UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES STANLEY BIAS, SR., as
Personal Representative of the
Estate of, Individually, as Natural
Parents and Next of Kin of the
Decedent, aka, James Stanley Bias,
Jr.; LONISE BIAS, Individually, as
Natural Parents and Next of Kin of
the Decedent, aka, James Stanley
Bias, Jr.,
Plaintiffs-Appellants,

v.

IPC INTERNATIONAL CORPORATION, a
                                               No. 95-2666
Corporation; EQUITY PROPERTY
MANAGEMENT CORPORATION, a
Corporation; SAMUEL ZELL, as
Trustee for Trust No. 7000; KAY
JEWELERS, a Corporation,
Defendants-Appellees,

and

INTERNATIONAL PROTECTIONS
CORPORATION (IPC), a Corporation;
EQUITY PROPERTIES AND DEVELOPMENT
COMPANY, a Corporation,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-92-2404-DKC)

Argued: December 6, 1996

Decided: March 6, 1997
Before RUSSELL and MOTZ, Circuit Judges, and MICHAEL,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Prudence Bushnell, SPENCER H. BOYER & ASSO-
CIATES, Silver Spring, Maryland, for Appellants. Christopher Red-
mond Dunn, DECARO, DORAN, SICILIANO, GALLAGHER,
SONNTAG & DEBLASIS, Lanham, Maryland, for Appellee Kay
Jewelers; Michael McGowan, MCCARTHY, BACON & COS-
TELLO, Lanham, Maryland, for Appellee IPC International; Franklin
T. Caudill, ALBRIGHT, BROWN & CAUDILL, Baltimore, Mary-
land, for Appellees Equity Property and Zell. ON BRIEF: Joanne
Maria Vasco, SPENCER H. BOYER & ASSOCIATES, Silver
Spring, Maryland, for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiffs-appellants James Stanley Bias and Lonise Bias are the
parents of James (Jay) Stanley Bias, Jr., who was shot dead by Jerry
Tyler on December 4, 1990 during an altercation in a Maryland shop-
ping mall parking lot. Defendants are Kay Jewelers, where Bias and
Tyler initially encountered each other; Equity Property Management
Corp. ("EPMC"), the managing agent of the shopping mall; Samuel
Zell, the trustee of the shopping mall property; and IPC International

                    2
Corp. ("IPC"), the company responsible for providing security at the
shopping mall. Appellants contend that defendants' negligence caused
their son's death. This appeal arises out of the district court's grant
of summary judgment to the defendants.

"Rule 56(c) of the Federal Rules of Civil Procedure requires that
the district court enter judgment against a party who, `after adequate
time for discovery . . . fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.'" Stone v. Lib-
erty Mut. Ins. Co., Nos. 95-1110 & 95-1148, slip op. at 5 (4th Cir.
Jan. 28, 1997) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322
(1986)). We review a district court's grant of summary judgment de
novo. See Cooke v. Manufactured Homes, Inc. , 998 F.2d 1256, 1260
(4th Cir. 1993). Because the district court laid out in detail the facts
underlying this case, we will simply summarize the events leading up
to Mr. Bias's death. Although some of these facts are in dispute, any
such disputes are resolved in favor of appellants as non-movants. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587
(1986); Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995).

Prince George's Plaza is a covered shopping mall located in Prince
George's County, Maryland. On December 4, 1990, Shauntelle Tyler
was working at a Kay Jewelers store located inside the shopping mall.
Ms. Tyler's husband, Jerry, telephoned his wife at work, and it was
during this conversation that Ms. Tyler informed her husband that she
was leaving him. After hanging up the telephone, Ms. Tyler informed
a co-worker and the store manager that she was worried that her hus-
band might come to the store to "try to start a fight with me" or "act
stupid." Ms. Tyler's prediction proved correct; Mr. Tyler soon arrived
at the store to confront his wife, who at that time was helping Mr.
Bias at the service counter.

Mr. Bias had come to Kay Jewelers with two friends to show them
a ring that he was having resized. By the time that Mr. Tyler inter-
rupted Ms. Tyler and Mr. Bias, Mr. Bias's friends had left for other
parts of the mall. Although the evidence is in some dispute, appellants
contend that Mr. Tyler accused Mr. Bias of flirting with his wife. Ms.
Tyler left the two men and went to the back room that was reserved
for employees. A confrontation between Mr. Tyler and his wife then

                    3
ensued in the back room of the store, during which Mr. Tyler threw
a stapler at his wife's head. At that point, the store manager inter-
vened, escorting Mr. Tyler out of the store without having to use any
force.

