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Wright v. PRG Real Estate Management, Inc.

Supreme Court of South Carolina

March 20, 2019

Denise Wright, Petitioner,
v.
PRG Real Estate Management, Inc., Franklin Pineridge Associates, Karen Campbell Individually and in her Representative Capacity as an Agent of PRG Real Estate Management, Respondents. Appellate Case No. 2015-001921

          Heard March 6, 2018

          Appeal from Richland County W. Jeffrey Young, Circuit Court Judge

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

          S. Randall Hood, Jordan C. Calloway, and Deborah G. Casey, all of McGowan, Hood & Felder, LLC, of Rock Hill, E. Wayne Ridgeway Jr., of Burriss Ridgeway, of Columbia and Gerald Malloy, of Malloy Law Firm, of Hartsville, for Petitioner.

          Charles A. Kinney and Christian Stegmaier, both of Collins & Lacy, PC, of Columbia, for Respondents.

          JAMES JUSTICE.

         Denise Wright was abducted and robbed at gunpoint by two unknown assailants in a common area of an apartment complex (Wellspring) in which she resided. Wellspring was owned by Respondent Franklin Pineridge Associates and operated by Respondent PRG Real Estate Management, Inc. Respondent Karen Campbell was Wellspring's property manager and an employee of PRG at the time of the incident. Wright sued Respondents for negligence, alleging Respondents voluntarily undertook a duty to provide security to residents of Wellspring and breached this duty, thereby causing her damages. She also alleged Respondents were negligent in failing to properly maintain shrubbery and lighting on the premises. The circuit court granted summary judgment to Respondents on Wright's negligence claim. A divided court of appeals affirmed. Wright v. PRG Real Estate Mgmt., Inc., 413 S.C. 276, 775 S.E.2d 399 (Ct. App. 2015).

         We granted Wright's petition for a writ of certiorari to review the following questions: (1) whether Respondents voluntarily undertook a duty to provide security services to residents, (2) if such a duty exits under the facts of this case, whether there is a genuine issue of material fact that Respondents breached the duty, and (3) whether there is a genuine issue of material fact that any such breach proximately caused Wright's damages. We reverse the court of appeals and remand the matter to the circuit court for trial.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2003, Wright began her search for an apartment she could rent in the Columbia area. Wellspring is part of a planned unit development known as the "Harbison Community Association," and several walking trails weave throughout the community. Wellspring and other properties within the community are accessible via these public trails. Wright testified she initially became interested in Wellspring because of its proximity to her job and because of several recommendations from members of her church. Wright testified security was an important factor in her decision-making process. She testified that at the time she signed her lease, a Wellspring manager told her there were security officers on duty. During oral argument at the court of appeals, Respondents conceded Wright "was told that there are security officers" and that when Wright moved into the complex, she had that expectation. Wright testified this representation caused her to believe Wellspring would be a safe place in which to live. Wright leased an apartment at Wellspring from 2003 until the subject incident occurred in 2008.

         An internal Wellspring employee manual stated, "We generally do not provide security for our residents[, ] and employees should never indicate that we do so." This information was not given to residents. Wellspring had designed a courtesy officer program allowing residents affiliated with law enforcement to receive reduced rent in exchange for their service as courtesy officers for the apartment complex. Wellspring employed these courtesy officers as independent contractors and entered into agreements requiring the courtesy officers to (1) spend a minimum of two hours daily of their off-duty time walking the property, (2) answer calls regarding incidents on the property, and (3) submit daily reports to the property manager. Courtesy officers were asked not to carry a weapon unless required by their law enforcement employer. Courtesy officers were asked, but were not required, to park their law enforcement vehicles on the Wellspring premises. The parameters of these agreements were kept internally and were not provided to residents. Wellspring published a "security pager" number in a monthly tenant newsletter. The newsletter also prominently noted "[s]ecurity is also [a] very top priority with us" and advised tenants to "call the security pager or Richland County Sheriff Dept. if you see anything suspicious." Respondents did not alert Wright or other tenants that the provision of "security" was limited to the confines of the courtesy officer program, as those particulars were known only to Respondents.

         Also, Respondents contracted with a maintenance company to provide landscaping services at Wellspring, including the trimming and shaping of shrubs as needed. Respondents also provided lighting in the common areas and parking lots of Wellspring.

