Wise v. Burns International Security Services Corporation, No. 51978-6-I (Wash. App. 12/22/2003)

• Decision Date: 22 December 2003
• Docket Number: No. 51978-6-I,51978-6-I
• Parties: CHRISTOPHER WISE, a single individual, WANDA WISE and KAREY WISE, a married couple, individually, and on behalf of the marital community, Appellants, v. BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, a Delaware corporation; NEWMAN SHOPPING CENTER DEVELOPMENTS, L.P. d/b/a NEWMAN PROPERTIES; H.M.A. ENTERPRISES-SEA-TAC MALL, L.P.; JEFFREY VAN VALKENBURG, a single individual; KENNETH MACE, a single individual; ANTHONY SCOTT, a single individual; and JAMES PARKER, a single individual, Respondents.
• Court: Washington Court of Appeals

Page 1

Unpublished Opinion

CHRISTOPHER WISE, a single individual, WANDA WISE and KAREY WISE, a married couple, individually, and on behalf of the marital community, Appellants, v. BURNS INTERNATIONAL SECURITY SERVICES CORPORATION, a Delaware corporation; NEWMAN SHOPPING CENTER DEVELOPMENTS, L.P. d/b/a NEWMAN PROPERTIES; H.M.A. ENTERPRISES-SEA-TAC MALL, L.P.; JEFFREY VAN VALKENBURG, a single individual; KENNETH MACE, a single individual; ANTHONY SCOTT, a single individual; and JAMES PARKER, a single individual, Respondents.

No. 51978-6-I

Court of Appeals of Washington, Division One.

Filed: December 22, 2003

Appeal from Superior Court of King County. Docket No: 00-2-13175-5. Judgment or order under review. Date filed: 02/10/2003.

Counsel for Appellant(s), Lafcadio H Darling, Gordon Thomas Honeywell, 600 University St Ste 2100, Seattle, WA 98101.

Counsel for Respondent(s), Sylvia Karen Bamberger, Betts Patterson & Mines PS, 701 Pike St Ste 1400, Seattle, WA 98101-3927.

AGID, J.

Christopher, Wanda, and Karey Wise appeal the order dismissing their case on summary judgment. They contend the trial court erred by concluding that the security company and officer owed Christopher no duty of care, finding no admissible evidence to establish a breach of duty, and striking a witness declaration. Because the security company did not agree to protect customers, the trial court did not err by finding that no legal duty existed. We further conclude that the trial court did not err by striking the unsworn witness declaration.

FACTS

In August 1999, 19-year-old Christopher Wise and his friends were at Sea-Tac Mall. There they encountered three teenagers, Anthony Scott, Kenneth Mace, and James Parker, and the group decided to leave together. While in the parking lot, Wise and Scott began to fight. Scott punched Wise in the face twice then walked away with Mace. Shortly thereafter, Scott and Mace walked back to Wise, ripped off his shirt, threw him to the ground, kicked him several times, and stomped on his head.

Jeffrey Van Valkenberg, a Mall security guard, saw the fight. Van Valkenberg worked for Burns International Security Services Corporation (Burns) with whom Sea-Tac Mall contracted for security at the Mall. The parties dispute the time at which Van Valkenberg arrived on the scene and what he did there, but Wise argues that Van Valkenberg was present during most of the altercation and did nothing to stop it. Eventually another security guard arrived and the crowd disbursed. Wise sustained serious injuries.

Wise and his parents (collectively Wise) filed a lawsuit for negligence, negligent supervision, and assault and battery against Burns, Van Valkenberg, Sea-Tac Mall, Kenneth Mace, Anthony Scott, and James Parker. Burns and Van Valkenberg (collectively Burns) are the remaining defendants in this action. In December 2001, Burns moved for summary judgment, arguing that Wise could not establish duty, breach, or proximate cause. Two days before the motion hearing, Wise submitted Kenneth Mace's declaration. It was handwritten, unsworn, and contained no `penalty of perjury' language. Burns moved to strike the declaration.

The trial court granted Burns' motion to strike Mace's declaration because it did not comply with Civil Rule 56. The court also granted Burns' motion for summary judgment on the issues of duty and breach but declined to grant summary judgment on the proximate cause issue. Wise appeals both orders.

DISCUSSION

In reviewing a trial court's decision to grant summary judgment, this court reviews questions of law de novo.¹ The court considers all facts and reasonable inferences in the light most favorable to the nonmoving party.² Absent a genuine issue of any material fact, the moving party is entitled to summary judgment as a matter of law.³ Summary judgment is proper `only if reasonable persons could reach only one conclusion from all of the evidence.'⁴ To establish a negligence claim, a plaintiff must prove the defendant had a duty, breached that duty, the breach resulted in injury to the plaintiff, and proximate cause.⁵ The threshold question is whether the defendant owes a duty of care to the plaintiff.⁶

I. Duty of Care

The existence of a duty is a question of law and is reviewed de novo.⁷ Whether a defendant owes a duty to a plaintiff `depends on mixed considerations of "logic, common sense, justice, policy, and precedent.'''⁸ Here, Wise argues that Burns owed a duty to Mall visitors based on a special relationship and/or premises liability.

