File No. CV980578088S


46 Conn. Supp. 101; 1999 Conn. Super. LEXIS 2286; 738 A.2d 1179

August 16, 1999, Memorandum Filed

PRIOR HISTORY: [**1] Memorandum of decision on defendant's motion for summary judgment.

DISPOSITION: Motion denied.

COUNSEL: Erik S. Young, for the plaintiffs.

Halloran & Sage, for the defendant.






[*101] [***1180] I


RITTENBAND, J. This appears to be a case of first impression in Connecticut at least as to the factual situation in-volved.

[*102] II


The plaintiffs, George Wyer and Beth Wyer, allege that in May, 1994, they contracted with the defendant, Sonitrol Security Systems of Hartford, Inc. (Sonitrol), for the installation and monitoring of a security system for their residence in Marlborough. The plaintiffs allege that the security system was improperly hooked up and was not properly function-ing. They further allege that on February 27, 1995 their residence was burglarized, the illegal entry was not detected by the security system and that it failed to signal an alarm for law enforcement response, thereby causing $ 6800 in jewelry to be stolen.

This action has been brought in two counts. Count one is in negligence, and count two is in breach of contract. This court has already, orally, granted summary judgment as to count one based upon the fact that the [**2] statute of limita-tions had expired in favor of the defendant as to the negligence claim when the suit was instituted on or about February 18, 1998. That oral granting of summary judgment to the defendant on the first count is hereby ratified and reaffirmed.

As for the second count, breach of contract, the defendant has moved for summary judgment on two grounds. First, the defendant claims that there is a liquidated damages clause in the contract which limits a judgment to a sum equal to the total of one half of the year's monitoring payments or $ 500, whichever is less, "as liquidated damages and not as a penalty." The defendant claims that one half of the year's monitoring payments amounts to $ 198.44.

Second, the defendant claims that, as a matter of law, the failure of an alarm system is not the proximate cause of damages allegedly sustained as a result of the [*103] theft and relies on Vastola v. Connecticut Protective System, Inc., 133 Conn. 18, 47 A.2d 844 (1946).

The plaintiffs have countered with a brief in opposition to these two claims and have added the claim that plaintiff Beth Wyer, wife of the named plaintiff, was not a signatory to the contract, and, [**3] therefore, cannot be held liable for the liquidated damages defense.



"A trial court may appropriately render summary judgment when the documents [***1181] submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law." Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983).

A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971). To satisfy this burden, the movant must make a showing that it is quite clear what the truth is and that there is no doubt as to the existence of a genuine issue of material fact. Plouffe v. New York, N.H & H.R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971). The test that has been stated is: "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether [**4] a party would be entitled to a directed verdict on the same facts." (In-ternal quotation marks omitted.) Cummings & Lockwood v. Gray, 26 Conn. App. 293, 296-97, 600 A.2d 1040 (1991).

[*104] IV


First, the claim by the plaintiffs that plaintiff Beth Wyer did not sign the contract and, therefore, is not bound by the liquidated damages section of the contract is without merit. It is inconsistent for that plaintiff to claim the breach of a contract to which she claims she is not bound by a portion thereof because she did not sign the contract. No claim has been made as to a third party beneficiary, and even if it had been made, it is clear that by claiming that she is not bound by the liquidated damages clause because she did not sign the contract, she is denying that she is a part of the contract in any way. Hence, she cannot claim the benefits of a contract and at the same time deny those provisions that are unfavor-able to her.

Second, this court finds that Vastola is not conclusive as to the facts of the present case. Vastola overturned the finding by the trial court on behalf of the plaintiff because the trial court had decided by inference and/or speculation [**5] that the damages were proximately caused by the breach of contract. The court in Vastola stated that: "It is a rea-sonable inference that someone would have heard the bell if it had rung. Beyond that, it cannot be known what would have happened. We may speculate whether the hearer would have known that it was a burglar alarm, whether he would have ventured to interfere, whether he would have succeeded in frightening away the intruder in time to prevent the larceny, and whether he would have summoned the police in time to capture or frighten away the burglar." Vastola v. Connecticut Protective System, Inc., supra, 133 Conn. 21.