         On the night of September 18, 2008, Wright left choir practice at her nearby church and returned to Wellspring at approximately 10:00 p.m. Wright parked her car and began walking toward the ramp that led to her apartment. She testified, "The pole light in the parking lot was not illuminated and the view of the stairs and ramp . . . was obscured by darkness and massive shrubbery that was overgrown." Before Wright could reach her apartment, two armed men appeared from behind the shrubbery and demanded money. When Wright replied she was not carrying any cash, the men forced her at gunpoint to drive them to several ATMs to withdraw money from her account. The men promised Wright they would kill her and told her, "You will never see home again." One of the men put his hand down the back of Wright's pants and contemplated "hav[ing] some fun before [killing] her." Eventually, the men fled Wright's car and escaped. Wright sped away and drove to her daughter's house where law enforcement interviewed her.

         The next day, Wright met with a representative of Wellspring. Wright testified the first thing she asked the manager was, "Where are these security officers that are supposed to be walking the beat? I didn't see anybody. There was nobody there when I needed them. I didn't see one. I've never seen one the whole time I've lived there." Wright testified the manager shrugged her shoulders and replied, "I'm sorry." Wright did not spend another night in her apartment at Wellspring and moved out a few days later. Unfortunately, the two assailants have never been identified.

         There were no courtesy officers at Wellspring on the night Wright was abducted and robbed in September 2008; the last time a courtesy officer had been employed at Wellspring was in July 2008. Respondent Karen Campbell, the property manager at the time of the incident, testified there were periods of time when there were no courtesy officers because officers would leave Wellspring or quit the program for various reasons. Although there were no courtesy officers at the time of the incident, Wellspring continued to publish the security pager number in its monthly tenant newsletter. Respondents were not sure who, if anyone, would have answered the security pager when no courtesy officers were employed. There is no evidence Respondents ever informed Wright and other tenants that the security program lacked its key ingredient-the participation of security officers.

         Wright's security expert, William F. Booth, stated four opinions in his deposition. First, Booth opined that Wellspring is a unique property because it is an apartment complex wrapped around a public park. He believed this fact placed an additional responsibility on Respondents to provide security for its residents, which was not met. He testified the incident was foreseeable due to the lack of security. Second, Booth opined that the shrubbery on the property had become overgrown and provided a hiding place for the individuals who committed the crime. He testified the incident would have been avoided if the shrubbery had been cut to an appropriate height. Third, Booth opined the lighting on the property was below industry standards, and if the lighting had been adequate, the crime would not have occurred. Fourth, Booth opined that Wellspring represented to its residents that there was security in place pursuant to the courtesy officer program and that it was reasonable for residents to have relied on the courtesy officers to patrol the property. He testified that "had the courtesy officers been there and been patrolling the property as required that the perpetrators in this crime more likely than not would not have been in the position to rob and kidnap [Wright]."

         Wright brought this action against Respondents for negligence, breach of implied warranties, and violation of the South Carolina Unfair Trade Practices Act.[1] Wright's negligence claim is the only cause of action relevant to the instant appeal. Wright alleged Respondents were negligent in failing to protect tenants from third-party criminal activity by not (1) providing adequate lighting in the common areas, (2) maintaining the overgrown shrubbery to an appropriate height, and (3) executing its courtesy officer program in a reasonable manner. Respondents argue they did not owe Wright a duty to provide security. They further argue that even if they did, they breached no duty. Finally, they argue that even if they breached a duty owed to Wright, their alleged negligence was not a proximate cause of any harm sustained by Wright. The circuit court granted Respondents' motion for summary judgment.

         A divided court of appeals affirmed. Wright v. PRG Real Estate Mgmt., Inc., 413 S.C. 276, 775 S.E.2d 399 (Ct. App. 2015). As to Wright's negligence action, the majority held Respondents had no duty to protect Wright from third-party criminal activity. The majority rejected Wright's argument that the relevant facts of her case created an exception to the general rule that landlords do not have a duty to provide security services and protect tenants from criminal activity arising from the (1) particular circumstances, (2) common areas exception, and (3) affirmative acts exception.

