KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on Elevator mishaps / Proposed law in New York for liability related to building evacuation
May 11, 2021
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Comment on Elevator mishaps from article on May 3, 2021
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Ken
In response to your article "Elevator mishap", this raises an interesting question where I think the answer is clear; the issue is knowledge of a fault or failure.
If you sell maintenance or service contracts, even if they are agreements for zero RMR because they are based on T&M, what obligation does the alarm company have when the equipment is monitored for its operability, health or functionally?
For example, Alarm Company has a contract in one form or another described above, and the panel transmits to the central station any one of the following conditions, Low Battery
Trouble
Supervisory
or the central station detects a fail to communicate.
So the question to you is, to what extent is the alarm company obligated to the customer?
a) none
b) make a call
c) send a written notice
d) dispatch a service tech
e) something else
Should the alarm company program the central station service to send an automated message via text, email or computer voice generated call? Are any one or a combination of these sufficient to avoid liability from an expectation of service from the subscriber?
Your contracts place the burden on the subscriber, just as Ultimate Elevator used the lack of notice in the article for a summary judgement of no liability.
But there are two problems now; first the elevator problem was obvious to any and all users by visual observation. When it comes to alarm systems, these issues might not be as obvious. Second, has the technology in the alarm control and communications removed any doubt that prior knowledge existed? In your reply you may also what to opine that ignorance is no defense just because the alarm company doesn't review central station activity reports.
Bart A. Didden, Executive Claims Manager
Security America Reassurance Group, Inc. - SARG
877-872-1266
bdidden@securityamericarrg.com
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Response
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The issue of knowledge or fault is pretty much what Jeff Zwirn has been talking about with the bus issue. Liability arises because of a duty owed to the injured party. Injured party for our purposes means a party suffering personal injury, including death, and property damage or loss, including theft. Duty arises by contract or course of action, or sometimes inaction.
Alarm companies agree to provide labor and material and then on-going services. Unless the alarm owner is a complete idiot the agreement to provide these services is pursuant to written contract and the contract defines the duty. Specifically, the contract limits the duty and liability of the alarm company.
Duty can also arise by course of conduct when you don’t have a contract. Alarm company agrees to install alarm and then provide the after-install RMR services. Implicitly the alarm company agrees to act in a reasonable manner, using the reasonable man standard, which for our purposes means acting within custom and practice and reasonably under the circumstances. There will be no limits in defining duty or limit of liability, though you will still be able to claim that the loss wasn’t foreseeable; good luck with that if the loss is related to your duty.
If you are aware that you are creating a dangerous condition, using defective equipment, incapable of proper performance, you are going to be exposed to liability, contract or not, and you may not be able to limit your liability by contract.
How central stations respond to various signals is not a secret and it’s a fairly uniform procedure from central station to central station. Some, if not most, signal response is the subject of some NRTL guideline; some responses are required by governmental AHJs.
You are presumed to know industry custom and practice, NRTL guidelines, building codes, alarm laws and AHJ requirements. You are presumed to have no knowledge of inherent product defects. You are expected to conduct yourself as required by your contract and if no contract in a reasonable manner. It’s not that hard, but just in case, better use the Standard Form Agreements and carry E&O insurance coverage.
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Proposed law in New York for liability related to building evacuation
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Ken
Not sure if you were aware of proposed new law that adds that in addition to a building owner being liable for certain violations or obstructions, any architect, contractor, subcontractor, construction superintendent or agent thereof who has knowledge of a violation will also be liable, if they had an opportunity to inspect or repair the property with the tenant's permission.
Steve Gocinski
Fire and Security Services
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Response
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If you do fire alarm inspections you may very well become aware of conditions that violate code. While the proposed law may never become law, it’s good example of how a duty is created that imposes you to act and imposes liability if you don’t.
Here is the bill synopsis:
“Provides that in addition to any other applicable remedy or penalty, where a building has been altered in violation of any provision of the uniform code or any lawful order obtained thereunder, and such alteration impedes a person's egress from such building during a fire or other emergency evacuation, the owner of such building, and any builder, architect, contractor, subcontractor or construction superintendent, or agent thereof who has knowledge of such alteration, or an owner who reasonably should have had knowledge of such alteration based on either an inspection or repair of a leased premises with consent from the tenant, shall be subject to a civil penalty of up to seven thousand five hundred dollars.”
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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