DCR INCORPORATED, dba The Company, Plaintiff and Appellant, v. PEAK ALARM
COMPANY and John Does I-V, Defendants and Respondents

No. 17647

Supreme Court of Utah

663 P.2d 433; 1983 Utah LEXIS 1017; 37 A.L.R.4th 35; CCH Prod. Liab. Rep.

March 29, 1983, Filed

PROCEDURAL POSTURE: Plaintiff storeowner appealed a grant of summary
judgment in favor of defendant alarm company, which limited the alarm
company's liability in the storeowner's action based upon negligence,
product liability, and breach of contract.

OVERVIEW: A storeowner challenged a grant of summary judgment, which limited
the alarm company's liability. A burglary occurred at the store, and the
alarm failed to detect the burglary. The contract between the storeowner and
the alarm company contained a clause, which limited the alarm company's
liability for breach of contract. The issue on appeal was whether the
liquidated damages provision in the parties' contract governed liability in
tort as well as in contract. On appeal, the court reversed the summary
judgment grant to the alarm company. The court held that the liquidated
damages clause in the contract did not affect the storeowner's right to
present proof concerning the factual question of breach of duty and
attendant negligence on the part of the alarm company and to recover
reasonable damages. The court found that alarm company's duty to warn the
storeowner of the vulnerability of its alarm system did not originate from
any promise contained within the service contract itself. Rather, the court
found that duty to warn was derived from the alarm company's general duty of
care that accompanied its ongoing contractual relationship with the

OUTCOME: The court reversed the grant of summary judgment and remanded the
COUNSEL: B. Ray Zoll, Salt Lake City, for Petitioner.

Steven H. Stewart, Salt Lake City, for Respondent.

JUDGES: Hall, Chief Justice, wrote the opinion. We concur: Dallin H. Oaks,
Justice, Richard C. Howe, Justice, Christine M. Durham, Justice concurring.
Stewart, Justice, dissenting.


OPINION: Plaintiff, the owner of a clothing store, appeals a summary
judgment limiting the liability of defendant burglar alarm company to $50 in
an action based on theories of negligence, product liability and breach of
contract. Plaintiff has alleged the following facts.

In September of 1976, the parties executed a contract providing for
installation and maintenance by defendant of a burglar alarm system in
plaintiff's clothing store. The contract contained a clause fixing
liquidated damages at $50 in the event of any breach by defendant and
stating that defendant was "not an insurer." Defendant installed the system
as agreed and plaintiff paid to defendant a $635 installation charge.
Plaintiff also paid to defendant a service charge of $28 each month
throughout the term of the contract.

On December 22, 1979, a burglary occurred at plaintiff's store, resulting in
an inventory loss [**2] of $55,000. Plaintiff's alarm system failed to
detect the burglary. Plaintiff discovered that the alarm system had been
rendered inoperative prior to the burglary through the use of a simple
deactivating technique well-known to criminals. Plaintiff also learned that
defendant had been aware of the common use of this technique by criminals
and that defendant knew of an easy, inexpensive way to protect its alarm
systems against the risk of such deactivation. Plaintiff asked defendant why
it had not warned plaintiff of the vulnerability of its existing system or
suggested the simple correction which would have eliminated this defect from
the system. Defendant replied that the issuance of such warnings to
customers "would be too time-consuming."

Plaintiff sued defendant for negligence in failing to use ordinary care in
maintaining its alarm system and in failing to warn plaintiff of the
inadequacy of the system. Plaintiff also alleged causes of action based on
product liability and contract. Defendant moved for summary judgment,
alleging that even assuming plaintiff's allegations to be true, defendant's
liability for negligence or breach must be limited to the $50 liquidated
damages [**3] fixed by the contract. The trial court granted summary
judgment on this ground. Plaintiff appeals.

On appeal, the parties focus on plaintiff's allegations of negligence.
Plaintiff claims that even if the contractual liquidated damages provision
limited defendant's liability for breach of contract to $50, this limitation
had nothing to do with defendant's liability in tort under the negligence
theories set forth in the complaint. Defendant does not deny negligence,
but, rather, continues to rest its entire argument on the premise that if
plaintiff were to prove such negligence, plaintiff could recover as damages
only the $50 liquidated damages provided by the contract. Thus, the issue
presented by this appeal is whether, assuming negligence on the part of
defendant, the liquidated damages provision in the parties' contract governs
liability in tort as well as in contract.

