NEW ENGLAND WATCH CORP. v. HONEYWELL, INC.
Appeals Court of Massachusetts
11 Mass. App. Ct. 948; 416 N.E.2d 1010; 1981 Mass. App. LEXIS 959
February 25, 1981, Decided
DISPOSITION: Judgment affirmed.

CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff customer challenged the judgment of a
Massachusetts trial court, which held that defendant burglar alarm
protection company was entitled to summary judgment on customer's lawsuit
against it for breach of contract, negligence and warranties under its
agreement.


OVERVIEW: Customer bought a burglary alarm system from company, and
subsequently sued it for breach of contract, negligence and breach of
warranties under its agreement. The trial court granted company summary
judgment, and customer challenged the ruling. The court held that because a
burglary alarm system was not a consumer good, it was exempt from the
Uniform Commercial Code governing sales. The court also determined that the
contract between the parties properly exempted the company for injuries
resulting from its negligence or that of its employees, and therefore it
could not be sued for negligence or breach of contract. The court affirmed
the lower court, concluding that it correctly granted summary judgment to
company because there was no genuine issue of material fact.


OUTCOME: The court affirmed the judgment of the lower court that defendant
burglar alarm protection company was entitled to summary judgment.

COUNSEL: John N. Lewis, for the plaintiff.

Cynthia J. Cohen, for the defendant.

OPINION: [*948] [**1010] A motion for summary judgment for the defendant
was allowed. There was no error because there was no genuine issue of
material fact, and the defendant was entitled to judgment as matter of law.
Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Community Nat'l Bank v. Dawes,
369 Mass. 550, 553 (1976).

In count one of its complaint, the plaintiff alleged the defendant's breach
of contract and warranties under an agreement for burglar alarm protection
and in count two, the defendant's negligence. 1. In boldface type in the
contract, the defendant disclaims liability for breach of the warranties of
merchantability and fitness. Even if, arguendo, this contract is within the
article of the Uniform Commercial Code (Code) governing sales, G. L. c. 106,
§ 2-101, et seq. (and we do not so decide), the defendant is relieved of
liability by its disclaimer language, which is conspicuously printed on the
agreement entered into by [**1011] the parties. General Laws c. 106, §
2-316. Whatever other terminology may be used to describe the burglar [***2]
alarm system which is the subject of the contract, no one can seriously
contend that this subject matter constitutes "consumer goods" as that term
is used in G. L. c. 106, § 2-316A, inserted by St. 1970, c. 880, which
operates to limit the right to disclaim liability on warranties. See G. L.
c. 106, § 9-109 (1), as appearing in St. 1979, c. 512, § 7, which defines
"consumer goods" as goods which "are used or bought for use primarily for
personal, family or household purposes." 2. The contract also disclaims
responsibility "for any losses . . . even if due to contractor's negligent
performance or failure to perform any obligation under [the] [a]greement."
This disclaimer is clearly sufficient to protect the defendant from claims
of negligence. A party may "make a valid contract exempting the defendant
from liability [to it] for injuries resulting from its negligence or that of
its employees." Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507,
510-511 (1968). 3. The language of the disclaimer of liability is
sufficiently broad to cover the failure of the alarm system which occurred.
4. As the plaintiff's argument as to c. 93A, § 11, is made for the first
time [***3] on appeal, we do not [*949] consider it. John B. Deary, Inc.
v. Crane, 4 Mass. App. Ct. 719, 724 (1976). See Mahaney v. John Hancock Mut.
Life Ins. Co., 6 Mass. App. Ct. 919, 920 (1978).

Judgment affirmed.