APEX, INC. v. RHODE ISLAND ELECTRIC PROTECTIVE COMPANY
SUPERIOR COURT OF RHODE ISLAND, PROVIDENCE- 1984 R.I. Super. LEXIS 7--August
15, 1984, Filed
DISPOSITION: Plaintiff's complaint dismissed. Counsel shall prepare and
submit an order consistent with judgment.
JUDGES: COCHRAN, J.
COCHRAN, J. This case is before the Court pursuant to a complaint filed by
plaintiff, Apex, Inc., stating three causes of action; one in negligence;
one in gross negligence; one in breach of contract. After all testimony was
given at trial the defendant, Rhode Island Electric Protective Company,
brought a motion to dismiss pursuant to Rule 41(b)(2) of the Superior Court
Rules of Civil Procedure.
Sometime between 10:20 p.m. on August 25, 1979 and 1:00 a.m. on August 26,
1979, the Apex store located at 100 Main Street, Pawtucket, Rhode Island was
burglarized. When the police arrived it became apparent that the burglar or
burglars had entered the store through a window located near the main
Inside the store, near the broken window, lay a large rock apparently used
to crash the window. The burglar or burglars somehow made their way into the
jewelry department. Showcases were broken and jewelry as well as gold was
taken. The estimated loss was about $ 38,000.
The store at that time had an interior micro-wave burglar [*2] alarm
system. The defendant, Rhode Island Electric Protective Company, (Alarm Co.)
installed and maintained this system. The alarm was designed to signal the
Alarm Company's main office if it picked up any movement within the store.
This night, when the store was broken into, the system did not signal the
In April 1970, the plaintiff, Apex Inc. and the defendant, Alarm Company,
entered into a written agreement providing for the installation and
maintenance of a burglar alarm system. From April 1970, to August 25, 1979,
Apex and the Alarm Company agreed to add burglary detection equipment at
various times and executed separate contracts for the additional equipment.
Each contract superceded those previously dated. The contract in effect at
the time of the burglary was dated March 17, 1976. It contained the
following pertinent language:
"1. The contractor agrees to install and maintain . . . a central station
burglar alarm and holdup alarm system."
"13. It is agreed by and between the parties hereto: that the contractor is
not an insurer; that the payments hereinbefore named are based solely on the
value of the services provided for herein; that, from the [*3] nature of
the services to be rendered, it is impracticable and extremely difficult to
fix actual damages, if any, which may proximately result from a failure on
the part of the contractor to perform any of its obligations hereunder;
that, in case of the failure of the contractor to perform any of its
obligations hereunder, and a resulting loss to the subscriber, the
contractor's liability hereunder shall be limited to and fixed at a sum
equal to ten percent of the annual service charge, hereinbefore provided
for, but in no event amounting to less than the sum of fifty dollars, as
liquidated damages, and not as a penalty, and this liability shall be
"17. There are no verbal understandings changing or modifying any of the
terms of this agreement."
The issues before the Court are: (1) whether the defendant was negligent for
its failure to adequately protect the plaintiff's store; (2) whether the
defendant breached its contract with the plaintiff.
A preliminary issue this Court must first address is whether certain
testimony, given at trial, should be allowed as substantive evidence in
determining the ultimate issues of negligence and breach of contract. The
President [*4] of Apex, Sherwood Kahn, testified over a continuing
objection by the defendant, that he would determine what equipment would be
installed on the recommendation of the Alarm Company. He testified that Apex
and the Alarm Company had a series of discussions about the building's total
protection needs. Kahn also testified that before the burglary he was never
personally advised that the jewelry department needed micro-wave protection.
