FIRST DIVISION November 17, 2014

No. 1-12-3749

LESLIE BLANKENSHIP, Executrix of the ) Appeal from the Estate of Ellen Polivka, ) Circuit Court of ) Cook County. Plaintiff-Appellant, ) ) v. ) No. 06 L 05894 ) SECURITAS SECURITY SERVICES USA, INC., ) d/b/a Burns International Security Services, ) Honorable ) William Gomolinski, Defendant-Appellee. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Leslie Blankenship as executrix of the estate of the deceased, Ellen Polivka,

appeals from the order of the circuit court granting summary judgment in favor of defendant,

Securitas Security Services USA, Inc. (Securitas), on plaintiff's negligence and wrongful death

claim. On appeal, plaintiff contends the court erred in granting summary judgment where a

genuine issue of material fact exists as to whether Securitas undertook a duty to provide Ms.

Polivka with security at the time and place she was attacked. For the following reasons, we

affirm. No. 1-12-3749

¶2 JURISDICTION

¶3 The trial court granted summary judgment in favor of Securitas on December 7, 2012.

Plaintiff filed the notice of appeal on December 18, 2012. Accordingly, this court has

jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final

judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶4 BACKGROUND

¶5 The decedent, Ms. Polivka, worked as a part-time receptionist for Centegra Health

System (Centegra), which owns and operates a mental health facility at 527 South Street in

Woodstock, Illinois. Centegra's director of safety and security, William Riggs, was responsible

for creating a security plan for its facilities. At the South Street facility, the security plan called

for two uniformed, unarmed security officers working eight-hour shifts. When not patrolling

the premises, the officers were stationed in a specially designated security room located on the

second floor. This room was not within view of the public and contained camera-monitoring

equipment installed by outside contractors at Centegra's direction. The cameras provided still

snapshots rather than continuous video. The security officers' duties included monitoring the

cameras, conducting random patrols of the facility, creating identification badges, and

responding to calls for assistance by employees providing treatment to patients in the facility.

Decisions regarding the number of security officers per shift, the precise patrol route and

locations officers must follow, the formulation of post orders that outlined the officers' duties,

the training required for security officers, and the type of uniforms worn were made by Centegra

administrators.

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¶6 In his deposition, Mr. Riggs stated that Centegra required security officers to wear "hard

style" or police-style uniforms. Centegra chose this type of uniform because of the impact it

would have on "violent and combative patients," who "respond better to authority when it looks

like authority in the form of police." However, Centegra did not want the security officers

stationed in main areas such as the main lobby. It did not want people coming into its facilities

"to get the impression they were walking into a dangerous area or a police station." Therefore,

the security officers were stationed in a room on the second floor, away from public view.

¶7 On July 1, 2004, Centegra executed a contract with Securitas to provide security services

at its facilities pursuant to its security plan. The contract states that Securitas agrees to provide

"uniformed security guard services to Centegra at the Facilities in substantial conformance with

the duties, instructions, procedures, policies, and other provisions contained in the then current

Centegra Policies and Procedures Manual, incorporated herein by this reference." It also states

that Securitas "does not and will not under the terms hereof, or otherwise, provide or furnish any

service that directly or indirectly requires armed personnel or guard animals." Furthermore, an

amendment modifying the contract between Centegra and Securitas explicitly sets forth:

"in no event will [Securitas] or its insurers be liable for any:

(a) Claim, loss, damage or expense arising from:

***

iii. An act of war, a violent or armed action, hi-jacking or act of terrorism."

¶8 Lawrence Hucksteadt was a patient at Centegra facilities. Mr. Riggs and other Centegra

security administrators stated that they had no prior knowledge of any incidents involving

Hucksteadt at their facilities. On July 16, 2004, Hucksteadt participated in a treatment program

in the basement of the South Street facility until noon, at which point he left treatment.

