Berg v. Allied Security Inc.: Case Review and Analysis

Case Overview and Procedural History

In this case, Joan Berg, the plaintiff, filed a personal injury lawsuit against Allied Security, the defendants. The Cook County Circuit Court, on September 4, 1996, ruled in favor of the defendants. Within thirty days, Joan Berg sought leave to amend her complaint; the circuit court denied reconsideration on October 15th, and also denied leave to amend on November 21st. The plaintiff filed an appeal on November 26, 1996 (Rathje 1).

In their arguments, the defendants contended that the appeal was untimely, even though the plaintiff filed it less than one week after the circuit court's decision. According to the defendants, the plaintiff's motion did not qualify as a post-judgment motion under Section 2-1203 of the Civil Procedure Code. They further argued that the thirty-day interval before the appeal was filed was not caused by any pending motion before the circuit court, and that the appellate court therefore lacked jurisdiction to hear Joan Berg's appeal.

The appellate court rejected this jurisdictional challenge and heard the appeal on its merits. The court found that material facts were present in the case and that the judgment entered below was not proper. Accordingly, the appellate court vacated the circuit court's judgment and remanded the case for further proceedings (Rathje 1). The defendants then sought leave to appeal that decision, which was granted. The defendants continued to argue that the plaintiff's notice of appeal was untimely. After examining the circumstances, the appellate court determined that the timing of the plaintiff's appeal notice was proper under a reasonable interpretation of Rule 303. In Justice Rathje's view, it would have been unjustifiable to deny the plaintiff access to the appellate court.

Details of the Attack and Security Arrangements

On March 27, 1992, Joan Berg was attacked by unknown assailants in a parking lot that formed part of an office compound where her employer, along with other tenants, was located. The commercial office complex belonged to Podolsky. At the time of the attack, Joan Berg was returning to work after picking up pizzas for her colleagues (Gallagher 1). She was heading into her 2 PM to 12 AM work shift. As she stepped out of her car, a man standing above her struck her on the back of the head with a metal bar. The assailant pushed Joan back into the car through the front seat and continued to strike her repeatedly. Joan responded by sounding her horn, which prompted the attacker to flee (Gallagher 1).

There had been no prior assault incidents in that parking lot, although approximately 20 cases of vehicle damage had been reported, and on one occasion a woman had been groped in the same parking lot. With respect to security, Podolsky and Joan Berg's employer had a lease stating that the landlord had the right to install, maintain, and operate a security system — including closed-circuit television monitoring of all persons entering and leaving the building. Podolsky exercised that right and hired Allied Inc. to provide 24-hour security coverage.

The service agreement between Allied Inc. and Podolsky specified that Allied, as contractor, would supply security personnel to perform mutually agreed-upon tasks. The hours of duty were to be determined jointly by Podolsky and Allied. If the client altered the quantity or timing of coverage originally agreed upon, the contractor retained the right to renegotiate the contract, as the duties of the contracted personnel would be substantially changed (Gallagher 1).

Under the agreement, Allied Inc. was required to comply with all applicable regulations, rules, ordinances, and statutes. The client could request additional services as long as those services fell within the firm's defined role. All security personnel remained employees of Allied Inc.; the equipping, training, directing, supervising, uniforms, recruitment, and dismissal of security guards were expressly Allied's responsibility. Decisions about what duties were to be performed, however, were made jointly by Podolsky and Allied (Gallagher 1).

Orders issued by Allied to the security guards defined their primary functions as follows: keeping unauthorized persons off the property to reduce the risk of assault, vandalism, and theft; assisting in controlling access to the property by granting employees and visitors controlled entry; and reducing the risk of property damage from fire, flooding, or equipment failure. Guards were expected to maintain high visibility, handle situations such as unsecured doors, equipment failures, and unauthorized visitors, report activities such as fire hazards and loitering, and request assistance when specified situations arose. Allied's orders further clarified that security personnel were not police officers and were not expected to act as such — their role was to detect and prevent incidents where possible, limited to Podolsky's office complex (Gallagher 1).

Podolsky assured the office complex tenants, including Joan Berg's employer, that adequate security would be provided at all times, including parking lot patrols. Podolsky controlled the number of security guards Allied supplied. Initially, two guards were deployed: one stationed at the security desk and one assigned to roam the compound. A security tower and an additional rover were later added. Podolsky had at one point replaced certain Allied employees who were not qualified for the security desk role.

