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subcontractor's exposure for working on deficient system
June 1, 2018
subcontractor's exposure for working on deficient system  
    Please accept my sincere thanks for providing this forum for questions, answers and pertinent updates both for, and from, its many subscribers. I have garnered a lot of valuable information over the years.
    My question concerns the potential liability for installing a single monitored photoelectric smoke detector in a residential application. To be more explicit, I am an authorized servicing dealer for a well known national alarm company and many of the service tickets they create indicate that I am to either install a single monitored smoke detector in a home, or work on a system which contains, among other devices, a single monitored smoke detector. The residences depicted on the service ticket already have some sort of 110V interconnected smokes or battery powered smokes in place so the addition of a single smoke detection device is 'supposed' to, as proffered to the subscriber by the parent alarm company, 'protect their property against the threat of fire in the event it is vacant'….. and there lies the rub…. my logic is that installing a single monitored smoke in whatever location is deemed appropriate by the homeowner, is a crap shoot at best, and in the event of a fire that goes undetected because of the adverse location of said device, all of the participants in this little charade, which might include the tech who performed the service call, my Company, moi, the parent Company for whom I am subcontracting, the smoke detector manufacturer, the equipment vendor, and perhaps even my Golden Retriever, are likely to get their respective arses sued for malfeasance or gross negligence for knowingly recommending and installing a single monitored smoke detector which may NOT, in a timely manner, detect and communicate a fire condition.
    In the same vein, when I am directed to work on a residential alarm system which according to the zone list contains a single monitored smoke detector, even though I am not doing work which is directly related to the smoke detector, by merely interacting with the system and performing a non-fire-related-repair, am I placing myself in legal jeopardy in the event of a non-detected fire and the ensuing loss of property?
    At present, I refuse ALL work related to the issues reflected above. Thus, in your humble opinion, am I leaving money on the table by refusing these service tickets or am I being appropriately cautious?
    I hope that other technicians, dealers, and Companies will benefit from your response and I anxiously await reading your thoughts on the subject in the Alarm Forum.
    First I should point out that I am rarely humble when it comes to my opinion.  When forming my opinion I try not to let the facts or law get in the way :)  
    Subcontractors run a big risk if they aren't careful.  They should

  • get indemnity from the contractor hiring them [you may find yourself indemnifying the GC]

  • make sure the GC has a contract with the end user which contains all the protective provisions, and that the contractual protection extends to the subcontractors.  Your GC should have a Kirschenbaum TM Standard Residential All in One Agreement signed by the end user.  If it doesn't, then you should require the end user to sign a direct agreement with you [which the GC probably won't allow].  

  • you should also be careful to comply with all codes, custom and practice and regulatory guidelines

    The last suggestion means that you shouldn't be installing or servicing a system or equipment that you believe to be out of compliance, and if you do, at the very least be sure to get an acknowledgment from the end user that you advised of the deficiencies.  That may not be enough because there can be third parties depending on your services and they will not be bound by an end user's acknowledgment.
    Though it may be a laudable practice to refuse to install or service systems you believe to be inadequate, deficient or non-code compliant, it may be an over reaction.  With the right agreements in place you are probably going to be able to successfully defend yourself.  Of course no agreement can prevent you getting sued, the agreement merely helps you extricate yourself from the litigation.
    So you are right to be caution, but there are ways around liability.  Incidentally, the Disclaimer Notice might come in handy in these situations.  It's not a contract, but an acknowledgment that something better is offered, and it can be used to point out system deficiencies.  It might cause a rift between your CG and its customer, but at least you can sleep better knowing you did your part to educate the customer, hopefully to the point of assuming the risks.


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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
516 747 6700