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According to the note in his records, Hucksteadt became angry and anxious and felt like he could

not breathe. He stated that he was going to the veterans affairs (VA) hospital and would contact

the counselor in a few days. On his disclosure form, Hucksteadt indicated that he did not want

his participation in the outpatient behavioral services program disclosed to anyone. According

to his treating physician, due to Hucksteadt's preference on the disclosure form, and the fact that

when he left the program Hucksteadt did not voice any threat about himself or toward another

individual, the physician did not share any information regarding Hucksteadt at the facility.

¶9 Ms. Polivka was at her station in the main lobby of the South Street facility on July 16,

2004. In the early afternoon, Ms. Polivka encountered Hucksteadt, who left the building

without incident. Hucksteadt returned to the facility several hours later carrying a paint can and

smoking a cigarette. He stayed around the front entrance before entering the lobby. He then

quickly entered the lobby, doused Ms. Polivka with gasoline from the can and set her on fire.

¶ 10 On July 16, 2004, Securitas security officers Matthew Tremethick and Adam Lockinger

were on duty at South Street. Both were inside the security room on the second floor. Officer

Tremethick had just returned from patrolling the facility to relieve Officer Lockinger, who was

monitoring the cameras. Officer Lockinger was in the process of making an identification

badge for a Centegra employee when Officer Tremethick noticed the fire in the main lobby on

the monitor. Both officers went to the lobby, where they found fire and smoke. Officer

Tremethick got a fire extinguisher and used it to douse the flames on Ms. Polivka. Officer

Lockinger called for fire and ambulance assistance.

¶ 11 Kelly Lee-Wisz, a witness who was leaving the South Street facility as Hucksteadt

entered, stated that she observed Hucksteadt walking into the lobby with a lit cigarette and a pail.

Since she had a baby with her, she noticed his cigarette and thought it was strange that someone

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would walk into the lobby with a lit cigarette. She continued walking down the street until she

heard screams, and when she looked back, she saw flames. Hucksteadt had doused Ms. Polivka

with an accelerant contained in the unmarked pail and set her on fire. Ms. Lee-Wisz then saw

Hucksteadt walk out quickly and she yelled out "that's him; he did it."

¶ 12 In her deposition, Laurie Parisi, Centegra's clinical manager, stated that prior to this

incident she spoke to Hucksteadt on the phone approximately five times in the span of a week.

Police had earlier removed Huckstead from another Centegra facility for "disruptive behavior"

and he thought the hospital was seeking charges against him regarding the incident. He called

to insist that Centegra drop the charges. Centegra, however, never filed charges against

Hucksteadt regarding the "disruptive behavior" and removal.

¶ 13 On June 6, 2006, plaintiff filed her multiple-count wrongful death and survival action

against Securitas. Both plaintiff and Securitas retained the services of expert witnesses on the

issue of security services. Anthony Potter, plaintiff's expert, opined that Securitas was

negligent in its actions and inactions surrounding the incident. He stated that a security guard

must be proactive to detect problems and provide an effective level of deterrence. In his

opinion, one of the officers should have been patrolling at the time, as opposed to both officers in

the security room on the second floor. Mr. Potter also found their camera-monitoring training

subpar. He believed that if one of the officers had been monitoring the entrance correctly he

would have noticed Hucksteadt's suspicious behavior and confronted him before he could set fire

to Ms. Polivka. Mr. Potter opined that the security officers' deficiencies in failing to observe

Hucksteadt's suspicious behavior and react accordingly were the proximate cause of Ms.

Polivka's death.

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¶ 14 Securitas's expert, Francis Murphy, opined that at the time of the incident Centegra's

security plan, monitoring equipment, and post orders were reasonable and adequate, and the

officers had more than appropriate training for the job. He further concluded that the attack

was not reasonably foreseeable and Securitas's officers reacted appropriately and consistently

with Centegra's security plan and post orders, and nationally accepted security practices.

