Defense Digest

New Jersey - Workers' Compensation
Is A Duty Of Care Owed By A Landowner To A Security Guard, Hired By An Independent Contractor, Who Was Providing Security Services To The Premises?

There are a multitude of cases which assert that, while there exists a non-delegable duty to protect invitees, there is no duty to protect invitees from the very work they were hired to perform.  While these cases do not involve injured security guards, they certainly involve independent contractors and, thus, are clearly analogous. Furthermore, it is clear that other jurisdictions bar claims by security guards when injured by the criminal acts of a third party.

Moore v. Schering Plough, Inc., 328 N.J. Super. 300 (App. Div. 2000), appears to be the only reported case that deals with the issue; however, even Moore is not entirely on point.  Moore involves a situation where the plaintiff security guard, while performing his nightly rounds, was injured when he slipped and fell on an accumulation of snow.  The Appellate Division noted that, as a general rule, "a landowner has 'a non-delegable duty to use reasonable care to protect invitees against known or reasonably discoverable dangers'."  The Appellate Division ultimately remanded the case, holding that the security guard was a "business invitee owed a duty of reasonable care at the time of his injury, even as to weather conditions."  Notwithstanding the aforementioned decision, the court nonetheless provided some valuable insights into situations where a security guard is injured by the criminal acts of a third party.

Specifically, the court noted that other jurisdictions bar claims, "and understandably so," by security guards who are victims of violent assaults while performing their duties. Further, the Moore Court went on to indicate that a landowner "'[i]s under no duty to protect an employee of an independent contractor from the very hazard created by doing the contract work'."  Moreover, this exception exists because "'the landowner may assume that the independent contractor and [its] employees are sufficiently skilled to recognize dangers associated with their task and adjust their methods accordingly to ensure their own safety'."  The aforementioned exception "invariably involve[s] the 'very work the contractor was hired to perform'." 

Although the court in Moore found that a duty of reasonable care existed to the security guard, it clearly found this in the limited context of a security guard injured by the weather conditions.  On the contrary, that situation is quite different and distinguishable from the situation in which a security guard is injured by the very work he was hired to perform.  Furthermore, relying on the reasoning cited above by the court, it appears as though the New Jersey Appellate Division would likely hold that no duty exists to a security guard injured by the very hazards that are inherent to his work.  In fact, many cases have held this true, albeit in different employment fields.

Dawson v. Bunker Hill Plaza Associates, 289 N.J. Super 309 (App. Div. 1995), involved a personal injury products liability tort action in which several carpenters were injured when the roof trusses they were erecting collapsed, throwing the plaintiffs to the floor.  The plaintiffs instituted suit for personal injuries against, among others, the defendant land owner of the shopping center where the trusses were being built.  The court in Dawson ultimately upheld the lower court's grant of summary judgment in favor of the defendant by reasoning that, although a landowner has a non-delegable duty to use reasonable care to protect invitees, "an owner is not responsible for harm which occurs to an employee as a result of the very work which the employee was hired to perform."  Moreover, the court opined that "the duty to provide a reasonably safe place to work is relative to the nature of the invited endeavor and does not entail the elimination of operational hazards which are obvious and visible to the invitee upon ordinary observation and which are part of or incidental to the very work the contractor was hired to perform."  However, the court also noted that a landowner would not escape liability if the landowner retains control "over the manner and means by which the work is to be performed, where the work constitutes a nuisance per se or where one knowingly engages an incompetent contractor."  

The Dawson Court indicated that the danger of trusses collapsing was a recognized risk to constructing the roof trusses.  Thus, the court opined that the defendant landowner did not owe a duty to the plaintiffs, as employees of an independent contractor, to prevent injury from a "risk which was incident to the very task they were hired to perform..."  In addition, the court noted that the defendant was entitled to rely upon and assume that the general contractor had sufficient skills to safely erect roof trusses and protect its employees from the risks incident to their work. 

Additionally, in Cassano v. Aschoff, 226 N.J. Super. 100 (App. Div. 1988), the plaintiff brought suit against a landowner for injuries he suffered when struck by a falling tree limb during the course of his employment to remove a large tree.  The court affirmed the dismissal of the plaintiff's action against the defendant landowner, relying on the principal that "the landowner's duty to invitees does not by itself protect employees from the very dangers that their work creates."  Moreover, the court indicated that New Jersey courts adhere to the rule "that landowner liability does not extend to employees of an independent contractor whose injury results from the very risks which are inherent to the work they were hired to perform." 

