                                  Illinois Official Reports

                                          Appellate Court



                   St. Paul Mercury Insurance v. Aargus Security Systems, Inc.,
                                    2013 IL App (1st) 120784




Appellate Court              ST. PAUL MERCURY INSURANCE, a/s/o Mallers Building
Caption                      Limited Partnership, J. RICHMAN, and SPECTRUM PROPERTIES,
                             INC., Plaintiffs-Appellants and Cross-Appellees, v. AARGUS
                             SECURITY SYSTEMS, INC., Defendant-Appellee and Cross-
                             Appellant (Peoples Gas Light and Coke Company, and Peoples
                             Energy Corporation, Defendants).


District & No.               First District, Second Division
                             Docket No. 1-12-0784

Filed                        December 10, 2013

Held                         In an action arising from the explosion of a propane tank in a
(Note: This syllabus         commercial building housing tenants engaged in the jewelry business,
constitutes no part of the   the trial court properly entered summary judgment for the company
opinion of the court but     that provided security for the building’s owner, notwithstanding the
has been prepared by the     allegations of plaintiff insurer, as subrogee of the building owner, that
Reporter of Decisions        the security company was negligent in allowing delivery of the
for the convenience of       propane tank and breached its contract by failing to report the
the reader.)                 delivery, since there was no showing that the security company, under
                             the terms of its contract or through its voluntary undertaking, had any
                             duty to stop or report the delivery of the propane tank.



Decision Under               Appeal from the Circuit Court of Cook County, No. 09-L-6303; the
Review                       Hon. Eileen M. Brewer, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Cassiday Schade LLP, of Chicago (Julie A. Teuscher, Bradford D.
     Appeal                    Roth, and Cliff Demosthene, of counsel), for appellants.

                               Leahy, Eisenberg & Fraenkel, Ltd., of Chicago (Edward J. Leahy and
                               Roland S. Keske, of counsel), for appellee.



     Panel                     JUSTICE HARRIS delivered the judgment of the court, with opinion.
                               Presiding Justice Quinn and Justice Simon concurred in the judgment
                               and opinion.




                                               OPINION


¶1          Plaintiff, St. Paul Mercury Insurance, as subrogee of Mallers Building Limited Partnership,
       and J. Richman and Spectrum Properties, Inc. (Mallers), brought a complaint against
       defendant Aargus Security Systems, Inc. (Aargus), alleging that Aargus, as security provider
       for the “Mallers Building,” owned by subragors, negligently allowed the delivery of a propane
       tank that subsequently caused an explosion in the building. The complaint contained one count
       alleging negligence and one count alleging breach of contract. The circuit court granted
       Aargus’s motion for summary judgment and struck two affidavits Mallers attached to its
       response to Aargus’s summary judgment motion. The circuit court denied Mallers’s
       subsequent motion to reconsider. At issue is: (1) whether a question of fact existed as to
       whether Aargus had a contractual duty to stop or report the delivery of propane tanks to the
       building; (2) whether the circuit court improperly struck two of the affidavits Mallers
       presented in opposition to Aargus’s motion for summary judgement; and (3) whether the
       circuit court erred in denying Mallers’s motion for reconsideration.
¶2          We hold that the circuit court properly granted summary judgment in Aargus’s favor
       because Mallers failed to show, either by the terms of the contract or through evidence of a
       voluntary undertaking, that Aargus had a duty to stop or report the delivery of propane tanks to
       the building; that the circuit court properly struck both affidavits as they failed to comply with
       Illinois Supreme Court Rule 191 (Ill. S. Ct. R. 191 (eff. Jan. 4, 2013); and that the circuit court
       properly denied Mallers’ motion for reconsideration.

¶3                                         JURISDICTION
¶4         On November 1, 2011, the circuit court granted Aargus’s motion for summary judgment.
       On February 22, 2012, the circuit court denied Mallers’s motion for reconsideration. On March
       23, 2012, Mallers timely filed its notice of appeal. Accordingly, this court has jurisdiction

                                                    -2-
     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).