However, although the Supreme Court found that the "meager facts found in this particular case"; id., 20; did not reasonably support an inference that the [*105] defendant's negligence was a proximate cause of the loss by burglary, the court did leave open the possibility of a finding of proximate cause based on a different set of facts. The court stated that: "There is no finding that there were people in the street at this early morning hour, that there was a police officer on patrol in the neighborhood, or that there was [**6] a police station in the vicinity." Id., 21.

In the present case, in an affidavit dated June 10, 1999 by the named plaintiff, it is clear that there were more sub-stantial facts on which to rely for probable cause than in Vastola. In paragraph 5 of that affidavit, the named plaintiff states that: "Trooper Megin, the resident trooper, responded immediately being just down the road at the time, and the perpetrator fled, having taken most of our jewelry but leaving other valuables in plain sight, obviously [***1182] be-ing frightened off by the motion alarm which eventually went off and the police siren." (Emphasis added.)

The affidavit further states that if the alarm had been properly wired, the intruder may not have entered the house at all or would have been caught by the trooper who arrived almost at the time the perpetrator fled. The important part of this latter statement is the factual statement that the trooper arrived almost at the time the perpetrator fled, leading to a reasonable inference that if the alarm had gone off properly, the trooper would have arrived before the perpetrator fled. It may well be that the close proximity of the trooper to the house and the [**7] time at which he arrived just prior to the fleeing of the perpetrator may not be sufficient for the trier of fact to draw the inference that there was proximate cause. However, in the present case, these facts as set forth in the affidavit go beyond the "meager" facts in Vastola. In any event, whether the trier of fact finds these allegations or statements to be true and whether they rise under all the circumstances of the [*106] present case to a basis for probable cause is an issue of fact which should be decided by the trier of fact. The facts in the present case as alleged by affidavit clearly go beyond the meager facts in Vastola. Therefore, Vastola is not applicable to the present case, and there is a genuine issue of fact as to the veracity or validity of these facts, and it is an issue of fact for the trier to decide whether these additional conditions are sufficient to warrant a finding of proximate cause after proximate cause has been explained by the trial court in a jury case or by its own knowledge in a court trial. It must be remembered that Vastola was a case in which a judgment was entered for the plaintiff by the trier of fact, namely, the judge, in a court [**8] case, and all the evidence had been produced. The Su-preme Court believed that the evidence produced was inadequate for the trier of fact to draw the inference it did. Here, we are talking about a motion for summary judgment, and based upon Vastola, it is clearly up to the trier of fact to de-termine whether these additional facts are sufficient to constitute proximate cause. The fact that in Vastola the issue was decided, although incorrectly, according to the Supreme Court, by the trier of fact, certainly indicates that it is up to the trier of fact to make this determination and that, therefore, it is an issue of fact to be determined. Accordingly, these issues cannot be decided, in the present case, on a motion for summary judgment.

The third issue is the enforceability of the liquidated damages provisions. Paragraph 12A of the contract states in pertinent part that the defendant is not an insurer and that insurance, if any, covering property loss or damage, shall be obtained by the plaintiffs, and that the payments provided for are based solely on the value of the services as set forth and are unrelated to the value of the clients' property.

[*107] Paragraph 12B states further [**9] that the plaintiffs acknowledge that it is impractical and extremely dif-ficult to fix the actual damages which may proximately result from the failure to perform any of the defendant's obliga-tions because of, among other things, the uncertain amount or value of the plaintiffs' property or the property of others which may be lost or damaged, the uncertainty of the response time of the police or other authority, and, the inability to ascertain what portion, if any, of any loss would be proximately caused by the defendant's failure to perform. The next paragraph, 12C, describes the limitation of one half of the year's monitoring payments or $ 500, whichever is less, "as liquidated damages and not as a penalty". In New York Life Ins. Co. v. Hartford National Bank & Trust Co., 2 Conn. App. 279, 280-81, 477 A.2d 1033 (1984), our Appellate Court stated that: "Three conditions must be met in order to uphold a contractual provision for liquidated damages. They are (1) that the damages are uncertain or difficult to prove; (2) that the parties intended to liquidate damages in advance; [***1183] and (3) that the amount is reasonable because it is not greatly disproportionate to the [**10] amount of damages which the parties assumed at the time of their con-tract would be sustained if the contract were breached."

