Third District Court of Appeal
State of Florida
Opinion filed January 6, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-1597
Lower Tribunal No. 17-8521
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Margery Glickman and Fred Glickman,
Appellants,
vs.
Kindred Hospitals East, LLC, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.
Grossman Roth Yaffa Cohen, P.A., and Rachel Wagner Furst, Andrew B.
Yaffa, and Manuel A. Arteaga-Gomez, for appellants.
Marlow, Adler, Abrams, Newman & Lewis, and Rosemary B. Wilder, for
appellee Jones Lang Lasalle Americas, Inc.; Banker Lopez Gassler P.A., and
Ezequiel Lugo (Tampa), for appellees Kindred Hospitals East, LLC d/b/a Kindred
Hospital–South Florida–Coral Gables, and Kindred Healthcare Operating, Inc.; The
Barthet Firm, and Paul D. Breitner, for appellee Nor-Seg Security Services, Inc.
Before LOGUE, SCALES, and LINDSEY, JJ.
LOGUE, J.
Margery Glickman and Fred Glickman, the plaintiffs below, appeal the entry
of summary judgment for Nor-Seg Security Services, Inc., one of the defendants
below (hereinafter, the “Security Company”). For the reasons stated below, we
affirm.
BACKGROUND
This case stems from a tragic shooting by an 87-year-old man, Theobaldo
Tames, in the lobby of the Kindred Hospital in Coral Gables, Florida. The hospital
provides long-term acute care to patients who are often terminal. The plaintiff, Mrs.
Glickman, then 68 years old, was invited by Tames to meet him in the lobby of the
hospital. Both Mrs. Glickman and Tames had a close friend receiving long term care
in the hospital. In fact, Tames had been a daily visitor of their mutual friend at the
hospital for several months.
On the morning of the incident, Tames signed in at the front desk to visit the
room of the friend. The person who signed him in was an employee of the hospital,
not the Security Company. The hospital employee recognized Tames as the elderly
gentleman who visited the hospital daily. Tames did not act anxious or upset.
Unknown to the employee, Tames’ friend had died overnight. After signing in,
Tames sat down in the waiting area. When Mrs. Glickman arrived and sat down
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opposite him, Tames drew a revolver from his brief case, shot Mrs. Glickman several
times, and then shot and killed himself. Mrs. Glickman was wounded but survived.
The hospital’s policies mandated that “[n]o employee, visitor, vendor, client,
customer or other person may bring, carry or possess a firearm or other deadly
weapon” at the hospital. A prominent sign in the lobby advised that firearms were
prohibited on the premises. The guards provided by the Security Company were
unarmed. This was the first shooting or discharge of a weapon at the hospital.
However, at a Kindred facility in Illinois in 2012, a woman delivered a concealed
weapon to a patient, who then killed them both. At a Kindred facility in California
in 2002, a patient shot himself with a concealed weapon.
The Glickmans sued Kindred Hospitals East, LLC, the entity that owned and
operated the hospital; Kindred Healthcare Operating, Inc., the national operating
company; Kindred Healthcare, Inc., a national holding company; Jones Land Lasalle
Americas, Inc., the company that managed the hospital property; and the Security
Company. After the pleadings were closed and extensive discovery completed, the
Security Company moved for summary judgment on the basis that it owed no duty
to the Glickmans on two separate grounds: (1) its contract with the hospital limited
the Company to protecting the hospital and its employees and expressly disavowed
a duty to protect others, or (2) nothing in its conduct foreseeably created a broader
“zone of risk” encompassing such a crime on the premises.
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Regarding its contention that its contract limited its duties, the Security
Company pointed to a provision in the contract that read:
[T]he security services hereunder are only being provided to Client and
its employees, and no other person or entity is, nor is intended to be, a
third party beneficiary under this contract. [The Security Company] is
assuming no duty to protect any other persons or entities or their
property, nor is it being compensated hereunder to do so . . . .
(emphasis added). The contract also provided:
[The Security Company’s] employees are a deterrent to crime and will
report to the appropriate authorities anything they see or hear that is out
of the ordinary, but it is the responsibility of the local police to pursue,
investigate, apprehend, and charge criminals. [The Security Company]
shall have no responsibility nor obligation to pursue, investigate,
apprehend or charge any person as a result of perceived or observed
criminal conduct.
(emphasis added). Finally on this point, the contract provided the hospital agreed to
indemnify the Security Company “from all losses, liabilities, damages and expenses
. . . as asserted against [the Security Company] by third parties arising out of or
occurring by reason of the negligence, acts, omissions or misconduct of any third
party.”
The trial court granted summary judgment on both grounds. This appeal
timely followed.
DISCUSSION
A trial court’s ruling on a motion for summary judgment is reviewed de novo.
