                                                                    FIFTH DIVISION
                                                                    October 31, 2008




Nos. 1-06-2009 & 1-06-2126 consolidated
                                                                )
MUJTABA AIDROOS; TERRY BRUS, Executor of the                    )
Estate of Michael Brus, Deceased; GAIL WEHRHEIM,                )   Appeal from the
Special Administrator of the Estate of Robert Wehrheim,         )   Circuit Court of
Deceased; SHEILA GALE; BRANDON GALE; and                        )   Cook County
DONALD GARCIA, Independent Administrator of the                 )
Estate of William Garcia, Deceased.                             )
                                                                )
               Plaintiffs-Appellants,                           )   Honorable
                                                                )   Lynn M. Egan,
       v.                                                       )   Judge Presiding.
                                                                )
VANCE UNIFORMED PROTECTION SERVICES, INC.,                      )
and LATESSA DIAMOND,                                            )
                                                                )
               Defendants-Appellees.                            )


       JUSTICE O'MARA FROSSARD delivered the opinion of the court:

       In this consolidated action involving claims for negligence, wrongful death, and survival

damages, the trial court granted summary judgment in favor of defendants Vance Uniformed

Protection Services, Inc. (Vance), and Latessa Diamond. Plaintiffs appealed, contending defendants

had a duty to protect against criminal conduct where defendants contracted to provide security

services. We affirm the judgment of the trial court.

                                        BACKGROUND

       This case arose from the shooting deaths and injuries that occurred at Navistar International

Transportation Corp. and International Truck and Engine Corp. (Navistar) in Melrose Park, Illinois,
1-06-2009 & 1-06-2126 (cons.)

on the morning of February 5, 2001. Navistar had hired defendant Vance to provide unarmed,

uniformed security officer service according to the specific terms and conditions of their contract.

Vance employed defendant Diamond as a security officer.

       Prior to February 2001, there was no history of any workplace violence at Navistar's facility.

The shooter, Willie Baker, had been fired from Navistar in 1995 for theft, but he had never

threatened any Navistar employee before or after his termination. Baker was prosecuted for theft,

convicted and scheduled to begin serving a five-month prison sentence on February 6, 2001.

       At about 9:45 a.m. on February 5, 2001, Baker parked in Navistar's visitors' parking lot and

entered an unlocked door of a gate guardhouse station, carrying weapons concealed in a golf bag.

Diamond was on duty there alone and asked if she could help him. Baker said he wanted to drop off

the golf bag for an employee. While Diamond retrieved the employee directory, Baker put a gun to

her head. He took Diamond hostage and forced her to walk with him to building 10. Building 10

was supposed to be locked, but the door opened without the use of Diamond's keycard. Inside, Baker

randomly shot building occupants, killing four and wounding others before killing himself.

       Plaintiffs Garcia, Gale, Aidross, Brus and Wehrheim filed complaints alleging that Baker had

gained entrance to the facility because defendants had been lax in their efforts and negligently failed

to properly secure the premises against intrusion. Those complaints were ultimately consolidated.

       Defendants filed a motion for summary judgment pursuant to section 2-1005 of the Code of

Civil Procedure (735 ILCS 5/2-1005 (West 2006)), contending (1) defendants did not owe plaintiffs

a duty to warn or protect them from the criminal acts of Baker; (2) no genuine issue of material fact

existed as to proximate cause; and (3) Baker's criminal acts constituted a superceding, intervening


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1-06-2009 & 1-06-2126 (cons.)

act that severed any causal relationship between defendants' alleged negligence and the plaintiffs'

injuries and deaths.

       Concerning the lack of duty argument, plaintiffs responded that the duty was created when

Vance voluntarily entered into the security contract. Plaintiffs argued that defendants implicitly

agreed to protect plaintiffs when Vance undertook, contractually, responsibility to deter and reduce

certain types of conduct and risks. In particular, Vance agreed that its security officers would not

permit discharged employees to enter the premises.