Defendant contends that the "negligence" alleged by plaintiff consists
solely of defendant's failure to perform obligations expressed in the
service contract rather than of any breach of a duty existing apart from the
contract. Defendant claims that plaintiff therefore has alleged no cause of
action in tort [**4] but only failure of performance of the contract, a
breach for which the liquidated damages provision governs liability. An
examination of plaintiff's complaint, however, shows the fallacy of this
assertion. Plaintiff's first cause of action alleges breach by defendant of
a duty "to warn of known hazards and defect attendant with the use of this
particular system." Such a duty to warn is nowhere expressed in the parties'
contract; rather, this duty, if shown to exist, would derive from
defendant's general duty of due care toward plaintiff as defined by tort

This Court has defined negligence as a failure to exercise the degree of
care which a reasonable person would have exercised under the same
circumstances, whether [*435] by acting or by failing to act. n1 In cases
where the alleged negligence consists of a failure to act, the person
injured by another's inaction must demonstrate the existence of some special
relationship between the parties creating a duty on the part of the latter
to exercise such due care in behalf of the former. n2 Relationships giving
rise to such a duty include those between carriers and passengers, employers
and employees, owners and invitees and [**5] parents and children.
Similarly, contractual relationships for the performance of services impose
on each of the contracting parties a general duty of due care toward the
other, apart from the specific obligations expressed in the contract itself.
n3 The care to be exercised in any particular case depends upon the
circumstances of that case and on the extent of foreseeable danger involved
n4 and must be determined as a question of fact. n5

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n1 Meese v. Brigham Young University, Utah, 639 P.2d 720 (1981).

n2 W. Prosser, Handbook of the Law of Torts §§ 53, 56 (4th ed. 1971); 2 F.
Harper & F. James, The Law of Torts § 18.6 (1956); Gitzhoffen v. Sisters of
Holy Cross Hospital Association, 32 Utah 46, 88 P. 691, 696 (1907).

n3 Prosser, supra; see, e.g., Ajax Hardware Manufacturing Corp. v.
Industrial Plants Corp., 569 F.2d 181 (2d Cir. 1977); Hamil v. Bashline, 481
Pa. 256, 392 A.2d 1280 (1978); Nixdorf v. Hicken, Utah, 612 P.2d 348 (1980).

n4 Kilpack v. Wignall, Utah, 604 P.2d 462 (1979); Black v. Nelson, Utah, 532
P.2d 212 (1975); Erickson v. Bennion, 28 Utah 2d 371, 503 P.2d 139 (1972);
Brigham v. Moon Lake Electric Association, 24 Utah 2d 292, 470 P.2d 393
(1970). [**6]

n5 Little America Refining Co. v. Leyba, Utah, 641 P.2d 112 (1982); Benson
v. Ames, Utah, 604 P.2d 927 (1979); Wheeler v. Jones, 19 Utah 2d 392, 431
P.2d 985 (1967); Evans v. Stuart, 17 Utah 2d 308, 410 P.2d 999 (1966). It
should be noted that

in applying the universally accepted standard of care: that of the ordinary,
reasonable and prudent man under the circumstances, the term "ordinary"
should be given its true meaning by not requiring the conduct of an
extraordinarily careful person. Such an "ordinary" man is not necessarily a
supercautious individual devoid of human frailties and constantly
preoccupied with the idea that danger may be lurking in every direction
about him at any time.

Whitman v. W.T. Grant Co., 16 Utah 2d 81, 395 P.2d 918 (1964).

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A party who breaches his duty of due care toward another may be found liable
to the other in tort, even where the relationship giving rise to such a duty
originates in a contract between the parties. The California Supreme Court
recently explained the difference between a tort action arising from a
contractual [**7] relationship and an action brought on the contract
[A] wrongful act committed in the course of a contractual relationship may
afford both tort and contractual relief, and in such circumstances the
existence of the contractual relationship will not bar the injured party
from pursuing redress in tort.

. . . . "If the cause of action arises from a breach of a promise set forth
in the contract, the action is ex contractu, but if it arises from a breach
of duty growing out of the contract it is ex delicto." [Quoting Peterson v.
Sherman, 68 Cal. App. 2d 706, 157 P.2d 863 (1945).] . . . .

