Sharp v. W.H. Moore, Inc.

SHARP, Plaintiff-Appellant, Patricia MOORE, INC., corpora-

W.H.

tion; Barbero, Anthony “Mike” d/b/a Investments; and Robert

Goold, Police, Defen- d/b/a

dants-Respondents.

No. 16667.

Supreme Court of Idaho.

July 1990. Carnahan, Boise, plaintiff-

Wilson & for appellant. Chastain, argued. Robert R. Smith, Quane, Hull, Boise, Howard & for Moore, defendants-respondents W.H. Inc. Anthony Moody, Barbero. Robert C. argued.

Moffatt, Thomas, Barrett, Field, Rock & Boise, defendant-respondent for Robert Prusynski, argued. Goold. Mark S. BISTLINE, Justice.

ON REHEARING A rehearing granted; was counsel rear- reconsidered, gued; the Court has and has opinion determined to substitute this place Opinion the Court in of 1989 No. different, significant respects which is in and is now withdrawn. May Sharp

On Patricia was an employee of the Jess Swan Insurance Agency, whose offices in were located building leased Swan Insurance Moore, W.H. Inc. W.H. Moore had con- tracted with Investment to act as property manager building. for the Securi- Investment, turn, ty in contracted with Se- curity provide protective pa- Police to building. trols for the Sunday morning question, On the in Sharp working alone in her office at Drive, Boise, 1199 Shoreline Idaho. While there, raped by she was assaulted and gained unknown assailant who building through access to the an unlocked escape third floor fire door. complaint filed her and demand January for a trial on 1986. W.H. Inc. and Investments filed summary judgment May a motion for on 1986. Police filed its motion summary judgment on 1986. June granted The district court both motions on that, the basis under the circumstances of case, this the defendants owed no Sharp. care to The sole issue is whether the district Judge judge erred this determination. Newhouse discussed the matter the fol- lowing terms: duty that can be finding a breach law determine wheth- It is a matter of imposed against factual er of care owed defendants. grants the motion plaintiff____ Therefore this court pled by the circumstances of all summary judgment behalf plaintiff alleged has the In case the this in case. the defendants this duty occurred breach the care of of Moore and Barbero when the defendants Order, R. Decision and Vol. Memorandum door escape allowed a third floor fire added). (emphasis at 29-32 faulty lock be left have a that could granting sum Review of an order alleges plaintiff that Rob- unlocked. The requires appellate court mary judgment security company ert his Goold and (1) Whether to make two determinations: inspect- duty a in breached care not of any genuine as to there remains a issue ing door the lock to make sure the was fact; moving Whether the material and night May on of and locked the a was entitled as matter morning spec- May the 1985. It is of Siqueiros, of law. Mitchell by plaintiff police and the that ulated the (1978). making In those 582 P.2d 1074 gained entry the the build- intruder into determinations, the Court will construe the ing through in by going the third floor and reasonable inferences drawn facts escape rape fire door. The and assault light most therefrom in the favorable in in of occurred the this cause action case, nonmoving party, Sharp. in this the plaintiffs employers the secured area of Pocatello, City Anderson v. of plaintiff offices on the second floor. The Hirst v. St. Paul deposition has her admitted in that she Co., 106 Fire Marine Ins. & left unlocked the back door of her em- (Ct.App.1984). ployer’s second floor offices when she With this of review standard the went to bathroom. Sometime there- mind, opinion, reading judge’s of a the trial after, rape the assault and occurred in- above, portions particularly excerpted the complicate To side the offices. further clearly reversible error. The demonstrates deposition is this issue the of Lowell E. barely only upon district court touched the Michael, 28, 1986, in May taken on which it, question of before the de law whether security Mr. Michael states he was the duty care. In fendants owed a of guard job night on that and had the court reached and decided checking of stead the district the doors to make sure Michael, normally reserved deposi- factual issues are were secured. Mr. in his tion, a duty, for the breach of swore under oath that he checked —defendants’ escape any, plaintiff’s comparative neg the fire if and the third floor door it ligence, any. the if The court’s view that was secured at time of his cheek prevent midnight plaintiff 1:00 herself could have around a.m. This “[t]he injury negligently ed if she had not left court is the that even the the of if belief her offices on the negligently door had been door unlocked to third floor floor,” inspect- appears weighed second unlocked and had been left ed guard particularly heavily in the court’s decision. by security night on the of addition, actually In this not as a the court reversed May court can persuasion, stating burden of that"... this matter law determine that the secur- of of determine ity breached its care court cannot as matter law company of security company plaintiff breached plaintiff owed to her- plaintiff.” Sharp prevented injury duty of care owed could have self pretend did not that she was entitled to negligently the door she had not left summary judgment of It as matter law. to her the second unlocked offices was both defendants who made that con reviewing This court to- floor. It therefore the does not be- tention. tality the circumstances defendants’ of that, construing the alleged burden to show even breach lieve that the favorably and inferences most enough facts high defendants were Sharp, defendants entitled to degree foreseeability to warrant judgment as a gation matter of law. This they performance due care in of that did not do. The summary judgment landlord, in duty. A having voluntarily pro defendants’ favor must therefore be re- security system, vided a potentially sub versed. ject to liability security system if the fails as a result of the negligence. landlord’s However, this reversal does not end our (Del. Hughes, Jardel Co. v. 523 A.2d 518 inquiry. giving decision, if a new “[I]n 1987) (having provided security, owner granted, trial be pass upon court shall anticipate must persons); conduct of third questions determine all the of law in- Merriam, Feld v. 506 Pa. 485 A.2d 742 presented volved the case upon such (1984); accord Rowe v. State Bank appeal, necessary to the final determi- Lombard, 203, 519, 125 Ill.2d 126 Ill.Dec. nation of the case.” Idaho Code 1-205. § (1988); 531 Dworman, N.E.2d 1358 Lay v. This is true even if the reversal is of a (Okla.1987)(landlord’s 732 P.2d 455 control summary judgment rather than a over security potential creates liability rendered after a Layrite trial. Prods. Co. rely where security). tenants on While the Lux, 477, (1964). v. 86 Idaho 388 P.2d 105 landlord/tenant relationship does in not It therefore remains for us to determine and of duty itself establish a whether, keep to doors law, as a matter of of the locked, once Moore and Invest defendants duty owed a of care un- ments had initiated a policy locked door der the circumstances of this case. employed