       The pleadings, affidavits and depositions established the following facts. On February 4,

2001, Vance began providing unarmed uniformed security officer service at Navistar. The contract

stated that the presence of the security officers:

       "is designed to deter and reduce certain types of conduct and risks. However, [Vance

       is] not a law enforcement agency. The principal function of the Officers is to

       maintain a presence, to observe and to report. [Vance does] not insure or guarantee

       the personal safety of any person or the security of any property. [Vance would] not

       be responsible for any theft, damage, destruction, loss of property, personal injury or

       death except due to [Vance's] negligence or willful misconduct, and [Vance would]

       not have any liability arising from the criminal acts of any third parties."

       Vance's security officers were unarmed. They used two-way radios to communicate with

each other, and Navistar provided their communication equipment. Vance did not design, install or

maintain the keycard system used by Navistar employees to access the various buildings on the

premises. Navistar was responsible for that system.


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1-06-2009 & 1-06-2126 (cons.)

        Vance and Navistar agreed that post orders would be prepared based on Navistar's needs and

the services Vance provided. Any changes to the post orders necessitated by time, need, or any other

purpose had to be in writing and agreed to by both Vance and Navistar. According to the post

orders, the security officers were required to patrol Navistar's property and monitor employees and

visitors, vehicle traffic, and inbound or outbound freight. Their duties were performed to protect and

prevent loss from fire, theft, sabotage, vandalism, or horseplay. They should observe the condition

of various buildings, equipment, and irregularities, including safety or fire hazards, poor

housekeeping, thefts and other security breaches, and report it to supervisory personnel. The post

orders required security officers at the gate guardhouse station to observe employees or visitors and

not allow them to bring in items that might be detrimental to Navistar or its employees.

Furthermore, they should check that people entering the premises had the proper identification to

permit ingress. Current employees used their keycards to enter through turnstiles. A visitor would

be issued passes at the loss prevention trailer or building 1. The post orders provided that discharged

employees should not be admitted, and security officers should direct them to the loss prevention

trailer. Furthermore, the post orders stated that private deliveries (like food, gifts, flowers, etc.)

could not be made inside the primary security fence. The security officer would have to call the

recipient of the food or gift, who must come to the gate to receive the delivery.

        In her deposition, Diamond testified that when visitors came to Navistar, the security officer

would check their identification and make sure they had a pass. Visitors without passes were sent

to the main guard shack or control area. According to Diamond, if a security officer was ever

physically threatened, the security officer should report it to a supervisor, the police, or try to escape


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1-06-2009 & 1-06-2126 (cons.)

if possible. The security officer's function was to maintain a presence, observe, and report anything

unusual to supervisors. As Diamond explained in her deposition, the security officer at the gate

guardhouse was required to exit the guardhouse and check the contents of the trucks, greet visitors,

and check their identification. In order to admit trucks, the security officer had to press a button

inside the guardhouse to open the gate. The guardhouse had two doors that could be locked from

the inside. Out of habit from her previous job as an armed security guard at the Chicago Housing

Authority, Diamond locked the doors if she was inside the gate guardhouse alone. However, once

employees and truck traffic started arriving during business hours, she was in and out of the

guardhouse so frequently that she left the doors unlocked.

       Diamond further testified at her deposition that on the date of the shooting, she was inside

the gate guardhouse with both doors locked until she was relieved by two officers when she went

to building 10 to use the restroom. She testified that she used her keycard to enter building 10. She

noticed, however, that the light on the lock never changed from red to green. When she exited

building 10, she pulled on the door and noted that it had locked behind her. Upon her return to the

guardhouse, the two officers left as a truck was attempting to exit the plant. Diamond did not realize

that both doors of the guardhouse were now unlocked. Diamond buzzed the gate open so the truck

could drive up to the guardhouse for her inspection. After the truck drove away, Diamond went

inside the guardhouse and processed the paperwork. She heard the door that she thought was locked

open and then saw Baker at the door inside the guardhouse. She did not have time to close the gate.