Securitas also retained the services of forensic behavioral science consultant Peter Smerick, who

concluded that the incident was not foreseeable even though Hucksteadt has a criminal history.

Also, Hucksteadt's history of disruptive behavior and "non-threatening" telephone calls occurring

a month or more before the incident would not have put anyone on notice that he would attack

Ms. Polivka in such a violent manner. Hucksteadt's treating physician did not notice any "red

flags" and Mr. Smerick opined that it was unrealistic to expect these security officers to

anticipate violence from Hucksteadt when they did not have any information about him.

¶ 15 Securitas filed a motion for summary judgment which the trial court granted. Plaintiff

then filed a motion for reconsideration. In denying the motion to reconsider, the trial court

determined that the contract between Centegra and Securitas "did not guarantee the personal

safety of any person; and Securitas had no liability arising from criminal acts of third parties."

It further found that Securitas's undertaking of services was limited to providing staffing with

unarmed security guards and to maintain a presence. The trial court reaffirmed its finding that

Securitas owed no duty to protect Ms. Polivka from Hucksteadt's attack. Plaintiff filed this

timely appeal.

¶ 16 ANALYSIS

¶ 17 Plaintiff contends that the trial court erred in granting summary judgment because an

issue of material fact exists as to whether Securitas undertook a duty to provide security to Ms.

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Polivka, and whether Securitas's employees were negligent in performing their duties.

Summary judgment is granted only if the pleadings, depositions, and admissions on file, together

with any affidavits, reveal no genuine issue of material fact and that the moving party is entitled

to judgment as a matter of law. Purtill v. Hess,

(1986). In deciding a

motion for summary judgment, the evidence is viewed liberally in favor of the nonmoving party.

We review the trial court's grant of summary judgment de novo. Fields v. Schaumburg

Firefighters' Pension Board,

(2008).

¶ 18 In order to prevail in a negligence action, plaintiff must allege facts showing a duty owed

by defendant to plaintiff, a breach of that duty, and an injury proximately caused by the breach.

Chandler v. Illinois Central R.R. Co.,

(2003). "The existence of a duty

depends on whether the plaintiff and the defendant stood in such a relationship to each other that

the law will impose upon the defendant an obligation of reasonable conduct for the benefit of the

plaintiff." Bajwa v. Metropolitan Life Insurance Co.,

(2004). Whether

a duty of care exists is a question of law. Marshall v. City of Centralia,

(1991).

¶ 19 Generally, one does not owe a duty of care to protect another from the criminal acts of

third persons. MacDonald v. Hinton,

(2005). The four exceptions to

the rule are (1) when a special relationship exists between the parties and the harm is foreseeable;

(2) when an employee faces imminent danger and this fact is known to the employer; (3) when a

principal fails to warn an agent of an unreasonable risk of harm regarding the agency; and (4)

when one party voluntarily or contractually assumes a duty to protect another from the acts of a

third party. Aidroos v. Vance Uniformed Protection Services, Inc.,

(2008). Plaintiff contends that the fourth exception is applicable here. She argues that

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Securitas had a duty to protect Ms. Polivka from the harmful acts of Hucksteadt because

Securitas agreed to provide "security services" pursuant to its contract with Centegra.

¶ 20 In Aidroos, Navistar International Transportation Corp. (Navistar) hired defendant Vance

Uniformed Protection Services, Inc. (Vance), to provide unarmed, uniformed security officers

pursuant to the terms and conditions of their contract. Aidroos,

. The

contract specifically states that the presence of security personnel " 'is designed to deter and

reduce certain types of conduct and risks. However, [Vance is] not a law enforcement agency.

*** [Vance does] not insure or guarantee the personal safety of any person or the security of any

property. *** [Vance would] not have any liability arising from the criminal acts of any third

parties.' "

.

