St. Paul Mercury Insurance v. Aargus Security Systems, Inc.
2 N.E.3d 458
Ill. App. Ct.2014Background
- Mallers seeks damages from Aargus for an April 1, 2002 propane-tank explosion in the Mallers Building; Mallers sues as subrogee alleging negligence and breach of contract; Aargus was the building’s security contractor under a 1993 contract; contract language provides guards’ duties may be varied by client and that guards are employees of Aargus; there was no express duty to inspect or stop deliveries of gas tanks; Mallers alleged Aargus permitted deliveries and failed to warn or act, causing damages around $14.5 million; Aargus moved for summary judgment and the circuit court struck two Mallers affidavits that did not comply with Rule 191; the circuit court granted summary judgment, and Mallers’s motion to reconsider was denied; Mallers appeals on whether a contractual or voluntary-duty existed, whether affidavits were properly struck, and whether denial of reconsideration was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aargus owed a contractual duty to stop or report propane deliveries | Mallers contends contract/duty required inspection of deliveries | Aargus argues duties are limited to client-requested security services | No contractual duty shown to stop/report deliveries |
| Whether Kennedy and Hauri affidavits complied with Rule 191 | Affidavits provide expert opinions on security duties | Affidavits are improper conclusions not based on personal knowledge | Affidavits struck; they do not comply with Rule 191 |
| Whether the circuit court properly denied Mallers’s motion to reconsider | Reconsideration should consider manual/extrinsic evidence of duties | No new law or facts justify revisiting summary judgment | Motion to reconsider properly denied |
Key Cases Cited
- Smith v. Airoom, Inc., 126 Ill. 2d 195 (1988) (claims must be raised below to be reviewed on appeal)
- Kostopoulos v. Poladian, 257 Ill. App. 3d 95 (1993) (issues not raised below waived on appeal)
- Village of Arlington Heights v. Anderson, 2011 IL App (1st) 110748 (2011) (Rule 23 matters not preserved may be waived on appeal)
- Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243 (1996) (summary judgment standard; burden on nonmovant to show factual basis)
- Gallagher v. Lenart, 226 Ill. 2d 208 (2007) (contract interpretation; look at the whole contract; extrinsic evidence only if ambiguous)
- Thompson v. Gordon, 241 Ill. 2d 428 (2011) (interpretation of contract language in context; not by isolated terms)
- O’Hara v. Holy Cross Hospital, 137 Ill. 2d 332 (1990) (duty of care is a question of law for court)
- Eichengreen v. Rollins, Inc., 325 Ill. App. 3d 517 (2001) (negligence defined by contract terms; duty not expanded beyond contract)
- Kotarba v. Jamrozik, 283 Ill. App. 3d 595 (1996) (scope of duties limited to contract terms)
- Lewis v. Chica Trucking, Inc., 409 Ill. App. 3d 240 (2011) (voluntary undertaking; duty confined to undertaking)