had security a service with the I. THE LANDLORD keeping locked, intent of the doors they duty subject undertook such a and are to question The of whether a landlord liability perform duty failed to that duty owes a of reasonable care to the ten with a reasonable standard of care. ants property of the by settled our Stearns, recent in Stephens decision v. 106 Another finding duty reason for 249, (1984). There, Idaho 678 P.2d 41 Jus of care general to exist in this case is the Donaldson, tice with judges agreeing, three person rule that duty each has a of care to wrote: prevent unreasonable, foreseeable risks of today decide to leave the common- [W]e harm to others. Alegria Payonk, v. 101 behind, law rule exceptions and its 617, (1980); 619 P.2d Harper 135 v. adopt we the rule that a landlord is un- Hoffmann, 933, 523 P.2d 536 duty der a to exercise reasonable care in (1974). light of all the circumstances. Every person general duty has a to use adoption We stress that of this rule is ordinary others, due or injure care not to making not tantamount to the landlord injury by any agency avoid to others injury occurring insurer for all on the operation him, in by set and to do his premises, merely but constitutes our re- work, render property services or use his moval of the landlord’s common-law injury. as to avoid such omit- [Citations immunity____ cloak of hold that We degree of care to be exercised ted.] duty Steams did owe a defendant must be danger commensurate with the plaintiff Stephens to exercise reason- or hazard connected activity. with the light able care in all the circum- [Citations omitted.] stances, and jury it is decide whether that was breached. v. Jarnagin, Whitt 418 278, (1966). P.2d 285 Whether the 258, (emphasis 106 Idaho at 678 P.2d 50at largely question attaches is for the trier added). foreseeability of fact as to the of the risk. In addition to the clear rule of legal Stephens, principles other Foreseeability concept favor is a flexible recognition requirement of a of due care which varies with the circumstances of present degree the circumstances here. One is the each case. Where the of result or proposition great, familiar one preventing who voluntar harm is but it is not difficult, ily relatively degree assumes a also assumes the obli- low of foresee-