¶5                                        BACKGROUND
¶6       On May 29, 2009, Mallers filed its complaint against Aargus alleging that its subrogor
     owned the Mallers Building located at 5 South Wabash in Chicago, Illinois. The building “had
     various tenants including tenants engaged in the jewelry business.” According to the
     complaint, on April 1, 2002, JR Welding delivered a tank of liquefied petroleum to Maria
     Pecak, doing business as Betty’s Jewelry, in suite 617 of the building. A tenant in a space
     adjacent to Pecak’s, Alfredo Mohedano, accepted the delivery on Pecak’s behalf. Pecak later
     brought the tank to her suite. Plaintiff alleged that “[a] few hours later, *** an explosion
     occurred on the 6th floor of the *** building resulting in extensive property damage, property
     loss, building damage, and personal injury.” Mallers further alleged “[i]t was later determined
     that the explosion was the result of the ignition of the liquefied petroleum” tank and that “[t]he
     tank was damaged and/or defective prior to the time of delivery.” Mallers alleged that
     $14,500,000, had been paid for various insurance claims from the resulting damage.
¶7       Aargus, Mallers alleged, “served as the security services contractor for the Mallers
     Building and its tenants.” According to the complaint, there was a time when the use of
     liquefied petroleum gas was permitted on the premises, specifically:
                 “At all times prior to April 1, 2002, when Peoples Gas was performing work on the
             natural gas lines in the Mallers Building and shut off the natural gas service to the
             tenants of the Mallers Building, and permitted the use of liquefied petroleum gas on the
             premises, Aargus served as the security provider.”
     Mallers alleged that Aargus “continuously permitted several different distributors of liquefied
     petroleum and/or propane gas tanks to make deliveries” to various tenants of the building and
     that Aargus “was authorized to search and investigate all deliveries *** and stop the delivery
     of prohibited or illegal materials and/or substances.” Mallers alleged that one of the
     distributors “known” to Aargus delivered the tank that exploded on April 1, 2002.
¶8       Mallers alleged that Aargus “knew or should have known” that a dangerous condition was
     created by allowing deliveries, and tenants to accept deliveries, of liquefied petroleum and/or
     propane gas. Furthermore, Mallers alleged that Aargus either knew or should have known that
     liquefied petroleum and/or propane gas was “prohibited by the City of Chicago Building
     Code.” According to Mallers, Aargus had a duty to exercise ordinary care for the safety of all
     the building’s tenants and that it was negligent because it: allowed and/or facilitated the
     delivery of the hazardous tanks; allowed and/or facilitated the tenant’s use of the hazardous
     liquefied petroleum gas on the premises; allowed and/or facilitated delivery of the tanks while
     knowing that it was dangerous and violated local codes; failed to warn others; failed to notify
     tenants that use of liquefied petroleum gas was prohibited; failed to post notices and warnings
     in the building regarding the hazardous nature of liquefied petroleum gas; failed to inspect
     deliveries of hazardous tanks; failed to have an adequate inspection plan; failed to inspect
     and/or remove liquefied petroleum tanks; failed to warn tenants that liquefied petroleum gas
     was being used and received on the premises; failed to provide proper personnel to administer
                                                   -3-
       the inspection and removal of hazardous tanks; violated the Chicago municipal code; failed to
       provide restrictions in leases and policies with tenants prohibiting liquefied petroleum gas
       tanks on the premises; knew or should have known the general dangers associated with
       liquefied petroleum gas tanks in buildings; knew or should have known that tenants in the
       building were accepting deliveries of liquefied petroleum gas tanks; and “[w]as otherwise
       negligent.” Plaintiff alleged that these acts or omissions were the proximate cause of the
       injuries and damages that occurred, which in turn caused plaintiff to pay out $14,500,000
       pursuant to an insurance policy.
¶9         The breach of contract count in Mallers’s complaint specified that it entered into a
       “Security Officer Contract” with defendant for the premises on March 29, 1993. Mallers
       alleged that Aargus, “[w]hile under contract for the provision of security services to the
       Mallers Building, *** continuously permitted the delivery of liquefied petroleum and/or
       propane gas to tenants of the Mallers Building.” According to plaintiff, allowing such
       deliveries was a breach of the express and implied terms of the contract.
¶ 10       Mallers attached a copy of the contract to its complaint. The contract, labeled “Security
       Officer Contract,” is dated March 29, 1993. The contract states that the parties to the
       agreement are “Mallers-Chicago Management Inc., as agent for 5 S. Wabash Building,
       Chicago, IL 60603,” who the contract refers to as the “client,” and Aargus. The contract
       indicates that the “[c]lient desires that Aargus furnish security officers at its premises at” the
       building. Paragraph one of the contract states, in relevant part:
                   “During the term of this contract the Client agrees to use and Aargus agrees to
               furnish such number of uniformed Security Officers as may from time to time be
               required by the Client at the Client’s premises, and Client agrees to pay Aargus the
               following per hour rate.”
       Paragraph one of the contract then goes on to discuss billing rates, hours, holidays, and
       vacation of the security officers, as well as overtime. The contract provides:
                   “The number of Security Officers, Security Officer posts, their location, and the
               hours and nature of Security Officers’ duties may be varied from time to time at
               Client’s request to meet Client’s requirements. The protective services provided by
               Aargus are relative to the scope of the works set forth in paragraph one above, and
               additional protection is available at greater cost. The furnishing of the security services
               provided for herein does not guarantee protection against all contingencies.”
       The contract contains a provision indicating that the security guards are Aargus employees.
       Specifically, the provision provides as follows:
                   “The Security Officers shall perform such security services as the Client shall
               request but they shall be employees of Aargus, an independent contractor. The
               payment of *** taxes, Social Security Benefits, unemployment compensation taxes
               and wages shall be the sole function and responsibility of Aargus.”
       Additionally, the contract provided:
                   “Aargus and the Client agree that Client can give material changes to Aargus’ main
               office representative or the On-Site Aargus Supervisor who shall transmit the
                                                    -4-
                directions to the Security Officers in the post orders or such other directions as the
                situation may require. Security Officers shall not be allowed to accept any directions
                from any Mallers’ employees other than pursuant to this procedure.”
       The contract in its entirety is four pages long.
¶ 11        On December 31, 2009, Aargus filed its motion to dismiss pursuant to section 2-619 of the
       Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)) and a motion for
       summary judgment against Mallers. Aargus contended that the building “had long contained
       many jeweler tenants who required the use of various gases as heating sources for
       manufacturing and repairing jewelry.” Aargus asserted that the routine delivery of tanks of
       various gases to the building was “well known” to Mallers and had a long history. Aargus
       characterized itself as a “contractor for services” at the Mallers Building and its contract was
       for “limited security related services at the Mallers Building.” According to Aargus, the
       following facts, prior to the incident, were undisputed: that Mallers never sought or requested
       “that the property, materials and supplies, including tanks of gas be stopped, checked,
       inspected or otherwise inspected”; that there is no provision in the contract that obligated it to
       provide or pay for “staffing or services for stopping, checking, inspecting or in any manner
       analyzing property, materials or supplies being delivered to and brought onto the ***
       premises”; and that such services were never assumed or performed by Aargus. Aargus alleged
       that Mallers, at various times, admitted that it never requested such services nor were such
       services required under the contract between the parties. According to Aargus, Mallers’s
       complaint sought to impose an “after-the-fact duty upon” it to perform services not contracted
       for or paid for by Mallers. Aargus argued that Mallers failed to establish any contractual
       obligation or impose any duty upon Aargus to sustain its claim. Specifically, Aargus asserted
       that Mallers cannot point to any specific obligation in the contract that establishes a duty owed
       by Aargus. Furthermore, Aargus argued that none of the alleged breaches alleged by Mallers
       were covered under the contract.
¶ 12        Defendant included numerous attachments in support of both of its motions, including
       depositions, a copy of the contract, and requests to admit. Harvey Borders, a security guard
       employed by Aargus who worked at the building, testified during his deposition that Aargus is
       a security company that does “building surveillance, customer service type security.” When
       asked what the duties of a security guard at the building are, Borders answered as follows:
                    “Basically, we work inside a guard room. And there’s about eight monitors. We
                just basically just monitor the cameras. And we do what they call detects rounds. And,
                basically, that’s just walking through the building and just observing the building for
                anything that might be out of the ordinary.”
       Borders testified that “[a]fter 6:30 and all day on Sundays and holidays,” the guards record the
       names of the people who enter the building. On a regular day, two or three guards work at a
       time while on Sundays only one guard works per shift. Borders testified that typically one
       security guard works in the control room monitoring cameras in the building while the other
       one is doing rounds. The security guard in the guard room will also answer the phone and
       answer different questions for people and direct them to where they need to go. Borders
       testified that each floor had, at the time of the explosion, “at the most,” two cameras per floor
                                                     -5-
       which he thought were probably placed at each end of the floor. There were also cameras on
       the elevators but none in the lobby. When asked whether there were cameras by the freight
       elevator or the dock at the time of the explosion, Borders answered, “No.” Aargus did not keep
       copies of the videos, but Borders thought the “building did.” He did not know who was
       responsible for the placement of the cameras.
¶ 13       Borders testified as to what occurred during a “detects rounds.” He described how each
       floor, except the lobby, which only has one, has three “detects strips.” The security guard
       walks through the building and swipes each strip with a “detects gun,” which registers the
       swipe with a computer. Borders added that “you just walk through the building from floor to
       floor swiping each strip. And as you swipe it, basically you [are] just looking for maybe if a
       door is ajar, if a window’s broken, you know, you check the bathrooms for anything out of the
       ordinary.” A security guard does one detects round per shift, and the detects round takes 20 to
       30 minutes to perform. When asked, “Do you ever have a reason to go inside a customer’s
       space?” Borders answered “No.” In addition to the above-described responsibilities, Borders
       testified that a security guard “might pass out memos” one or two times per month, and deliver
       late and rent notices from the management of the building. Borders answered “No” when asked
       whether a security guard delivers packages. When asked whether Aargus had any
       responsibilities regarding deliveries in 2002, Borders answered that most of the delivery
       companies “work that same building every day so they basically know where they want to go.
       But if its another delivery, most of the time they’ll come up through the dock and get on the
       freight and the freight guy will take them up.” Borders explained that there used to be elevator
       operators in the building that did not work for Aargus, but now the delivery people go up the
       freight elevator themselves.
¶ 14       Borders testified that Jay Richman, the owner of the building, instructed him on what his
       duties and responsibilities were at the building. Borders explained that Richman’s instructions
       were “nothing significant” and testified that Richman might leave a package for someone to
       pick up or ask the security guard to look out for a person suspected of stealing. When asked
       whether “anybody at Aargus *** or anyone else ever [told] you that when you work as a
       security guard at the Mallers Building you’re supposed to pay attention to whether anyone
       brings in propane,” Borders answered “No.” Prior to the explosion, Borders never observed
       propane tanks in the building. He did sometimes observe a “green, long tank,” but he did not
       know what was in the tank. Prior to the explosion, tank deliveries would go from the dock to
       the freight elevator, and then onto the desired floor. After the explosion, any tanks delivered to
       the building were required to be inspected by the management of the building. The new,
       post-explosion policy was drafted by Mallers, not Aargus.
¶ 15       Borders testified that a security manual was kept in the guard room. The manual described
       working shifts, hours, break times, the time to do rounds, and a “pass down log” that the
       security guard was to maintain to let the security guard working the next shift know what had
       happened or any instructions regarding the building. Borders further testified that prior to the
       incident, it was a policy of the Mallers Building that tanks had to come in through the dock, not
       the lobby, and up on the freight elevator. No one had ever told him that propane was not
       supposed to be in the building. He had received calls from tenants complaining of a gas smell,
                                                   -6-
       and he would then call the engineer, who would then “take care of it.” He was not responsible
       for checking any tanks coming into the building. Borders testified that the delivery of tanks to
       the building is normal and a usual occurrence.
¶ 16       Paulette Mendoza, a receptionist employed by Mallers Building, LLC, since 2000, testified
       during her deposition that her supervisor is “J[ay] Richman.” As a receptionist, she answers the
       phone, makes deposits, does filing work, makes copies, and types leases, which Mendoza
       described as “office work.” She testified that the only files in her office are the current leases
       and invoices such as utility and electric bills. Mendoza testified that when a notice needs to be
       sent to a tenant, an Aargus security guard will deliver the notice to the tenant. Besides giving
       notices for Aargus to deliver, Mendoza testified she does not engage in any other
       communication with any Aargus employees. She testified that inspectors from the city of
       Chicago perform inspections in the building more than once per year, but not more than five
       times per year. She does not keep records of the inspections and she was unaware if her
       supervisor kept them.
¶ 17       When asked what she remembered about the explosion, Mendoza testified that she
       remembered that there was an explosion in one of the tenant spaces which she thought was on
       the sixth floor. She testified that the cause of the explosion was a propane tank because that is
       what she “heard.” She did not know when the propane tank was delivered. She testified that
       she has never seen any kind of gas or propane cylinder or tank in the building, but she has seen
       an oxygen cylinder or tank being delivered to the building. She now has to “sign off” on all
       tank deliveries to the building, a policy not in effect prior to the explosion. She did not know if
       propane was ever allowed into the building. She testified that before the explosion, tanks were
       to be delivered through the loading dock. She believed that they were then taken up to tenants
       on the freight elevator.
¶ 18       Mendoza testified that she was to call Aargus “if there is something going on in a tenant
       space,” and that Aargus would call her if there was a problem with the monitors or the camera.
       The memos she had Aargus distribute occurred maybe one to five times a month and are from
       the office of the building, not Aargus. Aargus also delivered rent notices one time per month.
       Prior to the explosion, if Mendoza was not there, Aargus would answer the phone. Aargus was
       told it was to take a message and give the message to either Mendoza or Richman. Mendoza
       testified that she had never seen a building safety manual. She “believed” Aargus had a
       manual, but she had not seen it. When asked what Aargus’s duties where, she answered “to
       watch monitors basically” and “[j]ust to make sure everything is going smoothly in the
       building. There’s no commotion or anything.” When asked whether it was supposed to be
       aware of who enters and exits the building, Mendoza answered “Yes.” Mendoza clarified that
       Aargus was “supposed to watch the people come in and out of the building.” When asked
       whether Aargus was “[t]o look for what, suspicious people,” Mendoza answered, “Right.
       Correct.” When asked to define “suspicious person,” Mendoza answered that “if they see
       somebody–either if I get a call from a tenant saying that there’s somebody in the hallway that’s
       been there for a while ***, something like that, then I call security and let them know just to
       keep an eye on them.” When asked “based on the deliveries to the building, delivery men

