Collins & Sons Fine Jewelry, Inc. v. Carolina Safety Systems, Inc.

• Decision Date: 20 June 1988
• Docket Number: No. 1208,1208
• Citation: 296 S.C. 219,371 S.E.2d 539
• Court: South Carolina Court of Appeals
• Parties: COLLINS & SONS FINE JEWELRY, INC., Respondent, v. CAROLINA SAFETY SYSTEMS, INC., and Southeastern Security Systems, Inc., of whom Southeastern Security Systems, Inc., Appellant. Appeal of SOUTHEASTERN SECURITY SYSTEMS, INC. . Heard

Page 539

371 S.E.2d 539

296 S.C. 219

COLLINS & SONS FINE JEWELRY, INC., Respondent, v. CAROLINA SAFETY SYSTEMS, INC., and Southeastern Security Systems, Inc., of whom Southeastern Security Systems, Inc., Appellant Appeal of SOUTHEASTERN SECURITY SYSTEMS, INC.

No. 1208.

Court of Appeals of South Carolina.

Heard June 20, 1988.

Decided Aug. 8, 1988.

Robert E. Salane, of Barnes, Alford, Stork & Johnson, Columbia, for appellant.

Richard J. Breibart and John J. McCauley, Lexington, for respondent.

GOOLSBY, Judge:

This action brought by Collins & Sons Fine Jewelry, Inc., against Carolina Safety Systems, Inc., and Southeastern Security Systems, Inc., arises out of the failure of a burglar alarm system to function during a break-in at a jewelry store. The issues on appeal relate to the trial court's failure to grant Southeastern's motions for directed verdict and judgment notwithstanding the verdict on the issues of negligence, proximate cause, contributory negligence, and assumption of risk, to the trial court's refusal to declare a mistrial, to the trial court's admission and exclusion of certain evidence, to the trial court's giving of an instruction concerning contributory negligence, and to the trial court's refusal to charge certain requests to charge.

Collins & Sons operated a retail jewelry store in a shopping center at the intersection of St. Andrews Road and Short Bush River Road in Irmo. On October 12, 1985, during the early morning hours, thieves broke into the store and stole jewelry and other merchandise. Although the store was equipped with a burglar alarm system installed by Carolina Safety in 1977 and modified by Southeastern in 1982, it failed to operate when the break-in occurred.

Several months after the break-in and theft, Collins & Sons commenced the instant action by the service of a summons and complaint on Carolina Safety and Southeastern. Collins & Sons alleged, among other things, that its damages were proximately caused by the negligence of Carolina Safety and Southeastern in installing and modifying the alarm system.

In its answer, Southeastern denied the material allegations of the complaint and set forth other defenses. These defenses included intervening acts of others, contributory negligence and recklessness, and assumption of risk.

The trial began on November 10, 1986, with the parties stipulating that Collins & Sons' damages were $185,000.

When Collins & Sons announced during the trial it had agreed to accept $40,000 in settlement from Carolina Safety, the trial court dismissed Carolina Safety from the suit. The settlement announcement prompted Southeastern to move for a mistrial; however, the trial court denied the motion and the trial proceeded with Southeastern as the sole defendant.

Before submission of the case to the jury, the trial court reduced to three the specifications of negligence alleged by Collins & Sons to have proximately caused its break-in losses. These specifications were: (1) Southeastern's alleged disconnection of a previously installed "line-cut" detector; (2) Southeastern's alleged leaving in the control box of a live bare wire that caused a short circuit in the alarm system; and (3) Southeastern's alleged failure to deliver a replacement transformer prior to the break-in.

The jury returned a verdict against Southeastern. The trial court thereafter entered judgment against Southeastern for $145,000 and denied Southeastern's post-trial motions for judgment notwithstanding the verdict and for new trial.

Southeastern appeals. We affirm.

I.

Southeastern first contends the trial court erred in failing to grant its motions for directed verdict and judgment notwithstanding the verdict.

In addressing the issues embraced by this contention, we view the evidence and all its reasonable inferences, as we must, since this is a law case, in the light most favorable to Collins & Sons, the party resisting the motions, and most strongly against Southeastern, the party making them. Ellison v. Pope, 290 S.C. 100, 348 S.E.2d 367 (Ct.App.1986). Because we are not a jury, we do not weigh the evidence and we do not decide matters of credibility. South Carolina National Bank v. Silks, 295 S.C. 107, 367 S.E.2d 421 (Ct.App.1988). We also eliminate from our consideration all evidence contrary to or in conflict with the evidence favorable to Collins & Sons and give to Collins & Sons the benefit of every favorable inference that the facts reasonably suggest. May v. Hopkinson, 289 S.C. 549, 347 S.E.2d 508 (Ct.App.1986).

