PER CURIAM.
*1
Plaintiff appeals by leave granted from a trial court order granting
defendant's motion for summary disposition pursuant to
MCR 2.116(C)(10) and partially granting defendant's motion for
summary disposition pursuant to
MCR 2.116(C)(4). We affirm.
In 1976, plaintiff leased a burglar and fire
alarm
system from defendant to be installed at its commercial premises. The
parties' lease agreement contained a liquidated damages provision that
limited defendant's liability for negligence to the greater of three
months' rental service charge or $250. In early February 1996, defendant
installed backup equipment to the
alarm
system. On February 18, 1996, plaintiff was burglarized and purportedly
lost approximately $650,000 of inventory and cash when the
alarm
system failed. Thereafter, plaintiff brought an action alleging
negligence and gross negligence by defendant in the design,
installation, and maintenance of the
alarm
system.
After hearing oral arguments on defendant's motions for summary
disposition, the trial court held that the parties are bound by the
liquidated damages provision in the lease, and therefore, defendant's
liability for ordinary negligence is limited to $250. However, the trial
court found that there was a genuine issue of material fact as to
whether the backup equipment installed shortly before the burglary was
subject to the original lease. Accordingly, the trial court partially
granted defendant's motion for summary disposition under
MCR 2.116(C)(4) on plaintiff's negligence claim relating to the
original
alarm
system, but denied defendant's motion in part regarding the
applicability of the liquidated damages provision in the original lease
to the backup
equipment. In addition, the trial
court found that "viewing the evidence in the light most favorable to
plaintiff, plaintiff has not provided any documentary evidence that
defendant was grossly negligent in performing its contractual duties."
Therefore, finding no genuine issue of material fact, the trial court
granted defendant's motion for summary disposition under
MCR 2.116(C)(10) on plaintiff's gross negligence claim.
On appeal, plaintiff first argues that the trial court erred in granting
summary disposition to defendant under
MCR 2.116(C)(10) and dismissing its gross negligence claim. We
disagree. This Court reviews a trial court's decision to grant summary
disposition de novo to determine whether a genuine issue of material
fact exists that would prevent entering judgment as a matter of law.
Morales v. Auto-Owners Ins Co, 458 Mich. 288, 294;
582 NW2d 776 (1998). In making this determination, we consider all
the evidence in a light most favorable to the nonmoving party, affording
the benefit of any reasonable doubt to the nonmovant.
Radtke v. Everett, 442 Mich. 368, 374;
501 NW2d 155 (1993).
After a thorough review of the record, we conclude that the trial court
did not err in granting defendant's motion for summary disposition on
plaintiff's gross negligence claim. Generally, the question whether a
party's conduct was reasonable under the applicable standard of care is
one for the factfinder; however, in light of the evidence presented, if
reasonable minds could not
differ, then summary
disposition is appropriate.
Jackson v. Saginaw Co, 458 Mich. 141, 146;
580 NW2d 870 (1998). Gross negligence is defined as conduct so
reckless as to demonstrate a substantial lack of concern for whether an
injury results.
Jennings v. Southwood, 446 Mich. 125, 136-137;
521 NW2d 230 (1994);
Haberl v. Rose, 225 Mich.App 254, 265;
570 NW2d 664 (1997). To establish its gross negligence claim,
plaintiff presented testimony from Richard Cantor, the president of an
alarm company in New York, who identified several instances of alleged
reckless conduct by defendant which, in his opinion, constituted gross
negligence. We note that although expert witness testimony may include
opinion evidence, when a proper foundation is laid, an expert witness
may not opine on the issue of a party's gross negligence.
Carson Fischer Potts & Hyman v. Hyman, 220 Mich.App 116, 122-123;
559 NW2d 54 (1996). Indeed, to permit a witness to give his opinion
or interpretation of the facts would invade the province of the jury.
Id. In any event, upon review of the record, we agree with the trial
court's finding that Carson's testimony does not establish gross
negligence by defendant, and thus, plaintiff has not provided any
documentary evidence to support its claim.
*2
Further, plaintiff does not indicate how defendant's conduct
constituted gross negligence rather than ordinary negligence or breach
of contract; nor does defendant specify the alleged acts of gross
negligence that proximately caused plaintiff's damages. Moreover,
plaintiff does not provide any factual
support from
the record for its bare assertions. Plaintiff merely alleges that
defendant did not provide the services that it had promised to provide.
Conclusory allegations, unsupported by facts contained in the record, do
not provide sufficient basis for reversal. Therefore, the trial court
did not err in granting summary disposition to defendant and dismissing
plaintiff's claim for gross negligence.
Plaintiff next claims that the trial court erred
in granting partial summary disposition to defendant under
MCR 2.116(C)(4). The parties do not challenge
the trial court's ruling that a genuine issue of material fact exists
regarding whether the backup equipment was subject to the liquidated
damages provision in the original lease. Instead, plaintiff challenges
the trial court's grant of summary disposition to defendant on the basis
that the liquidated damages provision limited defendant's liability for
ordinary negligence concerning the original equipment. Plaintiff argues
that since the backup equipment was installed shortly before the
burglary, and was not covered by any contract, the original equipment
was transformed into a new and completely integrated system with the
backup equipment, and therefore, the liquidated damages provision
contained in the original lease is inapplicable to the entire system.
Defendant, on the other hand, argues that it is not difficult to
separate the originally installed equipment from the backup equipment
installed in early 1996, and in any event, if there was no additional
contract
covering the 1996
installation, as plaintiff submits, then those
services are within the scope of the original
contract
and are subject to the liquidated damages provision.
This Court has previously upheld the validity of similar liquidated
damages provisions limiting liability where
alarm
systems failed.
USAA Group v. Universal
Alarms,
Inc, 158 Mich.App 633;
405 NW2d 146 (1987);
St Paul Fire & Marine Ins Co v Guardian
Alarm Co
of Michigan, 115 Mich.App 278;
320 NW2d 244 (1982). Indeed, it is not
contrary to public policy for a party to
contract
against liability for damages caused by ordinary negligence.
Universal Gym Equipment, Inc v Vic Tanny Int'l, Inc, 207 Mich.App
364, 367;
526 NW2d 5 (1994), aff'd.
209 Mich.App 511 (1995); St Paul Fire &
Marine Ins Co, supra at 283. Here, plaintiff has provided no legal
authority for its assertion that the installation of backup equipment
transformed the alarm system into one new system such that the original
lease, with its liquidated damages provision, was inapplicable to the
original equipment. Further, plaintiff has presented no compelling
argument nor referred this Court to any case law that would support its
position. A party may not merely announce a position and leave it to
this Court to discover and rationalize the basis for the claim.
Morris v. Allstate Ins Co, 230 Mich.App 361, 370;
584 NW2d 340 (1998). On this record, we
conclude that the trial court did not err in rejecting plaintiff's
"integration" argument and partially granting defendant's
motion for summary disposition on plaintiff's negligence claim.
*3
Affirmed.
Mich.App.,1999.
D. Malin, Inc. v. Audio Central Alarm Co.