                                                    -7-
       coming in with tanks, they weren’t suspicious. They were supposed to be there,” Mendoza
       answered, “Correct.”
¶ 19       Salvatore Chiovari, who at the time of the explosion worked as a security guard and an
       operator of the freight elevator for Aargus at the building, testified during his discovery
       deposition that he started working for Aargus in 1993 when Jay Richman and his partners took
       over the building. He ran the freight elevator and testified that his “job was strictly to bring
       supplies up and down on the freight.” Chiovari testified that “we were actually supposed to do
       whatever *** Richman *** asked us to do.” Chiovari testified that from 1993 until the
       explosion, tanks were taken up and down the freight elevator. When asked whether propane
       tanks were ever taken up, Chiovari answered that although he took tanks up, he did not look or
       check to see what kind of tanks they were. He knew of a security manual for Aargus, but he
       was not familiar with it and had never read it. His supervisor had the manual. Chiovari testified
       that deliveries were supposed to use the freight elevator, but people would use the passenger
       elevators if the freight elevator was “preoccupied” or if the delivery person was in a hurry. This
       also applied to people delivering tanks. Before the explosion, people making deliveries did not
       have to sign a log. When asked whether the delivery people had to get a badge or temporary
       identification, he answered “[n]ot to my knowledge, no.” He agreed that prior to the explosion
       people could basically just come and go. When asked whether, prior to the explosion, he was
       “ever told by anyone what or who you should allow or not allow in the Mallers Building,”
       Chiovari answered that they had “problems with bums” who they “had to chase *** out, but
       that was about it.” He clarified that he was to report anyone that looked “suspicious.” He
       answered “No,” when asked whether he was “ever told any type of cargo or goods that you
       could not let into the Mallers Building.” Prior to the explosion, Chiovari was not given any
       training as to what constituted unlawful activities in the building, he was not told to enforce
       any provisions of any leases, he was never told anything about “any hazardous materials or
       hazardous gases,” and he was never told anything about propane. Based on his experience in
       the building, he observed jewelers using torches that he thought were fueled by propane. He
       would hear jewelers discuss amongst themselves supplies, including propane, that they would
       use or need. Chiovari testified that jewelers continued to use propane even after an incident
       that occurred in August of 2000. He could not remember anyone bringing propane into the
       building on the day of the explosion in 2002. Although he saw Maria Pecak of Betty’s Jewelry
       use a torch to repair jewelry in her shop, he did not know if she used propane gas. After the
       explosion, Richman told him no propane was allowed in the building. Prior to the explosion,
       Richman never told him anything about propane.
¶ 20       In 1993, his employer changed to Aargus, and then he only worked the freight elevator.
       Supplies and materials were only supposed to be brought up the freight elevator. While
       employed by Aargus, he recalled delivery people telling him that they had propane or oxygen
       to deliver. He testified he would only know the difference between a propane tank and an
       oxygen tank if the delivery person told him. Chiovari testified that delivery of tanks was not
       suspicious and occurred on a daily basis. He agreed that he was to allow tenants to have tanks
       delivered to them. It was not part of his job to determine what went into the building. He was
       not supposed to detain anyone or anything and if he saw a suspicious package or person, he
                                                   -8-
       was supposed to call his supervisor. He was not supposed to question people. He testified that
       the guards were not supposed to accept packages and that they were not supposed to “deal
       with” packages. According to Chiovari this policy was in effect because they did not want to
       be accused of stealing jewelry. He agreed that he was a nonarmed security guard. He answered
       “[c]orrect,” when asked whether his “main function was to determine a security issue and
       report it so that it could be reported to the police.”
¶ 21       Jay Richman, during his deposition, was shown a memo dated August 30, 2000 to all
       tenants of the Mallers Building from the office of the building. Richman could not recall the
       memo but testified he “probably” drafted it. He testified that Aargus most likely delivered the
       memo based on “practice and procedure.” The memo read that natural gas in the building
       would be turned off for a period of time. Richman testified that Gary Klein, told him that “the
       tenants that are using his gas product should get a hold of their oxygen providers to determine
       what other opportunities exist.” Richman testified that he does not know what happened to the
       security tapes of the sixth floor, but that Aargus was the “custodian of the tapes.” He did not
       know if Maria Pecak had propane in her suite. Richman testified that Joseph Cortese was the
       director of security in the early 1990s for “Mallers-Chicago.” At his request, Cortese provided
       input in the drafting of the security manual. Richman testified that he had the ability “to go and
       request things of the security guards.” When asked when he first became aware that anybody
       used propane in the Mallers building, he answered “April 1st of 2002. April 1-1/2 of 2002.”
       Prior to that time he had no knowledge of anyone using propane in the building. Richman
       testified that he could not recall when asked, “Prior to April 1, 2002, did you ever direct anyone
       from Aargus Security to stop any delivery people from bringing tanks of any kind into the
       building?”
¶ 22       Alberto Aguiar, president and owner of A&B Jewelry located in room 608 of the building,
       testified during his deposition that his company sells, but does not repair, jewelry. Although his
       company had not done repair work in the past 10 or 12 years, he was familiar with the tools of
       repair work. He testified that a torch and polishing machine are used, fueled by gas and
       oxygen. The gas came from a pipeline, not a tank. He agreed that when his company did repair
       work, the gas was only natural gas from a pipe. He was familiar with other people who do
       jewelry repair work. He testified that “[e]verybody who repairs jewelry must use a torch,” and
       that people in the jewelry repair business use natural gas and propane to fuel the torches. He
       opined that many tenants used propane, but stated that “I can’t prove that they were using
       propane.” He did see propane tanks in the building, but he was unable to remember where. He
       does not remember communicating with Richman or Aargus regarding propane and he was not
       familiar with the procedure and requirements of deliveries to the building. He had not seen or
       paid attention to tanks being delivered into the building. He was familiar with Maria Pecak,
       who had a repair shop, Betty’s Jewelry, near his own shop. He could not remember if Pecak
       used a natural gas or propane, but he did see her using a torch, and he never talked to her about
       using natural gas or propane. He did not know if People’s Gas ever authorized the use of
       propane in the building.
¶ 23       Attached as an exhibit was an amended request to admit in the case of Certain Interested
       Lloyd’s Underwriters of London v. Pecak, Nos. 04 L 003707, 05 L 013256 cons. (Cir. Ct.
                                                   -9-
       Cook Co.). The request to admit was titled “Maller’s Amended Responses to Aargus Security
       Systems, Inc.’s Request to Admit.” The following questions, in relevant part, were asked and
       answered in the request to admit:
                  “18. Mallers’ contract with Aargus *** does not contain any provisions requiring
              Aargus to inspect any tanks of gas, including *** propane *** tanks, that are delivered
              to the Mallers Building.
                  Response: Mallers admits that its contract with Aargus does not have a specific
              provision that states Aargus is required to inspect any tanks of gas, including ***
              propane *** tanks, that are delivered to the Mallers Building.
                  19. Mallers never verbally instructed Aargus Security Systems, Inc. or any of its
              agents or employees to inspect any tanks of gas, including *** propane *** tanks that
              are delivered to the Mallers Building.
                  Response: Mallers admits the facts in Request to Admit No. 19.
                  20. Neither Aargus*** nor any of its agents or employees ever assumed a duty on
              behalf of Mallers to inspect deliveries of tanks of gas, including *** propane*** tanks,
              to the Mallers Building.
                  Response: Mallers admits that Aargus did not assume a duty ‘on behalf of Mallers,’
              Mallers cannot admit or deny the remaining allegations in Request to Admit No. 20
              because it lacks sufficient information upon which to form a conclusion as to whether
              Aargus or its employees assumed a duty.
                                                 ***
                  23. Neither Aargus *** nor any of its agents or employees ever assumed a duty on
              behalf of Mallers to inspect deliveries of any packages entering into or on the premises
              of the Mallers Building.
                  Response: Mallers admits that Aargus never assumed a duty ‘on behalf of Mallers.’
              Mallers cannot admit or deny the remaining allegations in Request to Admit No. 23
              because it lacks sufficient information upon which to form a conclusion as to whether
              Aargus or its employees assumed a duty.
                                                 ***
                  30. Prior to April 1, 2002, Aargus did not inspect any packages or deliveries,
              including but not limited to *** propane *** tanks or canisters, being brought onto the
              premises of the Mallers building.
                  Response: Mallers cannot admit or deny the allegations in Request to Admit No. 30
              because it lacks sufficient information upon which to form a conclusion as to actions of
              Aargus or its employees.”
       The request to admit was submitted by “Mallers Chicago Management Corporation, Mallers
       Chicago Limited Partnership, and Jay Richman.”
¶ 24       Harold Wojciehowski, during his deposition, testified that he is the site supervisor,
       employed by Aargus, at the building. He does not carry a weapon and agreed with the
       statement that he is an “unarmed security officer.” He stated that all the security officers at the
       building are unarmed security officers. At the time of the incident, Wojciehowski supervised
                                                  - 10 -
       eight employees at the building. When asked “[w]hat type of things fall under security,”
       Wojciehowski answered “[t]heft, loitering, to notify the police if there was a theft[;] *** if
       there was a fire, we would observe and report to the fire department, give them some
       information *** whatever we can provide to them.” He testified that a walk-through was
       performed in the common areas of the building four times per day. He thought there were
       “maybe” 80 cameras in the building at the time of the incident. No “vendor/messenger” log
       was kept, and delivery people did not need to check in with security. Tenants did not need to
       show any proof that they were tenants to access their units. There was no security check-in
       desk at the building for visitors. When asked whether any tenant had ever asked him if propane
       was allowed in the building, Wojciehowski answered, “No, I don’t think–I don’t remember
       anybody ever asking me that.” Wojciehowski testified that he never told any tenant that
       propane was allowed in the building. He was not aware of anybody authorizing or prohibiting
       propane use in the building. He thought that people in the building used natural gas and oxygen
       in the torches they used to make jewelry. When asked whether “anybody from the building
       management ever [told] you *** that deliveries of canisters of any kind were permitted in the
       building,” Wojciehowski answered “No, I didn’t have discussions regarding canisters, at least
       the best I can remember anyways.” He never saw a memo or written documentation related to
       canisters or propane gas. He later clarified that when he referred to building management, he
       was referring to Jay Richman or his secretary, Paulette Mendoza.
¶ 25       He testified that Aargus has a security manual, that he “believed” Aargus created. It is kept
       in the building, in the guard or control room. The manual is not given to each Aargus
       employee, but it is on premises, “presented and expected to be read.” He agreed that only
       “something out of the ordinary would be maybe referred to the building manager.” He clarified
       that he did not know how jewelers in the building were using torches, just that they were being
       used. He testified that visitors and vendors to the building “may be asked to establish their
       identity and state their purpose for working in the building.” He remembered a person from JR
       Welding who delivered propane to the building because the man gave him his card. When
       asked whether JR Welding would have had permission to make a delivery, Wojciehowski
       responded “[y]eah, I would say.” He answered “No” when asked whether anyone from
       management instructed him not to let the JR Welding man into the building. Prior to the
       explosion, he had no knowledge that propane tanks were being delivered to tenants. He knew
       metal canisters or cylinders were being delivered, but he did not know their contents.
¶ 26       Jay Richman, in a February 2, 2005, deposition, testified that he signed the contract
       between Mallers-Chicago Management, Inc., and Aargus. He did not know if Mallers-Chicago
       was still a viable entity, and he could not recall if he had any ownership interest in the entity,
       but testified that he was “[p]robably an agent” of the entity. He could not remember the
       contract negotiations, but did state that his “guess” would be that he read the contract as he
       signed it, as it is his “standard operating procedure” to read contracts before he signs them.
       Richman testified that Aargus provided an operating manual for the building. When asked
       whether he had “any documents that reflect [his] or anybody else at Mallers-Chicago
       Management Company, Inc.’s request to Aargus Security to check deliveries made to the ***
       building before this incident occurred,” Richman answered, “I don’t recall. You’re asking a
                                                   - 11 -
       question that I don’t have an answer to.” Richman did not know of any documents that
       instructed Aargus to check deliveries made to the building. Richman was aware that cylinders
       were delivered to the building.
¶ 27       Richman could not recall any documentation, or instructions from himself, to Aargus
       asking it to inspect “tags on cylinders.” The only instruction given was to have deliveries made
       to the freight elevator as opposed to the passenger elevators. He was “not aware of any”
       instructions given by himself or any entity requiring Aargus to determine what was contained
       in cylinders entering the building. He did not instruct Aargus to stop deliveries of propane gas
       to the building. Richman recalled a prior incident, in the year 2000, where someone from
       “Peoples Gas allowed its customers in the building to bring in alternative gases, one of which
       being propane, until such time that the gas system was re-energized.” Richman stressed that
       People’s Gas would not reenergize a tenant, among other reasons, unless propane was
       removed. Richman was not aware of any person on staff telling Aargus not to allow propane to
       be delivered to the building. He was only aware of propane being brought into the building on
       three occasions: (1) at the directive of People’s Gas during “re-energization of the gas
       distribution system” during an “interim period” of six to eight weeks; (2) when a roofing
       company that was currently, at the time of the deposition, installing a new roof; and (3) during
       the repiping of the building.
¶ 28       Richman thought Joe Cortese and Aargus developed the security procedures for the
       building. Richman further testified, in relevant part:
                    “Our involvement, at least my involvement, and I believe my staff’s involvement,
               has always been to let Aargus control access and security.
                    Where we step in is where if we see somebody that we want them to check out in
               the common areas, if there’s an incident that happens within a tenant’s space, a security
               breach, and if the staff of Aargus is not in our minds performing to what our
               expectations are; and I mean, you know, for instance, if we walk out of the building
               after normal business hours and we see, for instance, a guard room that’s unattended or
               a guard sleeping in the guard room, that’s where our hypersensitivity and our input
               comes into play.
                    Beyond that, we really rely on Aargus in terms of living up to what the policies and
               procedures have been established over the years.”
¶ 29       Richman clarified that “Between the re-energization of the gas distribution system and the
       2002 incident, I’m not aware of propane being delivered to the building.” He did state that,
       during this period of time, he did see cylinders being delivered.
¶ 30       Aargus attached a motion for summary judgment, filed by Mallers-Chicago Management
       Corporation, Mallers Chicago Limited Partnership, and Jay Richman, in case No. 2004 L
       3707, consolidated with No. 2004 L 13256 and filed in the circuit court of Cook County, in
       which it argued, relevant to this appeal, that Mallers stated that “there is some evidence Mallers
       was aware of tenants[’] temporary use of propane following an August 2000 incident which
       resulted in natural gas service to the building being shut off for several weeks, there is no
       evidence that Mallers was aware of its use following the restoration of service in