         In its discussion of the affirmative acts exception, the majority addressed Wright's argument that a duty arose from Respondents' (1) hiring courtesy officers to patrol the premises, (2) providing common area lighting, and (3) trimming the shrubbery throughout the common area. The majority found the creation of the courtesy officer program did not impose on Respondents a duty to exercise reasonable care in providing security at Wellspring; the majority held Respondents' undertaking to create the courtesy officer program required only that Respondents maintain the program itself with reasonable care. The majority explained, "Under the facts of this case, the duty [R]espondents assumed was limited to exercising reasonable care in maintaining the courtesy officer program, and [there is] no evidence they failed to exercise reasonable care in fulfilling that duty." Wright, 413 S.C. at 288, 775 S.E.2d at 406. Citing the reasoning in Cramer v. Balcor Property Management, Inc., 848 F.Supp. 1222 (D.S.C. 1994), the majority found the situation "indistinguishable" because the "fact that the courtesy officer position was vacant at the time is a circumstance too attenuated from the kidnapping and robbery of Wright to establish a duty to provide security." Wright, 413 S.C. at 288, 775 S.E.2d at 406. The majority also found Respondents' provision of lighting and maintenance of shrubbery did not give rise to a duty to provide security. The majority did not employ section 323 of the Restatement (Second) of Torts (1965) in reaching its conclusions, nor did the majority address Wright's contention that she was not advised of the limitations of the security program.

         Concurring in part and dissenting in part, then-Judge Lockemy disagreed with the majority's conclusion that summary judgment should have been granted on Wright's claim that Respondents were negligent in failing to provide security as represented to Wright. Applying section 323 of the Restatement (Second) of Torts (1965), Judge Lockemy concluded Wright presented some evidence that she expected security and that Respondents undertook the duty to provide it Judge Lockemy wrote that by specifically informing Wright that "the complex had 'security officers' and urging tenants to call the security pager in the event of an emergency, Wellspring undertook a duty to either provide security at the complex, or to take affirmative steps to ensure tenants were aware of the limitations of its security program" Wright, 413 S.C. at 293, 775 S.E.2d at 408 (Lockemy, J., concurring in part and dissenting in part).

         Judge Lockemy also concluded the majority's reliance on Cramer v. Balcor Property Management, Inc., 848 F.Supp. 1222 (D.S.C. 1994), which applied the affirmative acts exception, was misplaced. He noted the source of Cramer's authority for the affirmative acts exception was rooted in section 323. Judge Lockemy believed the instant situation to be more akin to the "undertaking" exception and stated "a tenant injured by a third party criminal attack at an apartment complex may be able to establish a duty owed by a landlord who has undertaken to provide security pursuant to section 323." Wright, 413 S.C. at 295, 775 S.E.2d at 409-10 (Lockemy, J., concurring in part and dissenting in part). Because Judge Lockemy found Wright presented evidence establishing a duty under section 323, he addressed Wright's proximate cause argument and concluded there were genuine issues of material fact that would allow Wright's negligence claim to survive summary judgment.

         Wright filed a petition for a writ of certiorari with this Court. We granted Wright a writ of certiorari on the sole question of whether the court of appeals erred in failing to apply section 323 to Wright's allegation that Respondents voluntarily assumed a duty to provide security to her.

         II. STANDARD OF REVIEW

         "The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder." George v. Fabri, 345 S.C. 440, 452, 548 S.E.2d 868, 874 (2001). "When reviewing a grant of summary judgment, appellate courts apply the same standard applied by the trial court pursuant to Rule 56(c), SCRCP." Turner v. Milliman, 392 S.C. 116, 121-22, 708 S.E.2d 766, 769 (2011). Rule 56(c), SCRCP, provides a circuit court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." "On summary judgment motion, a court must view the facts in the light most favorable to the non-moving party." George, 345 S.C. at 452, 548 S.E.2d at 874. When a circuit court grants summary judgment on a question of law, this Court will review the ruling de novo. Town of Summerville v. City of N. Charleston, 378 S.C. 107, 109-10, 662 S.E.2d 40, 41 (2008).

         III. DISCUSSION

         Wright argues the court of appeals erred in failing to apply section 323 of the Restatement (Second) of Torts to her negligence action. Wright asserts section 323 "stands on its own doctrinal footing and may not be narrowed or ignored when considering a residential landlord's voluntarily assumed security program."

         A. Voluntarily Assumed ...


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