On appeal, plaintiff argues that the trial court erred in
shifting the burden to plaintiff to make a forecast of evidence on
which he might recover based on defendant having presented
prima
facie evidence that the theft was the result of criminal activity
by a third party. In addition, plaintiff argues that the trial
court erred in stating that in order for plaintiff to avoid summary
judgment, he must show that significant criminal activity occurred
at defendant's place of business. We disagree.
The granting of summary judgment is proper if the pleadings,
discovery, admissions, affidavits and deposition testimony, if any,
show that there does not exist a genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. N.C.
R. Civ. P. 56. If the moving party has established the lack of a
genuine issue of material fact, then the burden shifts to the non-
moving party to present his own forecast of evidence to show that
a genuine issue of material fact does exist.
See Cockerham v.
Ward, 44 N.C. App. 615, 618, 262 S.E.2d 651, 654 (1980).
In the case at bar, evidence was presented that the actual
cause of plaintiff's loss was the result of criminal activity by a
third party. Therefore, in reviewing the granting of defendant's
motion for summary judgment, this Court must ascertain what duty,
if any, was owed by defendant to plaintiff to protect plaintiff'sproperty from theft due to the criminal activity of a third party.
In addition, if a duty is found to exist, then we must determine
whether a breach of that duty occurred and whether defendant's
actions were the proximate cause of plaintiff's injury.
See Young
v. Fun Services-Carolina, Inc., 122 N.C. App. 157, 159, 468 S.E.2d
260, 262 (1996) (“The essential elements of negligence are: Duty,
breach of duty, proximate cause, and damages. . . . Proximate cause
is defined as 'a cause which in natural and continuous sequence,
unbroken by any new and independent cause, produced the plaintiff's
injuries, and without which the injuries would not have occurred.'”
(citations omitted)).
In his brief, plaintiff fails to specifically address what
duty, if any, is owed by an employer to his employee to protect the
employee's property that is stored at the employer's place of
business. Although defendant conceded that under certain
circumstances, an employer may be held liable for the theft of his
employee's property, defendant does not cite to any authority for
this proposition. Moreover, this Court has conducted its own
search for North Carolina legal authority addressing the duty owed
by an employer to his employee in this context and has found none.
Therefore, it appears this issue should be addressed under the
ordinary rules of negligence as we find there is no increased duty
on the part of defendant in this case.
In a negligence action, there can be no liability if there is
no duty owed by the defendant to the plaintiff.
See Prince v.
Wright, 141 N.C. App. 262, 266, 541 S.E.2d 191, 195 (2000). Dutymay be imposed if one party undertakes to render services to
another and the surrounding circumstances are such that the first
party should recognize the necessity to exercise ordinary care to
protect the other party or the other party's property; and failure
to do such will cause the danger of injury to the other party or
the other party's property.
See Davidson and Jones, Inc., v.
County of New Hanover, 41 N.C. App 661, 666, 255 S.E.2d 580, 584,
rev. denied by 298 N.C. 295, 259 S.E.2d 911 (1979) (“The law
imposes upon every person who enters upon an active course of
conduct the positive duty to exercise ordinary care to protect
others from harm and calls a violation of that duty negligence.”).
To establish actionable negligence, it must be shown that the harm
complained of was a foreseeable consequence of defendant's alleged
negligent act.
See Luther v. Asheville Contracting Co., 268 N.C.
636, 642, 151 S.E.2d 649, 653 (1966) (“Foreseeability of injury to
another is an essential element of actionable negligence.”);
Moore
v. Moore, 268 N.C. 110, 112, 150 S.E.2d 75, 77 (1966) (“To permit
recovery for an injury, the jury must find the defendant was guilty
of one or more of the negligent acts alleged and that the injurious
result was reasonably foreseeable.”);
Dunn v. Bomberger, 213 N.C.
172, 177, 195 S.E. 364, 368 (1938) (“[T]o establish actionable
negligence the plaintiff must show that the defendant, in the
exercise of ordinary care, could foresee that some injury would
result from [defendant's] alleged negligent act.”).
