ADT beats gross negligence case in TN March 9, 2019

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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ADT beats gross negligence case in TN
March 9, 2019
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ADT beats gross negligence case in TN
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            ADT residential customer accused ADT of gross negligence, among other nefarious deeds.  The crux of the complaint was that a burglar broke into her apartment; ADT didn’t call the police and over $100,000 was stolen.  Her specific allegations were:
            "5. The ONLY act that the Defendant completed was leaving me a voice mail message asking for me to return their phone call.
            8. I reasonably relied on the Defendant to monitor my apartment and security system properly, and the Defendant utterly failed to do so.
            11. Based upon my own personal experience in being a security company customer and the advertisements and/or representations of what the Defendant would do as a security monitoring company, the Defendant disregarded a substantial risk that occurred and this disregard is a gross deviation from what any [*10]  reasonable security monitoring company would exercise in the same situation.
            12. The Defendant intentionally failed to do an act ([i.e.,] not timely and properly notifying me of the alarm activation and not notifying the police, apartment complex, and other proper authorities) in which it was their contractual duty to do, and knowing or having reason to know of facts which a reasonable person to realize, not only that their conduct created an unreasonable risk of harm to me but also that such risk is substantially greater than that which is necessary to make their conduct simply negligent.”
            ADT moved for summary judgment.  The case was in Federal Court in Tennessee; Tennessee law applied.  
            Here’s what the judge had to say about gross negligence:
            “In Tennessee, parties may contract to limit their liability for ordinary negligence by capping damages at a fixed amount. That is what Lansky and ADT did here when they agreed to limit damages against each other to $250. (See ECF No. 9-1 at 55.) Under Tennessee law, "[h]owever, a [*8]  contract against liability will not operate to protect a party who is guilty of gross negligence." Lansky contends that ADT's failure to notify police of the break-in constitutes "recklessness and/or gross negligence." 
            "To prevail on a claim of gross negligence in Tennessee, Lansky must prove "ordinary negligence and must then prove that the defendant acted 'with utter unconcern for the safety of others, or . . . with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.'" Recklessness is defined as the conscious disregard of "a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances."; ("For . . . reckless conduct, the actor must know, or have reason to know, the facts which create the risk.").” citations omitted
            The Plaintiff did little to support this case.  One argument made by ADT was that Plaintiff produced no expert witness.  The absence of an expert witness would make it difficult and perhaps impossible for Plaintiff to prevail.  
            Plaintiff did make a feeble effort to support her gross negligence claim.  In her affidavit in opposition to the ADT motion for summary judgment she claimed: 
            “that she "reasonably relied" on ADT, that ADT "utterly failed" to perform, and that, "[b]ased upon [her] own personal experience in being a security company customer . . . [ADT's conduct] is a gross deviation from what any reasonable security monitoring company would exercise in the same situation." … and that that ADT "intentionally" failed to act, and that ADT's only act was to leave Lansky a voicemail.”
            Rejecting these arguments the judge held:
            “The quoted passages in Lansky's affidavit do not create genuine issues of material fact…. These are bare legal conclusions, which the Court may not consider …. The affidavit shows no basis in personal knowledge for such statements, as required by Rule 56(c)(4). The Court cannot consider them. …. Lansky cites no admissible evidence of gross negligence or recklessness, and no reasonable trier of fact could find in her favor based solely on the parties' stipulated background facts. Lansky has produced no evidence establishing that ADT showed "conscious indifference to consequences," or that ADT's conduct was a gross deviation from the applicable standard of care.” Citations omitted.  The judge dismissed the case.  Lansky v Prot One Alarm USDC Western Dist TN Feb 12, 2019.
            What we skipped over is that the case turned on gross negligence because it had already been established in the case that the ADT contract prohibited causes of action for breach of contract and ordinary negligence.           
           Does your contract protect you?  How about, “what’s in your wallet” and will it soon be in your subscriber's wallet?  Better get updated Standard Form Agreements, and use them.
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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
516 747 6700
www.KirschenbaumEsq.com