While the Tylers were arguing, Bias and his two friends had
reunited outside the store. When Mr. Tyler was escorted out of the
store, he found Mr. Bias directly in front of the store entrance. Words
were again exchanged. Mr. Tyler told Mr. Bias that he had "some-
thing for [him] outside." As the dispute between Mr. Tyler and Mr.
Bias escalated, one of Mr. Bias's friends intervened, leading Mr. Bias
out of the mall and telling him that "it was not worth it." As they left,
Mr. Tyler threatened to "cap" Mr. Bias.1 Mr. Tyler then left by
another mall exit.

Once outside, Mr. Bias and his friends got in a Toyota Forerunner
belonging to Mr. Tydus Mathis. Mr. Bias was seated in the front pas-
senger seat. As the truck arrived at one of the mall parking lot's exits,
Mr. Tyler and another man pulled alongside in a car. After yelling at
Mr. Bias, Mr. Tyler fired between seven and ten gunshots into Mr.
Mathis's vehicle, striking Mr. Bias and injuring another occupant
seated in the rear of the truck. Mr. Mathis immediately drove to a
nearby hospital where Mr. Bias was pronounced dead.

The district court granted defendants' motions for summary judg-
ment, finding that (1) Kay Jewelers did not have a special duty to pro-
tect Mr. Bias from the criminal acts of third parties; (2) even if such
a duty existed, Kay Jewelers was not the proximate cause of Mr.
Bias's death; and (3) neither IPC's substandard and negligent security
nor any negligence on the part of EPMC or Zell was the proximate
cause of Mr. Bias's death. Appellants appeal from each of these con-
clusions, which the court will address in turn.
_________________________________________________________________

1 In "rap" music aficionados' slang, the term "to cap" an individual
means to shoot someone. See Esther Iverem, A Death as Real as It Gets;
Tupac Shakur's Gangsta Image Was the Rapper's Fatal Flaw, Wash.
Post, Sept. 14, 1996, at C1.

                     4
I. Kay Jewelers' Liability

A. Special Duty

Plaintiffs first appeal from the district court's decision that Kay
Jewelers did not have a special duty to protect Bias from the criminal
acts of third parties by contacting mall security. In general, "there is
no duty to control a third person's conduct so as to prevent personal
harm to another, unless a `special relationship' exists either between
the actor and the third person or between the actor and the person
injured." Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md.
135, 150, 642 A.2d 219, 226 (1994) (quoting Ashburn v. Anne Arun-
del County, 306 Md. 617, 628, 510 A.2d 1078, 1083 (1986)); see also
Restatement (Second) of Torts § 315 (1965). 2 In Tucker v. KFC
National Management Co., 689 F. Supp. 560, 562 (D. Md. 1988),
aff'd, 872 F.2d 419 (4th Cir. 1989), the court held that under Mary-
land law, a storekeeper and its customer do not enjoy the "special
relationship" necessary to implicate a higher duty of care. Plaintiffs
argue, however, that under the Maryland Court of Appeals's decision
in Southland Corp. v. Griffith, 332 Md. 704, 715-16, 633 A.2d 84, 89
(1993), a special relationship exists between a store owner and its cus-
tomer such that the store owner has a duty to take reasonable action
to protect its customer from an unreasonable risk of physical harm,
including the threat of violence by a third party.

In Southland Corp., a plaintiff sought to recover damages for inju-
ries he received when he was assaulted in the parking lot of a 7-
Eleven convenience store. Although the store clerk was informed of
the altercation taking place on his premises, he refused to telephone
the police, even after repeatedly having been requested to summon
_________________________________________________________________
2 Section 315 states:

          There is no duty so to control the conduct of a third person as
          to prevent him from causing physical harm to another unless

           (a) a special relation exists between the actor and the third
          person which imposes a duty upon the actor to control the third
          person's conduct, or

          (b) a special relation exists between the actor and the other
          which gives to the other a right to protection.

