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Hoisington v. Zt-Winston-Salem Associates6/15/1999
Appeal by plaintiff; defendants and third-party plaintiffs Zaremba Group Incorporated, ZT-Winston-Salem Associates, Zaremba Associates Limited Partnership, Zaremba Realty Corporation, Toys "R" Us-Delaware, Inc., and Winston-Salem Retail Associates Limited Partnership; and third-party defendant The Tree Factory, Inc., d/b/a The Silk Plant Forest, from summary judgment entered 16 April 1998 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 13 May 1999.
This case arose out of a brutal assault that took place on 9 December 1995 at Silas Creek Crossing Shopping Center (Silas Creek), a strip shopping center located in Winston-Salem. Plaintiff Hoisington's ward, Jill Marker, was working at The Tree Factory, Inc., d/b/a The Silk Plant Forest (The Tree Factory), a retail store located in Silas Creek. Shortly before 9:00 p.m., while in her store, she was severely beaten, receiving permanent injuries. The perpetrator was apprehended and convicted in Forsyth County Superior Court.
Defendant/Third-Party Plaintiff ZT-Winston-Salem Associates (ZT- WSA) owns Silas Creek. On 21 September 1994, ZT-WSA, through its agent, Defendant Zaremba Group Incorporated, entered into a services contract with Defendant Wackenhut Corporation (Wackenhut), under which Wackenhut was to provide security guard services at the shopping center. The contract provided the "Scope of Work" to be as follows:
"Vehicular and foot patrol of property maintaining high visibility. (Vehicle shall display Wackenhut Security Corporation sign.) Performing watchclock rounds after midnight to end of shift. Completion of daily reports with copy to client. Act as a deterrent against theft, vandalism and criminal activities. Hours of security coverage shall be from 8:00 p.m. to 4:00 a.m."
Wackenhut assigned employee Brian McKnight to patrol Silas Creek on the night of the attack on Ms. Marker. He arrived on duty at 8:00 p.m., approximately one hour before the assault. According to his deposition, he first drove behind the stores of Silas Creek, then logged in. He was operating his own 1985 Ford Escort Wagon, which had magnetic signs identifying the vehicle as "Wackenhut Security" affixed to its sides. After logging in, McKnight continued driving around Silas Creek for approximately forty-five minutes. During this time he also walked to the CD Superstore and wrote tickets for vehicles parked illegally in handicapped spaces near Blockbuster Video. He testified that the parking lot at Silas Creek was densely crowded that evening with holiday shoppers. At approximately 8:40-8:45 p.m., after completing two rounds of Silas Creek in his car, McKnight parked at a spot where he Judged he could maintain surveillance over most of the center. At the time of the assault on Ms. Marker, which occurred between 8:50 and 9:00 p.m., McKnight was in his parked car. He learned of the assault over the police scanner in his vehicle.
Ms. Marker's guardian filed an amended complaint on 8 September 1997 against multiple defendants, including Defendants-Appellants ZT- WSA, Zaremba Associates Limited Partnership, Zaremba Realty Corporation, Toys "R" Us-Delaware, Inc., and Winston-Salem Retail Associates Limited Partnership (collectively, Zaremba), and against Defendant-Appellee Wackenhut, asserting claims arising out of injuries sustained by Ms. Marker. Thereafter, Zaremba filed both a cross-claim against Wackenhut, seeking indemnity from plaintiff's claims pursuant to the services contract existing between Zaremba and Wackenhut at the time of the assault, and a third-party claim against The Tree Factory. On 21 July 1997, Wackenhut moved for summary judgment as to all claims against it. After he
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