285 Or. 501, 592 P.2d 202
Supreme Court of Oregon, Department 1.
William R. LORENZANA, d/b/a Old Mantel Antiques, Appellant,
v.
James D. LISTON, d/b/a American Security Alarms, Respondent.
No. 422-379; SC 25490.
Argued and Submitted Feb. 8, 1979.
Decided March 20, 1979.
Action was brought against installer of burglar alarm to recover for
burglary of plaintiff's antique shop. The Circuit Court, Multnomah County,
Pat Dooley, J., rendered judgment of involuntary nonsuit, and plaintiff
appealed. The Supreme Court, Holman, J., held that defendant, who had
installed a system which would detect anyone entering through a door or
window, was not liable for loss sustained when burglars gained entrance
through unprotected former entrance, door to which had been nailed shut and
interior of which had been "walled over," where owner knew that former
entrance was unprotected and whether internal construction which closed off
the old doorway was adequate protection from authorized entry was not a
matter within defendant's particular expertise.
Affirmed.
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Burglar alarm installer, who installed system to protect doors and windows,
was not liable for loss sustained when burglars entered through unprotected,
unused entrance, door to which had been nailed shut and interior "walled
over," where owner was aware that the former entrance was unprotected,
whether internal construction which closed off old door was adequate
protection from unauthorized entry was not a matter within installer's
expertise and owner made no objection to failure to install alarm system in
such area.
Larry N. Sokol of Jolles, Sokol & Bernstein, Portland, argued the cause for
appellant. With him on the brief was William B. Aitchison, Portland.
Jon A. Schiewe, Portland, argued the cause and filed a brief for respondent.
Before DENECKE, C. J., and HOLMAN, HOWELL and LENT, JJ.
HOLMAN, Justice.
Defendant was in the business of installing burglar alarms and installed one
for plaintiff. Plaintiff's premises were almost immediately burglarized by
persons who avoided the alarm system. Plaintiff brought an action in
negligence to recover his loss in the burglary and appealed from a judgment
of involuntary non-suit.
The facts are stated in a manner most favorable to plaintiff as is proper
when the trial court has granted an involuntary non-suit and refused to
submit the case for jury determination. Defendant responded to a telephone
call from plaintiff, who was interested in an alarm system to protect his
antique shop. Defendant installed a system which would detect anyone
entering through a door or window. At one time there had been another
entrance at the back of the building which was no longer in use. The burglar
or burglars entered the premises by breaking through this former entrance
that was unprotected by the system which defendant installed. The door to
this entrance had been nailed shut and changes made, which are demonstrated
by plaintiff's testimony, as follows:
"Q Tell me how that was walled over inside that area where the break-in
occurred. What was done there with the walling over?
"A The inside, I believe it was studs placed in the doorway and then
plasterboard over, up against the studs, and then paneling, some type of
artificial wood paneling over the plasterboard.
" * * * * *., I
"Q Did you have any plans to ever re-use that as a doorway?
"A No.
"Q As far as you were concerned, was it a wall then?
"A Yes, it was."
Plaintiff alleged negligence in the following particulars.
"1. In failing to install the burglar alarm system so as to protect the rear
portion of plaintiff's place of business.
"2. In failing to warn the plaintiff that the rear of his store was not
protected by the burglar alarm system."
Plaintiff claims the following testimony justifies submission of the case to
the jury:
"(1) It was the defendant who knew and decided which doors and which windows
would be protected.
"(2) Defendant never suggested that the rear door area should be wired for
intruder detection, in fact, defendant and plaintiff never discussed it.
"(3) The plaintiff never was warned of the possible consequences of failing
to protect this area.
"(4) Had Mr. Lorenzana (plaintiff) been adequately advised by Mr. Liston
(defendant), the 'expert,' he would have spent the additional money to have
the necessary devices installed on the rear door."
It is demonstrated by the following testimony of plaintiff that he was aware
that the closed former entrance was unprotected:
"Q Over here on the back is the list of points that were covered. Did you
discuss those points with Mr. Liston that day he came out?
"A The day he came out and the day we signed this?
"Q Yes, the day you signed it.
"A Yes, uh-huh.
"Q Did he point those out to you on the back of it?
"A Yes, this is a list of the work that he had done. I didn't read it to see
in fact each item was installed, but yes, he pointed that out."
It is our conclusion that there was insufficient evidence of defendant's
negligence to submit to the jury. Whether the internal construction which
closed off the old doorway was adequate protection from unauthorized entry
was not a matter within the particular expertise of defendant as an
installer of alarms. Plaintiff, as the owner of the premises, was in a
position equal to or better than defendant to determine whether the hidden
construction within the walls was an adequate safeguard from intruders, and
since he knew it was unprotected by the alarm system and made no objection,
he apparently was satisfied not to have it protected. If he was satisfied,
it is difficult to see how defendant could be negligent for assuming that
the construction adequately protected the premises from unauthorized
entrance at that location.
The judgment for plaintiff is affirmed.
Or., 1979.
Lorenzana v. Liston
285 Or. 501, 592 P.2d 202