorandum Decision and Order, R. Vol. 1 at 29-32 (emphasis added).

Review of an order granting summary judgment requires an appellate court to make two determinations: (1) Whether there remains a genuine issue as to any material fact; and (2) Whether the moving party was entitled to judgment as a matter of law. Mitchell v. Siqueiros, 99 Idaho 396, 582 P.2d 1074 (1978). In making those determinations, the Court will construe the facts and any reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, in this case, Sharp. Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1986); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Ct.App.1984).

With this standard of review in mind, a reading of the trial judge's opinion, particularly the portions excerpted above, clearly demonstrates reversible error. The district court barely touched upon the only question of law before it, whether the defendants owed Sharp a duty of care. Instead the district court reached and decided factual issues that are normally reserved for the jury--defendants' breach of a duty, if any, and the plaintiff's comparative negligence, if any. The court's view that "[t]he plaintiff herself could have prevented the injury if she had not negligently left the door unlocked to her offices on the second floor," appears to have weighed particularly heavily in the court's decision. In addition, the court actually reversed the burden of persuasion, stating that "... this court cannot as a matter of law determine that the security company breached its duty of care owed to the plaintiff." Sharp did not pretend that she was entitled to summary judgment as a matter of law. It was both defendants who made that contention. It was therefore the defendants' burden to show that, even construing the facts and inferences most favorably to Sharp, the defendants were entitled to a judgment as a matter of law. This they did not do. The summary judgment in defendants' favor must therefore be reversed.

However, this reversal does not end our inquiry. "[I]n giving a decision, if a new trial be granted, the court shall pass upon and determine all the questions of law involved in the case presented upon such appeal, and necessary to the final determination of the case." Idaho Code § 1-205. This is true even if the reversal is of a summary judgment rather than a judgment rendered after a trial. Layrite Prods. Co. v. Lux, 86 Idaho 477, 388 P.2d 105 (1964). It therefore remains for us to determine whether, as a matter of law, any of the defendants owed Sharp a duty of care under the circumstances of this case.

I. THE LANDLORD

The question of whether a landlord owes a duty of reasonable care to the tenants of the property was settled by our recent decision in Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984). There, Justice Donaldson, with three judges agreeing, wrote:

[W]e today decide to leave the common-law rule and its exceptions behind, and we adopt the rule that a landlord is under a duty to exercise reasonable care in light of all the circumstances.

We stress that adoption of this rule is not tantamount to making the landlord an insurer for all injury occurring on the premises, but merely constitutes our removal of the landlord's common-law cloak of immunity.... We hold that defendant Stearns did owe a duty to plaintiff Stephens to exercise reasonable care in light of all the circumstances, and that it is for a jury to decide whether that duty was breached.

106 Idaho at 258, 678 P.2d at 50 (emphasis added).

In addition to the clear rule of Stephens, other legal principles favor the recognition of a requirement of due care in the circumstances present here. One is the familiar proposition that one who voluntarily assumes a duty also assumes the obligation of due care in performance of that duty. A landlord, having voluntarily provided a security system, is potentially subject to liability if the security system fails as a result of the landlord's negligence. Jardel Co. v. Hughes, 523 A.2d 518 (Del.1987) (having provided security, owner must anticipate conduct of third persons); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); accord Rowe v. State Bank of Lombard, 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358 (1988); Lay v. Dworman, 732 P.2d 455 (Okla.1987) (landlord's control over security creates potential liability where tenants rely on security). While the landlord/tenant relationship does not in and of itself establish a duty to keep doors locked, once Moore and Security Investments had initiated a locked door policy and had employed a security service with the intent of keeping the doors locked, they undertook such a duty and are subject to liability if they failed to perform that duty with a reasonable standard of care.

Another reason for finding a duty of care to exist in this case is the general rule that each person has a duty of care to prevent unreasonable, foreseeable risks of harm to others. Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135 (1980); Harper v. Hoffmann, 95 Idaho 933, 523 P.2d 536 (1974).

Every person has a general duty to use due or ordinary care not to injure others, to avoid injury to others by any agency set in operation by him, and to do his work, render services or use his property as to avoid such injury. [Citations omitted.] The degree of care to be exercised must be commensurate with the danger or hazard connected with the activity. [Citations omitted.]

Whitt v. Jarnagin, 91 Idaho 181, 188, 418 P.2d 278, 285 (1966). Whether the duty attaches is largely a question for the trier of fact as to the foreseeability of the risk....