                     5
assistance. Southland Corp. modifies Tucker only to the extent that
the Court of Appeals of Maryland

         adopt[ed] § 314A of the Restatement, and in particular
         embrace[d] the proposition that an employee of a business
         has a legal duty to take affirmative action for the aid or pro-
         tection of a business invitee who is in danger while on the
         business's premises, provided that the employee has knowl-
         edge of the injured [or endangered] invitee and the
         employee is not in the path of danger.

Id. at 719, 633 A.2d at 91.3 Southland Corp. does not impose a special
duty on store owners to protect their customers from unforeseen acts
of third parties; a business owner "is not required to take precautions
against a sudden attack from a third person which he has no reason
to anticipate," nor is he "required to take any actions until he knows
or has reason to know that the person is endangered." Restatement
(Second) Torts § 314A comments e & f.

In the instant case, there is no evidence that Kay Jewelers was in
any way aware that Mr. Bias was in danger of assault or murder by
Mr. Tyler. The only verbal exchange between Mr. Bias and Mr. Tyler
in the store appears to have been of limited duration and scope, and
a review of the video tape taken by the store's security cameras and
_________________________________________________________________
3 Section 314A is entitled "Special Relations Giving Rise to Duty to
Aid or Protect," and states:

         (1) A common carrier is under a duty to its passengers to take
         reasonable action

         (a) to protect them against unreasonable risk of physical
         harm, and

         (b) to give them first aid after it knows or has reason to
         know that they are ill or injured, and to care for them until
         they can be cared for by others.

....

         (3) A possessor of land who holds it open to the public is under
         a similar duty to members of the public who enter in response
         to his invitation.

                    6
submitted for this court's review suggests that no anger or aggression
was directed towards Mr. Bias while Mr. Bias was in the store.
Because there is no evidence that any of Kay Jewelers's employees
were aware of a particularized danger to Mr. Bias, Kay Jewelers was
under no special duty to summon security to prevent Mr. Tyler from
harming Mr. Bias. Accordingly, Kay Jewelers is subject only to the
general duty of care owed by a business to its customers.

B. Proximate Cause

Maryland has long recognized that "the landowner's duty to busi-
ness invitees is to use reasonable and ordinary care to keep his prem-
ises in a safe condition and to protect invitees against the dangers of
which the landowner is aware or which, with reasonable care, he
could have discovered." Pahanish v. Western Trails, Inc., 69 Md.
App. 342, 355, 517 A.2d 1122, 1128 (1986) (citing Lloyd v. Bowles,
260 Md. 568, 572, 273 A.2d 193 (1971)). "A landowner is not, how-
ever, an insurer of the safety of his business invitees." Id. (citing
Maryland State Fair & Agric. Soc'y v. Lee, 29 Md. App. 374, 378,
348 A.2d 44, 48 (1975)). In order for Kay Jewelers to be held liable
under a general duty of care, the store must have had actual or con-
structive knowledge that Mr. Bias was under an unreasonable risk of
injury while at its store. Appellants argue that Kay Jewelers had
actual knowledge that Mr. Bias was in danger because Kay Jewelers
knew of Mr. Tyler's "violent propensities" towards his wife. In addi-
tion, appellants contend that the general crime patterns in the area
served to give Kay Jewelers constructive notice that its customers
were in danger of criminal assault.

Kay Jewelers may have had actual knowledge that Mr. Tyler posed
a threat to his wife, but there is no evidence that it was reasonably
foreseeable that Mr. Tyler was a danger to the store's customers. See
supra part I.A. Similarly, general crime patterns simply impose "a
duty to take reasonable measures, in view of the existing circum-
stances to eliminate the conditions contributing to the criminal activ-
ity," if the criminal activity takes place on the business's premises.
Scott v. Watson, 278 Md. 160, 169, 359 A.2d 548, 553 (1976).
Although evidence was introduced that armed robberies had taken
place at the store in the past, such incidents did not serve to put Kay
Jewelers on notice of any threat that Mr. Tyler might pose to its cus-

                     7
tomers. Rather, such incidents serve to give Kay Jewelers construc-
tive notice of the conditions that might encourage further robberies,
such as unrestricted access to showcases, etc.

Given the facts before the court, there is insufficient evidence for
this court to conclude that Kay Jewelers was on notice that Mr. Tyler
posed a risk to Mr. Bias. Accordingly, no duty to summon security
would attach. Even if, however, Kay Jewelers had actual or construc-
tive knowledge of conditions giving rise to a duty to contact security,
the district court properly concluded that Kay Jewelers was not the
proximate cause of Bias's death.

