United States District Court, D. South Carolina, Columbia Division
LAURA B. MOISE AND GREG MOISE, Plaintiffs,
ALLIEDBARTON SECURITY SERVICES, LLC; COLUMBIANA CENTRE, LLC; AND GENERAL GROWTH PROPERTIES, INC., Defendants.
ORDER AND OPINION
Margaret B. Seymour, Senior United States District Judge
This matter is before the court on a Second Motion for Summary pursuant to Fed.R.Civ.P. 56 filed by Defendant AlliedBarton Security Services, LLC (“AlliedBarton”) on December 22, 2015. ECF No. 153. Defendants Columbiana Centre, LLC and General Growth Properties, Inc. (“GGP”) (together “Mall Defendants”) also filed a Second Motion for Summary Judgment Summary pursuant to Fed.R.Civ.P. 56 on December 23, 2015. ECF No. 154. Plaintiffs Laura B. Moise and Greg Moise (“Plaintiffs”) filed responses in opposition to each motion on January 7, 2016. ECF Nos. 157-158. AlliedBarton filed a reply to Plaintiffs’ response on January 15, 2016. ECF No. 159. Mall Defendants filed a reply to Plaintiffs’ response on January 19, 2016. ECF No. 160.
Plaintiffs bring this action seeking to hold AlliedBarton and Mall Defendants (collectively “Defendants”) jointly and severally liable for damages related to the assault of Plaintiff Laura Moise in the corridor outside of the ladies’ restroom at the Columbiana Centre shopping mall on August 17, 2011. In April 2015, AlliedBarton (ECF No. 91) and Mall Defendants (ECF No. 92)
moved for summary judgment arguing that Plaintiffs presented no genuine dispute of material fact because Plaintiff could not prove the existence of a duty or a breach thereof with regard to the criminal act of a third-party against Plaintiff Laura Moise. On June 18, 2015, this court held a hearing on the motions for summary judgment. ECF No. 114. The court found that there was a dispute of material fact as to whether Defendants had breached their duty to Plaintiffs, and that Defendants were not entitled to judgment as a matter of law. Id. As a result, the court denied Defendants’ respective motions for summary judgment. Id.
Subsequently, Mall Defendants filed a Motion to Alter or Amend Judgment pursuant to Fed.R.Civ.P. 59(e) on July 16, 2015. ECF No. 116. AlliedBarton also filed a Motion to Alter or Amend Judgment pursuant to Fed.R.Civ.P. 59(e) on July 16, 2015. ECF No. 117. Plaintiffs filed a response in opposition on August 3, 2015. ECF No. 123. On August 26, 2015, the court issued an opinion and order denying both Motions to Alter or Amend Judgment. ECF No. 125.
The case proceeded towards trial and on September 15, 2015, the court held a hearing to rule on Motions in Limine. ECF No. 139. A week later, on September 22, 2015, the court granted Mall Defendants’ emergency motion to continue, pushing the case beyond the September 2015 term of the court. ECF No. 142. On November 11, 2015, Defendants conducted an additional deposition of Plaintiffs’ expert witness, Jeff Gross. During a December 15, 2015, teleconference with the court to discuss trial scheduling, Defendants requested leave to file Second Motions for Summary Judgment based upon changes in Mr. Gross’s expert report as a result of his November 11, 2015, deposition. The court granted Defendants leave to file limited Motions for Summary Judgment based specifically on any changes in Mr. Gross’s opinion. Defendants now bring their Second Motions for Summary Judgment.
II. LEGAL STANDARDS
Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-49, (1986). A genuine question of material fact exists where, after reviewing the record as a whole, the court finds that a reasonable jury could return a verdict for the nonmoving party. Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
A. Allied Barton’s Duty Argument
The court granted leave to AlliedBarton and Mall Defendants to file Second Motions for Summary Judgment solely based upon changes to Mr. Gross’s report as a result of the November 11, 2015, deposition. In its Second Motion for Summary Judgment, AlliedBarton first contests that the security agreement between AlliedBarton and Mall Defendants did not impose a duty on AlliedBarton to install security cameras. This argument is not supported by any change in Mr. Gross’s testimony. Instead, AlliedBarton revisits arguments that the court rejected in AlliedBarton’s first Summary Judgment motion and again rejected when AlliedBarton filed a Motion to Alter or Amend Judgment pursuant to Fed.R.Civ.P. 59(e). ECF Nos. 114, 125. The court stands by its holding that “by voluntarily undertaking to provide general security duties at Columbiana Centre, AlliedBarton had a duty to Plaintiffs to make sure the mall was reasonably secured.” ECF No. 125 at 8.
B. Foreseeability of the Attack
Defendants assert that because of changes in Mr. Gross’s opinions, Plaintiffs fail to satisfy the balancing test set forth in Bass v. Gopal, 716 S.E.2d 910 (S.C. 2011). As previously detailed in the court’s Opinion and Order ...