                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 5 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    MATTHEW J. RING, III,

                Plaintiff-Appellant,

    v.                                                   No. 00-6104
                                                   (D.C. No. CIV-98-608-R)
    LEXINGTON APARTMENTS &                               (W.D. Okla.)
    MOTOR INNS-OKLAHOMA, a Texas
    general partnership; ARMGUARD,
    INC.; JOHN DOES II-V,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Matthew J. Ring, III, appeals from orders of the district court

granting summary judgment to defendants Lexington Apartments and Motor

Inns–Oklahoma and Armguard , Inc. 1 We affirm in part and reverse and remand

in part.

       Mr. Ring was a guest at Lexington when he was       assaulted, battered, pistol

whipped, and robbed at gunpoint in his room by two unknown assailants. Hotel

security was provided by Armguard, a contract security guard company. The

guard on duty at the time of the attack had noticed the two men enter the hotel

prior to the attack, but took no action aside from performing his regularly

scheduled surveillance rounds.

       Mr. Ring brought this action against Lexington and five John Does seeking

damages based on Lexington’s negligence in the operation of its hotel. Later

Mr. Ring substituted Armguard for John Doe I. The district court granted

defendants’ motions for summary judgment holding that       Lexington faced no

liability because it had no reason to know that any criminal act would occur and

that Mr. Ring’s claims against Armguard were barred by the statute of limitations.

       On appeal, Mr. Ring argues that t   he district court erred in granting

summary judgment to Lexington because it permitted Lexington to delegate

a nondelegable duty to shield itself from liability after holding that Armguard


1
       Mr. Ring does not contest the district court’s dismissal of John Does II-V.

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knew or had reason to know criminal acts were occurring or about to occur.

Mr. Ring contends the district court should have imputed the knowledge of the

agent security guard to the principal Lexington. As to Armguard, Mr. Ring

asserts that the district court erred by allowing Armguard to raise the statute of

limitations defense for the first time in its summary judgment motion and by

shifting the burden of proof on the statute of limitations defense to him.

       When reviewing a diversity action, we look to state substantive law, but

we follow federal law in determining the propriety of the district court’s grant

of summary judgment.       See Pegasus Helicopters, Inc. v. United Techs. Corp.   ,

35 F.3d 507, 510 (10th Cir. 19 94). “We review the district court’s grant of

summary judgment de novo, applying the same legal standard used by the district

court” under Fed. R. Civ. P. 56(c).       Simms v. Okla. ex rel. Dep’t of Mental Health

& Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). Summary

judgment is proper if the moving party shows “there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). An issue of fact is “genuine” if there is sufficient

evidence so that a rational trier of fact could find for the non-movant.      Simms ,

165 F.3d at 1326. “An issue of fact is ‘material’ if, under the substantive law,

it is essential to the proper disposition of the claim.”     Adler v. Wal-Mart Stores,

Inc. , 144 F.3d 664, 670 (10th Cir. 1998). We examine the factual record and


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reasonable inferences therefrom in the light most favorable to the party opposing

summary judgment.     Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996).

      In Oklahoma , “[t] he essential elements of negligence are (1) a duty owed

by defendant to protect plaintiff from injury, (2) a failure to properly exercise or

perform that duty, and (3) injuries to plaintiff proximately caused by defendant’s

failure to exercise his duty of care.” Copeland v. Admiral Pest Control Co.,

933 P.2d 937, 939 (Okla. Ct. App. 1996) (citation omitted). Whether a duty is

owed is the threshold issue in a negligence action and is a question of law. Id.

      [A]n invitor has a duty to exercise reasonable care to prevent injury
      to a business invitee. . . .,

             [but] does not have a duty to protect against criminal assaults
      by third parties unless the invitor knows or has reason to know that
      the acts are occurring or are about to occur. However, when the
      invitor has knowledge of imminent danger to an invitee, the invitor
      must act reasonably to prevent injury.

McClure v. Group K Enters., Inc.    , 977 P.2d 1148, 1150 (Okla. Ct. App. 1999)

(citation and quotation omitted).

      Clearly, Lexington did not have actual knowledge that a criminal act might

occur. The question is whether the knowledge of the security guard should be

imputed to Lexington. An invitor’s duty to protect its invitees may not be

delegated, thus, an invitor “cannot escape liability for an injury occasioned by its

non-performance by showing the immediate cause of the injury was due to the

negligence of an independent contractor.”         Hodge v. Morris , 945 P.2d 1047,

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1049-50 (Okla. Ct. App. 1997) (quotation omitted);          see also U.S. Sec. Servs.

