November 15, 2011
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Question
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Ken
I am subscribed to your newsletter, and I wanted to pick your brain on a situation.
It's ten minutes to midnight, the central monitoring station has a residential alarm sounding for more than three minutes. The monitoring agent tries to call three times but the alarm keeps grabbing the line to send the distress call. The agent nevers gets through to the home owner.
Finally, almost four minutes have past and the monitoring agent calls 911 and reports the alarm to police. While speaking with the 911 operator, the monitoring agent suddenly says, disregard, the alarm just reset. The monitoring agent waves off the police without any further attempt to see if the home owners are okay.
The police were not sent (based on that disregard from the monitoring agent) two women were murdered!
Is the exculpatory clause and / or the limitation of liability going to hold in this case in court?
Would this be considered gross negligence and or deemed unconscionable by the courts?
If anyone would know, I figured you may have an opinion....
I sure would appreciate your candid thoughts.
Thanks again
George Skupien
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Answer
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The exculpatory clause and limitation of liability clause is generally enforced throughout the United States. The provisions contract away liability for breach of contract and negligence. Many states have carved out exceptions to the enforcement of the provisions, most notably for gross negligence and fraud. Gross negligence is defined differently in different states. Willful, wanton, reckless conduct, intentional conduct, conduct that evinces an indifference to injury to another, a great departure from reasonable conduct. These and more define gross negligence. We recently reviewed a Minnesota case that defined gross negligence as conduct that a reasonable person would know will cause injury to another.
So, should the alarm operator have dispatched the police? I think so, but I am not so sure it's gross negligence. One problem with factual scenarios is that hard facts make for bad law. Under the same alarm sequence scenario and the only damage was the theft of a TV while no one was home - not so compelling. But add two murders to the scenario and know you might reach for gross negligence. You wouldn't want a jury deciding this one.
I think a better way of answering this, had the question been posed by one of my insurance carrier clients, would be this. We need to determine the national or local standards for burg response. How does UL or ETL describe the response procedure? Does the central station have its own operating manual and does it address this scenario? Did the operator follow procedure? Any accepted procedure?
In hindsight its always easier to dispatch. Better to have to deal with a false alarm fine and an irate customer then two dead women.
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