KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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gross negligence, willful misconduct, reckless conduct
December 3, 2022
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gross negligence, willful misconduct, reckless conduct
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A case in Pennsylvania caught my attention because it discussed gross negligence, willful misconduct and reckless conduct. The case involved a zip line, not an alarm. I wasn’t particularly interested in the decision but thought the overview of the theories of liability discussed would be instrumental to the alarm industry.
Perhaps the single most important feature of the Standard Form Agreements is to protect the alarm company from liability for losses arising from situations which the alarm or security is designed to detect, i.e. fire, burglary, cameras, access control, etc. While other issues are addressed in the contracts they would ultimately pale in comparison to a massive lawsuit against the alarm company for a significant and catastrophic loss suffered by the subscriber.
The Standard Form Agreements have what I refer to as “protective” provisions designed to insulate the alarm company for liability even for its breach of contract or negligence performance on failure to perform. This is no small feat when common sense and common law would hold that someone is responsible for damage caused by their breach of a contract or negligence causing another’s loss. So the provisions need to be carefully worded with precision.
But no matter the wording, some egregious conduct will not be excused, even by a Standard Form Agreement. The magic words, known to most of you [and lawyers who sue alarm companies] are gross negligence, willful misconduct and reckless conduct, and if proved the alarm contract won’t be effective to exempt or reduce your exposure and liability and damages.
But what do these words mean, at least to lawyers and judges? This case answers that, at least for these judges. The following are excerpts from the case:
“Gross negligence and recklessness have been described as follows:
Gross negligence. As it originally appeared, this was very great negligence, or the want of even slight or scant care. It has been described as a failure to exercise even that care which a careless person would use . . . [M]ost courts consider that "gross negligence" falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree and not in kind . . .
Willful, Wanton, and Reckless. A different approach, at least in theory, looks to the actor's real or supposed state of mind. Lying between the intent to do harm, . . . and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called "quasi-intent." To this area, the words "willful," "wanton," or "reckless" are customarily applied; and sometimes in a single sentence, all three . . . They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care . . . They apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended. Thus, it is held to justify an award of punitive damages, . . . and it will avoid the defense of ordinary negligence on the part of the plaintiff.
The usual meaning assigned to [these words] is that the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Since, however, it is almost never admitted and can be proven only by the conduct and circumstances, an objective standard must of necessity in practice be applied. The "willful" requirement breaks down . . . where is it clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a reasonable person in his position.
. . . [T]here is often no clear distinction at all between [this] conduct and "gross negligence" and the two have tended to merge and take on the same meaning, an aggravated form of negligence, differing in quality rather that in degree from ordinary lack of care. It is at least clear that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence or simple inattention. . . .
In other words, gross negligence and recklessness are states of mind; they are forms of negligence, not independent causes of action. Thus, our procedural rules allow the plaintiff to plead gross negligence and recklessness generally.
Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.
Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man.... The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind. Id., cmt. g; see also AMJUR Negligence § 274 ("Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, an indifference whether or not wrong is done, and an indifference to the rights of others"). Our criminal laws similarly distinguish recklessness and negligence on the basis of the consciousness of the action or inaction. See 18 Pa.C.S.A. § 302(b)(3), (4) (providing that a person acts recklessly when he "consciously disregards a substantial and unjustifiable risk," while a person acts negligently when he "should be aware of a substantial and unjustifiable risk").” Monroe v. CBH20, LP 2022 Pa. Super. 197 (Pa. Super. Ct. 2022)
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To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com
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To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com
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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
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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