Comment on Gross negligence claim in cyber-security context relies on alarm cases June 21, 2025

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on Gross negligence claim in cyber-security context relies on alarm cases
June 21,  2025

Comment on Gross negligence claim in cyber-security context relies on alarm cases from article on May 22, 2025

Ken,
   Thanks again for your very informative legal insight to the industry.
   I served as an alarm expert on behalf of the plaintiff in a case filed on May 31, 2017 as “Camille Hojnacki, Camille'S Original Jewelry Design Vs. Alarm-Security & Contracting, Inc.” that included several references to the phrase “gross negligence” among the litigators after discovery and the submission of my report.
   If gross negligence was the fulcrum of the case, I’m not able to definitively say, but it did go to trial and the jury did find in favor of the Plaintiff for the loss amount which did exceed the limitations of liability as defined in the alarm company's contract. Perhaps it meets the criteria you mentioned about a gross negligence case going to trial.
   While my vocation as an expert witness in the alarm industry is one I have become mostly comfortable with, I don’t have the same level of confidence discussing the legal aspects of the cases I have served on in a public forum such as this. I’m not confident that I can disclose details about a case and my work within it, even after it is adjudicated. It is still in the courts for other reasons. Maybe you can give me some guidance on that.
   I have seen in several cases what you referenced in your recent email articles where the alarm tech didn’t just not do his job, but went beyond incompetence and treaded heavily into the area of intentional disregard in the areas of safety and security. And they did so in a manner that a reasonable person would understand that the action did place the end user at significant risk.
   In one fire case that resulted in multiple fatalities, the fire alarm technician was proven to have ignored obvious failures in the fire alarm he was inspecting, and he also lied under oath in his deposition about fully doing the inspection which occurred just weeks before the fatal fire. Even still, the alarm company (defendant) stayed with the case for several years, up until one of their former employees gave a sworn statement saying that their supervisor told him to never red- or yellow- tag a system no matter what. Then they settled.
   I believe that action does take it over the line from negligence to gross negligence. And as you stated, that’s when the settlement happens.
Lloyd Young, LPI, APS
Licensed Professional Investigator
Alarm Planning Superintendent
SECURAC, Incorporated
C-10783
ACR-2313
APS-2034079
www.securac.com
855-SECURAC
LloydYoung@securac.com
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Response
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   Thank you for sharing your experience and expertise. The extent to which you can share information about a pending or old case depends on your Engagement Agreement; unlike a lawyer you are not automatically bound by client confidentiality.
   An alarm expert is indeed essential in a lawsuit against an alarm company for negligence, ordinary or gross. There could likely be no finding of gross negligence without the opinion of an alarm expert. But this may surprise you, and all the "weekend" lawyers who read these articles, the alarm expert should avoid characterizing an alarm company's conduct as "gross negligence". Rather what the expert should do is explain why the departure from custom and practice, or acceptable conduct, was not met. What did the tech do that should have been or shouldn't have been done, and how obvious was the error. Why?
   Gross negligence, when in issue in a lawsuit, is a legal term and requires a legal conclusion. Only the trier of the facts should make the determinate that conduct amounts to gross negligence. What the expert should testify is what the standards are and what the defendant actually did, in the opinion of the expert. But if I were the defense attorney and the Plaintiff's attorney asked the expert if his "opinion" was that the departure constituted "gross negligence" I would object and I think it would be error if the judge allowed the testimony. The expert could testify to all the standards and how each was not met, etc., but the ultimate conclusion, gross negligence, would be error. In my opinion.
   One of the statements I make when defending a lawsuit alleging gross negligence against an alarm company is that I am not aware of a single case where a cause of action alleging gross negligence survived a motion for summary judgment [especially my motion] when there was no alarm expert affidavit supporting the facts that comprised the elements of gross negligence.
   It's also important to recognize that a lawsuit for negligence, ordinally or gross, does not have to rise to the level of gross negligence unless there is an enforceable Limitation of Liability [or other protective provisions] in the alarm contract. Without contractual provisions all that need to alleged and proved is ordinary negligence, and an expert would not be needed for that. Ordinary negligence requires only ordinary experience, and a jury or judge has that.
   More important is to recognize that just because you have an alarm contract with a paragraph headed "Limitation of Liability" or some other protective provision, means that you actually have a properly and enforceable provision in your contract, and that determination is made by a judge only; it's a matter of law. The conclusion of whether the contractual provision is enforceable is a determination that the judge needs to make
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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
www.KirschenbaumEsq.com