The Court finds this testimony to be inadmissible in determining the
ultimate issues of negligence and breach of contract. It is parol evidence
of tentative terms discussed earlier or contemporaneously to a totally
integrated contract. This testimony is admissible only to enable the Court
to make its preliminary determination that the written contract is totally
integrated. An integrated document occurs where the parties adopt a writing
or writings as a final and complete expression of the agreement, and parol
evidence of preliminary negotiations is admissible to determine if a
contract is integrated. Fram Corp. v. Davis, 121 R.I. 583, 587, 401 A.2d
1269 (1979). The 1976 contract is unambiguous and admission of parol
evidence would only [*5] serve to create an ambiguity. "The parol evidence
rule states that in the absence of fraud or mistake, parol evidence of prior
or contemporaneous agreements is generally inadmissible for the purpose of
varying, altering or contradicting a written agreement." Fram at 586. "The
basis of the rule is that the written agreement which is complete became the
memorial of their intent, merging or integrating all prior oral agreements
relating to the subject matter. As such it may not be varied by parol
evidence." Quinn v. Bernat, 80 R.I. 375, 379, 97 A.2d 273 (1953); Fram at
587. This testimony shall not be considered by the Court in determining the
issues of negligence and breach of contract. It will not be considered as a
matter of substantive law.
Other testimony that will be considered is as follows: An employee of Apex,
Mr. Lamoreau, testified that there was a micro-wave unit located in the
sporting goods department. It was about 100 feet from the jewelry
department. Another employee of Apex, Mr. Zarum, testified that there was a
wall separating the sports from the jewelry department. Mr. Grabel, another
employee of Apex, testified that on the night of the burglary [*6] while at
the store he saw an employee of the Alarm Company, Mr. Kindle, test the
micro-wave unit. Kindle's observations with regard to the operability of the
micro-wave unit are contained in a business record entitled the Crimes
against Subscribers Report. He stated that the unit ". . . is working fine.
I tested it." Grabel testified that he heard Kindle say that the micro-wave
unit was working "improperly." The Court finds the written observations of
Kindle to be more credible than the testimony given by Grabel. Grabel
testified that he was "not sure" of the exact words used by Kindle, and his
testimony also contradicts Kindle's written observations. The Court
concludes that the micro-wave unit was working on the night of the burglary.
Apex's President, Mr. Kahn, testified that the store now has tempered glass
with discs protecting the windows. He also stated that during the time Apex
contracted with the Alarm Company the plaintiff had theft insurance.
The plaintiff argues that at the time of the break there was no burglary
detection unit adequately protecting the jewelry department. The claim is
based on the contention that this failure did not fall within the
contractual language [*7] but was a responsibility that the Alarm Company
incurred as a result of the contractual relationship between the parties.
"The initial considerations in every negligence action are the determination
whether there is a duty running from a defendant to a plaintiff and the
definition of the scope of that duty." Welsh Mfg., Div. of Textron v.
Pinkerton's, R.I. , 474 A.2d 436, 440 (1984).
The plaintiff argues that because of the contractual relationship existing
between Apex and the Alarm Company, there arose a duty for the defendant to
adequately inform Apex of their protection needs. The plaintiff cites Welsh
for the proposition that "a duty of care may arise by virtue of a
relationship created or existing between a plaintiff and a defendant. In
this case, the relationship was a contractual one . . ." Welsh at 440. The
court in Welsh determined that the duty owed to Welsh was "Pinkerton's duty
to Welsh to exercise reasonable care in selecting an employee . . ." Welsh
at 440. The facts before this Court are distinguishable. The negligence
claimed by Apex is based on an alleged failure on the part of the Alarm
Company to exercise due [*8] care which was manifested in their failure to
adequately inform Apex of their protection needs. This is not the same as
negligently selecting an employee.
The contract entered into by both parties spells out the duties of each. The
contract is for the installation and maintenance of an alarm system. It
specifically states that the defendant is not an insurer and that there are
no verbal understandings changing or modifying any of the terms of the
contract. Since the contract is a totally integrated agreement the only duty
that can arise from the relationship is the contractual duty. This is the
duty to use reasonable care in carrying out the terms of the contract. The
defendant did install and maintain the alarm system. Its employees did
respond to the store when notified of the break. All of the enumerated
requirements of the contract were fulfilled adequately.
The plaintiff also argues that beyond the contractual relationship there
exists a duty owed by the defendant to the plaintiff. This duty arises when
one undertakes to render services to another which he should recognize as
necessary for the protection of the other's person or things. The one
rendering the service should exercise [*9] reasonable care. The Court finds
that this is not a situation where a duty can be imposed upon the defendant.