In addition to Allied's personnel, Podolsky installed twenty CCTV cameras throughout the office complex, connected to four monitors at the security desk. The desk guard could control which views appeared on each monitor at any given time, though the guard's numerous other responsibilities left only approximately 30 minutes available for concentrated monitor surveillance. One of the four cameras was designated to survey the parking space where Joan Berg's car was stationed. In scan mode, that camera could cover the parking area within a few seconds. During the attack, however, the camera was not scanning the parking lot (Gallagher 1). Podolsky terminated Allied Inc.'s services nine months after the attack and retained a different security firm.

Legal Standards: Negligence and Duty of Care

For a negligence case to have sufficient grounds, the plaintiff must prove that the defendant owed them a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff's injuries. The appellate court had to determine whether Podolsky and Allied Security owed any duty to Joan Berg (Gallagher 1).

Under general legal principles, landowners have no legal obligation to protect others from criminal acts committed by third parties on their property unless a special relationship exists between the parties. However, if a landowner voluntarily undertakes the provision of security services, a duty is established at that point. The voluntary undertaking doctrine then requires the landowner to exercise reasonable care in protecting the party in question. In this case, both Allied Inc. and Podolsky voluntarily entered into a contractual arrangement that included the assumption of a duty to protect the plaintiff against criminal acts by third parties on the premises (Gallagher 1).

The Supreme Court recognized that a voluntary undertaking arises when one party assumes the duty of providing a service to another, even without legal obligation, but then fails to carry out that service with the requisite skill and care. However, the Court also noted that this duty is limited: a property owner who voluntarily assumes the duty of protecting others from third-party criminal acts does not thereby guarantee absolute protection against all criminal activity. The Court agreed that the defendants were not absolute insurers of Joan Berg's safety, but that a meaningful distinction existed between an insurer's absolute liability and a defendant's duty not to be negligent in carrying out an assumed security role (Gallagher 1).

The Supreme Court had to determine whether the defendants' assumed duty extended to the negligent acts the plaintiff alleged were the direct cause of her injuries. Under the Podolsky-Allied agreement, Podolsky retained full control over the installation, maintenance, and operation of the monitoring system. By retaining Allied's services, Podolsky assumed responsibility not to be negligent in selecting or overseeing the security company. If a landlord is responsible for hiring security services, that landlord may be liable for negligent hiring, and where the landlord personally undertakes security measures, the landlord must exercise reasonable care in those undertakings (Gallagher 1).

The Supreme Court ultimately held that because both defendants had assumed voluntary undertakings, they bore an enforceable duty of care toward Joan Berg. For this reason, the Court vacated the summary judgment and remanded the cause (Gallagher 1).

Works Cited

Fennelly, Lawrence J. Effective Physical Security. Waltham, MA: Butterworth-Heinemann, 2013.

Fennelly, Lawrence, and Timothy Crowe. Crime Prevention through Environmental Design. Saint Louis: Elsevier Science, 2014.

Gallagher, Justice. "Berg V. Allied Security Inc. Chicago." Appellate Court of Illinois, First District, First Division. Joan BERG, Plaintiff-Appellant, v. Allied Security, Inc., Chicago, an Illinois corporation, and Podolsky and Associates, Inc., Defendants-Appellees. No. 1-96-4199. FindLaw for Legal Professionals. Decided June 29, 1998. Accessed 9 Nov. 2018. <https://caselaw.findlaw.com/il-court-of-appeals/1196541.html>

Kinney, J. Bryan, Elliott Mann, and John A. Winterdyk. "Crime Prevention through Environmental Design (CPTED)." Crime Prevention: International Perspectives, Issues, and Trends. Taylor and Francis, 2017. 376–402.

McCrie, Robert. Security Operations Management. 3rd ed. Elsevier Inc., 2015.

Rathje, Justice. "Berg V. Allied Security Inc." Supreme Court of Illinois. Joan BERG, Appellee, v. ALLIED SECURITY, INC., et al., Appellants. Nos. 85967, 85974. FindLaw for Legal Professionals. Decided July 6, 2000. Accessed 9 Nov. 2018. <https://caselaw.findlaw.com/il-supreme-court/1442070.html>

RP, Siva. "How to Design Effective Physical Security System." LinkedIn, 20 April 2017. <https://www.linkedin.com/pulse/how-design-effective-physical-security-system-siva-rp-cpp-psp>