## Facts

- Lockheed Martin Corporation employed Deborah Bachak at its facility in Owego, New York.
- U.S. Security Associates, Inc. contracted to provide security-guard services at the facility and employed George Zadolnny as a security guard there.
- U.S. Security maintained a no-fraternization policy that barred personal relationships between its guards and Lockheed employees.
- In 2007, Zadolnny and Bachak began a romantic relationship despite the policy and later became engaged.
- Bachak ended the engagement in 2008 and asked that Zadolnny be transferred so he would not be assigned near her work area.
- On December 16, 2008, Zadolnny asked Bachak to meet him in Lockheed’s mailroom; when she entered, he shot and killed her and then killed himself.
- Bachak’s parents, Andrew and Genevieve Sabric, sued Lockheed and U.S. Security on negligence and wrongful-death theories, alleging defendants failed to protect Bachak from a foreseeable attack.
- The case was filed in Pennsylvania state court, removed to federal court, and proceeded through discovery after the district court denied motions to dismiss.
- After discovery, the district court granted summary judgment to Lockheed and U.S. Security on the ground that neither owed Bachak a duty of care on the asserted theories.
- Lockheed also pursued a contractual indemnification claim against U.S. Security for litigation costs under the parties’ security-services agreement; the district court rejected that claim.
- The Sabrics appealed the summary judgment on duty, and Lockheed cross-appealed the denial of contractual indemnification.

## Issues

1. Under Pennsylvania law, did Lockheed or U.S. Security owe Bachak a duty to protect her from Zadolnny’s criminal act under Restatement (Second) of Torts § 317 (duty to control an employee) or § 323 (negligent undertaking)?
2. Did the evidence make the murder-suicide sufficiently foreseeable to impose any such duty on either defendant?
3. Did the security-services contract require U.S. Security to indemnify Lockheed for attorneys’ fees and other defense costs arising from the suit stemming from Zadolnny’s conduct?

## Decision

- The Third Circuit affirmed summary judgment for Lockheed and U.S. Security on the Sabrics’ negligence and wrongful-death claims, holding that neither defendant owed Bachak a duty of care on the theories advanced.
- The Third Circuit reversed the district court’s denial of Lockheed’s contractual indemnification claim, holding that the indemnity provision required U.S. Security to reimburse Lockheed for litigation costs and attorneys’ fees arising out of U.S. Security’s services, and remanded for further proceedings.

## Legal Principles

- Under Pennsylvania law, negligence liability requires a duty of care; duty analysis includes whether the risk of the harm was reasonably foreseeable based on what the defendant knew or should have known.
- Restatement (Second) of Torts § 317 may impose a duty on an employer to control an employee acting outside the scope of employment only when the employer knows or should know of the need and ability to exercise control; absent knowledge of violent propensity or similar warning signs, § 317 does not create a duty to prevent a sudden criminal attack.
- Restatement (Second) of Torts § 323 (negligent undertaking) can create liability only if the defendant undertook services needed for another’s protection and then either increased the risk of harm or caused harm because the plaintiff relied on the undertaking; internal policies and general security measures, without increased risk or reliance, do not satisfy § 323.
- In interpreting an indemnification clause, clear “arising out of” language can extend to defense costs and attorneys’ fees tied to claims connected to the contractor’s services, including claims stemming from acts of the contractor’s employee, even where the indemnitee is not found tort-liable.

## Conclusion

The Third Circuit held that, based on the record, neither Lockheed nor U.S. Security had a duty under Pennsylvania law to prevent Zadolnny’s unforeseeable murder-suicide under § 317 or § 323, so summary judgment on the Sabrics’ negligence claims was proper; however, the court also held that the parties’ contract required U.S. Security to indemnify Lockheed for defense costs arising out of the suit and sent the indemnification claim back for further proceedings.


Sabric v. Lockheed, 532 F. App’x 286 (2013)