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HIGHTOWER v. HARRIS

May 8, 1997

BEVERLY HIGHTOWER, as Administrator of the Estate of LEVANGELIST HIGHTOWER, her son, deceased, Plaintiff,
v.
WILLIE J. HARRIS, FEDERAL SECURITY, INC., LILLIAN LOGGINS and the CHICAGO HOUSING AUTHORITY, Defendants. CHICAGO HOUSING AUTHORITY, Cross-plaintiff, v. FEDERAL SECURITY, INC., Cross-defendant.



The opinion of the court was delivered by: ROSEMOND

 Procedural Background : On behalf of her deceased son, Levangelist Hightower, Beverly Hightower, plaintiff, herein, filed a wrongful death suit against two private security guards, Officers Willie J. Harris and Lillian Loggins, a private security company, Federal Security, Inc. (Federal), and a statutorily authorized municipal corporation, the Chicago Housing Authority (CHA). Prior to trial, Harris, Loggins and Federal settled with the plaintiff. *fn1" On the day of trial, CHA settled. *fn2" Following settlement, CHA filed a cross-claim against Federal to recover for breach of the protective service contract between them, and indemnity thereunder. Both Federal and CHA moved for summary judgment on the cross-claim. Federal's motion for summary judgment is granted, and CHA's motion is denied.

 Statement of Facts : The underlying case arose via plaintiff's charges that two private security guards employed by Federal (Harris and Loggins) unlawfully shot and killed decedent Hightower in a CHA residential building. Plaintiff's Fourth Amended Complaint (Complaint) contained eleven counts. Counts I-VI, X and XI named only Federal, Harris or Loggins while Counts VII, VIII and IX named only CHA. Count VII alleged that CHA violated decedent's civil rights and sought recovery under 42 U.S.C. § 1983. Count VIII alleged that CHA negligently hired, trained and retained Federal as a private security contractor. Count IX sought injunctive relief for the Count VII § 1983 violations.

 CHA and Federal executed a Protective Service Contract (Contract) containing the following provision relevant to CHA's cross-claim:

 
Article 8. The Contractor agrees that prior to the scheduled date of commencing work it will obtain and provide to the CHA and thereafter will maintain in full force and effect, a Certificate of Comprehensive General Liability Insurance issued and written by a company authorized to write insurance in the State of Illinois, and acceptable to the CHA, in the minimum amount of ONE MILLION DOLLARS ($ 1,000,000.00) per occurrence (including combined single limit bodily injury and property damage liability per each occurrence, including false arrest, false imprisonment) and insuring itself and CHA as an additional named insured against any and all losses, claims, damages or injury arising out of any claim involving the providing of or the alleged failure to provide contracted security services or adequate services. (emphasis in original)
 
Notwithstanding the providing of such insurance, Contractor agrees to completely indemnify and hold harmless CHA, its officers and employees, against any liability or expense (including the cost of legal defense and attorneys fees) arising out of any losses, claims, damages or injury resulting from any intentional acts or any negligent acts or omissions of contractor or its agents in the performance of this contract. (emphasis added)
 
In the event any claim or action is brought in any court naming the [Chicago Housing] Authority as a defendant or any officer or agent of the Authority as a defendant in connection with a claim involving the providing of or failing to provide security services by Contractor or its agents, the Authority shall, in its sole discretion, have the option of appointment of attorneys to defend itself, its employees or agents and the complete cost of that defense, including attorneys fees, shall be paid by the Contractor or by the Contractor's insurance carrier promptly upon any amount becoming due and payable by the CHA upon invoicing by said appointed attorneys to the CHA.

 CHA asserts that Federal breached the Contract by failing to secure insurance for CHA covering the period in which decedent was killed. CHA also maintains that Federal must indemnify it for the amount of its settlement with plaintiff and its costs and attorney fees.

 Discussion.

 Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." *fn3" The judge is not to consider the weight of the evidence or decide the truth of the matter, but rather should determine whether there is a genuine issue of triable fact. *fn4" The burden is on the moving party to demonstrate an absence of evidence supporting the non-moving party's case. *fn5"

 As noted earlier, under the Protective Service Contract between the parties, Federal agreed to indemnify CHA and hold it harmless against any liability arising out of any losses, claims, damages or injury resulting from any intentional acts or any negligent acts or omissions of Federal or its agents in the performance of the protective service contract between them. The only claims remaining for trial were those against the CHA. And these were the only claims that CHA settled. CHA did not contribute any funds to plaintiff's settlement with Federal and its two security guards.