301 Havens, v. (1975); 758 Aaron N.W.2d 843 ability required. Conversely, is where the (no (Mo.1988) past need for the burden injury is minor but S.W.2d 446 threatened Hosp. higher crimes); v. McKennan injury high, Small preventing such is similar foreseeability required. (fail- (Small II), 437 N.W.2d 194 degree (S.D.1989) Co., 159 F.2d Towing v. See U.S. Carroll activity in the any criminal prove ure Cir.1947) (2d (Judge Learned 173 is fatal to the submission area Memorial Hand); Huntington Isaacs v. because foreseeability issue to Hosp., Cal.3d Cal.Rptr. 695 neighbor- in all criminal assaults occur Thus, foreseeability Deeb, hoods); Paterson So.2d is just not to be measured what more (“[w]e are not will- 1218-19 (Fla.App.1985) not, but includes what- probable than also ride, free it ing give landlord one as likely setting enough ever result were, right first victim’s and sacrifice the prudent reasonably of modern life that foreseeability by upon the altar of safety such account person would take into adhering slavishly to the now-discredited Bigbee Pa- guiding conduct. reasonable least one criminal assault notion that at Tel. Tel. & Cal.3d cific premises before must have occurred Mullins Cal.Rptr. liable”). can be held landlord 47, College, Mass. Pine 449 v. Manor 389 essence, (1983). “prior to the 331 Reduced its N.E.2d requirement translates similar incidents” argue that Defendants are entitled saying in the familiar but fallacious into summary on issue of fore- to the dog gets negligence every one law that plaintiff seeability the failed to because its owner can be held to be free bite before prior come with evidence that forward failing dog. negligent to control the activity had similar incidents of criminal dog’s to a That license which is refused building vicinity. in its occurred or building’s a owner be withheld from should However, “prior similar incidents” rule agents the owner’s as well. owner and recently leading rejected by a case was rape” free rule Idaho. There is no “one rely which upon purported the trial court Huntington v. Isaacs contrary. to the In requirement “prior The similar incidents” 112, 211 Hosp., 38 Cal.3d Memorial Cal. only demanding, too it violates the is 356, (1985), Rptr. the Califor- principle only negligence cardinal law that high rejected strong line nia court a foreseen, general risk of need be harm appel- from cases California’s intermediate Taco injury. specific not the mechanism of position courts held to the es- late Lannon, 744 (Colo.1987); Bell v. 43 P.2d The poused by the defendants. here Cali- Co., 420 Trust Galloway v. Bankers prior fornia court ruled that while similar (Iowa 1988); Duncavage v. N.W.2d 437 relevant incidents are evidence of foresee- Allen, 455, 88, Ill.App.3d 100 Ill.Dec. 147 qua sine non on ability, they are not Keeton, (1986); 433 Prosser & 497 N.E.2d 362, Id. foreseeability. at 211 the issue of (5th 299 ed. The of Torts 43 at Law § Sharpe v. at 659. See also Peter Cal.Rptr. 1984). also Knodle v. See Waikiki Gate- Lines, 788, Pan Bus 401 Mass. 519 N.E.2d Inc., Hotel, 376, way 742 377 69 Haw. P.2d v. Manor (1988); Mullins Pine Col- 1341 Hosp. (Small v. Small McKennan 47, (1983);. lege, 389 Mass. 449 N.E.2d 331 I), 403 (S.D.1987). 410 Such a re- N.W.2d growing trend has The solid and national many too is- quirement would remove far “prior rejection of the toward the been jury’s sues consideration. Fore- from See, e.g., Rowe v. rule. similar incidents” question fact. seeability ordinarily is a Lombard, 203, Bank Ill.2d State 125 Huntington Hosp., 38 Isaacs v. Memorial 519, (simply N.E.2d 126 Ill.Dec. 531 1358 356, 126, 362, 112, Cal.Rptr. 211 695 Cal.3d been commit no violent crimes had because 653, (1985). 659 parking does not at the office area ted argue security Defendants a criminal actions unforeseeable as render protect only building Saginaw Pro law); provided was Samson v. matter of contents, Inc., 393, persons within. Bldg. 224 and not the 393 Mich. fessional 302 put, property pro