“Summary judgment is proper if there is no genuine issue of material fact and if the
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moving party is entitled to a judgment as a matter of law.” Gonzalez v. Citizens
Prop. Ins. Corp.,
273 So. 3d 1031, 1035 (Fla. 3d DCA 2019) (quoting Volusia Cnty.
v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000)).
“A court considering summary judgment must avoid two extremes.” Id. at
1035. On one hand, “a motion for summary judgment is not a trial by affidavit or
deposition. Summary judgment is not intended to weigh and resolve genuine issues
of material fact, but only identify whether such issues exist.” Perez–Gurri Corp. v.
McLeod,
238 So. 3d 347, 350 (Fla. 3d DCA 2017). “If there is disputed evidence on
a material issue of fact, summary judgment must be denied and the issue submitted
to the trier of fact.”
Id. At the same time, a “party should not be put to the expense
of going through a trial, where the only possible result will be a directed
verdict.” Perez-Rios v. Graham Cos.,
183 So. 3d 478, 479 (Fla. 3d DCA 2016)
(quoting Martin Petroleum Corp. v. Amerada Hess Corp.,
769 So. 2d 1105, 1108
(Fla. 4th DCA 2000)). “A dispute as to a material fact is genuine if there is sufficient
evidence for a reasonable jury to return a verdict for the non-moving party.”
ABC Salvage, Inc. v. Bank of Am., N.A., 45 Fla. L. Weekly D1152 (Fla. 3d DCA
May 13, 2020) (quoting Encarnacion v. Lifemark Hosps. of Fla.,
211 So. 3d 275,
277 (Fla. 3d DCA 2017) (internal citations omitted)).
As mentioned above, the trial court’s first basis for granting summary
judgment concerned the contractual language that limited the Security Company’s
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scope of services to protecting the hospital and its employees only. On this point,
the final judgment reads: “Pursuant to the Agreement, [the Security Company] only
undertook responsibility to protect Kindred Hospital and its employees, not its
visitors or other third parties. Thus, pursuant to the Agreement, [the Security
Company] had no duty to protect Mrs. Glickman who was a visitor to Kindred
Hospital.” On appeal, the Glickmans challenge this basis for the summary judgment
in two ways.
First, they argue that the Security Company’s actions in providing security
reflects a general undertaking to protect visitors like Mrs. Glickman even though the
contract limits its duty to hospital employees. Without extended discussion, we
reject this argument. Cascante v. 50 State Sec. Serv., Inc.,
300 So. 3d 283, 287–88
(Fla. 3d DCA 2019) (upholding summary judgment for security company on basis
it had no duty to provide security during hours other than those set forth in its
contract because the extent of its contractual undertaking defines the scope of its
duty); see also Robert-Blier v. Statewide Enters., Inc.,
890 So. 2d 522, 523–24 (Fla.
4th DCA 2005) (holding “an independent contractor hired by the owner of premises
to provide some—but not full—security services can[not] be liable for failing to do
more than it contracted to do”).
Second, the Glickmans note that the written contract by its terms expired after
one year and was never renewed in writing although the hospital continued to pay
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the Security Company and the Company continued to provide services for years after
the written contract expired up to and including the date of the shooting of Mrs.
Glickman. They contend that, after expiration of the original written contract, the
hospital and the Security Company entered into a new, unwritten contract in which
the Security Company assumed the duty to protect others in addition to the
employees as set forth in the written contract. In the alternative, they argue that the
Security Company voluntarily undertook to expand the scope of its services in this
regard.
In support of this argument, the Glickmans refer to various materials. They
note the Security Company made suggestions to the hospital to improve security by
adding cameras and other enhancements. They point to the Security Company’s
“post orders” to its guards regarding matters like patrolling, clocking into locations
to ensure patrolling, conduct when assigned to front desk (which, as occurred when
Tames signed-in on the morning of this incident, was not required to be always
manned by the Security Company), the requirement that persons beyond the entry
area wear identifying badges or stickers, and similar matters. Finally, they note an
official of the Security Company in a deposition, while denying the scope of services
changed when expressly asked, also agreed to the general proposition that the
purpose of security officers was to “promote” the safety of patients, visitors, and
employees. We do not find any evidence in these materials that creates a genuine
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issue of material fact that would preclude summary judgment. In other words, the
materials put forward by the Glickmans on this point are not sufficient for a
reasonable jury to return a verdict that the Security Company expressly or by
implication agreed in contract or voluntarily undertook to expand the scope of
services and liability beyond those stated in the written contract. See ABC Salvage,
45 Fla. L. Weekly D1152.
We therefore uphold the summary judgment under review on the basis that
the Security Company’s contract with the hospital limited the Company to
protecting the hospital and its employees and expressly disavowed a duty to protect
others. In doing so, we do not consider or address the other ground for the summary
judgment. Nor do we address the duty owed to visitors by the owner or operator of
the hospital.
Affirmed.
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