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Old v. Lefmark Management Co.8/24/1995
Judgement reversed and remanded and Opinion filed August 24, 1995
8/24/95
OPINION ON MOTION FOR REHEARING
We overrule appellee's motion for rehearing, withdraw our July 6, 1995 opinion, and substitute this opinion in its stead.
Plaintiff, Winona Old, filed a wrongful death and survival action against (1) Shipley Do-Nuts & Flour Supply Company, Inc. (Shipley's), (2) the owners and managers of the shopping center where Shipley's was located, and (3) appellee, Lefmark Management Company, the former manager of the shopping center. The trial court granted summary judgment in favor of Lefmark. The interlocutory judgement became final upon severance, and this appeal followed. We reverse and remand because Lefmark's motion for summary judgement and supporting evidence did not address every theory of recovery pled by plaintiff.
On July 13, 1993, at 12:30 a.m., plaintiff's husband, Phillip Old, went to Shipley Do-Nuts in the Fairbanks Plaza Shopping Center to purchase donuts. As he entered Shipley's, he encountered an armed robbery in progress. He was shot and killed.
In this wrongful death and survival suit, plaintiff alleged that criminal activity was frequent at the shopping center, citing a report of an armed robbery at the same store on June 27, 1993, as well as "eight (8) armed robberies, numerous burglaries and more than 200 calls for service to H.P.D." between August 14, 1991 and July 13, 1993. She further alleged an uncontrolled and unsecured alley ran alongside Shipley's, and a three to four foot wide hole in the fence behind Shipley's allowed potential criminals easy access and escape. Further, she alleged that, on the occasion in question, defendants failed to have a security guard on duty or an adequate security system in place, either in the Shipley's store or on the common premises, even though there were multiple 24-hour businesses in the shopping center. Plaintiff claimed defendants knew or should have known dangerous conditions existed at the shopping center that posed an unreasonable risk of harm to the public and to her husband, and that defendants failed to exercise reasonable care in protecting against, eliminating and/or warning against the dangers.
With regard to appellee Lefmark, plaintiff specifically alleged the following:
In the alternative, and in the event defendant Lefmark was not the property manager on the date of the occurrence in question, plaintiff would show that defendant Lefmark created the following dangerous conditions on the premises in question during its tenure as an independent property manager at Fairbanks Plaza which proximately caused plaintiff's injuries and damages.
1. Lefmark failed to conduct a security risk assessment at Fairbanks Plaza after receiving the Kroger Food Store letter of January 19, 1993;
2. Lefmark failed to notify its successors of the contents of the Kroger letter;
3. Lefmark failed to notify its successors of the history of excessive criminal activity in and around Fairbanks Plaza during its tenure;
4, Lefmark failed to promulgate a satisfactory security program to protect the Fairbanks Plaza business guests;
5. Lefmark failed to repair a three to four (3 to 4) foot wide hole in the Fairbanks Plaza perimeter fence directly behind Shipley Do-Nuts thereby allowing potential criminals easy and surreptitious ingress and escape to and from the property.
Lefmark's summary judgement evidence shows that, effective April 13, 1993, three months prior to the involved incident, Lefmark was removed as managing agent for Fairbanks Plaza. On the date of the incident, July
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