. . . . As Professor Prosser has explained: "[Whereas] contract actions are
created to protect the interest in having promises performed," "tort actions
are created to protect the interest in freedom from various kinds of harm.
The duties of conduct which give rise to them are imposed by law, and are
based primarily upon social policy, and not necessarily upon the will or
intention of the parties . . . ." Prosser, Law of Torts (4th ed. 1971) p.
613. [Emphasis added; some bracketed language in original.] n6

The Indiana Supreme Court has also expressed the [**8] above distinction as
If a defendant may be held liable for the neglect of a duty imposed on him,
independently of any contract, by operation of law, a fortiori ought he to
be liable where he has come under an obligation to [*436] use care as the
result of an undertaking founded on a consideration . . . . In some cases
this ground of liability may coexist with a liability on contract towards
the same person, and arising (as regards the breach) out of the same facts .
. . . And this duty is not affected by the fact, if so it be, that he is
acting for reward, in other words, under a contract, and may be liable on
the contract. The two duties are distinct . . . . n7

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n6 Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 164 Cal. Rptr. 839, 610
P.2d 1330 (1980).

n7 Flint & Walling Manufacturing Co. v. Beckett, 167 Ind. 491, 79 N.E. 503,
505, 506 (1906). See Amphitheater Public Schools v. Eastman, 117 Ariz. 559,
574 P.2d 47 (1977); Atkinson v. Orkin Exterminating Co., 5 Kan. App. 2d 739,
625 P.2d 505 (1981); Quitmeyer v. Theroux, 144 Mont. 302, 395 P.2d 965
(1964); Hall Jones Oil Corp. v. Claro, Okla., 459 P.2d 858 (1969);
DiPangrazio v. Salamonsen, 64 Wash. 2d 720, 393 P.2d 936 (1964), and cases
cited supra, note 3.

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This Court has applied the above negligence rules specifically to cases such
as this which involve contracts for services. In an early case, the Court
held that the defendant hospital, which had undertaken to provide medical
services to the plaintiff, owed him a duty of due care based on the parties'
contractual relationship. The Court explained:
While it may be said that this is an action of tort, and not on contract,
nevertheless, in such action, a plaintiff seeking to recover for injuries
sustained by him through the negligence of another must show that the latter
committed a breach of some duty owing to the plaintiff or imposed for his
benefit. To show what that duty was, it was proper to aver and prove the
relationship between the parties. As tending to show a duty owing from the
defendant to the plaintiff, it was proper to aver and prove that the
defendant had received him under contract for a consideration, and as
tending to show what it was that the defendant had assumed and undertaken to
do . . . . If . . . . it received him for treatment under a contract for
pay, and undertook and assumed to treat him, then it owed a duty . . . . to
use reasonable care [**10] in the giving of the treatment and the doing of
that which it had agreed and assumed to do. n8

A majority of jurisdictions, like Utah, have recognized a duty to exercise
reasonable care on the part of one who undertakes to render services. n9
Restatement (Second) of Torts formulates this principle as follows:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the
other's person or things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable care to perform his
undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the
undertaking. n10

Prosser, in his treatise on torts, states the rule more broadly:

It is no longer in dispute that one who renders services to another is under
a duty to exercise reasonable care in doing so, and that he is liable for
any negligence to anyone who may foreseeably be expected to be injured as a
result. n11

Carl S. Hawkins, Dean and Professor of Law, J. Reuben Clark Law [**11]
School, Brigham Young University, recently had this to say on the subject:

The "duty" concept limits defendants' liability to claims arising out of
particular relationships and risks. In professional negligence cases, a
contract with the [*437] client most often creates the relationship from
which the duty of care arises. However, the defendant's tort liability is
not based upon breach of contract, but rather upon violation of the legal
duty independently imposed as a result of what the defendant undertook to do
with relation to the plaintiff's interests. Thus, when a defendant has
undertaken to give professional services gratuitously, liability may be
imposed for injuries resulting from substandard conduct, even though there
is no contract. n12 [Citations omitted.]

