Security Business

APR 2019

Find news and information for the executive corporate security director, CSO, facility manager and assets protection manager on issues of policy, products, incidents, risk management, threat assessments and preparedness.

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16 Security Business / www.SecurityInfoWatch.com / April 2019 Legal Brief BY TIMOTHY J. PASTORE, ESQ. Negligence vs. Gross Negligence The difference between the two can have a major impact on limitation of liability for a security business On April 11,2015, Deborah Lansky entered into a written contract with Protection One Alarm Monitoring Inc., which was to provide alarm monitoring services for her apartment in Memphis. Full disclosure: I have had the honor of representing Protection One in many cases around the country in my career. The contract contained various terms – including a limitation of liability provision limiting damages available to Lansky to the agreed amount of $250. On June 23, 2017, Lansky set her alarm before leaving her apartment. While she was gone, a burglar broke into the apartment; and although the alarm was activated and a signal sent to the monitoring station, Lansky alleged that Protection One (now ADT) failed to notify the police, apartment complex, and any other proper authorities. Instead, according to Lansky, the alarm operator merely left a voicemail asking her to return their call. Surveillance video inside the apartment showed that the burglar removed the alarm system, found her safe, and stole personal property allegedly worth approximately $100,000. On Oct. 12, 2017, Lansky sued Protection One for this loss – alleging breach of contract, negligence (including gross negligence), and detrimental reliance. The case is a matter of public record and is known as Deborah Lansky v. Protection One Alarm Monitoring Inc., filed in the U.S. District Court for the Western District of Tennessee (Case Number 2:17-cv-02883-SHM-dkv). Negligence and Limitation of Liability In Tennessee, like most states, parties may contract to limit their liability for ordinary negligence by capping damages at a fixed amount. Lansky and Protection One did this when they agreed to limit damages against each other to $250; however, such limitations are generally not enforceable in favor of a party who has committed gross negligence or willful misconduct. That was the central inquiry in this case. Lansky alleged that the operator’s failure to notify police of the break-in constituted gross negligence. Generally, to prevail on such a claim, a plaintiff must prove ordinary negligence and must then prove that the defendant acted with a reckless disregard for the rights of others and a conscious indifference to the consequences. To support this claim, Lansky offered a post-discovery affidavit (not a good legal tactic), which made the following assertments in support of her claim for gross negligence. In her own written words: • The ONLY act that the Defendant completed was leaving me a voice mail message asking for me to return their phone call. • I reasonably relied on the Defendant to monitor my apartment and security system properly, and the Defendant utterly failed to do so. • Based upon my own personal experience in being a security company customer and the advertisements and/or representations of what the Defendant would do as a security monitoring company, the Defendant disregarded a substantial risk that occurred, and this disregard is a gross deviation from what any reasonable security monitoring company would exercise in the same situation. • The Defendant intentionally failed to do an act ([i.e.,] not timely and properly notifying me of the alarm activation and not notifying the police, apartment complex, and other proper authorities), in which it was their contractual duty to do, and knowing or having reason to know of facts which a "The difference between negligence and gross negligence are particularly important in the security industry, where the enforceability of limiting conditions in alarm service contracts can hinge on the degree of negligence alleged/proved by the injured party."

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