                                  Illinois Official Reports

                                          Appellate Court



        Blankenship v. Securitas Security Services USA, Inc., 2014 IL App (1st) 123749



Appellate Court              LESLIE BLANKENSHIP, Executrix of the Estate of Ellen Polivka,
Caption                      Plaintiff-Appellant, v. SECURITAS SECURITY SERVICES USA,
                             INC., d/b/a Burns International Security Services, Defendant-
                             Appellee.

District & No.               First District, First Division
                             Docket No. 1-12-3749

Filed                        November 17, 2014
Rehearing denied             December 23, 2014


Held                         In a negligence and wrongful death action against the security service
(Note: This syllabus         at a mental health facility where plaintiff’s decedent worked as a
constitutes no part of the   part-time receptionist, the trial court properly entered summary
opinion of the court but     judgment for the security service, notwithstanding plaintiff’s
has been prepared by the     contention that a genuine issue of material fact existed as to whether
Reporter of Decisions        the security service had a duty to protect plaintiff’s decedent when a
for the convenience of       patient entered the facility with an unmarked can of gasoline and a lit
the reader.)                 cigarette, doused decedent with the gasoline and set her on fire, since,
                             based on viewing the stop motion snapshots of the patient on the
                             security cameras they used, it was unlikely the security officers would
                             have been suspicious and the post orders detailing the security
                             officers’ specific duties were formulated by the owners and operators
                             of the facility, not the security service, and those orders were not
                             included in the record; therefore, the appellate court would presume
                             that the trial court’s order had a sufficient legal and factual basis and
                             that the security officers complied with their orders and performed
                             their duties with reasonable care.


Decision Under               Appeal from the Circuit Court of Cook County, No. 06-L-05894; the
Review                       Hon. William Gomolinski, Judge, presiding.
     Judgment                Affirmed.


     Counsel on              Corboy & Demetrio, P.C., of Chicago (Michael K. Demetrio, of
     Appeal                  counsel), for appellant.

                             Rutkowski Law Group, P.C., of Chicago (Anthony R. Rutkowski, of
                             counsel), for appellee.



     Panel                   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.

¶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,


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     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.
¶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:
              “[I]n 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. 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



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       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 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 Hucksteadt 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.
¶ 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

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       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. 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, 111 Ill. 2d 229, 240 (1986).
       In deciding a motion for summary judgment, the evidence is viewed liberally in favor of the
       nonmoving party. Id. We review the trial court’s grant of summary judgment de novo. Fields
       v. Schaumburg Firefighters’ Pension Board, 383 Ill. App. 3d 209, 223 (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., 207 Ill. 2d 331, 349 (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., 208 Ill. 2d 414, 421-22
       (2004). Whether a duty of care exists is a question of law. Marshall v. City of Centralia, 143
       Ill. 2d 1, 6 (1991).
¶ 19        Generally, one does not owe a duty of care to protect another from the criminal acts of
       third persons. MacDonald v. Hinton, 361 Ill. App. 3d 378, 382 (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., 386 Ill. App. 3d 167, 172 (2008). Plaintiff contends that the fourth exception is
       applicable here. She argues that 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, 386 Ill. App. 3d at

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       168. 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.’ ” Id. at 169.
¶ 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.” Id. at 170. 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. Id. Vance’s security officers were unarmed and communicated through the use of
       two-way radios. Id.
¶ 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
       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. Id. at
       169.
¶ 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.
       Id.
¶ 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. Id. at 175. 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. Id. at 173. 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.” Id. at 174. 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. Id. at 175.
¶ 25       Similar to the situation in Aidroos, 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

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       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, damage or expense arising from” a violent action. We find, as did the court in
       Aidroos, 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, 78 Ill. 2d 204 (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. Id. at 212. In making this determination the court relied on
       the same general principle cited in Aidroos, that a defendant’s duty under a contract is limited
       to the extent of the voluntary undertaking. Id. at 210. 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 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

                                                   -7-
       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
       Hucksteadt 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. The appellant bears the burden of providing this court with a
       sufficiently complete record to allow for meaningful review. Foutch v. O’Bryant, 99 Ill. 2d
       389, 391-92 (1984). Without a sufficiently complete record, a reviewing court will presume
       that the trial court’s ruling had a sufficient legal and factual basis. Id. We find that the
       security officers complied with their post orders and performed their duties with reasonable
       care. See Aidroos, 386 Ill. App. 3d at 175.
¶ 32       For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 33      Affirmed.




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