¶ 21 Navistar designed, installed, and maintained the keycard security system used to access

various buildings, and it prepared the post orders that Vance security officers would follow in

performing their duties. The post orders provided that security personnel would patrol

Navistar's property and monitor employees, visitors, and vehicle traffic. Security officers

performed these duties "to protect and prevent loss from fire, theft, sabotage, vandalism, or

horseplay."

. Furthermore, security officers should not allow anyone to bring items

that might be harmful to Navistar or its employees, and discharged employees should not be

admitted.

Vance's security officers were unarmed and communicated through the use of

two-way radios.

¶ 22 On the morning of February 5, 2001, Willie Baker, who had been discharged from

Navistar in 1995, entered an unlocked door to the gate guardhouse. Baker carried a golf bag in

which he concealed a gun. Security officer Latessa Diamond was on duty at the time and asked

if she could help Baker. Baker told her that he wanted to drop the golf bag off with an

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employee. While Diamond looked at the employee directory, Baker put a gun to her head and

forced her to walk with him to building 10. Although the door to that building was supposed to

be locked, they entered without use of a keycard. Baker then proceeded to shoot randomly at

employees in the building, killing four and injuring others before killing himself.

.

¶ 23 The plaintiffs filed claims for negligence, wrongful death, and survival damages. They

claimed that Vance owed a duty to protect Navistar employees when it voluntarily entered into

the security services contract. Plaintiffs argued that Vance "implicitly agreed to protect

plaintiffs when [it] undertook, contractually, responsibility to deter and reduce certain types of

conduct and risks" including not permitting discharged employees to enter the premises.

¶ 24 This court, however, found that the trial court properly granted summary judgment in

favor of Vance because Vance owed no duty under the contract to protect the plaintiffs from the

criminal acts of third parties.

. It reasoned that under the voluntary undertaking

theory of liability, the duty of care imposed upon Vance is limited to the extent of the

undertaking.

. The contract between Vance and Navistar specifically stated that

Vance did not guarantee the personal safety of any person and had no liability arising from the

criminal acts of third parties. Instead, "the extent of [Vance's] undertaking was limited to

providing unarmed security officers who would maintain a presence, observe and report in order

to deter loss from fire, theft, sabotage, vandalism, or horseplay."

. Prior to this

incident, Navistar had no history of workplace violence and the post orders did not require the

security officers to keep the gate guardhouse door locked. Furthermore, since the record

reflected that Diamond complied with the post orders on the day of the incident, the court

determined that she performed her duties with reasonable care.

.

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¶ 25 Similar to the situation in Airdoos, Securitas' security officers wore uniforms but were

unarmed, and Centegra was responsible for the design of the security system and procedures, and

for the equipment. Pursuant to the contract, officers patrolled the premises following routes

dictated by Centegra, monitored the cameras, created employee identification badges, and

responded to calls for assistance by employees providing treatment to patients in the facility.

However, Centegra did not want the security officers stationed in main areas such as the main

lobby. It did not want people coming into its facilities "to get the impression they were walking

into a dangerous area or a police station." Therefore, the security officers were stationed in a

room on the second floor, away from public view. The contract between Centegra and

Securitas specifically states that Securitas "does not and will not under the terms hereof, or

otherwise, provide or furnish any service that directly or indirectly requires armed personnel or

guard animals." Furthermore, an amendment modifying the contract between Centegra and

Securitas explicitly sets forth that "in no event will [Securitas] or its insurers be liable" for "any

claim, loss, damage or expense arising from" a violent action.

¶ 26 Hucksteadt entered Centegra's South Street facility holding an unmarked pail and a lit

cigarette. Although witness Kelly Lee-Wisz thought it was strange that someone would enter

the facility with a smoking cigarette, she did not view the situation as dangerous and she kept

walking away from Hucksteadt. Hucksteadt then proceeded to douse Ms. Polivka with an

accelerant and set her on fire. Securitas did not contract with Centegra to provide protective

guard services to Centegra personnel. To find that the security officers had a duty to protect

Ms. Polivka from this horrifying and violent act would go beyond the extent of their contractual

undertaking. Furthermore, the contract explicitly precludes liability for "any claim, loss,

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damage or expense arising from" a violent action. We find, as did the court in Airdoos, that

Securitas did not owe a duty to protect Ms. Polivka from Hucksteadt's violent act.