Corp. v. Ramada Inn, Inc. , 665 So. 2d 268, 270-71 (Fla. Dist. Ct. App. 1995)

(throughout the country, business invitors are charged with the non-delegable

duty, which they may not contract out of by hiring an independent contractor,

to provide business invitees reasonably safe business premises, “including

reasonable protection against third-party criminal attacks”). In other words, while

a business invitor may contract out the performance of his non-delegable duty to

an independent contractor, he cannot contract out his ultimate legal responsibility

for the proper performance of that duty by an independent contractor.         See

Copeland v. Lodge Enters., Inc.       , 4 P.3d 695, 700 (Okla. 2000). The business

invitor “may be held vicariously liable for an independent contractor’s failure to

exercise reasonable care    even if the [invitor] has himself exercised due care.       ” Id.

Thus, if the security guard had knowledge that the two men he saw were about to

commit a criminal act, that knowledge would be imputed to Lexington.

       Mr. Ring presented evidence that when the security guard noticed the two

men in the hotel, he knew who they were and knew they were bad individuals.

The guard related this information to Mr. Ring after the attack and to the

investigating police officer.   2
                                    The district court even concluded that   “a reasonable



2
      The guard’s testimony changed at his deposition. Clearly, this issue is one
of credibility for a jury to determine.

                                               -5-
factfinder could conclude that the security guard on duty . . . knew or had reason

to know that criminal acts were occurring or were about to occur.” Plaintiff’s

App. at 313.

       A factual question of whether the business invitor had knowledge of

imminent danger has been found where the manager of a McDonalds restaurant

observed three men enter the restaurant and begin harassing customers. She

asked the men to leave, but did not check to see if they had left or call the police.

The men went outside the restaurant, began making racist comments towards

a customer waiting in the drive-through lane who left his car, at which time the

men attacked him.    See Taylor v. Hynson , 856 P.2d 278, 280-82 (Okla. 1993).

       Similarly a factual issue was found where employees were not only aware

of suspicious activity in the restaurant’s parking lot, but were concerned enough

to “watch the individual and [their] vehicles.”   Edington v. A & P Enters., Inc. ,

900 P.2d 453, 455 (Okla. Ct. App. 1994). The individual later attacked a patron

leaving the restaurant.

       Summary judgment should not have been granted to Lexington. As

Lexington had contracted out its duty to protect its guests from criminal attacks

by third parties, it can be held liable should the factfinder determine that the

security guard knew or should have known that the two men might commit

criminal acts.


                                            -6-
      As to his claims against Armguard, Mr. Ring maintains that his claim

cannot be barred by the statute of limitations because Armguard did not raise the

statute of limitations as a defense until its motion for summary judgment. The

attack occurred August 18, 1996. Mr. Ring filed his complaint April 30, 1998.

Mr. Ring named Lexington as a defendant along with five John Does. On May 7,

1999, Mr. Ring filed a motion to substitute Armguard as a party defendant in

place of John Doe I. The motion was granted.

      Oklahoma has a two-year statute of limitations for negligence actions.

See Okla. Stat. tit. 12, § 95.3. Thus, Mr. Ring’s substitution of Armguard for

John Doe I occurred outside the statute of limitations and his action is barred if

Armguard is precluded from raising the statute of limitations defense until its

motion for summary judgment.    3



      Fed. R. Civ. P. 8(c) states that a defendant must plead a statute of

limitations defense in its answer to the complaint. However,

      appellate courts are not inclined to find a technical failure to comply
      with Rule 8(c) fatal when the district court has chosen to recognize
      a belatedly asserted affirmative defense, so long as the record



3
        Mr. Ring does not contend that the substitution relates back to the original
filing of his complaint.  See Appellant’s Br. at 22. Nor could he do so under the
circumstances presented here.    See Alexander v. Beech Aircraft Corp. , 952 F.2d
1215, 1226-27 (10th Cir. 1991) (substitution of identified party for John Doe will
relate back to date of original complaint only if three conditions, not present here,
are met).

                                         -7-
      confirms that the plaintiff had adequate notice of the defense and
      was not deprived of the opportunity to respond.

Venters v. City of Delphi , 123 F.3d 956, 968 (7th Cir. 1997);   see also Camarillo

v. McCarthy , 998 F.2d 638, 639 (9th Cir. 1993) (“In the absence of a showing of

prejudice, however, an affirmative defense may be raised for the first time at

summary judgment.”). Mr. Ring has not established legally cognizable prejudice.

Thus, Armguard did not waive its statute of limitations defense.

      The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED in part and REVERSED and REMANDED in part

for further proceedings consistent with this order and judgment.



                                                      Entered for the Court



                                                      David M. Ebel
                                                      Circuit Judge




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