 Whether indemnification is appropriate will depend upon whether CHA's liability arose out of its own direct negligence or whether it was derived from Federal's negligence. Indemnity will not lie if CHA's liability is due to its own direct negligence since the contract does not provide for such protection. With great deference to our most respected colleague, we conclude that contrary to the analysis set forth in Smith v. Lyles, 839 F. Supp. 18 (N.D. Ill. 1993) (Judge Norgle), the only means by which to determine from whence CHA's liability arose is to examine the allegations as framed in plaintiff's underlying Complaint. *fn6" Since CHA is only named in Counts VII, VIII and IX, we need only address the allegations contained therein. *fn7"

 Count VII, the federal § 1983 inadequate training policy claim. In her § 1983 policy claim against the CHA, plaintiff alleged that the CHA, by and through its board and chairman, was responsible for the contracting, hiring, maintenance, supervision and control of private security companies contractually charged with the safety and welfare of CHA residents and their guests. *fn8" Plaintiff charged that the "CHA knew or should have known and contemplated that there existed a likelihood that a security guard, during the course of his [or her] employment at CHA and [due to] the high concentration of crime, populace and weapons, would likely have to resort to the use of force and/or deadly force in the performance of his [or her] duties." *fn9"

  Plaintiff maintained that the "CHA did not provide training for the security guards contracted for to provide protective services," *fn10" and that CHA's "inadequate training of the security guards as well as [inadequate] on-the-job training and supervision created the opportunity and likelihood of the unconstitutional use of excessive force and deadly force against persons lawfully on CHA grounds and premises." *fn11" Specifically, plaintiff charged that the CHA did not properly investigate certain "shootings [to-wit : those occurring on July 24, 1989, August 7, 1989, August 8, 1989, October 31, 1989, July 19, 1990, May 23, 1990, April 19, 1991, and May 8, 1991], [or] train[] or retrain[] [the] responsible security guards [or] adequately supervise[] said security guards who . . . committed these [shootings] and other acts of violence, brutality, excessive force and deadly force against the residents, guests, and invitees of CHA, and otherwise negligently contracted with the within defendant security company [Federal] and other security companies similarly situated." *fn12" Continuing in this vein, plaintiff charged that the above mentioned shootings put CHA "on notice of prior unlawful and unconstitutional shootings by security guards working for companies under contract with CHA to provide security services." *fn13"

 Plaintiff charged that the aforementioned acts and omissions of CHA constituted a CHA "policy, practice and custom of tacit and deliberate indifference to the illegal, reckless, wanton and willful conduct of Federal, their security guards and other security companies " *fn14" , specifically, a "deliberate indifference and failure to further investigate shooting[s] by security companies and their guards, discipline or discharge the responsible security guards and/or sever the security contracts with the defendant Federal and others, and/or retrain and instruct security guards on the use of force and deadly force." *fn15"

 The thrust of the allegations of Count VII is that the CHA did not provide use of force training or other similarly relevant training to the security guards of the security companies with which it contracted for security services, and that its failure in this regard amounted to a CHA policy of deliberate indifference to the welfare and safety of CHA residents and their guests. On its face, the count states an extremely tenuous § 1983 policy claim against the CHA, since the CHA is in the business of operating and managing housing developments, and is not in the business of training and supervising the security guards of the various security companies with which it contracts for security services, and no where does plaintiff ever plead the latter. In any event, no matter how the allegations are viewed, they are intended to assert a policy claim against CHA for CHA's acts and omissions.

 Strict constraints limit municipal liability under 42 U.S.C. § 1983. *fn16" It must be remembered, as recently noted by the United States Court of Appeals for the Seventh Circuit, that

 
in Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), the [United States] Supreme Court expressly restricted [§ 1983] such liability to cases in which "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." *fn17"

  Thus, in order to impose a § 1983 liability upon CHA, plaintiff would have to establish at trial a causal nexus between her injury and the CHA's alleged policy or custom. *fn18" A lesser standard of fault and causation would risk creation of de facto respondeat superior liability, which would be contrary to Monell. *fn19"

 The § 1983 policy hurdle before the plaintiff is difficult to overcome. Under Article 15 of the Contract, Federal agreed that all security personnel assigned under the contract would be in compliance with all federal, state and municipal requirements as to licensing, character, experience and training, as well as in compliance with other relevant requirements, including but not limited to,

 
(a) Completion of an approved 20-Hour Basic Training Course For Private Security Agency Employees, and
 
(b) Completion of an approved Firearm Training Course.

 Federal represented and warranted that it was a licensed "Private Security Contractor" under the laws of the State of Illinois and, further, that ...


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