Central Alarm of Tucson v. Ganem

• Decision Date: 03 May 1977
• Docket Number: CA-CIV,No. 2,2
• Citation: 567 P.2d 1203,116 Ariz. 74
• Parties: CENTRAL ALARM OF TUCSON, an Arizona Corporation, Appellant, v. Nimer GANEM, Appellee. 2352.
• Court: Arizona Court of Appeals

Page 1203

567 P.2d 1203

116 Ariz. 74

CENTRAL ALARM OF TUCSON, an Arizona Corporation, Appellant, v. Nimer GANEM, Appellee.

No. 2 CA-CIV 2352.

Court of Appeals of Arizona, Division 2.

May 3, 1977.

Rehearing Denied June 30, 1977.

Review Denied July 19, 1977.

Lesher, Kimble, Rucker & Lindamood, P. C., by Michael J. Gothreau, Tucson, for appellant

Elmer W. Courtland, Tucson, for appellee.

OPINION

RICHMOND, Judge.

On April 6, 1971, appellee entered into a written agreement with appellant, Central Alarm of Tucson, providing for the installation and maintenance of a burglar alarm system at appellee's place of business. The system was in part ultrasonic in that it was designed to be activated by air waves caused by movement in the protected area. When such movement was sensed, a signal would be transmitted to appellant's headquarters, and it was agreed that Central Alarm then would notify the police and dispatch its own agents to the alarm site. Appellant's manager testified that the success rate of all its systems was approximately 99 per cent, reflecting those instances where the burglary either was interrupted without loss or the burglar was apprehended without loss to the subscriber.

Pursuant to the agreement, appellant installed certain protective devices and a locked control box in appellee's pawn shop. The control box contained a dial which regulated the intensity of the ultrasonic portion of the alarm system. The dial could be set from 0 to 10, depending upon the sensitivity desired. At a setting of 0, however, no alarm would be received at appellant's headquarters.

On the night of January 12, 1974, there was a burglary of appellee's establishment, resulting in a loss by theft of $17,044.02. Entry apparently was made through a hole cut in the roof at the rear of the store. Although the alarm system was in working order, the sensitivity of the system had been lowered by parties unknown to a 0 setting and the intruders were not detected. A spokesman for appellant testified that for the convenience of appellant's maintenance men, the master key to the control box was kept on the top of the box, which was located more than seven feet from the floor. He conceded that this was not a safe practice.

Appellee's complaint alleged breach of contract and negligence. The matter was tried to the court and judgment was entered against appellant in the amount of $17,044.02. The trial court found that appellant had negligently breached its agreement, and that said negligence proximately caused the loss sustained by appellee. It further ruled that a contractual provision limiting appellant's liability was a penalty and therefore invalid.

Two questions have been presented for our determination:

(1) Assuming arguendo that appellant was negligent, was such negligence the proximate cause of appellee's loss?

(2) Should appellee's damages have been determined in accordance with the terms of the agreement between the parties?

Arizona courts have repeatedly defined proximate cause as " that which, in a natural and continuous sequence, unbroken by an efficient intervening cause, produces an injury, and without which the injury would not have occurred. (Citations omitted)" Brand v. J. H. Rose Trucking Company, 102 Ariz. 201, 205, 427 P.2d 519, 523 (1967). Foreseeability plays a role in determining the presence or absence of proximate cause, Wilson v. City of Tucson, 8 Ariz.App. 398, 446 P.2d 504 (1968), where it is contended that the "natural and continuous sequence" has been broken by an efficient intervening, hence superseding cause. As Division I of this court stated in City of Phoenix v. Schroeder, 1 Ariz.App. 510, 516-17, 405 P.2d 301, 307 (1965):

"An intervening cause (force or act) is an independent cause which steps between the original wrongful act or omission of the defendant and the injury to the plaintiff, alters the natural and normal sequence of events and produces a result which would have not otherwise occurred. Not all intervening causes are superseding causes. A superseding cause is an intervening cause which by its nature becomes the proximate cause of the injury and relieves the defendant of any liability for said injury.

"For an intervening cause to be a superseding cause it must be a cause which could not have been reasonably foreseen or anticipated by the defendant. Stated differently, in order for an intervening cause to supersede the original negligence, the intervening cause must be so extraordinary that the defendant could not have reasonably anticipated that the cause would intervene. (Citations omitted)"

The broad rule of law that a third person's criminal act can never be the natural sequence in the link of circumstances leading up to an injury, but must be considered as the efficient proximate cause, enunciated in Crandall v. Consolidated Tel., etc., Co., 14 Ariz. 322, 127 P. 994 (1912), was rendered impotent by Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201 (1949). Under the Nichols rationale the crucial question in each instance is the foreseeability of illegal conduct or the concurrence of the original negligent conduct with the illegal intervening acts of the third person. Thus, it is obvious that independent criminal acts of a third person, under certain circumstances, need not be superseding causes. See Massengill v. Yuma County, 9 Ariz.App. 281, 451 P.2d 639 (1969), vacated on other grounds, 104 Ariz. 518, 456 P.2d 376 (1969). It is hard to imagine circumstances more appropriate than those before us, where the only reason for installation and maintenance of the alarm system was the foreseeability of a possible burglary attempt.

The trial court found as a fact that appellant was negligent in the maintenance of the ultrasonic alarm system by leaving the key where an unauthorized person could obtain access to the controls of the system and deactivate it. As a proximate result of this negligence, burglary being foreseeable, appellee sustained loss. We agree. The intervening act was certainly within the ambit of risk created by appellant. See Barclay Kitchen, Inc. v. California Bank, 208 Cal.App.2d 347, 25 Cal.Rptr. 383, 388. Further, it appears that "but for" appellant's negligence the loss would not have occurred approximately 99 times out of 100, based on the success rate of a properly maintained system. ¹ Our conclusions on the issue of proximate cause are reinforced by an analysis of decisions from other jurisdictions. See Better Food Markets v. American Dist. Tel. Co., 40 Cal.2d 179, 253 P.2d 10 (1953); McCane-Sondock Protect. Systems v. Emmittee, 540 S.W.2d 764 (Tex.Civ.App.1976); McCane Sondock Det. Agcy. v. Penland Dist., Inc., 523 S.W.2d 62 (Tex.Civ.App.1975).

Appellant's second contention is that appellee's damages should have been assessed in accordance with the terms of the agreement between the parties, which provided, inter alia:

"It is agreed that the Company is not an insurer and that the payments hereinbefore named are based solely upon the value of the services herein described and it is not the intention of the parties that the Company assume responsibility for any loss occasioned by malfeasance or misfeasance in the performance of the services under this contract or for any loss or damage sustained through burglary, theft, robbery, fire, water or other cause or any liability on the part of the Company by virtue of this agreement or because of the relation hereby established. If there shall, notwithstanding the above provisions, at any time be or arise any liability on the part of the Company by virtue of this agreement or because of the relation hereby established, whether due to the negligence of the Company or otherwise, such liability is and shall be limited to a sum equal in amount to the rental...