Ring v. Lexington Apartments & Motor Inns-Oklahoma , 3 F. App'x 847 ( 2001 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    FEB 5 2001
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MATTHEW J. RING, III,
    Plaintiff-Appellant,
    v.                                                   No. 00-6104
    (D.C. No. CIV-98-608-R)
    LEXINGTON APARTMENTS &                               (W.D. Okla.)
    MOTOR INNS-OKLAHOMA, a Texas
    general partnership; ARMGUARD,
    INC.; JOHN DOES II-V,
    Defendants-Appellees.
    ORDER AND JUDGMENT            *
    Before EBEL , KELLY , and LUCERO , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Plaintiff Matthew J. Ring, III, appeals from orders of the district court
    granting summary judgment to defendants Lexington Apartments and Motor
    Inns–Oklahoma and Armguard , Inc. 1 We affirm in part and reverse and remand
    in part.
    Mr. Ring was a guest at Lexington when he was       assaulted, battered, pistol
    whipped, and robbed at gunpoint in his room by two unknown assailants. Hotel
    security was provided by Armguard, a contract security guard company. The
    guard on duty at the time of the attack had noticed the two men enter the hotel
    prior to the attack, but took no action aside from performing his regularly
    scheduled surveillance rounds.
    Mr. Ring brought this action against Lexington and five John Does seeking
    damages based on Lexington’s negligence in the operation of its hotel. Later
    Mr. Ring substituted Armguard for John Doe I. The district court granted
    defendants’ motions for summary judgment holding that       Lexington faced no
    liability because it had no reason to know that any criminal act would occur and
    that Mr. Ring’s claims against Armguard were barred by the statute of limitations.
    On appeal, Mr. Ring argues that t   he district court erred in granting
    summary judgment to Lexington because it permitted Lexington to delegate
    a nondelegable duty to shield itself from liability after holding that Armguard
    1
    Mr. Ring does not contest the district court’s dismissal of John Does II-V.
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    knew or had reason to know criminal acts were occurring or about to occur.
    Mr. Ring contends the district court should have imputed the knowledge of the
    agent security guard to the principal Lexington. As to Armguard, Mr. Ring
    asserts that the district court erred by allowing Armguard to raise the statute of
    limitations defense for the first time in its summary judgment motion and by
    shifting the burden of proof on the statute of limitations defense to him.
    When reviewing a diversity action, we look to state substantive law, but
    we follow federal law in determining the propriety of the district court’s grant
    of summary judgment.       See Pegasus Helicopters, Inc. v. United Techs. Corp.   ,
    
    35 F.3d 507
    , 510 (10th Cir. 19 94). “We review the district court’s grant of
    summary judgment de novo, applying the same legal standard used by the district
    court” under Fed. R. Civ. P. 56(c).       Simms v. Okla. ex rel. Dep’t of Mental Health
    & Substance Abuse Servs. , 
    165 F.3d 1321
    , 1326 (10th Cir. 1999). Summary
    judgment is proper if the moving party shows “there is no genuine issue as to any
    material fact and that the moving party is entitled to a judgment as a matter of
    law.” Fed. R. Civ. P. 56(c). An issue of fact is “genuine” if there is sufficient
    evidence so that a rational trier of fact could find for the non-movant.      Simms ,
    
    165 F.3d at 1326
    . “An issue of fact is ‘material’ if, under the substantive law,
    it is essential to the proper disposition of the claim.”     Adler v. Wal-Mart Stores,
    Inc. , 
    144 F.3d 664
    , 670 (10th Cir. 1998). We examine the factual record and
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    reasonable inferences therefrom in the light most favorable to the party opposing
    summary judgment.     Kaul v. Stephan , 
    83 F.3d 1208
    , 1212 (10th Cir. 1996).
    In Oklahoma , “[t] he essential elements of negligence are (1) a duty owed
    by defendant to protect plaintiff from injury, (2) a failure to properly exercise or
    perform that duty, and (3) injuries to plaintiff proximately caused by defendant’s
    failure to exercise his duty of care.” Copeland v. Admiral Pest Control Co.,
    
