Lazybug Shops, Inc. v. American Dist. Tel. Co.

• Decision Date: 01 August 1979
• Docket Number: No. 10117,10117
• Citation: 374 So.2d 183
• Parties: LAZYBUG SHOPS, INC. v. AMERICAN DISTRICT TELEGRAPH CO.
• Court: Court of Appeal of Louisiana — District of US

Page 183

374 So.2d 183

LAZYBUG SHOPS, INC. v. AMERICAN DISTRICT TELEGRAPH CO.

No. 10117.

Court of Appeal of Louisiana, Fourth Circuit.

Aug. 1, 1979.

Rehearing Denied Sept. 10, 1979.

Writ Refused Oct. 26, 1979.

Henican, James & Cleveland, C. Ellis Henican, New Orleans, for Lazybug Shops, Inc., plaintiff-appellee.

Phelps, Dunbar, Marks, Claverie & Sims, Esmond Phelps, II, Harry A. Rosenberg, New Orleans, for American District Telegraph Co., defendant-appellant.

Before GULOTTA, BOUTALL and SCHOTT, JJ.

BOUTALL, Judge.

This is a case involving damages arising out of the failure of a burglar alarm system.

On June 16, 1970, American District Telegraph Company, appellant in this action, contracted to provide burglar alarm protection for the retail clothing store operated by Lazybug Shops, Inc., appellee. On the night of December 22-23, 1973, the shop was apparently burglarized. The ADT monitoring system received no signal to indicate a break-in. Lazybug filed suit claiming damages in the amount of $9,000 as a result of the burglary.

After the suit had been filed, a second burglary took place on August 26, 1974, again without triggering the protection devices. Lazybug supplemented their petition to pray for additional damages of $1,250.00 in connection with this second burglary. The matter was taken up for trial and judgment was rendered in favor of Lazybug and against ADT in the amount of $7,133.00 plus interest and costs. From this judgment, ADT brings this appeal.

Appellant's first contention is that the trial court erred in concluding that appellee carried its burden of proof as to liability. Appellant argues that the failure in the system was due to the fact that the shop's employees hung articles of clothing from wires on the ceiling which blocked the transducers' detection of motion. The trial judge, however, found that a defect in the system rather than hanging clothes caused the failure.

The record shows that the point of entry during the first burglary occurred within 12 inches of the transducers. Testimony was also introduced showing that merchandise was stolen in all parts of the store. In view of this evidence, we do not feel that the finding of the trial judge was clearly wrong. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The testimony simply pits employees of ADT against the owner and operator of the Lazybug shop involved in this case. In such credibility situations, the trial judge's decision must be given great weight. See Canter v. Koehring, 283 So.2d 716 (La.1973). We therefore affirm the finding of the trial judge that a defect in the system caused the failure.

Appellant's second contention is that the trial court erred in refusing to apply the limitation of liability clause contained in the contract between the parties. That provision reads as follows:

"It is understood that the Contractor is not an insurer, that insurance, if any, shall be obtained by the Subscriber and that the amounts payable to the Contractor hereunder are based upon the value of the services and the scope of liability as herein set forth and are unrelated to the value of the Subscriber's property or the property of others located in Subscriber's premises. The Contractor makes no guarantee or warranty, including any implied warranty of merchantability or fitness, that the system or services supplied, will avert or prevent occurrences or the consequences therefrom, which the system or service is designed to detect. The Subscriber does not desire this contract to provide for full liability of the Contractor and agrees that the Contractor shall be exempt from liability for loss or damage due directly or indirectly to occurrences, or consequences therefrom, which the service is designed to detect or avert; that if the Contractor should be found liable for loss or damage due to a failure of service or equipment in any respect, if liability shall be limited to a sum equal to 10% Of the annual service or $250.00, whichever is the greater, and that the provisions of this Paragraph shall apply if loss or damage, irrespective of cause or origin, results directly or indirectly to person or property from performance or nonperformance of obligations imposed by this contract or from negligence, active or otherwise, of the Contractor, its agents or employees."

This exact provision was recently tested in Alan Abis, Inc. v. Burns Electronic Security Services, Inc., 283 So.2d 822 (La.App. 2d Cir.1973). The court upheld the...