A. Duty and Special Relationship

A defendant generally has no duty to prevent a third party from intentionally harming another unless a special relationship exists between the defendant and either the third party or the third party's victim.⁹ Washington courts have recognized a variety of special relationships, including relationships between student and school,¹⁰ innkeeper and guest,¹¹ hospital and patient,¹² business and invitee,¹³ employer and employee,¹⁴ and common carrier and passenger.¹⁵ No Washington court has recognized a special relationship between a security company and a business invitee, but Wise urges this court to do so.

Special relationships are typically `protective in nature, historically involving an affirmative duty to render aid.'<sup>16</sup> They also involve an element of entrustment; that is, one party is in some way entrusted with the well-being of another.<sup>17</sup> `Special relationships are typically custodial or at least supervisory, such as the relationship between doctor and patient, jailer and inmate, or teacher and student.'¹⁸ They are based on one party assuming responsibility for another's safety.¹⁹

There is no evidence that Burns assumed responsibility for the safety of Sea-Tac Mall visitors. The contract between Burns and the Mall specifically states that the services to be provided are solely for the benefit of the Mall, and any services rendered do not confer rights on any other party. The contract does not specifically define which services Burns was to perform, but it limits the scope of services to those established by personnel assignments, patrol inspections, and post orders. Burns' post order for Sea-Tac Mall promised to `be receptive to {the Mall's} needs, observantly survey {the Mall's} premises, use {Burns'} professional presence to deter unlawful or undesired acts, and to report security activities in a timely manner.' Burns further promised to:

Assist visitors and serve as concerned public relations representatives

Protect personnel on the premises

Serve as a deterrent to persons intent on committing criminal acts, including vandalism

Protect proprietary and classified information

Look for and report potential hazards

Restrict access to authorized people

Watch for use of illegal drugs and consumption of alcohol

Monitor materials leaving the facility, helping ensure that company property does not leave without proper authorization{.}{²⁰}

Burns did not explicitly promise to protect Mall visitors. The promise to `{a}ssist visitors and serve as concerned public relations representatives' does not even imply that Burns intended to protect customers from criminal harm.²¹ In fact, Burns only promised to protect Mall personnel, and the only mention of criminal harm is in the context of deterrence.²² The agreement between Burns and Sea-Tac Mall does not indicate that Burns assumed responsibility for, or was entrusted with, visitors' safety. While it is counterintuitive for a security guard to be present to protect personnel but not visitors, this is nevertheless precisely what the contract provided. A special relationship did not exist between the security company and business invitees like Christopher Wise. Wise nevertheless argues that there is a special relationship if the defendant places the plaintiff in a worse situation, citing to Brown v MacPherson's, Inc.,²³ Folsom v. Burger King,²⁴ and Restatement (Second) of Torts sec. 323. But Wise misstates the law. Brown and Folsom held that a special relationship develops when a person undertakes to render aid to someone in danger and that liability can arise if the volunteer negligently performs the voluntarily undertaken duty.²⁵ This rule does not apply here because Burns did not undertake to protect or render aid to Mall visitors. Section 323 of the Restatement is also inapplicable here, as it applies only when the plaintiff is the person with whom the negligent actor contracted.²⁶ Restatement (Second) of Torts sec. 324A is more analogous, as it pertains to the negligent actor's liability to third parties. According to this section, one who undertakes to render services to another, which is necessary for a third party's protection, is liable to the third party for resulting harm in certain situations.²⁷ But Washington has not adopted Section 324A.²⁸ And, even if it had, Burns did not undertake to render services necessary for a Mall visitor's protection.

Wise also argues that there is a special relationship because Burns voluntarily agreed to protect persons on the Mall premises. Wise states that `there is no dispute that the safety of business invitees is within the scope of Defendant Burns' assigned duties.' But it is indeed disputed whether business invitees fall within the scope of Burns' agreement with the Mall, and Wise fails to provide any evidence that Burns agreed to protect all persons on Mall premises.

Finally, Wise argues that he has not asserted a claim based on contract or third- party beneficiaries, and thus the contract between Burns and Sea-Tac Mall is irrelevant to the special relationship inquiry. But there cannot be a special relationship without some discernible agreement on Burns' part to protect or render aid to Mall visitors. Because there is no such agreement, there is no connection between Burns and Wise that is sufficient to create a special relationship.

B. Duty and Premises Liability

In Washington, there is a special relationship between a...