Monitronics International, Inc. v. Veasley

• Decision Date: 16 July 2013
• Docket Number: Nos. A13A0090,A13A0091.,s. A13A0090
• Citation: 323 Ga.App. 126,746 S.E.2d 793
• Parties: MONITRONICS INTERNATIONAL, INC. v. VEASLEY. Veasley v. Monitronics International, Inc.
• Court: Georgia Court of Appeals

323 Ga.App. 126

746 S.E.2d 793

MONITRONICS INTERNATIONAL, INC.

v.VEASLEY.

Veasley

v.Monitronics International, Inc.

Nos. A13A0090, A13A0091.

Court of Appeals of Georgia.

July 16, 2013.

Thomas S. Carlock, Laurie Webb Daniel, Charles Minor McDaniel, Jr., Heather Horan Miller, Leland Hiatt Kynes, Atlanta, Renee Yvette Little, for Monitronics International, Inc.

Darryl Dwayne Adams, Naveen Ramachandrappa, Michael Brian Terry, Michael Lawson Neff, Atlanta, for Velma Veasley.

DILLARD, Judge.

Velma Veasley was sexually assaulted by an intruder, who broke into her home earlier in the day while she was at work and remained there despite triggering her home's security-system alarm numerous times. Veasley sued Monitronics International, Inc. (“Monitronics”), the company she paid to monitor her security system, alleging that she suffered harm as a result of its negligence. Following a jury verdict and judgment in Veasley's favor, Monitronics moved for judgment notwithstanding the verdict (j.n.o.v.), to enforce a contractual limitation-of-liability clause, and alternatively, for a new trial, all of which the trial court denied.

In Case No. A13A0090, Monitronics appeals the denial of its motions for j.n.o.v., to enforce the limitation-of-liability clause, and new trial, arguing that the trial court erred in (1) finding that genuine issues of material fact precluded j.n.o.v. on Veasley's extra-contractual negligence claim; (2) holding that the limitation-of-liability clause in Monitronics's contract with Veasley was unenforceable; (3) striking its notices of apportionment; (4) failing to instruct the jury on assumption of the risk; and (5) instructing the jury that Monitronics had a duty to comply with industry standards. In Case No. A13A0091, Veasley argues that if this Court holds that Monitronics is entitled to a new trial, it should further hold that the trial court erred in finding that Monitronics could not be liable for negligently performing its contractual duties. For the reasons set forth infra, we affirm the jury's verdict and the trial court's judgment. Accordingly, we dismiss Veasley's cross-appeal as moot.

Construed in favor of the jury's verdict,¹ the evidence shows that in October 1998, not long after she purchased her Stone Mountain home, Velma Veasley also purchased a home security system from Tel–Star Alarms, Inc. (“Tel–Star”). Pursuant to the purchase contract, Tel–Star installed the system, which included an alarm, several door sensors, and an internal motion sensor, and assumed responsibility for monitoring the system. To facilitate Tel–Star's monitoring of the system, Veasley provided the company with her work phone number (including her personal extension), and designated her older sister, Barbara Warren, as her emergency contact by providing her sister's phone number as well. In addition, the contract contained a clause that purported to limit Tel–Star's liability to $250 for any loss resulting from its performance of the contract. And less than one month after Veasley purchased the home-security system, Tel–Star assigned the contract to Monitronics, which then assumed responsibility for monitoring the system.

On March 29, 2006, Veasley left her home shortly after 4:00 a.m. and traveled to her job at a Target department store. At 10:27 a.m., the alarm for Veasley's home-security system sounded after an internal motion sensor was triggered. Upon receiving the alert at its monitoring site in Texas, a Monitronics representative called Veasley's home and dispatched police when the home phone was not answered. A few minutes later, the representative attempted to contact Veasley by calling her work number. But when the representative's call was answered by an automated message directing the caller to dial an extension number or press one to speak with an operator, the representative—despite having Veasley's extension number—terminated the call. Instead, the representative called Veasley's sister (Warren) to inform her about the alarm, but was not immediately successful in reaching her.

In the meantime, alarms for Veasley's security system continued to sound. Specifically, at 10:41 a.m., an internal motion sensor was again triggered, and two minutes later, an alert indicated that the door leading into the home's attached garage had been opened. At 11:27 a.m., an internal motion sensor was triggered for a third time, and approximately five minutes later, the door leading into the garage was again opened. Following these two alarms, a Monitronics representative called Veasley's work number but again ended the call upon reaching Target's automated-message system. The representative then attempted to call Veasley's sister again but only reached her answering machine.

