October 4, 2010

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       The plaintiffs purchased an alarm system from the Alarm Dealer for their residence on Long Island, NY, and contracted for monitoring with that defendant to arrange for monitoring of the alarm system with  a Central Station and included radio backup.  Plaintiff claimed that the Alarm Dealer did not test the radio system to

ensure signals were properly received by Central Station. The

plaintiffs maintain after October 15, 2004 several alarm conditions occurred at

the subject premises caused by testing, false alarms, inadvertent triggering,

and a fire alarm. The plaintiffs allege the subject premises was burglarized on

April 22, 2005, when the alarm system was disabled such that no audible alarm

sound could be heard, and the plaintiffs' telephone wires were cut so no digital

alarm signal reached the Central Station.

    The court stated the law in New York:

    As a general rule, a contractual provision absolving a party from

     its own negligence or limiting its liability is enforceable.  Nonetheless, the

     public policy of this State dictates that "a party may not insulate

     itself from damages caused by grossly negligent conduct".  Gross negligence "differs in kind, not only degree, from claims of ordinary negligence".  Stated differently, a party is

     grossly negligent when it fails "to exercise even slight care".  ["Gross negligence means a failure to use even slight care, or conduct that is so careless as to show complete disregard for the rights and safety of others".

    Examples regarding gross negligence claims in security system installation and monitoring cases:

    failure to wire a skylight, which allowed burglars to enter and rob

     the art gallery, may have been negligent but did not "evince the

     recklessness necessary to abrogate [the subscriber's] agreement to

     absolve [the security service] from negligence claims"

    "the failure of defendant's employee on two occasions

     to respond to a signal indicating a possible burglary despite hourly

     noise reminders, while clearly ordinary negligence, was not gross

     negligence,"

    an exculpatory clause nearly identical to the one herein relieved

     the security company of liability for its alleged failure to monitor

     and report an alarm signal indicating an illegal entry

    "the failure of defendant's employee on two occasions

     to respond to a signal indicating a possible burglary despite hourly

     noise reminders, while clearly ordinary negligence, was not gross

     negligence,"

    an exculpatory clause nearly identical to the one herein relieved

     the security company of liability for its alleged failure to monitor

     and report an alarm signal indicating an illegal entry

    failure to send competent person to ascertain

     cause of alarm signal

    failure to provide timely guard

     response to signal

 

    And facts which were found to "maybe be" gross negligence [thus requiring a trial] included:

    By contrast, a triable issue of "gross

     negligence" is not typically found absent more outrageous acts of

     folly, such as giving out the security code for the store's alarm

     system over the phone at 4:00 AM to burglars who gave a false name

    we found that issues of fact as to gross

     negligence were raised by the security company's instructing its guard

     to "forget the assignment" when he had difficulty getting into the

     building, coupled with its failure to notify the police upon receiving

     four alarm signals from the subscriber's premises in three hours

 

    In this case the court summarized the case as:

    loss allegedly due to the failure to conduct end-to end tests, and the failure to detect potential radio transmission problems in one earlier entry of the activity

    This court then concluded that these allegations did not constitute gross negligence and that cause of action was dismissed.