Baker said he was there to give a friend a golf bag, and Diamond asked him the employee's name

and reached for the employee directory. Diamond described how Baker then put a gun to the back

of her head, took her hostage, and made her walk with him to building 10, where he randomly fired

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1-06-2009 & 1-06-2126 (cons.)

gunshots at occupants of the building.

       The trial court granted defendant's motion for summary judgment, finding that defendants

did not owe a duty to warn or protect plaintiffs from criminal acts under the contract terms and did

not voluntarily undertake any such duty.

       Plaintiffs appealed.

                                            ANALYSIS

       In their negligence action, plaintiffs must set out sufficient facts to allege the existence of a

duty owed by defendants to the plaintiffs, a breach of that duty, and an injury proximately resulting

from the breach. MacDonald v. Hinton, 361 Ill. App. 3d 378, 382 (2005). The existence of a

duty–the legal obligation imposed upon one for the benefit of another–is a question of law to be

determined by the court. Martin v. McDonald's Corp., 213 Ill. App. 3d 487, 489 (1991).

       We review a grant of summary judgment by the trial court de novo. Jewelers Mutual

Insurance Co. v. Firstar Bank Illinois, 213 Ill. 2d 58, 62 (2004). Summary judgment can only be

entered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2006); Prairie v. University of Chicago

Hospitals, 298 Ill. App. 3d 316, 319 (1998). The pleadings, depositions and affidavits must be

construed most strictly against the moving party and most liberally in favor of the opponent. Purtill

v. Hess, 111 Ill. 2d 229, 240 (1986). Summary judgment is a drastic means of disposing of litigation

and should only be allowed when the right of the moving party is clear and free from doubt. Loyola

Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 271 (1992).



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1-06-2009 & 1-06-2126 (cons.)

        Plaintiffs contend defendants undertook a duty of care to protect plaintiffs from third-party

criminal acts when defendants were hired to assist Navistar in providing a safe workplace.

According to the post orders, which were incorporated into the contract terms, Vance was required

to deny discharged employees admission inside Navistar's premises. Plaintiffs argue that liability

can arise from the negligent performance of a voluntary undertaking, and Vance negligently

performed the duty to deny entry to discharged employees because Vance's security officer failed to

lock a lockable door. According to plaintiffs, Vance is responsible because its negligence increased

the risk of harm to plaintiffs.

        To determine whether a duty exists in a certain instance, a court considers: (1) the reasonable

foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding

against the injury; and (4) the consequences of placing that burden on the defendant. Bajwa v.

Metropolitan Life Insurance Co., 208 Ill. 2d 414, 427 (2004). The question of the existence of a duty

turns in large part on public policy considerations. Bajwa, 208 Ill. 2d at 427.

        "Ordinarily, a party owes no duty of care to protect another from the harmful or criminal acts

of third persons." MacDonald, 361 Ill. App. 3d at 382. There are, however, four exceptions to this

rule: (1) when the parties are in a special relationship–i.e., common carrier/passenger,

innkeeper/guest, business invitor/invitee, or voluntarily custodian/protectee–and the harm is

foreseeable; (2) when an employee is in imminent danger and this is known to the employer; (3)

when a principal fails to warn his agent of an unreasonable risk of harm involved in the agency; and

(4) when any party voluntarily or contractually assumes a duty to protect another from the harmful

acts of a third party. Iseberg v. Gross, 227 Ill. 2d 78, 88 (2007); MacDonald, 361 Ill. App. 3d at 382.



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1-06-2009 & 1-06-2126 (cons.)