Any duty owed to the plaintiff results from and arises out of the written
agreement. "The law of negligence does not impose liability upon an
individual unless there is a breach of a duty owed to the plaintiff." Ryan
v. Dept. of Transp., R.I. , 420 A.2d 841, 843 (1980). The defendant
fulfilled its obligations under the contract. Most importantly, the alarm
system was working. If any further duty was to be imposed on the defendant,
this could have been reflected in the written agreement.
The plaintiff had no right to rely on the defendant's recommendations. The
contract specifically called for installation and maintenance. It did not
say the alarm system would make the store totally secure. The contract
specified that the defendant's liability was limited to the terms within the
contract. It specifically said the defendant was not an insurer. Further the
contract noted that there are no verbal understandings changing or modifying
any of the terms within the agreement. This Court realizes that only where
the contract's terms are ambiguous [*10] are they construed against the
drafter. Judd Realty Inc. v. Tedesco, R.I. , 400 A.2d 952, 955
(1979). The defendant drafted this contract. It is not ambiguous. Even if
its terms were construed against the defendant, the liability of the
defendant would be limited to the terms of the agreement.
The Court concludes that the defendant did not owe a duty to the plaintiff
to adequately inform Apex of its protection needs. The defendant did not owe
a duty beyond the contractual duty to install and maintain an alarm system
in proper working order.
Rhode Island has never adopted the doctrine of degrees of negligence.
Leonard v. Bartle, 48 R.I. 101, 105, 135 A. 853 (1927); Labree v. Major, 111
R.I. 657, 670, 306 A.2d 808 (1973). Plaintiff's cause of action in gross
negligence is therefore incorporated into its action for negligence, and it
is concluded that the defendant did not owe a duty to the plaintiff to
adequately inform Apex of its protection needs.
The plaintiff claims that the defendant breached its contract with Apex.
This claim also fails. There is language in the contract that limits the
plaintiff to [*11] 10% of the service charge when damage occurs resulting
from a failure on the part of the defendant to perform any of the "services
to be rendered" under the contract. The defendant fulfilled all the
requirements under the contract. The equipment was installed and maintained.
When they were alerted, its employees responded to the plaintiff's store.
The contract does not state that the defendant must advise the plaintiff of
its needs to be adequately protected. The contract does not say nor imply
that the alarm will prevent burglaries. The Court concludes that the
defendant did not breach the contract.
After all testimony was heard, the defendant brought a motion for
involuntary dismissal pursuant to Rule 41(b)(2) which states as follows:
"(b) Involuntary Dismissal: Effect thereof.
(2) On Motion of the Defendant. On motion of the defendant the court may, in
its discretion, dismiss any action for failure of the plaintiff to comply
with these rules or any order of court or for lack of prosecution as
provided in paragraph (1) of this subdivision. After the plaintiff, in an
action tried by the court without a jury, has completed the presentation of
his evidence the defendant, [*12] without waiving his right to offer
evidence in the event the motion is not granted, may move for a dismissal on
the ground that upon the facts and the law the plaintiff has shown no right
to relief. The court as trier of the facts may then determine them and
render judgment against the plaintiff or may decline to render any judgment
against the plaintiff or may decline to render any judgment until the close
of all the evidence. If the court renders judgment on the merits against the
plaintiff the court shall make findings as provided in Rule 52(a)."
This Court realizes that: "If, from the evidence as it stands at the close
of the plaintiff's case, the trial justice is convinced that it
preponderates against plaintiff, he is empowered under Rule 41(b)(2) to
grant the motion to dismiss." Emerson Radio, Etc. v. DeMambro, 112 R.I. 300,
305, 308 A.2d 834 (1973). The Court finds the evidence presented at trial
does preponderate against the plaintiff. The plaintiff has failed to show a
duty owed to it by the defendant, and also has failed to show where even if
a duty did exist, that the defendant has breached this duty. The plaintiff
has also failed to show that the defendant [*13] has breached its contract
with the plaintiff. Therefore plaintiff's complaint is dismissed.
Counsel shall prepare and submit an order consistent with this judgment.
APEX, INC. v. RHODE ISLAND ELECTRIC PROTECTIVE COMPANY SUPERIOR COURT OF RHODE ISLAND, PROVIDENCE- 1984 R.I. Super. LEXIS 7--August 15, 1984, Filed
APEX, INC. v. RHODE ISLAND ELECTRIC PROTECTIVE COMPANY