This court finds that these provisions have not been met. The damages were not uncertain or difficult to prove. The plaintiffs came up with the figure of $ 6800 in lost jewelry as damages. The plaintiffs easily ascertained that amount, and certainly, as in a jewelry insurance floater on a homeowner's policy, (and the court recognizes that the defendant has rightfully claimed that it is not an insurer) a list or inventory of the jewelry could have been furnished and checked at or shortly after the time of the execution of the contract. As for whether the parties intended to liquidate damages in advance, there is evidence that the plaintiffs did not so [*108] intend despite the language in the contract which will be described hereafter. As to whether the amount is reasonable because it is not greatly disproportionate to the amount of damages which the parties assumed at the time of their contract would be sustained if the contract were breached, this court finds that the amount is clearly greatly disproportionate. The actual damages were $ 6800, and the amount of liq-uidated [**11] damages claimed by the defendant is only $ 198.44. That is clearly greatly disproportionate. For these reasons, failing to meet at least two of the three requirements and possibly the third, the court finds that this language in the contract is not a proper liquidated damages clause and, is, therefore, not enforceable.

The fourth and final issue is breach of contract by the defendant. Paragraph 12D of the contract provides that: "In the event that the client [plaintiffs] wishes dealer [defendant] to assume greater liability, client may, as a matter of right, obtain from dealer a higher limit by paying an additional amount to dealer, and a rider shall be attached hereto setting forth such higher limit and additional amount, but this additional obligation shall in no way be interpreted to hold dealer as an insurer." (Emphasis added.)

The court recognizes that, according to the provisions of paragraph 16 1 of the contract, anything or any statement or representation made that is not in the contract is not part of the contract. According to paragraph 7 in the affidavit dated May 12, 1999 by [*109] the named plaintiff, however, he claims that he was assured by the defendant that the [**12] purchase as a matter of right of a higher limit of liability of the defendant would not be necessary. Paragraph 7 of that affidavit states in full: "Despite knowing of our concerns, I was never offered nor given the opportunity to obtain any additional coverage for the jewelry from Sonitrol as I was assured it would not be necessary." (Emphasis added.) This representation by the defendant may not be in the contract itself, but it certainly appears to be a breach of that aforementioned portion of the contract because, depending upon what was said, the defendant dissuading the plaintiff from obtaining a higher limit of liability despite his absolute right to obtain the same would be a misrepresentation that would constitute a breach of the contract. At the very least, this is an issue of fact to be decided by the trier of fact.


1 Paragraph 16 of the contract provides: "It is mutually understood and agreed that any representative, promise, advertising, or other statement, condition inducement or warranty, express or implied, whether written or verbal, not included in writing in this Agreement shall not be binding upon any party and that the Agreement may not be altered, modified or otherwise changed at any time except with the written consent of each of the parties hereto, and in the form of an addendum to this Agreement. If any of the terms or conditions of this Agreement shall be declared invalid or inoperative, all of the remaining terms and conditions shall remain in full force and effect."

[**13] The court also notes from the yellow copy of the contract submitted into evidence that the terms on the back, including the limit of liability provisions, are essentially unreadable. If the plaintiffs [***1184] never saw or were never given a readable copy of the back of the contract, it is questionable whether those provisions apply to the plaintiffs. The court has to presume that the plaintiffs were aware of these provisions. Otherwise, the named plaintiff would not have requested an increase in the limit of liability.



For all of the foregoing reasons, there are genuine issues of material fact which must be decided by the trier of fact as well as issues of law which do not favor the defendant. Accordingly, the defendant's motion for summary judgment is denied.