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n8 Gitzhoffen v. Sisters of Holy Cross Hospital Association, supra, note 2
at 696. See Nixdorf v. Hicken, supra, note 3 at 354; Benson v. Ames, supra,
note 5 at 929; Crandall v. Ed Gardner Plumbing & Heating, 17 Utah 2d 138,
140, 405 P.2d 611, 612 (1965).

n9 See cases cited at Restatement (Second) of Torts app. § 323 (1966 & Supp.
1979). [**12]

n10 Restatement (Second) of Torts § 323 (1965). The United States Court of
Appals, Tenth Circuit, recently recognized the Restatement rule in a case
involving the interpretation of Utah law. Marchello v. Denver & Rio Grande
Western Railroad Co., 576 F.2d 262 (1978).

n11 Prosser, supra, note 3, § 104 Services. See cases cited id. at note 77.

n12 Vol. 1981, Number 1, B.Y.U. L. Rev. 33, 36.

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In the present case, defendant's duty to warn plaintiff of the vulnerability
of its alarm system does not originate from any promise contained within the
service contract itself. Rather, the duty as it exists in this case is
derived from defendant's general duty of due care which accompanies its
ongoing contractual relationship with plaintiff for service and maintenance
of the alarm system. Thus, plaintiff's allegation of failure to warn
provides the basis for a cause of action in tort which is entirely separate
from any contract based claims which plaintiff might present.

Defendant contends that even though plaintiff has alleged liability in tort
as well as in contract, the contractual [**13] liquidated damages clause
prevents plaintiff from recovering under any theory.

The contractual liquidated damage clause reads:

It is agreed between the parties hereto that [defendant] is not an insurer;
that the payments hereinbefore named are based solely on the value of the
services provided for herein; that, from the nature of the services to be
rendered, it is impracticable and extremely difficult to fix the actual
damages, if any, which may proximately result from a failure on the part of
[defendant] to perform any of its obligations hereunder; that, in case of
the failure of [defendant] to perform any of its obligations hereunder, and
the resulting loss to [plaintiff], [defendant's] liability hereunder shall
be limited to a fixed sum of $50.00, as liquidated damages, and not as a
penalty, and this liability shall be exclusive. [Emphasis added.]

The above provision contains no expression of an intent of the parties to
limit defendant's prospective liability in tort. Rather, its language
applies to "obligations hereunder" and "liability hereunder." Although the
clause concludes with the phrase "and this liability shall be exclusive,"
such [**14] language, viewed in context, does not clearly show an intent to
limit noncontractual liability.

Even if this Court were to construe the contractual liquidated damages
clause as an attempt to limit liability in tort as well as in contract, the
enforceability of the clause would be questionable because of its lack of
clarity. This Court has indicated that it does not favor contract clauses
purporting to limit or negate such liability. In Union Pacific Railroad Co.
v. El Paso Natural Gas Co., 17 Utah 2d 255, 408 P.2d 910 (1965), this Court
refused to enforce a very detailed and thorough exculpatory clause "against
any and all liability, loss, damage [and] claims . . . . of whatsoever
nature" to protect the plaintiff from a personal injury claim based on
negligence. The Court there reiterated the rule that covenants purporting to
relieve a party of his duty of due care are disfavored and sometimes
declared invalid as against public policy. The Court then stated:
The majority rule appears to be that in most situations, where such is the
desire of the parties, and it is clearly understood and expressed, such a
covenant will be upheld. But the presumption is against [**15] any such
intention, and it is not achieved by inference or implication from general
language such as was employed here. It will be regarded as a binding
contractual obligation only when that intention is clearly and unequivocally

If it had been the intent of the parties that the defendant should indemnify
the plaintiff even against the latter's negligent acts, it would have been
easy [*438] enough to use that very language and to thus make that intent
clear and unmistakable . . . . [Emphasis added; footnotes omitted.] n13

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n13 See also Walker Bank & Trust Co. v. First Security Corp., 9 Utah 2d 215,
341 P.2d 944 (1959).

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In the present case, the language employed by the parties does not "clearly
and unequivocally" express an intent to limit defendant's tort liability.
Absent such a clear expression of intent, we decline to construe the
contractual liquidated damages clause in such a way as to limit liability
arising outside of the contract. We hold that the present liquidated [**16]
damages clause does not affect plaintiff's right to present proof concerning
the factual question of breach of duty and attendant negligence on the part
of defendant and to recover reasonable damages therefor as may be shown.

Having reached the above holding, we need not make the further determination
of whether the liquidated damages clause in question constitutes an
enforceable limitation on defendant's contract liability.

Reversed and remanded for further proceedings consistent with this opinion.
Costs to plaintiff.