In the case at bar, defendant was aware that plaintiff would
store his tools at defendant's body shop when plaintiff would leavework each day. It does not appear that defendant opposed this
action. Rather, it appears that defendant acquiesced to plaintiff
storing his tools there. Plaintiff argues that defendant did not
exercise reasonable care to secure plaintiff's tools from theft.
This failure to exercise reasonable care, plaintiff argues, is
flagrant in light of the fact that prior incidents of theft had
occurred on the premises. According to plaintiff, defendant's
failure to provide adequate security was the proximate cause of
foreseeable injury to plaintiff. Therefore, plaintiff argues that
the trial court improperly granted summary judgment in favor of
defendant. We disagree.
The evidence reveals that the perimeter of the premises is
secured by a gate, which is secured after hours by a heavy chain
and padlock -- however, the condition of the gate is in question.
As to the body shop building itself, there is a garage door which
is secured by a latch that pushes into a bar. There is a metal
door with a glass window that can be locked from the inside. In
addition, there is a floodlight on the premises -- however, the
parties dispute whether the floodlight was functioning on the date
of the theft. Based on the findings in
Connelly v. Family Inns of
Am., Inc., 141 N.C. App. 583, 540 S.E.2d 38 (2000), the trial court
determined that the plaintiff failed to present evidence of
significant criminal activity on the premises to show that the
security methods assured by defendant were inadequate. Plaintiff
disagrees.
In
Connelly, the
Court addressed the duty owed by a motel toits guests to protect the guests against the criminal activities of
third parties. The
Connelly Court stated that the foreseeability
of the complained of acts can be gleaned from evidence of prior
crimes including, “the location where the prior crimes occurred, .
. . the type of prior crimes committed, . . . and the amount of
prior criminal activity. . . .”
Connelly, 141 N.C. App. at 588,
540 S.E.2d at 41 (citations omitted). Ultimately, the
Connelly
Court found that
“[t]he evidence in this case . . . indicates
that in the five years preceding the armed
robbery in this case, one hundred instances of
criminal activity bearing on the issue of
forseeability occurred [within an area not too
remote from the premises]. This number of
crimes was sufficient to raise a triable issue
of fact as to the foreseeability of the attack
upon plaintiffs.”
Connelly, 141 N.C. App. at 589, 540 S.E.2d at 42. In addition, the
Connelly Court found that the motel was on sufficient notice of the
prior incidents to present a triable issue of foreseeability.
Plaintiff argues that the trial court erred in relying on
Connelly as that case did not involve a negligence action brought
by an employee against an employer. Rather plaintiff offers
Kottlowski v. Bridgestone/Firestone, Inc., 670 N.E.2d 78 (Ind. Ct.
App. 1996),
transfer denied by 683 N.E.2d 78 (Ind. 1997), as
persuasive authority.
In
Kottlowski, employees of an automotive service shop brought
a negligence action against the shop owner after the employees'
tools were stolen from the shop premises. The
Kottlowski court, in
reviewing a grant of summary judgment in favor of the shop owner,found that a genuine issue of material fact existed concerning
whether an after hours break-in resulting in the theft of the
employees tools and tool boxes, was a foreseeable result of the
shop owner's alleged negligent act of failing to maintain adequate
security. In reaching its conclusion, the
Kottlowski court
considered evidence of several criminal acts that had occurred on
the premises during the four years preceding the latest break-in.
Even in considering
Kottlowski as persuasive authority, this
Court concludes that the trial court did not err in requiring
plaintiff to present evidence of significant criminal activity to
overcome defendant's forecast of evidence in support of its motion
for summary judgment. In
Kottlowski, although the court did not
detail the exact number of, the type of, or location of the
criminal activities that occurred, it is clear that there occurred
several incidents of criminal activity, and not just one isolated
incident as occurred in the instant case.
In the instant case, there was only one confirmed incident of
a break-in occurring on the body shop premises. Standing alone,
this prior incident is insufficient to negate the sufficiency of
the security methods currently employed by defendant. Therefore,
for the reasons stated herein, we hold that the trial court did not
err in granting summary judgment in favor of the defendant.
AFFIRMED.
Judges WALKER and HUNTER concur.
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