Otherwise exposure very entitled the other’s to the risk tection, persons. but not so In reality with from purpose which it was the question is whether it is foreseeable protect him resulted in harm to might him, that an intruder commit violent act deprive would other of all gaining entry building after where protection duty nullity. to make security employed protect against (Second) Restatement of Torts 449 and § “prowlers, vandals or unauthorized intrud (1965). comment Holley b Accord v. Mt. Agreement ers.” Service between Inc., Apartments, Zion Terrace 382 So.2d Investments, Police and R. Vol. 1 98, (Fla.App.1980) (rejecting 101 the “su- prevented at 26. The risk to be was that of perseding” argument entirely as falla- activity. Unfortunately criminal criminals cious). See also Massie v. Piz- Godfather’s tidily proper do not confine their crimes to za, Inc., (10th Cir.1988); 844 1414 F.2d ty only. shoplifting may Even a turn vio Co., Meyers Operating v. Ramada Hotel Hughes, lent. Jardel v. 523 A.2d Co. (11th Cir.1987); Duncavage 833 F.2d 1521 (Del.1987); Galloway v. Bankers Allen, Ill.App.3d 100 Ill.Dec. (Iowa Trust 420 N.W.2d 459-60, 497 N.E.2d 437-38 1988). Havens, Accord Aaron v. Thus, in Stephens addition to the rule of (Mo.1988)(“[i]f burglar S.W.2d Stearns, 106 Idaho at 678 P.2d at may rapist”); enter so Small v. 41, care, imposing of reasonable (Small II), Hospital McKennan circumstances, running under (S.D.1989). question N.W.2d 194 landlords or owners to their tenants as a foreseeability. one of It is therefore an law, ample matter of there are additional issue or other trier of fact to imposing reasons for such Sons, Inc., decide. K.S.R. v. Novak & 225 landlord in this case. It remains for a (1987); Isaacs, Neb. 406 N.W.2d 636 any to determine whether there was breach Cal.Rptr. 211 at 695 P.2d at 659. duty. summary of that Therefore the judgment as to Moore is reversed and re argue