As originally installed, the alarm system included motion detectors, entry detectors, a tape dialer, an inside siren, an outside siren, and an inside strobe light. If either a motion detector or an entry detector sensed an intruder, the sirens sounded a local alarm, the strobe light flashed, and the tape dialer automatically telephoned a pre-recorded message to the police.

Because the tape dialer would not operate if its telephone line was cut, Collins & Sons had Carolina Safety add a "line-cut" detector to the system in 1979. In the event someone cut the telephone line used by the tape dialer, the "line-cut" detector signaled the police that someone was tampering with the telephone lines and after a 30 second delay triggered the sirens and the strobe light.

In 1982, Collins & Sons had Southeastern add an electronic digital communicator to the alarm system. The device performed the same function as the tape dialer, but it did so more reliably and operated more quickly.

Southeastern connected the electronic digital communicator to a monitoring board at 3M Company. At Collins' request, Southeastern later connected the electronic digital communicator to a monitoring board at the Lexington County Sheriff's Department.

While connected to 3M Company's monitoring board, Collins & Sons' alarm system received automatic weekly testing. Automatic testing, however, was not available for alarm systems tied to the monitoring board at the sheriff's department.

In Lexington County, if a business' alarm system were directly tied into the sheriff's department and a break-in occurred at the business' location, a dispatcher would be notified within five minutes of the break-in and the dispatcher would immediately send an officer to the scene of the break-in. The officer would arrive at the scene within ten minutes of being told by the dispatcher to go there.

The alarm system, as installed by Carolina Safety and as modified by Southeastern, was powered by a battery pack fed by a transformer that was plugged into a 110-volt wall outlet. The battery pack could operate the alarm system for 24 hours should the transformer fail.

Also connected to the alarm system's power supply was a door enunciator. The door enunciator, which Southeastern also installed for Collins & Sons, alerted jewelry store employees of anyone entering through the store's front door.

On Monday, October 7, 1985, William Sammy Collins, Collins & Sons' principal owner, noticed the door enunciator did not work. A customer traced the problem to a burned-out transformer.

After trying unsuccessfully to find a replacement transformer, Collins telephoned Southeastern on Tuesday morning and asked it to send him a transformer. Southeastern promised to deliver a transformer to Collins; however, it did not do so until after a break-in occurred on Sunday, October 12, 1985.

The break-in occurred during the early morning hours. Professional thieves gained access to the store by moving an air conditioning unit on the roof, disconnecting the duct work, and lowering a ladder down into the store. The thieves also cut the telephone lines and severed the wires to the motion detectors, sirens, and strobe light. Once inside the store, they ransacked it, emptying boxes and display cases and breaking open a safe in the process. From all appearances, the thieves were in the store for more than 15 minutes.

At the time of the break-in, the alarm system, including the electronic digital communicator, could not have functioned. The transformer that powered the system had been inoperative for several days and the battery pack had no power and was damaged.

Collins had assumed the alarm system was operating because he had heard "clicks" from the motion detectors, which were on a separate power source than the siren and electronic digital communicator, and because he did not know the burned-out transformer supplied power to anything other than the door enunciator. He had also tested the alarm system the week before.

An investigation conducted after the break-in revealed the "line-cut" detector had been removed. A live bare wire in the alarm system's control box was also discovered.

A.

Southeastern maintains the evidence and its reasonable inferences do not support findings of negligence and of proximate cause.

1.

We consider first the question of negligence.

Tommy Hooker of Carolina Safety testified Carolina Safety connected a "line-cut" detector and a tape dialer to Collins & Sons' alarm system. A service order also reflects Carolina Safety's installation of the "line-cut" detector. According to Hooker, Carolina Safety tied both the "line-cut" detector and the tape dialer directly into the telephone lines. The two devices, he said, also shared the same power line.

Billy Francis O'Neal, Southeastern's general manager for installation and service, agreed on cross-examination that a disconnection of the tape dialer from either the telephone lines or the power supply would result in the "line-cut" detector also being disconnected from the system.

Southeastern did not dispute it had disconnected the tape dialer.

Scott Fennimore, an expert in the service, design, and installation of alarm systems, testified he examined Collins & Sons' alarm system after the break-in and repaired it and the battery pack. Fennimore also testified he found a live bare wire in the alarm system's control box, a box he understood...