As recently as 2003, the New Jersey Supreme Court has even stated that "'[t]he general principle is that the landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work, provided that the landowner does not retain control over the means and methods of the execution of the project."  Muhammad v. New Jersey Transit, 176 N.J. 185, 198 (2003).  Muhammad involved a plaintiff who was injured while working to remove asbestos in a garage owned by defendant, NJT.  The Court ultimately concluded that NJT did not act in an unreasonable manner by failing to directly inform all employees of the independent contractor of the danger and risk involved in removing asbestos from the roof of a garage.  Further, in coming to this conclusion, the Court opined that immunity is especially the case "when the contractor is an experienced laborer hired to either correct the very danger present or to perform his tasks amidst the visible hazards."  Thus, the Court found that "the unimpaired line of holdings to the effect that the duty to provide a reasonably safe working place for employees of an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform."   

It is clear that the aforementioned cases could be used to argue strongly in favor of a finding of no duty of care on the part a landowner to a security guard, hired by an independent contractor, who was providing security services to the premises. Specifically, inherent to the job of a security guard are certain risk factors that the work itself creates.  This is not the case of a security guard slipping on ice or snow negligently left behind on a walkway by the landowner.  Rather, it could be argued that injuries sustained by a security guard as the result of the criminal acts of third parties are a result of the very work which they are hired to perform.  Thus, the landowner's typical non-delegable duty to use reasonable care to protect invitees may likely bow to the exception.

While it appears that New Jersey courts have yet to determine whether or not a landowner can be held liable when a security guard is injured from the criminal acts of a third party, other jurisdictions have certainly taken a stance on the issue.  In Carter v. The Mercury Theater Company, 379 N.W.2d 409 (Mich. App. 1985), the plaintiff was employed at the Mercury Theater in Detroit, through ACE Patrol Security Guard Service, as a theater security guard.  While working, he and a fellow guard ejected two patrons from the theater for their unruly and disruptive conduct.  The plaintiffs theorized that those patrons later gained access to the theater, either through fire doors that did not have working locking mechanisms or through the front doors, despite the fact that employees were instructed not to permit readmittance to those patrons. The plaintiff was ultimately shot by the assailants, rendering him a paraplegic.  The court, relying on Turner v. Northwest General Hospital, 97 Mich. App. 1 (1980), reversed judgment, which denied the defendants summary judgment.  In particular, the court directly quoted the following from the Turner opinion: "What happened to plaintiff's decedent was the very reason plaintiff's decedent and his employer were hired, i.e., to safeguard against criminal acts of violence.  It would be ironic to hold defendant hospital liable to an employee of the very security guard company it hired for protection." 

In Turner, the decedent was employed by an independent security guard company to provide security for the emergency room of Northwest General Hospital.  While on duty providing security services in the emergency room of defendant hospital, the plaintiff's decedent was shot to death.  The plaintiff then filed a wrongful death action alleging that the defendant failed to warn the decedent of prior instances of violence; failed to utilize safeguards; failed to properly train personnel; failed to provide a proper warning system and adequate lighting; failed to have an armed and trained security guard in addition to the decedent, despite the likelihood of an occurrence of this nature; failed to institute reasonable precautions; negligently allowed the decedent to solely accompany the two unknown males out of the hospital; negligent in failing to install metal detectors; negligent in failing to aid the decedent while he was being assaulted; and negligent in failing to inquire as to risk of harm confronting the decedent.  After recognizing the areas of the defendant's negligence as alleged by the plaintiff, the court opined that the hospital, "recognizing a duty to safeguard, protect and secure its patients, visitors, doctors, and other business invitees, hired an independent security guard for that purpose."  Moreover, the court stated the following, as already quoted in Carter: "What happened to plaintiff's decedent was the very reason plaintiff's decedent and his employer were hired, i.e., to safeguard against criminal acts of violence.  It would be ironic to hold defendant hospital liable to an employee of the very security guard company it hired for protection."  Ultimately, the Turner Court held that the hospital owed no duty to the plaintiff's decedent to warn and protect from the violence that occurred.  Rather, the aforementioned allegations of negligence "do not give rise to a duty owed by defendant hospital to plaintiff's decedent such as would here entitle plaintiff to damages." 