¶ 27 The case plaintiff cites in support of her contention, Pippin v. Chicago Housing

Authority,

(1979), is distinguishable from the case at bar. In Pippin, the contract

specifically provided for guard and protection services from which our supreme court found that

a security services company had a duty to protect persons lawfully on the premises from criminal

conduct.

. In making this determination the court relied on the same general

principle cited in Airdoos, that a defendant's duty under a contract is limited to the extent of the

voluntary undertaking.

. As discussed above, the contract between Centegra and

Securitas did not provide for such services.

¶ 28 Plaintiff also contends that the security officers negligently performed their contractual

duties which proximately caused Ms. Polivka's injuries. Plaintiff argues that Securitas,

pursuant to the contract, agreed to prevent access by unauthorized persons. Therefore, in her

view, the security officers' responsibility is "to be proactive," to detect and deter threats, and "to

respond to any type of threat." On the day of the incident, however, she claims the security

officers did not pay close attention to the monitors and therefore missed observing Hucksteadt's

suspicious activity. She also asserts they did not patrol the outside perimeter of the facility

leaving that area "neglected and open for unauthorized individuals to roam."

¶ 29 We are not persuaded by plaintiff's arguments. Centegra, not Securitas, was responsible

for designing the security plan used by Securitas, including the patrol route taken by the security

officers and the post orders these officers must follow in performing their duties. The evidence

shows that on the day of the incident, the officers patrolled the facility using the typical route of

walking the hallways and corridors of each floor. At the time of the incident, Officer

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Tremethick had just returned from patrolling the facility to relieve Officer Lockinger, who was

monitoring the cameras. Officer Lockinger was in the process of making an identification

badge for a Centegra employee when Officer Tremethick noticed the fire in the main lobby on

the monitor. Both officers quickly went to the lobby where Officer Tremethick used a fire to

douse the flames on Ms. Polivka. Meanwhile, Officer Lockinger called for fire and ambulance

assistance. There is no evidence that Officers Tremethick and Lockinger deviated from their

post orders on the day of the incident.

¶ 30 Furthermore, even if the security officers had monitored the cameras more carefully, they

would not have been able to prevent Hucksteadt from setting Ms. Polivka on fire. Witness

Kelly Lee-Wisz observed Hucksteadt walking into the lobby with a lit cigarette and a pail.

Since she had a baby with her, she noticed his cigarette and thought only that it was strange

someone would walk into the lobby with a lit cigarette. She, however, did not suspect that

Huckstead was about to engage in criminal or violent activity because she continued walking

down the street until she heard screams. If a witness directly observing Hucksteadt did not

suspect he was a danger, it is unlikely the security officers would have sensed anything

suspicious while viewing stop motion snapshots of Hucksteadt outside the facility.

¶ 31 Plaintiff also argues that the security officers should have been more "proactive" and

performed activities to protect personnel and deter criminal activity. Plaintiff contends that

Securitas agreed to provide such services through its post orders. As discussed above, Centegra

formulated the post orders, not Securitas. Additionally, Securitas's statements that it would

protect personnel and deter criminal activity come from its general mission statement, which was

apparently attached to the actual post orders. However, the post orders detailing the specific

duties of the security officers at Centegra's South Street facility are not included in the record.

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The appellant bears the burden of providing this court with a sufficiently complete record to

allow for meaningful review. Foutch v. O'Bryant,

(1984). Without a

sufficiently complete record, a reviewing court will presume that the trial court's ruling had a

sufficient legal and factual basis.

We find that the security officers complied with their

post orders and performed their duties with reasonable care. See Aidroos,

.

¶ 32 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 33 Affirmed.

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