           The act of a third person in committing an intentional tort
          is a superseding cause of harm to another resulting there-
          from, although the actor's negligent conduct created a situa-
          tion which offered an opportunity to the person to commit
          such a tort or crime, unless the actor at the time of his negli-
          gent conduct realized or should have realized the likelihood
          that such a situation might be created, and that a third person
          might avail himself of the opportunity to commit such a tort
          or crime.

Tucker, 689 F. Supp. at 564 (quoting Restatement (Second) of Torts
§ 448). Mr. Tyler's outburst in the store was such that none of the
employees felt that Mr. Tyler was a threat to Mr. Bias nor even partic-
ularly threatening in general. Ms. Tyler never saw her husband argue
with Mr. Bias, see Deposition of Shaunelle Tyler at 9 (Dec. 27, 1993)
(J.A. at 32) [hereinafter Tyler Deposition], nor even come in contact
with Mr. Bias, id. at 17 (J.A. at 35); see also Deposition of Cindy
Coleman at 71 (Oct. 1, 1993) (J.A. at 151). Ms. Tyler never knew her
husband to carry or own a firearm. Tyler Deposition at 20 (J.A. at 38).
Finally, Ms. Tyler did not summon security or the police because she
did not think the altercation "was anything major." Id. at 26 (J.A. at
42).4 In addition, the store manager was neither frightened of Mr.
Tyler, nor did he believe that Mr. Tyler was a danger to his wife.
_________________________________________________________________
4 Ms. Tyler called the police after her husband threw the stapler, but
she hung up the telephone once Mr. Tyler was escorted from the store.
She later telephoned her father to tell him that"Jerry was acting simple."
Tyler Deposition at 26 (J.A. at 42).

                    8
Deposition of Michael McCutcheon at 111 (Oct. 1, 1993) (J.A. at
105). Presented with this undisputed testimony, this court concludes
as a matter of law that Mr. Tyler's subsequent attack was insuffi-
ciently foreseeable to permit holding Kay Jewelers liable as the proxi-
mate cause of Mr. Bias's death. Accordingly, the district court's grant
of summary judgment to Kay Jewelers will be affirmed.

II. IPC's Liability

Although Maryland's Court of Appeals has never explicitly
adopted § 324A of the Restatement (Second) of Torts, other courts
have concluded that "[i]t is undisputed that the doctrine is part of the
tort law . . . of Maryland." In re Sabin Oral Polio Vaccine Prods.
Liab. Litig., 774 F. Supp. 952, 954-55 (D. Md. 1991), aff'd 984 F.2d
124 (4th Cir. 1993); see also E.G. Rock, Inc. v. Danly, 98 Md. App.
411, 423-24, 633 A.2d 485, 491 (1993) (noting that§ 324A has "been
recognized as a part of Maryland law"). Under§ 324A,

          [o]ne who undertakes . . . 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 exer-
          cise reasonable care to protect his undertaking if .. . his fail-
          ure to exercise reasonable care increases the risk of such
          harm.

As the company responsible for providing security for the shopping
mall and its patrons, IPC had a duty to protect Mr. Bias and all of the
patrons from the risk of physical harm occasioned by third parties.

At the time that Mr. Bias and Mr. Tyler had their altercation, only
one security officer was monitoring the interior of the shopping mall.
See Deposition of Gerald Washington at 68-69 (May 31, 1994) (J.A.
at 280-81).5 Plaintiff's expert testified that, at a minimum, at least two
security officers were required to monitor effectively the interior of
the shopping mall. Deposition of Anthony T. Potter at 55 (Aug. 26,
_________________________________________________________________
5 At the time of the altercation, three of the security guards, including
one trainee, were outside in the shopping mall's parking lot responding
to an automobile fire.

                      9
1993) (J.A. at 389) [hereinafter Potter Deposition]. Assuming for the
purposes of this decision that the failure to maintain two security
guards in the interior of the shopping mall constituted a breach of
IPC's duty, this court nonetheless concludes as a matter of law that
IPC's breach was not the proximate cause of Mr. Bias's murder.

