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Alarm company entered into contract in 2001 with homeowner to install burglar and fire alarm system which included glass break detectors on first floor windows. In 2006 the alarm company replaced several magnets on the windows but did not test the glass break detectors on the windows. Burglary occurred in 2007; entry made through, you guessed it, the window, and no signal was transmitted. Turns out the windows had an ultraviolet coating which hampered the effectiveness of the glass break detector. The alarm company owner apparently admitted that he had no idea the window coating could affect the glass break detector. This case is posted on my web site at https://www.kirschenbaumesq.com/article/alfred-lenoci-v-secure-alarm-installations
The alarm company moved for summary judgment to dismiss causes of action for ordinary negligence, gross negligence, breach of contract, breach of warranty and fraud. The lower court denied the motion entirely. On appeal the appellate court [not New York's highest court] modified the lower court order by dismissing all of the causes of action except the cause of action for gross negligence.
The court decision discusses the law enforcing exculpatory clauses, and I encourage you to check out the decision which is short and to the point [citing a number of my prior cases I might add]. But the decision has mixed results and potentially can cause problems for future cases. FInding that the exculpatory clause will not be enforced for gross negligence is the right decision consistent with New York law and most other states too. However, the issue of gross negligence is glaringly absent in this decision. Here is all the court had to say:
"Further, the evidence submitted by the defendant did not eliminate triable issues of fact regarding whether the
defendant acted with gross negligence in installing and monitoring the alarm system"
What evidence? Evidence that there was coating on the window? Is that really all there is? How did the attorneys defending this case not address that issue head on in their motion, and if they did, why weren't they more convincing? What other protection was installed, or made available, and declined by the homeowner? Where were the motion detectors? Where was the proof that the alarm had been set?
I wonder which insurance company defending this case, insisting that its assigned defense counsel spend as little time as possible, assign the most junior attorney who is billed out to the carrier at little more than an alarm technician would bill at prevailing wage, prohibit the law firm from assigning more than one lawyer in the firm, and otherwise all but insure that this decision ended the way it did. Well now we are all stuck with it.
This case has to go to trial or the carrier will decide to settle, leaving us with this decision on gross negligence to deal with in future cases. The several cases cited by the court, and no doubt relied upon by the alarm company's defense counsel, were handled by my firm and those decisions didn't just happen. Alarm defense cases should be handled in a very careful way and you need to make certain that your defense counsel is the best counsel for your case. They should know the alarm industry and be comfortable discussing the alarm system, alarm monitoring procedure and alarm law. If they are not then ask your carrier why that firm was selected. Why should you care? Because your insurance rating for premiums depends on your claims history; because your carrier may decide to get out of the alarm coverage area and you'll need to find another carrier that may not understand why you lost so many cases; because you may be left without insurance or paying a claim in excess of your coverage. In New York and New Jersey you can request our firm represent you and in other areas of the country you can request that we be engaged to consult with assigned local counsel.
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