WE CONCUR: Dallin H. Oaks, Justice, Richard C. Howe, Justice, Christine M.
Durham, Justice.


DISSENT: STEWART, Justice: (Dissenting).

I agree with the majority opinion that the limitation of liability clause in
the contract pertains only to actions brought under the contract and does
not affect tort liability. The law does not look with favor upon a covenant
which purports to relieve one of the fundamental duties of due care for the
safety of others. As to tort actions, such a covenant may be void as against
public policy, at least in some cases, but if not, such a clause is strictly
construed in actions ex delicto and is binding only if the parties' [**17]
intention to relieve one of the parties from the duty of due care imposed by
law is unambiguous and "unequivocally expressed." Union Pacific Railroad Co.
v. El Paso Natural Gas Co., 17 Utah 2d 255, 259, 408 P.2d 910, 914 (1965). I
concur with the majority that the limitation of liability clause in the
contract does not apply to a tort action, and that the contract remedy is
not an exclusive remedy where there is an actionable breach of duty in tort
beyond the duties and obligations established by the contract.

Nevertheless, I respectfully dissent because in my view the defendant
cannot, as a matter of law, on the facts alleged in this case, be held
liable for any damages based on tortious conduct or strict liability. In
short, I submit that the allegations based on the theories of negligence and
strict liability fail to state claims upon which relief may be granted.

DCR alleges that Peak Alarm knew that the type of system installed could be
disabled, that subsequent to the sale to plaintiff it was bypassed by
burglars using a fairly simple technique at other installations, and that
the vulnerable feature of the system was correctable at a small cost. DCR's
legal contention [**18] is that Peak Alarm had a duty to warn DCR that the
system could be bypassed and that Peak's failure to warn constituted
negligence. There is no allegation that the system installed had any defect
either in its design or construction.

Although a supplier of a dangerous instrumentality has a duty to warn of
known dangers inherent in the product or in its contemplated use, Comstock
v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959), it is
generally true that a supplier of goods sold on the open market generally
has no duty to warn as to non-dangerous products. E.g., Robinson v.
Williamsen Idaho Equipment Co., 94 Idaho 819, 498 P.2d 1292 (1972); Crandall
v. Stop & Shop, Inc., 288 Ill. App. 543, 6 N.E.2d 685 (1937); Bradshaw v.
Blystone Equipment Co., 79 Nev. 441, 386 P.2d 396 (1963); Annot., 76
A.L.R.2d 9, § 9 (1961).

The burglar alarm system in this case is an ordinary article of commerce
designed to provide limited protection against burglaries. [*439] It is
commonly known that no burglar alarm system is foolproof. Every burglary
prevention or alarm system can be circumvented in one way or another. Given
the nature of burglary prevention systems [**19] and the ingeniousness of
those committed to circumventing such systems, it cannot be reasonably
concluded, in my view, that just because a system may be circumvented or
disabled the vendor should give notice of that fact to all its customers. In
the ongoing war against burglaries, the possibility of disablement and
circumvention are obvious risks limited primarily by the experience and
sophistication of a burglar. In my view, Peak has no legal duty subsequent
to the sale to warn of a particular manner by which the system could be

The scope of the defendant's duty to protect the plaintiff in this case
should be determined by this Court as a matter of law. See generally, Thode,
"Tort Analysis: Duty-Risk v. Proximate Cause and the Rational Allocation of
Functions Between Judge and Jury," 1977 Utah L. Rev. 1; Hawkins, "Premises
Liability After Repudiation of the Status Categories: Allocation of Judge
and Jury Functions," 1981 Utah L. Rev. 15, 35-40.

The majority has determined that defendant has a legal duty, albeit of an
undefined scope, to protect its customers from those who may by-pass the
alarm system. I disagree with that conclusion. I am persuaded that the
better [**20] position, and the one I think supported by the authorities,
is that defendant has no such duty. Furthermore, I think the case cannot
stand on a theory of strict liability. Whether based on negligence or strict
liability, liability cannot be sustained in this case because, in the
absence of fraud or misrepresentation by the seller, a proper allocation of
duties and risks in this case requires the purchaser of a system to bear the
risk of loss caused by a burglary.

