Good time to use Disclaimer Notice June 9, 2023

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Good time to use Disclaimer Notice
June 9, 2023
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Good time to use Disclaimer Notice
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Ken,
          We have a client asking us to do a variety of projects at multiple properties. The original scope included some work on their antiquated fire system(s) following an incident where there was a malfunction. The customer is worried about its budget and told us to take any work on the fire alarm out. In other words, leave the fire alarm as is and work on our other non-fire alarm systems in the building.
          We spoke with the fire marshal, and he said we're fine as long as we don't lay a finger on the fire alarm, but it is still a problem and still needs to be addressed by somebody. My concern is (and I shared this with the fire marshal) that we will have techs walking in and out of the client's property observing a system we know to be out of compliance, we've advised the client is out of compliance, and doing nothing. Would having the client sign your Disclaimer Notice be the right move here, or am I being overly concerned?
          We will definitely have them under contract, I’m just concerned about any liability around doing work at the building in view of a fire alarm system [we are not working on] we know is a problem, the fire marshal says is a problem, but not fixing it. I guess we just stick to our scope and make sure nobody on our team goes anywhere near the fire alarm system and document that we told the customer it needs to be fixed.
Dave

Response

          You have no business doing anything there without a contract. If sub wants fire alarm service it has to sign a Fire All in One; for Security, Commercial All in One; and, for either, the Disclaimer Notice. This has nothing to do with the budget.
          I want to create two scenarios that suggest different levels of concern.
    Scenario One:
          You are called in do to security system.  Doesn’t matter if its burglary alarm, cameras, access control, environmental monitoring, gates or window guards.  Nothing in your back and forth with the customer mentions the fire alarm; whatever you are proposing to install or work on has nothing to do with the fire alarm.  Fire alarms may or may not be a system that you install or service for anyone; maybe your specialty is wireless cameras and a few motion detectors connected to a panel you will install just for those devices.  Nothing in your paperwork mentions the fire alarm.  Even if you are a fire alarm expert you have no duty to inspect, repair or opine on the fire alarm system.  To put it bluntly, it’s none of your business.  What you need to be careful about is making it your business, intentionally or unwittingly, by offer opinions and solutions and suggests.  That brings us to scenario two.
     Scenario Two:
          You originally include fire alarm repairs in your proposal or you just talk about it with the customer.  Then the customer engages you to do lots of alarm installation and work, but excludes the fire alarm.  This scenario is closer to the above question.
          Your inquiry to the Fire Marshall resulted in a predictable response.  Old fire alarm systems installed to code way back when it was installed, now out of code, are grandfathered as long as the building and fire alarm are not changed.  The only concerns the subscriber has is that the system can’t pass inspection or can’t be monitored and a fire watch is then required until the system is working again.
          Because you discussed the fire alarm with the customer and fire alarm work was removed from your scope of work the customer should have no objection to signing a Disclaimer Notice that says just that, you recommended a new fire alarm and it was declined.  There should then be no uncertainty as to the “scope of your work”.  From a legal perspective it’s your scope of work that sets the boundaries of your responsibility, as long as you stay within your boundaries.  Recall one of my favorite proverbs, “no good deed goes unpunished”.  Do not go near the fire alarm.
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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