BECK CHEMICALS, INC., Plaintiff-Appellant, -vs- FIDELITY ALARMS, INC.,
Defendant-Appellee

COURT OF APPEALS, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY, OHIO; 1983
Ohio App. LEXIS 12772
September 22, 1983
CHARACTER OF PROCEEDING: Civil Appeal from Common Pleas Court, Case No.
009,891

DISPOSITION: JUDGMENT: Reversed and cause remanded for further proceedings.

CASE SUMMARY
PROCEDURAL POSTURE: Appellant chemical company had filed a complaint against
appellee security system company concerning the negligent installation of a
burglar alarm system. The chemical company sought review of a judgment from
the Common Pleas Court, Cuyahoga County (Ohio), which granted summary
judgment to the security system company.

OVERVIEW: The chemical company had hired the security system company for the
installation of a burglar alarm system. The chemical company then filed a
complaint, alleging the security system company had negligently installed,
maintained, and repaired the burglar system. The security system company
responded with a motion for summary judgment and asserted the affirmative
defense that there was a contract limiting its liability. The trial court
granted summary judgment to the security system company. On appeal, the
court found the contract provision purporting to exempt the security system
company from liability was void as a matter of law. The court reached the
same conclusion with respect to the liquidated damages provision. The court
also found genuine issues of material facts as to whether the security
system company was negligent in the installation, maintenance, and repair of
the burglary system. The court concluded that the security system was not
entitled to summary judgment.

OUTCOME: The court reversed the trial court's judgment that granted summary
judgment to the security system company. The court remanded the matter to
the trial court for further proceedings.

COUNSEL: Attorney for Plaintiff-Appellant: Timothy M. Bittle, 1900 Union
Commerce Building, Cleveland, OH 44115
Attorney for Defendant-Appellee: Donald J. Huffman, 316 Bulkley Building,
Cleveland, OH 44115
JUDGES: JUDGE ROBERT E. COOK, J., of the Eleventh Appellate District,
sitting by assignment in the Eighth Appellate District.
PATTON, JOHN T., C.J. and JACKSON, LEO A., J. CONCUR
OPINION: JOURNAL ENTRY and OPINION

PER CURIAM

On March 7, 1980, appellant, Beck Chemicals, Inc., filed a civil complaint
against appellee, Fidelity Alarms, Inc., alleging appellee, prior to October
20, 1979, undertook to install, maintain, and repair the burglar alarm
system at appellant's plant on West 137th Street, Cleveland. Appellant
further alleged appellee negligently performed said services and that the
burglar alarm, sold, installed, and maintained by appellee, was defective
and unsafe. Appellant further alleged its plant was burglarized during the
period between October 20, 1979 and October 22, 1979, the burglar alarm
system failed to [*2] operate, and property valued at $20,000 was stolen.

Appellee filed an answer which admitted it had, prior to October 20, 1979,
entered into a contract with appellant to maintain and repair a burglar
alarm system at appellant's plant at West 137th Street, Cleveland, but
denied the remaining allegations of appellant's complaint. Appellee also
asserted the affirmative defense, along with two others, that the agreement
entered into by the parties contained a provision limiting the liability of
appellee for negligence to $250 or one year's service charge, which ever is
greater.

Appellee filed a motion for summary judgment, offering appellant's complaint
and his answer, with a copy of the parties' agreement attached, in support
of his motion. The court granted appellee's motion and dismissed appellant's
complaint.

Appellant has appealed the judgment of the trial court and has filed the
following two assignments of error:

"1. The trial court erred in granting appellee Fidelity Alarms, Inc.'s
motion for summary judgment in that:

"(A) the contract provision purporting to exempt appellee from liability is
void as a matter of law; and

"(B) the purported liquidated damage provision [*3] is void as a matter of
law.

"2. The trial court erred in granting summary judgment because the trial
court had before it genuine issues of material fact for resolution by the
jury."

The above assigned errors are but one assignment of error, to-wit: The trial
court erred in granting appellee's motion for summary judgment.

The assignment of error is well taken.

Civ. R. 56(C) provides:

"(C) Motion and proceedings thereon. The motion shall be served at least
fourteen days before the time fixed for hearing. The adverse party prior to
the day of hearing may serve and file opposing affidavits. Summary judgment
shall be rendered forthwith if the pleading, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in
the pending case, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated in this rule. A
summary judgment shall not be rendered unless it appears from such evidence
or stipulation and only therefrom, that reasonable minds can [*4] come to
but one conclusion and that conclusion is adverse to the party against whom
the motion for summary judgment is made, such party being entitled to have
the evidence or stipulation construed most strongly in his favor. A summary
judgment, interlocutory in character, may be rendered on the issue of
liability alone although there is a genuine issue as to the amount of
damages."

Appellee relied solely upon the pleadings of the parties to support his
motion for summary judgment. Attached to appellee's answer is a copy of the
agreement of the parties relating to the burglar alarm system. Paragraphs D
(1) and D (2) read as follows:

"D. (1) Fidelity Alarms, Inc. does not guaranty or warranty that the service
supplied will prevent burglary, fire or other occurrences, or the
consequences from such occurrences, which the service is designed to
monitor, and the Subscriber acknowledges that it is not entering into this
Agreement with the expectation that Fidelity Alarms, Inc. will insure or
reimburse the Subscriber or any other person for losses from such
occurrences. The Subscriber agrees that Fidelity Alarms, Inc. will have no
liability for loss or damage to property or [*5] for personal injury or
death due to the failure in transmission of an alarm or for interruptions of
service because of (I) any failure of the Subscriber's alarm (II) any
defective or damaged equipment, device, telephone lines or connecting
circuit (III) strikes of Fidelity Alarms, Inc. employees or employees of
others, riots, floods, fires, acts of God, or any other causes beyond the
control of Fidelity Alarms, Inc.

"(2) If fidelity Alarms, Inc. should nevertheless be found liable for loss
or damage to persons or property irrespective of the cause because of the
negligent act or negligent failure to act of Fidelity Alarms, Inc., its
employees or agents, or on some other basis, the subscriber agrees that such
liability is limited to a sum equal to one year's service charge or $250,
whichever is greater. The subscriber agrees to and shall indemnify and save
harmless Fidelity Alarms, Inc., its employees and agents, for and against
any claims, suits, losses, demands and expenses arising from any death of,
or injury to any person or property or any loss or damage, for which
Fidelity Alarms, Inc. is not liable or to the extent any such claims, suits,
losses, demands or expenses exceed [*6] the limits of Fidelity Alarms, Inc.
liability."

The court granted appellee's motion for summary judgment based upon the
liability provisions of the parties' agreement and dismissed appellant's
complaint.

However, genuine issues as to material facts remain and appellee was not
entitled to judgment as a matter of law. The issues of fact as to the
negligence of appellee, performance of the burglar alarm system, and the
burglary and resulting loss to appellant remain. Appellee was not entitled
to judgment as a matter of law since paragraph D (2) limited the liability
of appellee for negligence but did not relieve it of liability for
negligence.

We conclude the trial court erred in granting appellee's motion for summary
judgment.

Judgment reversed and cause remanded for further proceedings according to
law.

This cause is remanded to the Common Pleas Court for further proceedings
according to law.

It is, therefore, considered that said appellant recover of said appellee
its costs herein.

It is ordered that a special mandate be sent to said Court to carry this
judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the [*7] Rules of Appellate Procedure. Exceptions.

N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio
Rules of Appellate Procedure. This is an announcement of decision (see Rule
26). Ten (10) days from the date hereof this document will be stamped to
indicate journalization, at which time it will become the judgment and order
of the court and time period for review will begin to run.