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The following case involves elevator maintenance but the appeal court did refer to a fire alarm system in its discussion. The case caught my attention because I have repeated counseled that the word "maintenance" has no place in an alarm contract. We use the term "service", as in "service on request". Even the obligation of Inspection, which does require finding a problem, does not include a maintenance duty, though there would undoubtedly be a notification duty owed to the owner.
Those of you doing elevator monitoring or communication should be using our Elevator Monitoring Contract.
Plaintiff was injured in a NJ hotel when an elevator door allegedly closed within 2 seconds knocking her down. She sued the hotel who in turn brought in an elevator maintenance company who had been contracted to perform "preventative maintenance" and who also agreed by contract to indemnify the hotel. The Plaintiff did not sue the elevator company directly.
The lower court dismissed the complaint finding that the hotel hired the elevator company was therefore off the hook. On appeal the dismissal order was reversed.
The hotel had a non delegatory duty to maintain the premises safe for its invitees. There was of course conflicting affidavits from the experts, Plaintiff's expert finding negligence and the hotel and elevator company experts finding no evidence of negligence.
The appeals court found that:
" case law and statutes impose a non-delegable duty upon a hotel owner for the safe operation of its elevators; as such, a jury should determine whether defendants satisfied their duty to maintain a safe premises for their guests, including whether the subject elevator was in compliance with applicable codes and industry standards"
" The party to whom the lessor owes a non-delegable duty ought not to be required to concern himself with contracts made by the owner for the discharge of his responsibility. . . . The lessor may secure indemnity by either agreement with the contractor or the pursuit of such remedies as the law may afford, including common law indemnification. . . . However, the landlord cannot relieve himself of responsibility for injuries negligently inflicted upon third persons as a result of the act or omission of an independent contractor hired by him to perform his non-delegable duty."
The appeals court mentioned a fire alarm system.
" However, the facts in Baboghlian are clearly distinguishable from the facts in this case. Specifically, the defendant in Baboghlian was a property owner who hired a contractor to install a fire alarm system in its building. Id. at 512. Thereafter, the defendant's building caught on fire and spread to plaintiff's
adjacent building causing damage. Ibid. The fire was allegedly the result of a
defective alarm system installed by the third-party contractor. Ibid. Our
Supreme Court held the owner of the property did not have a non-delegable duty to the neighbor and it was not responsible for the defective alarm system. Id. at 518. The Court emphasized no law imposes a non-delegable duty of care on the landowner to install a fire alarm system. Ibid."
" Here, defendant is a hotel, plaintiff is a business invitee, an elevator allegedly malfunctioned and a regulation exists that imposes a non-delegable duty of care on defendant. As noted, a hotel has a non-delegable duty to
exercise reasonable care for the safety of its invitees, especially with regard
to elevators. Although defendant entered into an agreement with Schindler to
perform maintenance duties, this fact does not relieve defendant of its
non-delegable duty to exercise reasonable care for the safety of its patrons.
Further, defendant can still pursue indemnification from Schindler. We conclude
the judge incorrectly found defendants delegated their duty to maintain the
elevator."
The appeals court also found negligence by applying Res ipsa Loquitur.
" Res ipsa loquitur "'permits an inference of defendant's negligence
where (a) the occurrence itself ordinarily bespeaks negligence; (b) the
instrumentality was within the defendant's exclusive control; and (c) there is
no indication in the circumstances that the injury was the result of the
plaintiff's own voluntary act or neglect."
" "Whether an occurrence 'ordinarily bespeaks negligence' depends on the
balance of probabilities being in favor of negligence." Buckelew, supra, 87 N.J.
at 526. Thus, res ipsa loquitur is available to a plaintiff "if it is more
probable than not that the defendant has been negligent." Myrlak v. Port Auth.
of N.Y. & N.J., 157 N.J. 84, 95 (1999) (citing Buckelew, supra, 87 N.J. at 526).
Our Supreme Court has noted the malfunctioning of an automatic door is the type
of occurrence that bespeaks negligence. Jerista, supra, 185 N.J. at 200 ("n
automatic door that closes onto and injures a customer entering a supermarket is
an occurrence bespeaking negligence that falls within jurors' common
knowledge."). Our Court has further stated that "embers of the public passing
through automatic doors, whether in an airport, office building or supermarket
do so generally without sustaining injury." Rose v. Port of N.Y.
Authority, 61 N.J. 129, 136-37 (1972) (applying res ipsa because plaintiff
sustained injuries when an automatic glass door struck him which "is fortunately
unusual and not commonplace[;]" as such this "strongly suggests a malfunction
which in turn suggests neglect.")"
You can read the entire case in our web site under NJ reported cases. The case is DORIS J. JONES and FREDDIE E. JONES, Plaintiffs Appellants, v. SHERATON ATLANTIC CITY CONVENTION CENTER HOTEL
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Speaking Engagements
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Alarm Association of Greater St. Louis. September 16, 2014. at Tech Electronics HQs office at 6437 Manchester Ave, St. Louis, MO 63139. Meeting is from 11:45 – 1:30 Video conference presentation starting at 12:15 CST. For more information or to register contact Tony Drago adrago@tyco.com www.alarmstl.org
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NYSESA - September 17, 2014 at Honor's Haven Resort, Ellenville, NY. This is the NYS Electronic Security Assoc annual meeting. Presentation on updated contracts and current legal issues will be at 10:30 AM. For more information or reservations contact Dale R. Eller, Executive Director (814) 838-0301 dalereller@itzsolutions.com
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Alabama Alarm Association. AAA's Fall Meeting and Trade Show - October 21, 2014 from 3 to 5 PM at DoubleTree Hotel 808 South 20th Street Birmingham, AL 35205 for more info contact AAA Executive Director: director@alabamaalarm.org (205) 933-9000
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Electronic Security Summit for 2014. October 22-24, 2014 at the landmark Broadmoor Hotel. Colorado Springs, CO. For more information contact Alexander J. Quirin, CEO & Managing Partner, Advisory Summit Providers, LLC., (786) 999-9738 alex.quirin@aspsummits.com www.aspsummits.com