                                                   - 12 -
       approximately September of 2000.” Mallers, in the motion, further stated that “Peoples Gas
       had advised tenants to discontinue use of propane prior to reconnecting gas services in the
       building in September of 2001.” Mallers stressed in the motion, however, that no evidence was
       presented in that matter that indicated that Mallers had any knowledge of propane tanks in the
       building at the time of the explosion.
¶ 31       Aargus attached to its motion a memo from Mallers to the tenants, titled “Tenants who use
       Peoples Gas as a service provider,” dated September 1, 2000. The memo informed the tenants
       that gas would not be turned on for a few weeks. Furthermore, the memo stated that “[u]ntil
       that time it was suggested to us that you call your oxygen tank provider and discuss your
       alternatives with them.”
¶ 32       Richman testified during a January 23, 2004, deposition that Aargus provided “[s]ecurity
       services,” which he described as “labor security.” As far as letting people into the building,
       Richman answered that Aargus had a manual. When asked whether “whatever Aargus says is
       your rules for the building,” Richman answered “Yes.” Later, Richman answered “Yes,” when
       asked “And as for any visitors to the building, same thing, that would be whatever Aargus
       Security manual says on the issue?” When asked whether the building had “any policy with
       respect to delivery of tanks to the building,” Richman answered that “[y]ou have to review the
       Aargus manual,” because the building did not have a separate policy.
¶ 33       In response to Aargus’s motion for summary judgment, Mallers argued that Aargus was
       aware of deliveries of propane tanks being made to the building and that it knew or should have
       known that the tanks presented a danger to the building and its tenants. Mallers argued that
       Aargus breached a duty of care owed to Mallers and acted in violation of city code because
       Aargus, as security provider, did not make any effort to stop the propane tank deliveries.
       Mallers asserted that Aargus knew of the deliveries of propane tanks and had a duty to inform
       Mallers of their delivery and that it had a contractual duty to stop deliveries of propane tanks.
       Additionally, Mallers argued that Aargus voluntarily undertook a duty to provide security for
       the building and did so negligently. According to Mallers, Aargus’s alleged negligence
       ultimately resulted in the delivery of a propane tank on April 1, 2002, which caused
       $14,500,000 in damages. Therefore, Mallers asked that Aargus’s motion for summary
       judgment be denied. Mallers also attached exhibits to its response, five of which were not
       already attached as exhibits to Aargus’s motion for summary judgment and, thus, were being
       presented to the court for the first time. Those exhibits were: a copy of the “Mallers Chicago
       Management Security Manual”; depositions of Alfredo Mohedano and Nancy Fisher; and
       affidavits from Daniel B. Kennedy and S. Ronald Hauri.
¶ 34       The security manual title page indicates that the manual’s contents were restricted to the
       use of Aargus and Mallers Chicago Management and that the manual was revised on
       September 20, 2001. In a nondisclosure statement at the front of the document, the manual
       states that it is “the property of Aargus *** and Mallers Chicago Management” and that it
       “may not be removed by any employee from the office or work location.” The nondisclosure
       statement lists Jay Richman as the “Owner.” On an introduction page, the manual states its
       purpose as “to establish department procedures, rules, and regulations for the Security Officers
       and to outline their responsibilities while on duty.” Furthermore, the manual states that the
                                                  - 13 -
       “procedures in the manual will help to minimize and prevent losses to the client, due to
       security and emergency conditions that can result from fire, theft, explosions, etc.” Under the
       heading, “Enforcement of Tenant Regulations,” the manual provides that the landlord has
       imposed various rules on the tenants. The manual states that “[a]s a representative of the
       landlord, it is each Security Officer’s responsibility to observe and report any violations of
       these rules.” Security officers were to notify a senior employee of a problematic tenant, then if
       the problem was not corrected, to make a notation of the violation in their shift or daily report.
       The manual then lists several examples of rules, including that deliveries to tenants must be
       made through designated corridors. The manual states that “each tenant at the property is
       responsible for security issues that relate to its space and its property (including its
       merchandise).” Furthermore, the manual states that a security guard’s
               “primary duties include general patrol of interior and exterior areas of the property and
               observation and prompt reporting of problems or deficiencies as outlined in this
               Manual. In the course of your daily activities, you are asked to maintain social and
               business order at the property, without exposing yourself or others to threat of harm.
               No other duties are to be assumed or implied by a Security Officer.”
       Additionally, the manual stresses that “Security Officers are reminded that each tenant on the
       property is responsible for security measures related to its leased space and its contents.” Also,
       “[a] Security Officer must avoid becoming overly involved in the security problems of a
       tenant; despite a Security Officer’s good intentions, tenant security problems are simply not
       the responsibility of the Security Staff.” The manual further provides that “Security Officers
       must avoid giving information or advise tenants that could be construed as legal advi[ce] or
       counseling.” Under the heading “Special Requests;” the manual provides that “[f]rom time to
       time, property management may request services of the Security Officer not specifically
       addressed in this manual.”
¶ 35       Under the heading “Theft, Fire and Accident Prevention Duties,” the manual states that
       “[t]he protection of our contracted facilities by Aargus Security Officers is primarily
       preventative. Therefore, any and every situation which might lead to loss or damage of
       company property or injury to personnel must be reported.” Twelve scenarios, none of which
       involve inspecting deliveries or deliveries at all, were then listed as examples of “situations”
       that need to be reported. Under the heading “General Regulations,” the manual states that
       “[s]ecurity personnel are not in the position to judge who should and who should not have
       access to the building.” The provision states further that a security officer should not allow
       anyone in the building even if that person claims that he or she left his or her keys at home or
       was locked out. Under the heading “General Information,” the manual provides that during
       normal business hours, “[a]ll tenants, vendors, contractors, salesman, visitors, etc, may be
       asked to establish their identity and state their purpose for being in the building.” The manual
       further provides that “[p]eople with a need to be in the building will be allowed to enter and
       exit freely–under normal condition.” Under “General Information,” the manual states that “[a]
       Security Officer is never authorized to accept the responsibility for the well being of an
       individual tenant’s premise.” Under the heading “General Information,” and the subheading
       “Suspicious Objects or Incidents,” the manual provides “[a]dvise the Property Management of
                                                   - 14 -
       any suspicious incident or the presence of any object or package that appears to be extraneous
       to the location. If a suspicious object or package is found, do not attempt to handle it.”
¶ 36       Alfredo Mohedano, testified during his deposition, that he owned Torres Watch Repair at
       the time of the explosion on the sixth floor of the building. His shop was next to Betty’s
       Jewelry store, owned by Maria Pecak. He described his observations of the explosion, fire, and
       his subsequent injuries. The day of the explosion, “[s]ome gas company” tried to deliver a tank
       to Betty’s, but was unable to because she was not there. Mohedano testified that “[t]hey left the
       tank in [his] place.” He described the tank as a four-foot-tall cylinder. He did not have to sign
       for the delivery. The delivery man asked him if he could leave the tank. Mohedano testified
       that “[e]verybody used those tanks, so I thought there wouldn’t be any problem.” He stated that
       he had seen those tanks in other shops as well, but he did not know what kind of gas was in the
       tank. He never saw the tanks being brought into the building though, just in other people’s
       shops. The tank was in his shop “an hour, hour and a half.” He answered “No,” when asked
       whether he was aware of any rules regarding the use of liquid propane in the building and he
       could not remember seeing any provision in his lease regarding propane tanks or liquid
       propane gas in the suites. He had no idea of how deliveries were made to the building.
¶ 37       Nancy Fisher, a general adjustor for subrogee, testified regarding the $14,500,000 in
       claims filed after the explosion. She did not know if Aargus had to check deliveries of tanks
       into the building.
¶ 38       Daniel Kennedy, the principal of Forensic Criminology Associates and a professor “in the
       Sociology and Criminology department as well as the Department of Criminal Justice and
       Security Administration” at the University of Detroit Mercy, stated in his affidavit that “[t]he
       provision of high-rise security is far more complicated than other fields of security” due to
       their “unique hazards and risks.” According to Kennedy, “[a] contract security company ***
       must possess appropriate knowledge and procedures to be able to provide security to the
       complex technical assignment that a high-rise presents.” Kennedy attested that this was
       especially true with “[t]he advent of September 11, 2001.” Kennedy attested further that “[t]he
       responsibility required of a security company providing these services would include
       knowledge of any applicable laws, codes or ordinances pertaining to high-rises.” Kennedy
       added that “[t]his would be particularly true in the instance of a prohibition on large propane
       tanks.”
¶ 39       Ronald Hauri, the principal of Hauri Associates, attested in his affidavit that he works in
       strategic risk management and corporate security service, strategy, and program development
       and investigative and crisis management. According to Hauri, “[t]he conditions that existed for
       provision of security on or about April 1, 2002, were much different than those that existed
       pre-September 11, 2001.” As such, security providers to a high-rise building after September
       11, 2001, “are tremendously scrutinized and any provider of high-rise security *** knew, or
       should have been aware of potentially hazardous and/or explosive materials coming into
       buildings where they provided security.” Hauri further stated in his affidavit that “Aargus ***
       should have stopped the propane tanks coming into the building independent of any lack of
       specific contract terms,” and that “Aargus should [have] notified building management that