At 11:46 a.m., an internal motion sensor was triggered for a fourth time, and the Monitronics representative called the police again to inform them of the multiple alerts. Nearly 30 minutes later, the representative finally successfully contacted Veasley's sister, who stated that she could meet the police at Veasley's home and would arrive there within 20 minutes. Nevertheless, at 1:06 p.m., an internal motion sensor was triggered for yet a fifth time. Once again, the Monitronics representative called Veasley's work number but did not call her extension and thus did not reach her. In fact, by this point, Veasley had left Target to go to her second job at a daycare center. The representative then attempted, once again, to contact Veasley's sister and spoke to the sister's husband, who told the representative that his wife had not yet returned. A short time later, the police contacted Monitronics and informed the representative that they would not respond to further dispatches to Veasley's house unless a key-holder was on the scene to meet them. But for the rest of the afternoon, no additional alarms were triggered; and despite the fact that it never determined the actual cause of the alarms, Monitronics made no further attempts to contact Veasley, her sister, or the police.

Veasley returned home from work at approximately 7:25 p.m. And while her sister had left a note about the alarms near the entrance to the garage, Veasley did not see it and, thus, was not aware that the alarm for her security system had been triggered multiple times throughout the day. Instead, she parked in her garage, exited the vehicle, and then started to open the internal door leading inside the house when the alarm sounded.

As she went inside and turned off the alarm, a Monitronics representative called her home telephone. Veasley told the representative that she was fine but that she did not understand why the alarm had triggered. And despite the fact that the representative had access to the information indicating that Veasley's security system had alerted multiple times throughout the day, the representative told Veasley that the alarm most likely sounded because the door she entered did not have a delay timer. Veasley did not believe that the representative was correct about the delay timer, but she nevertheless accepted her explanation and remained in her home.

Thereafter, Veasley went to her bedroom where she noticed that the bed looked as if someone had disturbed it. She also noticed a tequila bottle and a cell phone that she did not recognize next to her bed. And feeling that things were not quite right in her home, Veasley called her sister and left a message on her answering machine about the alarm (along with a request that she return the call). Nevertheless, over the course of the next 20 minutes or so, Veasley finished some paperwork, took a shower, and ate a quick meal. Subsequently, she returned to her bathroom to get ready for bed, at which point she was grabbed by a stranger brandishing a knife. As Veasley screamed, the assailant—later identified as Stephen Okrah—dragged her to the living room, told her to shut up, and demanded money. And when Veasley told him that she did not have any cash in the home, Okrah forced her into her car and drove to several ATMs in an attempt to withdraw money from Veasley's bank account. Then, for several terrifying hours, Okrah drove around in Veasley's car while threatening her life. Ultimately, he drove back to Veasley's house, forced her into her bedroom, and raped her.

Not long thereafter, Okrah passed out due to the fact that he had apparently been drinking alcohol throughout the day. Consequently, Veasley escaped from her home, ran to her neighbors' house, and had her neighbors call the police, who arrived quickly and arrested Okrah without further incident. Okrah eventually pleaded guilty to numerous offenses, including rape, and is currently incarcerated.

On August 18, 2009, Veasley filed suit against Monitronics alleging, inter alia, breach of contract, negligence, and fraudulent misrepresentation. Monitronics filed an answer, and discovery ensued. In July 2011, after discovery had closed, Monitronics filed notices stating that it would seek to apportion fault to non-parties Okrah and Warren (Veasley's sister). But after the trial court set the trial for November 7, 2011, Veasley successfully argued that Monitronics's notices of apportionment were untimely, and the trial court struck them.

In the interim, on July 20, 2011, Monitronics filed a motion for summary judgment, arguing that it owed no duty to Veasley beyond the terms of the contract between the parties; that its actions were not the proximate cause of her injuries; and that the terms of the contract limited its liability to $250. Veasley filed a response to Monitronics's motion, but before doing so, she filed an amended complaint, which no longer contained a breach-of-contract claim. And following a hearing on the matter, the trial court denied Monitronics's summary-judgment motion, finding that genuine issues of material fact remained as to whether Monitronics breached a duty of care owed to Veasley and caused her injuries. The trial...