This conclusion is supported by the reasoning of the court in Lobianco v.
Property Protection Inc., 292 Pa. Super. 346, 437 A.2d 417 (1981), which I
think is fully applicable here. Although the court addressed the issue of
the duty of a company offering burglary prevention systems in the context of
strict liability, the reasoning applies with equal force to both a
negligence and a strict liability action:
Homeowners are not "otherwise defenseless victims" of burglar alarm
manufacturers in the same sense that a buyer of an automobile, for example,
may be the victim of the automobile manufacturer. If the property is
valuable, the homeowner may insure it. To apply Section 402A to the present
case would in practical [**21] effect excuse the homeowner from having to
insure the property and would shift the risk of its loss to the burglar
alarm manufacturer. This would represent a less, not more, equitable
allocation of the risk. The homeowner, not the manufacturer, knows what
property is in the home, and its value; the manufacturer does not. Even if
the manufacturer were to find out what property was in the home before
installing the burglar alarm system, the homeowner could, and probably
would, add other property, without notice to the manufacturer. As between
the homeowner and the manufacturer, the manufacturer is more "defenseless"
than the homeowner. If the homeowner buys a silver service or a stereo
system, at least he can get insurance against its loss; but the manufacturer
cannot, for it will not know that the service or stereo has been put in the
home. Thus it may not be said that "'the risk of injury can be insured by
the manufacturer and distributed among the public as a cost of doing
business.'" [Citation omitted.] Nor may it be said that the manufacturer
ought to protect itself by increasing its charge, in that way distributing
the risk. That would mean that a homeowner with personal [**22] property of
only modest value would be required to pay for his burglar alarm system a
price high enough to protect the manufacturer against the loss it might
incur if a homeowner with personal property of great value were burglarized.
Those of modest means would be subsidizing the rich.

[*440] Id. at 424-25. This reasoning applies as forcibly to business
establishments as to homeowners. See also Annot., 53 A.L.R.3d 239 (1973).

I also agree with the law stated in Borrell-Bigby Electric Co. v. United
Nations, Inc., Fla. App., 385 So. 2d 713 (1980), where the court reversed a
lower court decision that a company which had designed and installed an
alarm system was liable for losses sustained when the alarm did not work.
The court held that a vendor's obligation "does not extend beyond the
obligation to supply an article reasonably fit for the purpose intended, and
does not impose a duty to furnish the best article of its kind or an article
equal to any other similar or competing article." Id. at 715 (quoting Wisner
v. Goodyear Tire & Rubber Co., Fla. App., 167 So. 2d 254, 255 (1964)).

The majority argues that Peak had a duty to warn because the contract [**23]
is a personal service contract. With that proposition, I cannot agree. The
majority's characterization of the Peak Alarm contract as a personal service
contract does not stand analysis. The contract was for the sale and
maintenance of a system. This is not a case where a duty to protect a person
from harm arises because of a special relationship between the parties. W.
Prosser, Law of Torts, § 56 at 338-43 (4th ed. 1971). The contract in
question is not in any way analogous to contracts between "carriers and
passengers, employers and employees, owners and invitees and parents and
children" (majority opinion p. 435). The principles of law that govern those
relationships clearly do not control the instant case where there is only a
contract for the installation and maintenance of a burglar alarm system and
that is all. The majority's rationale places an equipment maintenance
contract on the same basis as a contract for legal and medical services;
indeed, it goes far beyond that since the harm was not caused by a failure
to perform the maintenance services properly, but rather was caused by a
third person in a context totally unrelated to the "personal service" of
maintaining [**24] the equipment purchased by the plaintiff. In short, in
broadly holding that "contractual relationships for the performance of
services impose on each of the contracting parties a general duty of due
care toward the other, apart from the specific obligation expressed in the
contract itself" (id.), the majority has vastly expanded the dimensions of
tort duty. I think that such an expansion is unwise and without a sound
basis in policy.

It may be too much to contend that the consequence of the majority opinion
is to make burglar alarm companies guarantors against burglaries; however,
it is not possible to determine from the majority opinion just what duty the
law imposes on burglar alarm companies because that issue is left to the
jury. Because that duty will be determined as a factual matter on the basis
of whether it is foreseeable that burglars will be able to bypass a system,
liability may be virtually foreordained. The consequence may be that the
goods of burglar alarm companies will simply by priced out of the market.

I think the pleadings fail, as a matter of law, to establish a claim upon
which relief may be granted.