                                                  - 15 -
       propane tanks were entering the building and made recommendations independent of any lack
       of specific contract terms.”
¶ 40       In reply, Aargus argued that Mallers did not dispute any of the material facts or the explicit
       terms of the contract in its response. Aargus maintained Mallers cannot sustain the duty it
       sought to impose based on the explicit terms of the contract, the facts, or the case law.
       Specifically, Mallers failed to show any contract terms that imposed a duty on Aargus to stop
       propane tank deliveries to the building. Furthermore, Aargus argued that a voluntary
       undertaking, such as providing security services, is limited to the extent of the undertaking.
       Aargus also pointed out that it was filing a separate motion to strike the two affidavits filed by
       Mallers.
¶ 41       As mentioned in its reply, Aargus filed a motion to strike the Hauri and Kennedy affidavits.
       Aargus argued that these expert witnesses were not previously disclosed and did not comply
       with Illinois Supreme Court Rule 191. Ill. S. Ct. R. 191 (eff. Jan. 4, 2013). Aargus asserted that
       Kennedy’s and Hauri’s affidavits did “not contain any facts that raise a dispute, but merely
       contain unsupported assertions, opinions, and conclusions.” Furthermore, Aargus argued that
       neither Kennedy nor Hauri had any involvement in the contract or any involvement in the
       building prior to the incident.
¶ 42       The circuit court later allowed Mallers to file amended affidavits, which it did. Both
       Hauri’s and Kennedy’s affidavits were the same except that each added a list of all of the
       pleadings and material they reviewed prior to making their respective affidavits.
¶ 43       In surreply, Aargus argued that Hauri’s and Kennedy’s amended affidavits are not
       premised on facts admissible in evidence and are conclusory. Aargus also pointed out that the
       only change to the affidavits is the list of materials each affiant reviewed added to the end of
       each respective affidavit.
¶ 44       During hearing on the motion, counsel for Mallers answered “no,” when asked by the court
       the following question: “[A]m I correct when I say that the only mention of duties here are the
       provision in No. 3 saying that the security officers duties may be varied from time to time at the
       client’s request to meet the client’s requirements? Is there anything else besides that specifies
       their duties.” When asked whether Jay Richman ever instructed Aargus to inspect packages or
       to stop propane gas from entering the building, counsel for Mallers answered, “No *** with
       respect to propane tanks.” Later in the hearing, the court again asked counsel for Mallers, “Is
       there any language that specifically requires Aargus security guards to inspect packages?” to
       which counsel responded “no.”
¶ 45       On November 1, 2011, the circuit court granted Aargus’s motion for summary judgment
       and struck the affidavits of Kennedy and Hauri. The court found the affidavits to be “legal
       conclusions.” In granting Aargus’s motion for summary judgment, the circuit court made the
       following findings:
                   “I have carefully read these documents, and I found no language imposing
               particular duties on Aargus. The contract itself has no duty or requirement for Aargus
               to be knowledgeable about the Chicago municipal code. There is no witness who’s


