Merco Distributing Corp. v. Commercial Police Alarm Co., Inc.

• Decision Date: 30 June 1978
• Docket Number: No. 75-442,75-442
• Citation: 84 Wis.2d 455,267 N.W.2d 652
• Parties: MERCO DISTRIBUTING CORPORATION, Plaintiff-Respondent, v. COMMERCIAL POLICE ALARM COMPANY, INC., Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 652

267 N.W.2d 652

84 Wis.2d 455

MERCO DISTRIBUTING CORPORATION, Plaintiff-Respondent, v. COMMERCIAL POLICE ALARM COMPANY, INC., Defendant-Appellant.

No. 75-442.

Supreme Court of Wisconsin.

Argued June 5, 1978.

Decided June 30, 1978.

Timothy F. Mentkowski (argued), and Riordan, Crivello, Sullivan & Carlson, Milwaukee, on brief for defendant-appellant.

Barnett W. Franks, Atty., Milwaukee, for plaintiff-respondent; John J. Romann, Milwaukee, argued and of counsel.

ABRAHAMSON, Justice.

Commercial Police Alarm Company, Inc. contracted to provide burglar alarm services to Merco Distributing Corporation. Commercial contents on appeal that its negligence did not cause Merco's injury.

The alarm system Commercial used included wires around the doors and infra-red beams which crossed the building. When the system is activated, anyone entering the doors or crossing through one of the beams causes a signal in Commercial's office. Commercial then notifies the police and sends its representative to the premises.

Merco was responsible for activating the alarm system each day when the warehouse was closed and the employees left. There was testimony that Merco activated the system at 5:00 p. m. on December 4, 1973, and that the equipment at the Merco warehouse indicated that the alarm system was properly set.

However, Commercial did not receive the "closing signal" from Merco. Commercial's normal procedure when it fails to receive a closing signal is to call the customer's place of business to determine whether the alarm has not been set because someone is working late. If no one answers the call, Commercial then calls the persons on a list provided by the customer to notify the customer that the alarm has not been set.

On December 4, 1973 Commercial called the Merco warehouse at 5:15 p. m. but received no answer. Commercial did not attempt to contact the residences of any of the five or six Merco employees whose names had been given to Commercial. Merco's president testified that Merco had a policy of not leaving the building unattended when the alarm system was not working, that if he, or another employee, had received a call on December 4th, someone would have gone promptly to the warehouse to reset the alarm, and that if the system were not working, someone would have stayed on the premises until the system was repaired.

At 6:25 p. m. on December 4th, Commercial received notice that the telephone lines which connected Merco's alarm system, as well as those of several other customers, to Commercial's office, were out of order. After learning that the telephone lines were out, Commercial still made no effort to contact Merco employees. Commercial's representatives testified that the telephone line breakdown was the result of two days of steady rain. So many lines were and had been out of order that Commercial's employees were overworked and unable to follow the normal customer notification procedures. There was no evidence as to when the telephone lines were repaired. They were functioning by 8:00 a. m. on December 5th when Commercial received Merco's normal opening signal.

Sometime between 5:00 p. m. December 4th and 8:00 a. m. December 5th, burglars entered Merco's warehouse and took 58 television sets. Commercial received no alarm signal. On December 5th, after the burglary, it was discovered that the alarm wires around a rear fire door had been disconnected on the inside of the warehouse so that entry or exit through that door would not have set off the alarm signal even if the system were functioning properly. There was testimony that on December 3rd, the day before the burglary, someone claiming to be from Commercial worked on the alarm system near the rear fire door. Merco had made no request for service. Although there was no evidence that the infra-red beams had been interfered with, there was testimony that one familiar with their placement could avoid setting off the alarm simply by stepping over them. Tire marks were found outside the fire door the morning following the burglary, supporting the inference that entry had been made through that door.

If Commercial's negligence caused Merco's injury, Commercial is liable therefor. The test of cause in Wisconsin is whether the defendant's negligence was a substantial factor in contributing to the result. Kinsman v. Panek, 40 Wis.2d 408, 417, 162 N.W.2d 27 (1968); Nelson v. Travelers Ins. Co., 80 Wis.2d 272, 283, 259 N.W.2d 48 (1977). The phrase "substantial factor" denotes that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense. Milwaukee & Suburban Transport Corporation v. Royal Transit Co., Inc., 29 Wis.2d 620, 628, 139 N.W.2d 595 (1966); Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 236, 55 N.W.2d 29 (1952); Restatement, Second, Torts sec. 431, Comment a. p. 429 (1965). There may be more than one substantial...