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SLAIN SECURITY GUARD'S WIDOW CAN'T SUE APARTMENT COMPLEX FOR HUSBAND'S DEATH

If you want to read an opinion that illustrates the potential complexity of premises liability law in Tennessee, the recent case of Estate of Cunningham v. Epstein Enterprises is a good place to start.


The main opinion can be found here: http://www.tsc.state.tn.us/sites/default/files/cunninghamblakeopn_0.pdf


The separate concurring opinion can be found here: http://www.tsc.state.tn.us/sites/default/files/cunninghambcon.pdf


The bottom-line result of this lengthy opinion should surprise no one: absent special circumstances, the widow of a security guard cannot maintain a suit for negligence against the very apartment complex at which the security guard was hired to provide armed security services when the security officer is (tragically) shot while providing such services at the complex.


This is particularly true where the contract between the security company (the security guard's employer) and the apartment complex specifically provided that the complex was not relying on the security company to advise it regarding the adequacy of security measures and was simply paying for a certain number of hours of coverage by a security officer.


The widow argued that Tennessee law requires an employer to provide employees and contractors with a safe place to work. While this is true, there has historically been an exception where an independent contractor undertakes an "inherently dangerous activity." An example of such an activity in Tennessee is the case where a roofer is hired to repair a defective roof and is injured while conducting that repair. In this case, the traditional approach has been that the independent contractor (the roofer) can't sue over the very defective condition he was hired to fix.


The court in Estate of Cunningham noted that the "modern trend" in other states was to move away from the traditional rule and instead focus primarily on the risk of harm that should reasonably be anticipated by the employer or landowner. Under this approach, the contractor's "assumption of the risk" is still a factor to be considered, but may not be determinative.


While this case illustrates that the law is full of general rules, corollaries, and exceptions, in Estate of Cunningham, the security contract was key to resolving the case. The contract provided:


It is specifically understood that [the security company] has not reviewed the security requirements of the [apartment complex], but is only providing the number of personnel, armed or unarmed, and hours, as requested by the [apartment complex]. [Security company] makes no representations that the security requested is reasonably adequate for the [apartment complex's] purposes. The [apartment complex] is relying upon its own knowledge and investigation as to the number and type of security personnel required.


With this particular contractual language, and in the absence of other specific facts that would tend to give rise to a duty or responsibility on the part of the complex to the security officer, the court held that there was no legal duty or responsibility owed by the complex to the slain security officer to protect him from the very risks he was hired to deter or prevent. (The officer was shot by criminals who were fleeing from a separate, but nearby, apartment complex. One of these "intruders" was shot in the head, presumably by the security officer, though we do not know that for sure based on the facts stated in the opinion.)


The final point to be made is that the widow, in response to the apartment complex's motion for summary judgment (which is similar to a motion to dismiss), asked for additional time to conduct discovery and investigate the facts. She wanted to discover police records about prior crimes in the area and on the premises of the apartment complex. She also attempted to rely on the dangerousness of the area of Memphis where the apartment complex was located as a fact that should have made the shooting foreseeable to the complex (and therefore arguably created a duty of care or responsibility on the part of the complex). These attempts were unsuccessful. Without a specific showing by sworn affidavit, as required by Tennessee law, as to why the widow needed more time and the reasons she had not performed this discovery and investigation prior to the summary judgment hearing, it was appropriate to dismiss the case at the hearing.


Some take-aways from this case are:


1. Premises liability law in Tennessee can be complex (and convoluted), but the facts of the particular case are important in determining the result that courts will reach.


2. One who employs an employee or independent contractor is under a legal duty, generally, to provide the employee or contractor with a safe place to work.


3. There are exceptions to the foregoing, including where the person employed is an independent contractor and where the work to be performed involves an inherently dangerous activity.


4. There can be an exception to the exception, however, where the employer misrepresents the situation or where there are other facts that would muddy the waters about the employer's involvement or level of fault. For example, in one case, the employer provided inaccurate information to electricians who were performing a high-voltage electrical project on a college campus. The electricians were later injured, and it was held that the college could not rely on the "independent contractor" exception or the "inherently dangerous activity" exception to the general rule that an employer must provide a safe place to work where the inaccurate information played a part in the injuries to the electricians.


5. When faced with a properly supported motion for summary judgment, sooner is better than later for marshaling evidence in opposition to the motion, and if additional time is going to be sought, an appropriate affidavit must be filed in accordance with applicable rules of civil procedure. The affidavit should explain why additional time is needed and why the information could not have been obtained previously, in addition to what is hoped to be gained by the additional discovery or information.

MBG

Parker, Lawrence, Cantrell & Smith

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