                                                   - 16 -
               testified to voluntary assumption of the duty to inspect. There’s no testimony
               connecting Aargus to the delivery of the propane tank involved in the explosion.”
       The circuit court further noted that “contracted for duties will not be expanded beyond the
       explicit terms of the contract,” and that Mallers should have contracted for additional services
       had it wanted them. Specifically, the circuit court stated:
                   “The Mallers Building owners didn’t bargain or request or reasonably expect these
               services. There is no contractual obligation to be familiar with the Chicago code.
               Testimony shows that, for years the Mallers Building had allowed gases in the
               building.”
       The circuit court further found that the testimony showed that “the major duty of the security
       guards was to operate freight elevators and to deliver messages and to do what Mr. Richman
       told them,” and that Aargus security guards “were never told to inspect packages or tanks.
       They were never told to halt any sort of deliveries.” Additionally, the circuit court found that
       neither the manual nor the contract required Aargus to enforce municipal code nor did it place
       a duty on the security guards to stop propane or notify management of propane deliveries.
¶ 46       Mallers subsequently filed a motion to reconsider, arguing that the circuit court
       “missapplied [sic] existing law to existing fact in reaching its ruling.” Mallers additionally
       submitted “new law and fact” for the circuit court’s consideration. Mallers, in its motion,
       characterized the manual as a “guide” to help the security guards complete their
       responsibilities. Mallers asserted that the manual provides that Aargus is to act as a deterrent to
       physical damage to the building and that the procedures in the manual are meant to minimize
       and prevent losses based on explosions and fires. According to Mallers, the security manual
       was evidence of Aargus’s voluntary assumption of a duty to protect the building from damage.
       Mallers further argued that the term “security” in the contract was ambiguous and required the
       consideration of extrinsic evidence. As extrinsic evidence, Mallers pointed to the language in
       the manual which states: “[t]he protection of our contracted facilities by Aargus Security
       Officers is primarily preventative. Therefore, any and every situation which might lead to loss
       or damage of company property or injury to personnel must be reported.” In addition to
       documents already submitted to the court in prior motions, Mallers additionally submitted an
       affidavit from Jay Richman. Richman attested that his “understanding” of the contract was that
       “Aargus would follow all laws, ordinances and codes in force *** in the provision of their
       security services and not allow any activity, behavior or occurrences on the property that were
       in contravention thereto.” Richman attested further that he “discussed the contract and
       expectations with Aargus representatives prior to execution.”
¶ 47       In response, Aargus argued that Mallers failed to bring forth newly discovered evidence
       that was not available at the time of the hearing, changes in the law, or errors in the court’s
       prior application of the law. Aargus asked that Richman’s affidavit be stricken as Mallers had
       previously and unsuccessfully sought to introduce an affidavit from Richman at the hearing on
       the motion for summary judgment. Aargus further argued that Richman had been deposed
       three times and Mallers wanted to introduce a late affidavit from Richman that would have
       contradicted his prior testimony.