Defendants also that the oc manded. activity currence of criminal is an interven

ing, superseding force that breaks the potentially binding chain of causation de THE II. LANDLORD’S AGENTS liability. super fendants to While this is a Remaining for our consideration are the ficially pleasing general statement of a summary judgment rulings in favor of de- rule, applicability it no cir has under the Security fendants Investments and Securi- precise cumstances of this case. Here the ty in record Police. Two contracts guarded against hazard to be was criminal prin- demonstrate the establishment of a activity. cipal/agency relationship between Moore person may If the likelihood that a third Security subagency and Investments and a particular in manner is the hazard act relationship Security between Investments or one of the hazards which makes Security and Police. in- negligent, actor such an act whether tortious, by nocent, Security Investments was hired negligent, intentionally manage building housing prevent Moore to or criminal does not the actor Sharp’s employer. The contract between being caused there- from liable for harm provided part: in them relevant by. very [Security shall happening b. The of the event the Contractor Investments] appropriate arrangements of makes the actor’s likelihood which [make] delivery [supervise] utility, negligent subjects and so and conduct services inciden- security, him from ... and other liability actor to cannot relieve Project, in operation of the all liability. duty to refrain from the tal op- with the efficient act omitted is manner consistent act committed or to do the develop- this eration of a first class office imposed protect the other from to spe- ment in accordance with such deny recovery because and very danger. To Justice, BAKES, concurring in may to Chief guidelines as time from cific be given part: time Owner. part dissenting and added). It (emphasis is R. Vol. at summary I in the reversal of concur relationship is agency that an axiomatic However, Inc. judgment for W.H. hires has created where one who another summary I from the reversal of dissent right control retained a contractual Security In- judgment for defendants performance. Bryant other’s manner of I.R. Security Police. Under vestments Market, 268 Or. Sherm’s Thunderbird 56(c) summary judgment should be C.P. Henger, Smith depositions pleadings, affirmed when “the Tex. 226 S.W.2d 425 file, together with the and admissions on building The contract between the affidavits, genuine any, is no if show there manager provided Security Police any fact and that the issue as to material following explicit agency-creating lan moving to a as a entitled guage: plaintiff law.” The has not matter of given is hereby authority Police shown owed breach agent to act behalf of made plaintiff by either Investments or do all could do to acts Subscriber and, accordingly, the sum- Security Police protect premises above PROWLERS, VANDALS, UNAU- mary judgment OR in favor of these two defen- THORIZED INTRUDERS. dants be affirmed. should R. Vol. at 26. analysis right to summa- Since the agency As a result rela among ry various de- judgment differs established, Security tionships Police was fendants, separate analysis of the claims negligent checking the door against is neces- each the defendants through may gained the rapist which sary. entry, susceptible Security Police itself liability, imputed which turn Investments and Moore. An I. CLAIM AGAINST W.H. agent negligence. is liable for its own MOORE, INC. Corp. Amer McAlvain v. General Ins. 777, ica, 781, 955, of As owner and landlord Forest River 97 Idaho 554 P.2d 959 (1976); (Second) Agency (the Restatement building plaza), # Plaza 1 W.H. (1958). principal A for 343 liable the (Moore), § Inc. owed certain duties to ten agent torts an committed within the including ants the Insurance Jess Swan agency relationship. Bailey scope of the v. (Swan) employ Agency and to its tenants’ 495, Ness, 497, 900, 109 Idaho 708 P.2d 902 ees, including plaintiff Sharp. Own (Second) Agency Restatement a duty Moore owed to tenant er/landlord (1958). agents principals Both and 251 § in light reasonable care Swan “to exercise subagent com are liable for the torts of Stephens all circumstances.” v. relationship. agency mitted within the Re 249, 258, 41, Stearns, 106 Idaho 678 P.2d 255, (Second) Agency 362 statement §§ (1984). decision in Keller v. 50 Under our (1958). negligence, any, of the Thus 593, 595, Inns, Inc., 107 Idaho 691 Holiday Police, poten it sub-agent, Security renders (1984), 1210 P.2d owner/landlord liability tially Sharp, may and its liable to light must reasonable care also “exercise imputed agent, Security Invest of all the circumstances” to a tenants’ ments, principal, and to the Moore. (1) protection a dan employees “for [from summary judgments are re- All three danger gerous though even condition] for fur- versed and the cause is remanded and to the ous condition known obvious appellant; no proceedings. Costs to ther Butler, employee,” and under Marcher v. attorney appeal. fees 867, 871, 113 749 P.2d 490 (1988), (2) provide “to safe conditions for BOYLE, JJ.,

JOHNSON Tem., employment upon premises.” WALTERS, Pro concur. J. 304

Reviewing the entire record most favor- The elements of common negligence law ably to the opposing (1) have summary been summarized duty, as judgment motion, law, recognized by requiring the record reflects that a defendant genuine there was a conform to a issue of material certain standard of con- fact duct; (2) (1) (3) regarding duty; breach of that whether the defendant Moore causal connection (2) breached between the defen- Sharp; whether that resulting dant’s conduct and injuries; breach was the actual Sharp’s cause of (4) damage. actual loss or (3) injury; and was that breach proxi- Sharp’s mate cause of injury. Accordingly, Alegria Payonk, v. 101 Idaho 619 P.2d agree I summary judgment (1980). for 135 Moore should be reversed. recognizes The law that owner/landlords

