Arizona Court of Appeals Division Two Holds That Where a Business Owner Assumes a Duty To Provide Security Services, That Duty Is Nondelegable, and Owner Will Not Be Insulated From Liability For Tortious Acts of Security Personnel Hired As Independent Contractors.

Steven Simon brought a personal injury action against Safeway arising out of an altercation with a security guard whom Safeway urged was an independent contractor. Simon alleged that the security guard had physically and sexually assaulted him, that Safeway was vicariously liable because it had a nondelegable duty to employ properly trained security guards, and that Safeway was directly liable because it had negligently failed to train and supervise Howard. After Safeway’s motion for summary judgment was denied, it filed a motion for reconsideration. Simon moved the trial court to defer its ruling so that he could conduct additional discovery. The court treated Simon’s motion as a Rule 56(f) motion and denied it. The trial court granted Safeway’s motion for reconsideration and granted summary judgment in favor of Safeway.

The Arizona Appeals Court reversed, finding first that the lower court abused its discretion in denying Simon’s Rule 56(f) motion. Simon urged in his motion that further discovery was necessary to determine the precise nature of the relationship between Safeway and Howard and requested additional time to conduct three depositions to clarify this issue. The trial court denied the motion because of Simon’s failure to produce any admissible evidence which could defeat the evidence Safeway had already produced. The Appeals Court noted, however, that “this is the precise purpose of Rule 56(f) motions, which expressly permit a trial court to delay ruling on a motion for summary judgment if the party opposing summary judgment states that it cannot, at that time, provide facts to justify its position and informs the court of what information it is looking for, where it thinks the information is, and how it plans on obtaining that information.”

The Court then held that Safeway could be liable for the intentional torts of the security guard even if he was an independent contractor. The trial court held that Safeway could not be vicariously liable because there was no evidence it had attempted to delegate a nondelegable duty. In so holding, the trial court relied on the Restatement (Second) of Torts §§ 409-429, addressing the liability of a principal or employer for injuries caused by an independent contractor. The Appeals Court found this authority inapplicable, however, as “the rule and its exceptions deal primarily with situation in which either an independent contractor is hired to perform physical construction or maintenance on land or premises or the work to be performed is . . . inherently dangerous.” The Appeals Court instead applied the Restatement (Second) of Torts § 344, addressing the duty of a possessor of land to its business invitees. Relying on other Arizona cases finding business owners liable for injuries caused by the activities of third parties on their property, the Appeals Court held that “a business owner may not escape liability . . . merely because the aggrieved party was injured by an independent contractor who was employed to provide services for the business owner on the business premises.”

The Appeals Court further held that even though Safeway had no duty to provide security services, it had voluntarily assumed that duty and “thus created for itself a personal, nondelegable duty to protect its invitees from the intentionally tortious conduct of those with whom it had contracted to maintain a presence and provide security on its premises.”

Judge Vasquez authored the opinion, with Judge Eckerstrom, Presiding Judge, and Judge Espinosa concurring.