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GA moving to state law re false alarms / IL enforces exculpatory clause
March 20, 2021
GA moving to state law re false alarms
          GA moving to state law re false alarms
          Georgia moves closer to overriding city ordinances that fine alarm companies for false alarms
          Over the past few years, we have seen several Atlanta metro cities pass ordinances imposing fines on alarm companies for excessive false alarms.  Statistics touted by the city councils show a signifiant drop in false alarms each year these ordinances have been in effect.  Nobody is going to argue that police wasting less time responding to false alarms is a bad thing.  But pinning all of the blame on the alarm companies is not the way it should be dealt with.  
          However, good news is on the way for the alarm companies operating in these cities who have had no choice but to pay these fines as a cost of doing business in the area.  Last week a proposed Georgia state law that would stop cities from fining alarm companies for false alarms passed the House.  Now the bill must pass the state Senate in order to become a law.  As of now, it is believed the bill has a very good chance of passing the state Senate and once it does, it will override the city ordinances and the cities can then come up with a more reasonable way to combat the issue of false alarms.
Jesse Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum
          The All in One agreements make it very clear that the subscriber is required to reimburse and indemnify the alarm company for false alarm fines.  Alarm companies should enforce that provision.  Only in the most egregious circumstances, where alarm companies have blatantly permitted an alarm system to remain malfunctioning, should an alarm company be liable for a false alarm.  Maybe we should pass a law making CVS and other drugstores liable if they give a flu shot and someone gets the flu.  You get the idea.
          Also rarely mentioned, though undoubtedly undeniable, police, fire and other emergency situations would be impossible to service without alarm systems. 
IL enforces exculpatory clause 
          “Plaintiff is a self-employed truck driver working for his company Munoz Sons Trucking, LLC. Plaintiff is the sole owner of the company. Plaintiff Munoz Sons Trucking LLC entered into an independent contractor agreement with Starline Trucking. After entering into this agreement, Plaintiff began driving to Defendant’s facility to deliver scrap steel. Plaintiff went to Defendant’s facility five times a week.  Defendant prohibits drivers from jumping off of the back of their truck. Drivers use a rolling staircase provided by Defendant to exit the back of their trucks.
          Plaintiff used Defendant’s rolling staircase to exit the back of his truck. While he was on the highest platform of this staircase, its axel/wheel shaft broke, causing Plaintiff to fall.
          Pursuant to the agreement with Starline Trucking, Plaintiff hauled scrap steel from Waukesha Iron Company to Defendant. Waukesha Iron is a customer of Starline Trucking. Defendant paid Waukesha Iron for the scrap steel; Waukesha Iron paid Starline trucking a fee to transport the steel; and Starline Trucking then passed a portion of that fee to Plaintiff. In 2018, Plaintiff’s income from deliveries to Defendant accounted for $33,338.72 or 18% of his total income. His income from deliveries to Defendant during six months in 2018 accounted for more than 25% of his income, and in April 2018, it accounted for roughly 40% of his income. On January 8, 2018, Plaintiff signed a Gate Entry Agreement (“Agreement”) required by Defendant. He had signed similar agreements in 2016 and 2017. The Agreement states that entry into Defendant’s facility is “conditioned upon, and permitted in consideration for Visitor reading, signing, and agreeing to the terms and conditions of this agreement.” The Agreement contains the following exculpatory clause:
          Visitor assumes all risks of property damage and/or personal injury, including death, which Visitor may cause or incur as a result of being at the Facility, including but not limited to any damage, injury and/or death arising from Nucor’s or its respective employees’ negligence. To the fullest extent allowed by law, Visitor hereby releases and agrees to indemnify and hold harmless Nucor and Nucor’s respective employees from any and all liability from any such damages, injuries and/or death and agrees and covenants on behalf of Visitor, and Visitor’s heirs and/or assigns, not to sue or make any claim against Nucor or any of Nucor’s respective employees for any such damages, injuries or death.
          On March 12, 2018, Plaintiff delivered scrap steel from Waukesha Iron Company to Defendant pursuant to his independent contractor agreement with Starline Trucking. As part of this delivery, Plaintiff had to climb up onto the bed of his trailer and sweep scrap steel into an area designated by Defendant. Plaintiff used Defendant’s rolling staircase to exit the back of his truck. While he was on the highest platform of this staircase, its axel/wheel shaft broke, causing Plaintiff to fall.” Citations omitted
          The Plaintiff advanced several theories why the contract with the exculpatory clause, referred to as a release by the court, should not be enforced.  Plaintiff claimed the contract expired [it had no expiration date], was not supported by consideration, exculpatory clause violated public policy, [court held: “Exculpatory agreements that are contrary to public policy include those (1) between an employer and employee; (2) between the public and those charged with a duty of public service * * *; and (3) between parties where there is such a disparity of bargaining power that the agreement does not represent a free choice on the part of the plaintiff, such as a monopoly or involving a plaintiff without a reasonable alternative” and the agreement did not cover this type of accident; “the scope of the Agreement’s exculpatory clause does not cover his negligence claim” [court held: In Illinois, “exculpatory clauses are not favored and must be strictly construed against the benefitting party, particularly one who drafted the release “An exculpatory agreement must contain clear, explicit, and unequivocal language referencing the type of activity, circumstance, or situation that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care.  That said, the parties need “not have contemplated the precise occurrence which resulted in plaintiff's accident.” Instead, “the injury must only fall within the scope of possible dangers ordinarily accompanying the activity and, therefore, reasonably contemplated by the parties.”  “In this way the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution.”  “The standard to be applied is a subjective one geared to a particular plaintiff and her situation * * *.”  (considering fact that the plaintiff was an experienced horseback rider when determining whether exculpatory clause covered his claim). Although the scope of an exculpatory clause is often a question of fact, courts can also find that a plaintiff’s claim is covered by an exculpatory clause as a matter of law (determining that the plaintiff’s claim was “within the scope of the release * * *as a matter of law”) …”
          Why are we intrigued by cases involving the exculpatory clause when applied outside the alarm industry?  Because the foundation of the protective provisions in a proper alarm contract rely on the basic principle that alarm companies [and they are not alone] are permitted to “contract away liability for their negligence”.  Every state court enforces that contractual right and it is essential to alarm companies because without it alarm companies would be treated as insurers of their subscriber’s person and property.  The existing technology and subscriber budgetary constraints justify no or limited exposure for alarm companies.
          Alarm companies that do not use proper updated contracts are making serious mistakes on several levels.  It’s not only the immediate risk that is increased but the value of the contract is greatly diminished. Update your contracts today at and stop taking stupid risks.  

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301