owe duties to their tenants and their ten II. CLAIMS AGAINST SECURITY IN- employees ants’ to exercise reasonable care (1) VESTMENTS AND SECURITY light circumstances,” POLICE “in of all the Ste phens Stearns, 249, 258, 106 Idaho Sharp alleges also the defendants (1984),(2) protection P.2d “for [from Security Security Investments and Police dangerous though even condition] breached duties Depending owed to her. dangerous condition is known and obvious on the relationship parties, there can employee,” Inns, Keller Holiday be duties owed in tort and/or contract. Inc., 593, 595, 107 Idaho 691 P.2d Arrington See Just’s v. Construction (1984), provide “to safe condi Inc., 462, 468, 583 P.2d tions employment upon premises.” (1978) (“[Negligent conduct and breach of Butler, Marcher v. contract are two distinct theories of recov- These duties of the ery.”). Unfortunately, opinion the Court’s owner/landlord are based on the land today distinguish fails to between those lord/tenant relationship with the tenant “two recovery.” distinct theories of employees. and the tenant’s Because an opinion recognizes Court’s the contractual owner/landlord exercises control of his relationship between Security Moore and building, responsibility he also bears (the property Investments manager) and injuries foreseeable to the tenants and their Security between Security Investments and employees resulting from his failure to ex (who provided Police periodic in- daily However, ercise reasonable care. Id. Se However, spections). the Court makes no curity Security Investments and Police analysis of how Investments and owner/landlord, were not the nor did Police breached tort duties any recognized legal relationship with or, matter, owed to for that contrac- the tenants of the owner/landlord or the plaintiff tual Sharp. duties to the While employees plaintiff tenants’ Sharp. such as indeed Investments have They do not become the owner/landlord breached its contractual duties to services, merely by contracting perform Security may Police have breached its services, security even for the landlord. Investments, Security contractual duties may imposed While their contracts have Security Security neither Investments nor them, upon some contractual duties there Police breached either a contractual or a recovery by can be no Sharp tort duty plaintiff Sharp, tort to the and accord- Security Security Investments or Police be ingly summary judgment appropriate was duty Sharp. cause owed no in favor of those two defendants. Strangely, majority opinion does not analysis regard a make tort with to Securi A. Tort Duties ty Security Investments and Police. The requires wrongful “A tort invasion of majority opinion point any does not out law____” protected by an interest duty by Security owed Investments or Se Co., Arrington Sharp Just’s v. curity Construction Police to the breach of which Inc., 468, 997, negligence by Sharp 99 Idaho 583 P.2d in a could result claim (1978). against opinion merely them. Court’s that, Here, Security negli- states “If ciary theory. Sharp alleges, Police was and the gent checking through opinion reversing for not majority by apparently door rapist may assumes, (1) which gained entry, the contracts between Security susceptible Investments, (2) Police itself Security to liabil- Moore and ity, may imputed which in turn Security Security be to Secur- Investments and Police ity agent Investments and to Moore. An is were employ- intended to benefit her as an negligence.” tenant, However, liable for its own Ante at ee of Moore’s Swan. However, prior clearly P.2d at 512. review of our cases demon- Court go does not on and plaintiff Sharp determine whether or strates that was not a third Security any duty party beneficiary Police breached of those contracts be- Sharp, Investments, which could be the basis for its Security tween Moore and Rather, negligence. (2) Security the Court concludes Security Investments and that, negligence, “Thus the any, of the Police. if Police, sub-agent, Security poten- renders it previously require- We have set forth tially Sharp, liability liable to may and its recovery party ments for under third bene- imputed agent, Security Invest- ficiary theory: ments, principal, and to the Moore.” Ante [Bjefore recovery by can be had a third added). at (emphasis 796 P.2d at 512 party beneficiary, it must be shown that All the Court has said is that there was the contract was made for his direct ben- any negligence part on the Security Po- efit, or as primarily sometimes stated lice, imputed it could be Security Invest- benefit, his and that it is not sufficient ments and Moore. may The Court be cor- beneficiary. he be a mere incidental concluding rect in negli- that if there was gence part Security on the Police it express ... contract itself must [T]he imputed would be Security Investments intent to benefit party. the third ‘This and to Moore. depend That would gleaned intent must be from the contract Security whether agent Police was an rath- ambiguous, itself unless that document is independent er than an contractor. How- whereupon surrounding the circumstances ever, any the Court has not analysis made formation be considered.’ [Stew- establishing that there was a triable issue Arrington Co., art v. Construction 92 Ida- concerning of fact Security whether Police 526, 532, (1968)]. ho 446 P.2d had breached a Sharp toward which Corp. Co., Adkison Building v. American could result in a claim negligence by 406, 409, 690 P.2d Sharp against Security Police. The Court (1984). party may only A third enforce a merely negli- has said that if there was contract “if he can show he is a member of gence part on the Police it a limited class for whose benefit it was imputed would be to the others. The Court made.” Arrington Stewart v. Construc- has not demonstrated how this record es- Co., 901; tion 92 Idaho at 446 P.2d at any negligence part tablishes on the Just’s, Inc. v. Arrington Construction either Investments or Po- 583 P.2d lice, i.e., breach of a owed either to Sharp. contrary, To the the record demon- owed, strates that no such tort Here, in order for to recover from accordingly summary judgment Security Investments under a third granted in favor of those two defendants beneficiary theory, the contract between should be affirmed. Security Investments and Moore must ex- press an intent to benefit her as a third