                                                   - 17 -
¶ 48      On February 22, 2012, the circuit court conducted a hearing on the motion to reconsider.
       During the hearing, the circuit court again asked counsel for Mallers whether anyone “told
       Aargus to look out for propane tanks,” to which Mallers’ counsel answered “[s]pecifically, not,
       your Honor, we can’t point to that specific language.” The circuit court denied Mallers’s
       motion to reconsider, finding that Aargus “never undertook a duty to check on propane tanks.
       They never were asked to inspect those tanks and there was nothing either in writing or
       verbally that required Aargus to take on any kind of additional duties.”
¶ 49      On March 23, 2012, Mallers filed its notice of appeal. On April 6, 2012, Aargus filed its
       motion for cross-appeal, appealing the circuit court’s denial of its motion to dismiss.

¶ 50                                               ANALYSIS
¶ 51        Initially, we must make note of what is properly before this court for our review based on
       the parties’ briefs. Mallers, in its initial brief before this court, raised issues that it failed to raise
       before the circuit court. “It is well established that matters not presented to or ruled upon by the
       trial court may not be raised for the first time on appeal.” Smith v. Airoom, Inc., 114 Ill. 2d 209,
       229 (1986); Kostopoulos v. Poladian, 257 Ill. App. 3d 95, 97 (1993) (“All defects in pleadings
       are waived by failure to raise them in the circuit court, where they can be handled more
       expeditiously than on review.”). Mallers argues in its brief that “Aargus had a common law
       duty to prevent or report the delivery of a propane tank to the Mallers Building.” Absent from
       the record, however, is any argument concerning a common law duty Aargus owed to Mallers.
       We will not consider this argument because Mallers did not raise it before the circuit court.
       Mallers also argues before this court that admissions it made in another proceeding may not be
       used against it in this case. Mallers, however, never raised this issue before the circuit court.
       The admissions now objected to were contained in requests to admit that Aargus attached to its
       motion for summary judgment. Mallers had the burden to object to the admissions during
       proceedings on the motion before the circuit court. Village of Arlington Heights v. Anderson,
       2011 IL App (1st) 110748, ¶ 15. Mallers has waived its objection by failing to object in the
       circuit court. Furthermore, Mallers did not even raise the issue before this court until its reply
       brief. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued are waived and shall
       not be raised in the reply brief, in oral argument, or on petition for rehearing.”).
¶ 52        Aargus’s brief also included argument that we will not address. Specifically, Aargus cited
       two orders of this court entered pursuant to Illinois Supreme Court Rule 23 as authority. Ill. S.
       Ct. R. 23 (eff. July 1, 2011). Orders filed under Illinois Supreme Court Rule 23 may not be
       cited as precedent by any party except under the limited circumstances, not present here,
       allowed by Rule 23(e)(1). Ill. S. Ct. R. 23(e)(1) (eff. July 1, 2011). Therefore, we have not
       considered these cases as they were filed pursuant to Rule 23 and Aargus has not made any
       effort to show that the cited cases fall under the allowable circumstances provided for in Rule
       23. Ill. S. Ct. R. 23(e)(1) (eff. July 1, 2011).
¶ 53        The issues that are properly before us and that we will address are as follows: (1) whether a
       question of fact existed as to whether Aargus had a contractual duty to stop or report the
       delivery of propane tanks to the Mallers Building; (2) whether the circuit court improperly

                                                       - 18 -
       struck the affidavits of Daniel Kennedy and Ronald Hauri; and (3) whether the circuit court
       erred in denying Mallers’s motion for reconsideration based on a misapplication of the law.

¶ 54                                        Summary Judgment
¶ 55        Mallers argues that the circuit court erred in entering summary judgment because the term
       “security services,” as found in the contract, is ambiguous. Mallers argues that a fact question
       remains based on this alleged ambiguity in the contract, i.e., whether or not Aargus’s
       contractual duty to provide security services included preventing and/or reporting the delivery
       of propane tanks to the building. Mallers argues that extrinsic evidence needs to be considered
       based on the alleged ambiguous language in the contract. Specifically, Mallers points to the
       security manual, the actions of the Aargus security guards, and Jay Richman’s deposition
       testimony.
¶ 56        In response, Aargus argues that the circuit court properly found that under the contract
       services were to be what was requested and paid for by Mallers, and specifically, what Jay
       Richman instructed the security guards to do. Aargus maintains the circuit court reviewed all
       of the evidence, including the contract, the testimony, the security manual, and then properly
       found that there was no evidence that Mallers ever requested any of the duties that Mallers now
       seeks to impose, namely, the duty to inspect packages and to prevent hazardous gases from
       being delivered to the premises.
¶ 57        Summary judgment is proper where “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 a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
       (West 2010). When determining whether a genuine issue of material fact exists, the pleadings
       are to be liberally construed in favor of the nonmoving party. Williams v. Manchester, 228 Ill.
       2d 404, 417 (2008). A party opposing a motion for summary judgment “must present a factual
       basis which would arguably entitle him to a judgment.” Allegro Services, Ltd. v. Metropolitan
       Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996). We review summary judgment
       rulings de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).
¶ 58        A plaintiff alleging negligence must establish that defendant owed a duty of care to the
       plaintiff, breached that duty of care, and that the defendant’s breach proximately caused
       injuries to the plaintiff. Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 340 (2003). “A
       duty is an obligation to conform to a certain standard of conduct for the protection of another
       against an unreasonable risk of harm.” O’Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 337
       (1990). The determination of whether a defendant owes a plaintiff a duty of care is a question
       of law decided by the court. Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535, 542
       (1991). A defendant is entitled to summary judgment, as a matter of law, where the court finds
       the defendant did not owe the plaintiff a duty of care. O’Hara, 137 Ill. 2d at 337.
¶ 59        Our review of a question of contract construction is also de novo. Gallagher v. Lenart, 226
       Ill. 2d 208, 219 (2007). The intent of the parties is our primary objective when construing a
       contract. Id. at 232. The best indication of the parties’ intent is found in the plain and ordinary
       meaning of the language of the contract. Id. at 233. We must look to this language first in

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       determining the parties’ intent. Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). Extrinsic
       evidence will only be used if the language is ambiguous. Gallagher, 226 Ill. 2d at 233.
       Ambiguous language is language “susceptible to more than one meaning.” Id. Summary
       judgment should not be granted where extrinsic evidence is needed to ascertain the meaning of
       ambiguous contract language. William Blair & Co. v. FI Liquidation Corp., 358 Ill. App. 3d
       324, 334 (2005). Unambiguous language, however, must be given its ordinary, plain, and
       popular meaning. Thompson, 241 Ill. 2d at 441. Mere disagreement between the parties
       concerning a provision’s meaning does not automatically render such language ambiguous. Id.
       at 443. We will not view portions, terms, clauses, or language in the contract in isolation. Id. at
       441. Rather, we will construe the whole contract, “viewing each provision in light of the other
       provisions.” Id. Similarly, we will not view contract language outside of the context in which
       such language is used. Gallagher, 226 Ill. 2d at 233. We will not “alter, change or modify
       existing terms of a contract, or add new terms or conditions to which the parties do not appear
       to have assented.” Thompson, 241 Ill. 2d at 449. “Further, there is a presumption against
       provisions that easily could have been included in a contract but were not.” Id.
¶ 60       Negligence allegations based on contractual obligations are defined by the subject contract.
       Eichengreen v. Rollins, Inc., 325 Ill. App. 3d 517, 525 (2001). “Where a defendant is charged
       with negligence because of his failure to perform an act allegedly required by contract, the
       question of whether the defendant had a duty to perform the act is determined by the terms of
       the contract itself.” Kotarba v. Jamrozik, 283 Ill. App. 3d 595, 597 (1996). The scope of the
       defendant’s duties will not be expanded beyond that required by the contract. Id. at 598.
¶ 61       The voluntary undertaking theory of liability is defined as when “one who gratuitously or
       for consideration renders services to another is subject to liability for bodily harm caused to the
       other by one’s failure to exercise due care or ‘ “such competence and skill as [one]
       possesses.” ’ ” Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 32 (1992) (quoting Cross v.
       Wells Fargo Alarm Services, 82 Ill. 2d 313, 317 (1980), quoting Nelson v. Union Wire Rope
       Corp., 31 Ill. 2d 69, 74 (1964)). The voluntary undertaking theory is to be construed narrowly
       and the duty of care is limited to the extent of the voluntary undertaking. Lewis v. Chica
       Trucking, Inc., 409 Ill. App. 3d 240, 252 (2011).
¶ 62       In this case, we hold that the circuit court properly entered summary judgment in Aargus’s
       favor because Mallers has not shown, either under the contract or based on a voluntary
       undertaking, that Aargus had a duty to stop or report the delivery of propane tanks to the
       building. The contract itself is a short document that basically states that Aargus will provide
       security officers at the building. Mallers’s argument is based on the alleged ambiguity of the
       term “security services.” The term is found in two paragraphs in the contract. First, paragraph
       three provides:
                    “The number of Security Officers, Security Officer posts, their location, and the
               hours and nature of Security Officers’ duties may be varied from time to time at
               Client’s request to meet Client’s requirements. The protective services provided by
               Aargus are relative to the scope of the works set forth in paragraph one above, and
               additional protection is available at greater cost. The furnishing of the security services