       The only relevant exception in the instant case is the fourth exception concerning a voluntary

undertaking. Our supreme court has utilized section 324A of the Restatement (Second) of Torts to

analyze voluntary undertaking claims. Cross v. Wells Fargo Alarm Services, Inc., 82 Ill. 2d 313, 319

(1980); Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 210 (1979). Section 324A states:

               "One who undertakes, gratuitously or for consideration, to render services to

       another which he should recognize as necessary for the protection of a third person

       or his things, is subject to liability to the third person for physical harm resulting

       from his failure to exercise reasonable care to protect his undertaking, if

               (a) his failure to exercise reasonable care increases the risk of such harm, or

               (b) he has undertaken to perform a duty owed by the other to the third person,

       or

               (c) the harm is suffered because of reliance of the other or the third person

       upon the undertaking." Restatement (Second) of Torts §324A (1965).

       Plaintiffs contend that, under a traditional duty analysis, either in conjunction with the

Restatement or separately, the imposition of a duty on defendants to take reasonable steps against

criminal conduct like Baker's is a small burden compared to the potentially severe harm. Plaintiffs

argue that defendants's duty arose under subsections (a), (b) and (c) of section 324A. Specifically,

plaintiffs argue that: defendants increased the risk of harm when they failed to take reasonable safety

measures by properly locking doors and protecting access points; defendants were employed to fulfill

Navistar's duty to protect its employees from third-party attacks; and Navistar and its employees

relied on defendants "to secure the facility and exclude feared intruders." Plaintiffs' arguments,

however, are not persuasive.

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1-06-2009 & 1-06-2126 (cons.)

        First, the record refutes plaintiffs' assertion that defendants undertook a duty to protect people

on Navistar's premises from injury or death due to violent criminal attacks by third parties. "[U]nder

the voluntary undertaking doctrine of liability, the duty of care to be imposed upon the defendant is

limited to the extent of the undertaking." Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d

542, 547 (2000). In cases that addressed whether the presence of security guards amounted to a

voluntary undertaking to protect tenants from criminal acts, the determinative factor was the purpose

for hiring the security guards. A duty was found if the hiring agreement showed that the security

guards were intended to protect the tenants, but no duty was found if the agreement showed that the

guards were intended to protect only property. Compare Pippin, 78 Ill. 2d at 207 (the security agency

assumed a duty to protect the decedent where the security agency contracted with the Chicago

Housing Authority to provide armed guards and other protective services for the purpose of guarding

property and protecting the people on the premises), with Hill v. Chicago Housing Authority, 233

Ill. App. 3d 923, 930 (1992) (no duty to protect the plaintiff from the criminal act where affidavits

established that the Chicago Housing Authority hired the security agency to protect only property).



        Here, the contract specifically stated that Vance did not guarantee the personal safety of any

person and had no liability arising from the criminal acts of any third parties. Moreover, the

contract, post orders, and conduct of Navistar and defendants established that the extent of

defendants' 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.

Vance never promised orally or in writing to supply the guards or guardhouses with emergency

communication equipment. Furthermore, Vance had no role with respect to the placement and

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1-06-2009 & 1-06-2126 (cons.)

design of the guardhouses, or the video monitoring or building keycard access systems at Navistar's

facility.

        Vance's security officers were required to patrol Navistar's property and monitor employees

and visitors, vehicle traffic, and inbound or outbound freight. The security officers were required

to observe the condition of various buildings and equipment, and report any irregularities to Navistar.

While at the gate guardhouse, the security officers were required to observe employees or visitors

and not allow them to bring in harmful items. Furthermore, the security officers had to ensure that

people entering the plant had the proper identification to permit ingress. If any visitors without

passes or discharged employees wanted to enter the premises, the security officers had to direct them

to the loss prevention trailer at another entrance point. Contrary to plaintiffs' assertions, Vance's

undertaking of that responsibility did not create by implication a broader duty to protect Navistar's

employees from criminal attacks. See Phillips v. Budget Rent-A-Car Systems, Inc., 372 Ill. App.

3d 155, 163-65 (2007) (a security agency that undertook a contractual obligation to prevent vehicles

from leaving a rental car facility without proper authorization did not owe a duty to protect the

plaintiff from injuries sustained when a stolen rental vehicle collided with her car during a high-

speed police chase). See also Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32-34 (1992) (the court

rejected the plaintiff's "overly broad interpretation of the defendants' undertaking" and found that the

defendant pharmacy and pharmacist did not assume a duty to warn the decedent of all possible

dangers and side effects of a medication by voluntarily placing a drowsiness warning on the

prescription).

