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comment on exculpatory clause / how about this for a new RMR idea? June 19, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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comment on exculpatory clause / how about this for a new RMR idea?
June 19,  2017
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comment on exculpatory clause from June 13, 2017 article
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Ken,
   Thank you for your newsletter…By simply using your contracts and keeping up with the newsletters, security system companies can avoid many costly pitfalls.
   One question on the neuro surgeon example, without having read the appellate opinion, is about the timing of the presentation of the surgeon’s attempt at adding an exculpatory clause material in its enforceability. In other words, had the notice of the shift of liability/exculpatory clause been provided to the patient when the surgery was “proposed” and agreed to by the patient, would it have been more likely to be enforced?
   I ask this question because I know many security system providers give a proposal that does not include any hint of your (or any) contract with complete terms and conditions. When the proposal is accepted by the customer, terms and conditions are then sent to the customer. It’s important for people to know that, in examples like this, the proposal IS the contract if the customer doesn’t sign the terms and conditions form. In fact, even if the terms and conditions are signed subsequently to a proposal being accepted by the customer, the exculpatory clause along with others in the terms and conditions may not be enforceable. Please correct me if I’m wrong.
   Thank you,
David Coughlin
East Coast Integrated Systems
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Response
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   You are correct, a signed proposal can very well be the contract and it typically won't contain any of the protective provisions.  A proposal does not need any place for the subscriber to sign.  Once the subscriber approves the proposal, verbally, get a Standard Form Agreement signed.  
   As far as the surgeon goes, if the patient is asked to sign while on way in to surgery there would be a good argument that the patient did not have sufficient time or choice to review.  In the alarm industry it would be hard to find analogy with the surgeon.  How many times do we hear about the alarm company who completes the installation and then is surprised when the subscriber won't sign the contract.  Get it signed before you do the installation.
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how about this for a new RMR idea? 
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   Technology is moving so fast it's not easy for my Standard Form Agreements to keep up.  But here's an idea for new RMR.  Tell me how you like it.  Might take a bit of training.  
   Bite and hold dogs.  The alarm goes off, the dog is released, bites and holds the intruder.  I haven't figured out pricing yet.  But the City of San Diego probably has.  They may even be able to assist in getting the dogs trained.  
   Sara Lowry sued the City of San Diego for violating her United States Constitution 4th Amendment rights - excessive force.  Seems after a night on the town she slipped into her commercial office and went to sleep, but not before triggering the burglar alarm.  Cops responded with dogs in tow, found a door open, didn't hear anything in response to the cop's announcement that police were present, and released the dog, trained to bite and hold.  
   Here's the facts from the case:
     "When a burglar alarm in a commercial building was triggered shortly before 11:00 p.m. on a Thursday night, San Diego Police Department officers responded. Accompanied by a police service dog, Bak, the officers inspected the building and found a door to a darkened office suite propped open. Unable to see inside the suite, one of the police officers warned: “This is the San Diego Police Department! Come out now or I'm sending in a police dog! You may be bitten!” No one responded. The officers suspected that a burglary might be in progress and that the perpetrator was still inside the suite. After he repeated the warning and again received no response, one of the officers released Bak from her leash and followed closely behind her as they scanned each room. As he entered one of the rooms, the officer noticed a person laying down on a couch. Bak leapt onto the couch. Within seconds, the officer called Bak off, and the dog returned to the officer's side. The person on the couch was Plaintiff Sara Lowry. She had returned to the office after a night out drinking with her friends, and had accidentally triggered the alarm before falling asleep on the couch. During their encounter, Bak bit Lowry's lip.

Based on these facts, Lowry filed suit against the City of San Diego under 42 U.S.C. § 1983, alleging that its policy of training its police dogs to “bite and hold” individuals resulted in a violation of her Fourth Amendment rights."
    Here is the Court's holding:
"Holdings: On rehearing, en banc, the Court of Appeals, Clifton, Circuit Judge, held that:
1 it was not manifestly erroneous for district court to conclude that there was no genuine issue of material fact;
2 severity of crime factor of test used to evaluate government's interest in use of force weighed in city's favor;
3 factor of test used to assess government's interest in using force that looks at whether suspect poses immediate threat to safety of officers or others weighed in favor of city;
4 factor of test used to assess government's interest in using force that looks at whether the suspect was resisting or attempting to evade arrest did not weigh either for or against city;
5 availability of alternatives factor did not weigh against city; and
6 officer's act of releasing police dog into office did not violate plaintiff's Fourth Amendment rights."
    I'm not seriously suggesting the alarm industry offer the bite and hold service; just thought you'd be interested in the case.  Sara LOWRY, Plaintiff-Appellant, v. CITY OF SAN DIEGO, Defendant-Appellee. 2017 WL 2434715
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
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