In the unreported case of Chandler v. Motel 6, No. 195137 (Mich. App. 1998),  the court declined to hold the defendant liable for the plaintiff's injuries from a third party.  The plaintiff, a security guard, was beaten by patrons he was attempting to eject.  The only difference from Carter was that the plaintiff asked the assistant manager to call the police. However, although she agreed to make the call, she never did.  The court, citing both Turner and Carter, found that, even though the manager had acceded to the request to make the call to the police, this could not circumvent the general rule under which the defendant has no duty nor could it "overcome the core holdings of Turner and Carter that an entity that hires a security guard company has no duty to protect the security guard from acts of third parties."  See also Basham v. Consolidated Rail Corp., No. 179984  (Mich. App. 1996) (holding that plaintiff security guard assumed the risks inherent with his position and, thus, as a matter of law, business owners do not have a duty to protect their security guards).

Georgia has also recognized that security guards assume the risks inherent to their employment.  In Atlanta Braves, Inc. v. Leslie, 378 S.E.2d 133, (Ga. App. 1989), a security guard, while on duty, was shot by an armed robber.  The court found no duty on the part of the landowner, stating that to place a duty on the landowner to protect an armed guard from potential harm is circular in reasoning.  Further, "[t]he ordinary risks of the employment though there be dangers attendant thereon, are assumed by the servant, and especially is this true where the dangers are obvious."  In Leslie, the court ultimately found that, "by accepting employment as an armed security guard, Leslie has no cause of action for injuries resulting from the ordinary and obvious danger of encountering a criminal on the premises..." 

In addition, Oklahoma has declined to hold landowners liable for the criminal acts of third parties.  In Young v. Bob Howard Automotive, Inc. 52 P.3d 1045, 1047 (Okla. Civ. App. 2002), the plaintiffs' decedent was killed while on duty as a security guard at an auto dealership.  The court, while noting that the security guard independent contractor is, in fact, an invitee and, thus, owed by the landowner a duty to keep the premises reasonably safe, ultimately found that, generally, the inviter has no duty to protect invitees from the criminal acts of third parties.  The court noted that there are exceptions to that general rule in the case of unique or exceptional circumstances but found neither present.  Further, the court found "that the inherently dangerous exception, which prevents a party who hires an independent contractor to inherently dangerous work from escaping liability for injuries to third persons, does not extend to employees of the independent contractor." 

            While it is clear that several jurisdictions do not hold the landowner to a duty, this does not hold true for all jurisdictions.  Specifically, Indiana holds the landowner to a duty of reasonable care to a security guard.  In Pucalik v. Holiday Inns, Inc., 777 F.2d 359, 363 (7th Cir. 1985), an armed robber shot and killed the plaintiff's decedent, a full-time patrolmen and firearms instructor, who on his off-duty hours worked as a plainclothes Holiday Inn security guard.  The court found the following:

      In addition, Nebraska holds landowners to a duty to keep their premises in a reasonably safe condition for the protection of business invitees, such as security guards.  In Zrust v. Spencer Foods, Inc., 667 F.2d 760, 763 (8th Cir. 1982), the decedent security guard was killed while on duty at the defendant's premises.  Specifically, one of decedent's duties was to inspect each truck before it left the premises.  While the decedent was checking a truck's thermostat and temperature controls, the driver, not aware of the decedent's presence, started the truck, running over and killing the decedent.  Relying on past Nebraska cases in which owners were found to be responsible for obvious dangers, the court noted that an "owner may be responsible for an obvious danger if it is unreasonable to expect the invitee to protect himself."  Ultimately, the court upheld an award of damages in the plaintiff's wrongful death action.      

While it appears that New Jersey has not yet dealt with the issue at hand, a strong case can be made for a finding of no liability to the landowner.  The New Jersey cases may be argued analogously to this situation, with the only difference being the nature of the employment.  Further, the law from the other jurisdictions appears to show a helpful trend…stay tuned!

*Ray is an associate in our Roseland, NJ office. He can be reached at (973) 618-4109 or rjterwilliger@mdwcg.com.