        Second, the record also refutes plaintiffs' assertion that defendants' negligent performance

of its contractual duties increased the risk of harm to plaintiffs. The post orders did not require the

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1-06-2009 & 1-06-2126 (cons.)

security officers to keep the gate guardhouse doors locked. Such a requirement would have been

impractical because the security officers had to continuously exit the gate guardhouse to inspect

vehicles entering and exiting the premises. Moreover, security officers had to greet visitors and

direct them to the appropriate entrance if they lacked visitors' passes. Furthermore, any private

deliveries for Navistar employees required the security officers to greet the delivery people, collect

their information, and summon the appropriate Navistar employee to receive the delivery.

       The record reflects that, on the date in question, Diamond complied with the post orders and

performed her job duties with reasonable care.          The unlocked gate guardhouse door was

inconsequential where Baker used the ruse of a private delivery to a Navistar employee to approach

and distract Diamond and then surprise her with a gun.

       Third, plaintiffs offer no evidence to support their assertion that they relied on defendants "to

secure the facility and exclude feared intruders." The record establishes that there was no history of

any workplace violence at Navistar prior to Baker's criminal conduct in 2001. Until this 2001

shooting rampage, Baker did not pose a known threat where he had not harassed or threatened

anyone at Navistar before or since his 1995 termination.

       The trial court properly granted summary judgment in favor of defendants because they had

no duty to protect plaintiffs from third-party criminal acts. Because we find that defendants did not

owe that duty to plaintiffs, we do not reach the parties' proximate cause or intervening, superceding

cause arguments.

                                          CONCLUSION

       The trial court's order entering summary judgment in favor of defendants is affirmed.

       Affirmed.

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  FITZGERALD SMITH, P.J., and GALLAGHER, J., concur.

                REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT


MU JT ABA AIDR OO S; T ER RY BR US , Exe cuto r of the Esta te of M ichael Bru s, Dece ase d; G AIL
      W EHR HEIM , Special Adm inistrator of the Estate of Rob ert W ehrheim , Deceas ed;
          SH EILA GA LE; BR AN DO N G ALE; and DON ALD G AR CIA , Indepen den t
                 Adm inistrator of the Estate of W illiam G arcia, Deceased.

                                       Plaintiffs-Appellants,

                                                  v.

     VANC E U NIF OR ME D P RO TE CT ION SERV ICE S, INC., an d LA TE SSA D IAM ON D,

                                      De fendan ts-Appe llees.


                            Nos. 1-06-2009 & 1-06-2126 consolidated

                                     Ap pellate Co urt of Illinois
                                  First District, FIFTH DIVISION

                                         October 31, 2008


             Jus tice M arga ret O 'Ma ra Frossard authore d the opinion of the co urt:

               Presiding Justice Fitzgerald Sm ith and Justice Gallagher con cur.


                          Ap peal from the Circuit Court of Cook C ounty.
                            The Hon. Lynn M. Egan, Judge Presiding.


    Co un sel fo r Plain tiffs-Ap pellants M ujtaba Aidro os, Terry Brus and Ga il Wehrheim
                                Corboy & Dem etrio, Chicago, IL 60602
                               OF CO UNSEL: Francis Patrick Murphy

     Co un sel fo r Plain tiffs-Ap pellants Sh eila G ale, B rando n G ale and Do nald G arcia
                               Clifford Law Offices, Chicago, IL 60602
                    OF CO UNSEL: John T. Karnezis and Robert P. Sheridan


                            Counsel for Defendants-Appellees
                        Purcell & W ardrope, Chtd., Chicago, IL 60603
                   OF C OUNSE L: B radford S. Pu rcell and Jennifer E. Sim m s