The simple fact of the matter is that even if IPC had adequately
staffed the interior of the shopping mall, the events transpired so
quickly and unexpectedly that IPC could not have prevented this trag-
edy. Mr. Bias was already in Kay Jewelers when Mr. Tyler entered
the store. Mr. Bias left the store two minutes and ten seconds later.
A review of the security video tape reveals that nothing out of the
ordinary appears to have had occurred during the time that both men
were in the store. Appellants at oral argument conceded that only
between four and sixteen minutes elapsed from the time that Mr.
Tyler left the store and the time that Mr. Bias arrived at the hospital.
During that time, Mr. Tyler and Mr. Bias met and exchanged words
in the common area of the shopping mall -- an exchange that lasted
no more than a minute and a half, see Deposition of Andre Campbell
at 85 (Dec. 27, 1993) (J.A. at 209) [hereinafter Campbell Deposition];
exited the shopping mall by separate exits; got into their respective
vehicles and proceeded towards the parking lot exit; had the alterca-
tion at the exit; and drove to a nearby hospital, a journey that in and
of itself took possibly three minutes, see Transcript of Proceedings at
28, Maryland v. Tyler, No. 90-2351 (Md. Cir. Ct., Prince George's
County, Apr. 25, 1991) (J.A. at 185) (testimony of Tydus Mathis).

The speed with which the events transpired is not the only fact that
counsels against a finding of proximate cause. An off-duty uniformed
police officer who witnessed the altercation outside of the store did
not feel compelled to search out a security officer or intervene
because he did not believe that the dispute would escalate to violence.
See Deposition of Delaney A. Oliver at 15 (July 6, 1994) (J.A. at
248). Andre Campbell, a friend of Mr. Bias and a witness to the dis-
pute admitted that he never sought out or even looked around for
security personnel during the altercation. See Campbell Deposition at
83 (J.A. at 207). Finally, Tydus Mathis, who also witnessed the dis-
pute inside the mall, believed the dispute to be over when Mr. Bias
and Mr. Tyler left by separate exits, noting that Mr. Bias and Mr.
Mathis joked about the altercation on the way out of the shopping

                    10
mall. See Deposition of Tydus Mathis at 24 (Dec. 27, 1993) (J.A. at
161). Based on this uncontroverted evidence, it is hard to imagine that
the character of the dispute was such that security would have inter-
vened if it had been present.

Moreover, even if security had intervened, there is no evidence that
events would have transpired differently. Plaintiff's expert testified
that if security had intervened, the parties should have been separated,
placed in their cars, and made to leave the property. See Potter Depo-
sition at 104-05 (J.A. at 395-96). This is exactly what occurred. Mr.
Bias and Mr. Tyler were led by their respective friends out different
doors of the shopping mall to their vehicles so that they could leave
the property. That Mr. Tyler would pursue Mr. Bias in his automobile
was an event that was not foreseen by any of the witnesses to or par-
ticipants in the altercation. If Mr. Tyler's actions were not foreseeable
to the participants, it is difficult to envision how they could have been
foreseeable to any security officers so that IPC could be held to be the
proximate cause of Mr. Bias's death.

At bottom, the murder of Mr. Bias is but another one of the many
random acts of violence that have unfortunately become all too com-
mon in our nation's cities. It is undisputed that Mr. Bias's murder is
a tragedy, but IPC cannot be held to be the proximate cause of that
unforeseeable event. Accordingly, summary judgment on behalf of
IPC was appropriate and will be affirmed.

III. EPMC and Zell's Liability

Appellants' claims against EPMC and Zell are based on EPMC and
Zell being vicariously liable for the actions of their subcontractor,
IPC. See Rowley v. Mayor of Baltimore, 305 Md. 456, 474, 505 A.2d
494, 503 (1986); Restatement (Second) of Torts § 425 (stating that
"[o]ne who employs an independent contractor to maintain in safe
condition land which he holds open to the entry of the public as his
place of business . . . is subject to the same liability for physical harm
caused by the contractor's negligent failure to maintain the land . . .
in reasonably safe condition, as though he had retained its mainte-
nance in his own hands"). Because IPC has been found not to be the
proximate cause of Mr. Bias's death, summary judgment on behalf of
EPMC and Zell is also appropriate.

                     11
For the aforementioned reasons, the district court's grant of sum-
mary judgment to defendants will be

AFFIRMED.

                    12