B. Contract Duties party. However, the contract does not ex- privity press Because was not in “Management con- such an intent. In its Security with Agreement” tract either Investments or Security with Invest- Police, Security only possible agreed the manage contractu- ments to the plaza and to duty al “provide owed to her these two defen- for physi- the smooth and efficient party operation dants would be under a third benefi- [plaza by making cal of the ] Prowlers, supervis arrangements and Vandals or Unauthorized Intrud- appropriate utilities, ing delivery security, emer The no ers.” contract makes mention response, inspection and other ser gency personal security for either ten- providing operation {pla Again, vices incidental employees. or tenants’ while ants contract, ]____” Security za In the Invest employees may have derived some tenants’ to undertook no with reference ments Security In- incidental benefits from the employees. It safety of the tenants’ contract, vestments-Security Police only agreed promote “to a harmonious rela expressly itself contract was not intended Owner, tionship Tenants with on behalf them, is no to benefit and there indication all in furtherance thereof shall visit and contracting intended parties that the premises regular their basis tenants at on a parties, Sharp, such as would enti- third to of their express appreciation the owner’s rights to exercise under the contract as tled tenancy suggestions solicit and and to their party only argua- third beneficiaries. prompt provide comments and shall and party beneficiary third Securi- ble response inquiries courteous tenant Police ty Investments-Security contract problems.” provision is insufficient Such Moore, the owner. plaza’s intended parties to demonstrate that if Even the contracts of defendants employees of a would be able tenant Security Security Police Investments At rights under contract. exercise express an had been worded so as to inten- only in employees most the tenants’ were employees tenants tion that or their were Security Invest beneficiaries of cidental party third who could to be beneficiaries manage pla duty to ments’ contractual contracts, rights viola- exercise under those prior inciden our cases such an za. Under beneficiary party provi- tion of such a third beneficiary may a third tal not maintain tort, but would not have been a would sion Just’s, beneficiary Inc. v. party action. provided Sharp merely have with contract Co., 99 Idaho Arrington Construction Herbold, damages. Taylor v. v. Ar P.2d 997 Stewart (“Ordi- (1971) 133, 138, 483 P.2d Co., rington Construction tort.”). narily, breach of is not contract against Security Investments Sharp’s claim if Investments’ Security follows that It tort, Security alleged Police not a under- W.H. did not contract with Moore Therefore, of contract. even breach duty to inten- express contractual take clearly provided two contracts had those Sharp, not then it could tionally benefit employees were that the tenants and their such in its contract pass further to be third benefi- intended direct could, if it Se- Security Police. Even with beneficiaries, ciaries, merely not incidental contract fact did not curity Investments Arrington Construction Stewart provide expressly Security with Police (1968),the mere working in employees conditions safe would not constitute contract breach Rather, Agree- “Service plaza. tort, “To action there tort. found an Investments, Security Security ment” with duty apart from the be a breach of must (1) night agreed “furnish merely Police Taylor non-performance of a contract.” intermittently patrol plaza] services [the Herbold, 483 P.2d at 669. 94 Idaho at PM and during hours of 8:00 o’clock Accordingly, because Invest- nights per week ... AM seven 7:00 o’clock Security Police did owe ments and PM and locked at 7-8:00 o’clock doors to be Sharp, summary contractual weekdays AM on at 7:00 o’clock unlocked entered in favor of In- (2) premis- “check the named only”; above Police should be vestments Entry, Per- Unauthorized es for Forcible affirmed. Windows, Doors, sons, Broken Unlocked ...”; doors front three Fire “[c]heck floor, end at escape on third East fire closing”; and regular rounds and

opening, premises from “protect above

Case Details

Case Name: Sharp v. W.H. Moore, Inc.

Court Name: Idaho Supreme Court

Date Published: Jul 31, 1990

Citation: 796 P.2d 506

Docket Number: 16667

Court Abbreviation: Idaho