    933 P.2d 937
    , 939 (Okla. Ct. App. 1996) (citation omitted). Whether a duty is
    owed is the threshold issue in a negligence action and is a question of law. 
    Id.
    [A]n invitor has a duty to exercise reasonable care to prevent injury
    to a business invitee. . . .,
    [but] does not have a duty to protect against criminal assaults
    by third parties unless the invitor knows or has reason to know that
    the acts are occurring or are about to occur. However, when the
    invitor has knowledge of imminent danger to an invitee, the invitor
    must act reasonably to prevent injury.
    McClure v. Group K Enters., Inc.    , 
    977 P.2d 1148
    , 1150 (Okla. Ct. App. 1999)
    (citation and quotation omitted).
    Clearly, Lexington did not have actual knowledge that a criminal act might
    occur. The question is whether the knowledge of the security guard should be
    imputed to Lexington. An invitor’s duty to protect its invitees may not be
    delegated, thus, an invitor “cannot escape liability for an injury occasioned by its
    non-performance by showing the immediate cause of the injury was due to the
    negligence of an independent contractor.”         Hodge v. Morris , 
    945 P.2d 1047
    ,
    -4-
    1049-50 (Okla. Ct. App. 1997) (quotation omitted);          see also U.S. Sec. Servs.
    Corp. v. Ramada Inn, Inc. , 
    665 So. 2d 268
    , 270-71 (Fla. Dist. Ct. App. 1995)
    (throughout the country, business invitors are charged with the non-delegable
    duty, which they may not contract out of by hiring an independent contractor,
    to provide business invitees reasonably safe business premises, “including
    reasonable protection against third-party criminal attacks”). In other words, while
    a business invitor may contract out the performance of his non-delegable duty to
    an independent contractor, he cannot contract out his ultimate legal responsibility
    for the proper performance of that duty by an independent contractor.         See
    Copeland v. Lodge Enters., Inc.       , 
    4 P.3d 695
    , 700 (Okla. 2000). The business
    invitor “may be held vicariously liable for an independent contractor’s failure to
    exercise reasonable care    even if the [invitor] has himself exercised due care.       ” 
    Id.
    Thus, if the security guard had knowledge that the two men he saw were about to
    commit a criminal act, that knowledge would be imputed to Lexington.
    Mr. Ring presented evidence that when the security guard noticed the two
    men in the hotel, he knew who they were and knew they were bad individuals.
    The guard related this information to Mr. Ring after the attack and to the
    investigating police officer.   2
    The district court even concluded that   “a reasonable
    2
    The guard’s testimony changed at his deposition. Clearly, this issue is one
    of credibility for a jury to determine.
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    factfinder could conclude that the security guard on duty . . . knew or had reason
    to know that criminal acts were occurring or were about to occur.” Plaintiff’s
    App. at 313.
    A factual question of whether the business invitor had knowledge of
    imminent danger has been found where the manager of a McDonalds restaurant
    observed three men enter the restaurant and begin harassing customers. She
    asked the men to leave, but did not check to see if they had left or call the police.
    The men went outside the restaurant, began making racist comments towards
    a customer waiting in the drive-through lane who left his car, at which time the
    men attacked him.    See Taylor v. Hynson , 
    856 P.2d 278
    , 280-82 (Okla. 1993).
    Similarly a factual issue was found where employees were not only aware
    of suspicious activity in the restaurant’s parking lot, but were concerned enough
    to “watch the individual and [their] vehicles.”   Edington v. A & P Enters., Inc. ,
    
    900 P.2d 453
    , 455 (Okla. Ct. App. 1994). The individual later attacked a patron
    leaving the restaurant.
    Summary judgment should not have been granted to Lexington. As
    Lexington had contracted out its duty to protect its guests from criminal attacks
    by third parties, it can be held liable should the factfinder determine that the
    security guard knew or should have known that the two men might commit
    criminal acts.
    -6-
    As to his claims against Armguard, Mr. Ring maintains that his claim
    cannot be barred by the statute of limitations because Armguard did not raise the
    statute of limitations as a defense until its motion for summary judgment. The
    attack occurred August 18, 1996. Mr. Ring filed his complaint April 30, 1998.
    Mr. Ring named Lexington as a defendant along with five John Does. On May 7,
    1999, Mr. Ring filed a motion to substitute Armguard as a party defendant in
    place of John Doe I. The motion was granted.
    Oklahoma has a two-year statute of limitations for negligence actions.
    See 
    Okla. Stat. tit. 12, § 95.3
    . Thus, Mr. Ring’s substitution of Armguard for
    John Doe I occurred outside the statute of limitations and his action is barred if
    Armguard is precluded from raising the statute of limitations defense until its
    motion for summary judgment.    3
    Fed. R. Civ. P. 8(c) states that a defendant must plead a statute of
    limitations defense in its answer to the complaint. However,
    appellate courts are not inclined to find a technical failure to comply
    with Rule 8(c) fatal when the district court has chosen to recognize
    a belatedly asserted affirmative defense, so long as the record
    3
    Mr. Ring does not contend that the substitution relates back to the original
    filing of his complaint.  See Appellant’s Br. at 22. Nor could he do so under the
    circumstances presented here.    See Alexander v. Beech Aircraft Corp. , 
    952 F.2d 1215
    , 1226-27 (10th Cir. 1991) (substitution of identified party for John Doe will
    relate back to date of original complaint only if three conditions, not present here,
    are met).
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    confirms that the plaintiff had adequate notice of the defense and
    was not deprived of the opportunity to respond.
    Venters v. City of Delphi , 
    123 F.3d 956
    , 968 (7th Cir. 1997);   see also Camarillo
    v. McCarthy , 
    998 F.2d 638
    , 639 (9th Cir. 1993) (“In the absence of a showing of
    prejudice, however, an affirmative defense may be raised for the first time at
    summary judgment.”). Mr. Ring has not established legally cognizable prejudice.
    Thus, Armguard did not waive its statute of limitations defense.
    The judgment of the United States District Court for the Western District
    of Oklahoma is AFFIRMED in part and REVERSED and REMANDED in part
    for further proceedings consistent with this order and judgment.
    Entered for the Court
    David M. Ebel
    Circuit Judge
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