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               provided for herein does not guarantee protection against all contingencies.”
               (Emphasis added.)
       Paragraph one in turn, provides, in relevant part, “Aargus agrees to furnish such number of
       uniformed Security Officers as may from time to time be required by the Client at the Client’s
       premises, and Client agrees to pay Aargus.” Paragraph one of the contract then goes on to
       discuss billing rates, hours, holidays, and vacation of the security officers, as well as overtime.
       Our review of the term “security services,” as it relates to the entire contract, shows that it is
       not at all ambiguous. The plain language of paragraph three and its reference to paragraph one
       shows that Aargus agreed to furnish security guards to the building and that their “duties may
       be varied from time to time at Client’s request.” We disagree with Mallers’s characterization of
       the language as ambiguous.
¶ 63        The second provision that contains the terms “security services” is found in the contract in
       paragraph four, which states, in relevant part:
                   “The Security Officers shall perform such security services as the Client shall
               request but they shall be employees of Aargus, an independent contractor. The
               payment of *** taxes, Social Security Benefits, unemployment compensation taxes
               and wages shall be the sole function and responsibility of Aargus.” (Emphasis added.)
       We cannot say that the term “security services” in this provision of the contract is ambiguous
       or even relevant to Mallers’s argument as the entire provision, in context, is just a statement of
       the security guard’s employment status.
¶ 64        Our review of the contract shows that it does not provide that Aargus should inspect
       packages delivered to tenants in the building, the duty Mallers now seeks to impose on Aargus.
       Mallers’s argument is premised on an improper review of isolated terms in the contract as
       opposed to viewing the contract in its entirety. Thompson, 241 Ill. 2d at 441. We will not
       expand a defendant’s duties beyond what the parties agreed upon in a contract. Kotarba, 283
       Ill. App. 3d at 597-98. Absent from the contract is any mention of a duty to inspect, prevent, or
       report the delivery of propane tanks to the building. Counsel for Mallers admitted as much
       during the hearing on the motion for summary judgment when the circuit court asked counsel
       whether there was “any language that specifically requires Aargus security guards to inspect
       packages,” to which counsel answered, “no.” In response to a similar question during the
       hearing on Mallers’s subsequent motion to reconsider, counsel again answered that “we can’t
       point to that specific language.”
¶ 65        We also agree with the circuit court’s determination that the pleadings and testimony
       presented failed to show that Aargus voluntarily assumed the duty to inspect packages or
       deliveries into the building. None of the depositions in the record included any testimony that
       either a security guard inspected deliveries or that Mallers or its agents instructed the security
       guards to do so. The voluntary undertaking theory of negligence is to be construed narrowly
       and the duty of care is limited to the extent of the undertaking. Lewis, 409 Ill. App. 3d at 252.
       Here, there is no evidence that Aargus voluntarily undertook any duty to inspect or prevent
       propane tanks from entering the building. Both parties provided numerous deposition
       testimony and evidence, none of which made any mention that Aargus was to prevent
       deliveries of propane tanks to the building.
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¶ 66       We hold that the circuit court properly granted summary judgment in Aargus’s favor as
       Mallers has not shown, either by contract or by a voluntary undertaking, that Aargus had a duty
       to prevent or report the delivery of propane tanks into the building.

¶ 67                                             Affidavits
¶ 68       Mallers argues that the circuit court improperly struck the affidavits of Daniel Kennedy
       and Ronald Hauri. According to Mallers, Kennedy and Hauri’s affidavits “established a
       reasonable inference that the affiants could competently opine on the obligations of security
       officers.”
¶ 69       In response, Aargus argues that both Kennedy’s and Hauri’s affidavits failed to comply
       with Illinois Supreme Court Rule 191. Ill. S. Ct. R. 191 (eff. Jan. 4, 2013). Aargus maintains
       that both affidavits are conclusory and unsupported. Aargus further argues that neither affiant
       had any involvement in the contract or the building prior to the explosion.
¶ 70       Illinois Supreme Court Rule 191 sets forth the requirements of affidavits presented during
       motions for summary judgment. Ill. S. Ct. R. 191 (eff. Jan. 4, 2013). Rule 191 provides, in
       relevant part:
                “Affidavits in support of and in opposition to a motion for summary judgment *** shall
                be made on the personal knowledge of the affiants; shall set forth with particularity the
                facts upon which the claim, counterclaim, or defense is based; shall have attached
                thereto sworn or certified copies of all documents upon which the affiant relies; shall
                not consist of conclusions but of facts admissible in evidence; and shall affirmatively
                show that the affiant, if sworn as a witness, can testify competently thereto.” Ill. S. Ct.
                R. 191 (eff. Jan. 4, 2013).
¶ 71       In this case, we agree with the circuit court’s findings that both affidavits consisted of
       improper legal conclusions. Kennedy opined on the knowledge and procedures a security
       company in a high-rise must possess while Hauri opined that Aargus should have stopped the
       delivery of propane tanks into the building. Although we agree with the circuit court’s finding
       that the affidavits consist of conclusions, we also note that neither Hauri nor Kennedy had any
       personal involvement in the contract between Aargus and Mallers or any prior involvement in
       the building itself. At issue during the motion for summary judgment was whether Aargus,
       either by the terms of its contract or by evidence of its own voluntary undertaking, had a duty
       to inspect or prevent the delivery of propane tanks into the building. The duty of care is a
       question of law decided by the court. Gouge, 144 Ill. 2d at 542. Kennedy’s and Hauri’s
       opinions on high-rise security were irrelevant as neither individual was involved in the contract
       formation or in the security of the building, and they were not at liberty to determine the duty
       of care. Accordingly, we hold that the circuit court properly struck the Kennedy and Hauri
       affidavits.

¶ 72                                    Motion to Reconsider
¶ 73      Mallers argues that the circuit court improperly denied its motion to reconsider. Mallers’s
       argument is based on its argument that the circuit court erred in applying the law. Due to our
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       holding in this case that the circuit court properly granted summary judgment, it follows that
       we also hold that the circuit court properly denied Mallers’s motion for reconsideration.

¶ 74                                         Cross-appeal
¶ 75       We note that Aargus filed a cross-appeal arguing that the circuit court erred when it denied
       its motion to dismiss Mallers’s complaint. Mallers asks this court to strike Aargus’s
       cross-appeal. Due to our ultimate conclusion in this case, we do not need to address Aargus’s
       cross-appeal.

¶ 76                                      CONCLUSION
¶ 77      The judgment of the circuit court is affirmed.

¶ 78      Affirmed.




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