Pope v. Rollins Protective Services Co., 82-2137

• Citation: 703 F.2d 197
• Decision Date: 22 April 1983
• Docket Number: No. 82-2137,82-2137
• Parties: Mrs. Sylva B. POPE, Plaintiff-Appellee, v. ROLLINS PROTECTIVE SERVICES COMPANY, Defendant-Appellant, v. The ATLANTIC MUTUAL INSURANCE COMPANY, Intervenor-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 197

703 F.2d 197

Mrs. Sylva B. POPE, Plaintiff-Appellee, v. ROLLINS PROTECTIVE SERVICES COMPANY, Defendant-Appellant, v. The ATLANTIC MUTUAL INSURANCE COMPANY, Intervenor-Appellee.

No. 82-2137.

United States Court of Appeals, Fifth Circuit.

April 22, 1983.

Robert H. Singleton, Jr., Houston, Tex., for defendant-appellant.

Phillip A. Pfeifer, Houston, Tex., for Pope.

Robert H. Bateman, Houston, Tex., for Atlantic Mut.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, RUBIN and TATE, Circuit Judges.

WISDOM, Circuit Judge:

This case explores the liability of a burglar alarm lessor and installer to the lessee when the alarm fails to operate because of tampering by burglars. At trial, the plaintiff prevailed and received trebled damages including an amount for her mental anguish. We affirm.

Statement of the Case

In 1973, a representative of the defendant, Rollins Protective Services Co. (Rollins), communicated with the plaintiff, Sylva Pope, about the installation and leasing of burglar alarms. Pope was 60 years old, a widow, and lived alone. Following a visit and demonstration by a salesman at her home, Pope agreed to lease the Rollins system.

The system consisted of a master control unit, numerous battery powered wireless transmitters, a separate outdoor siren, and a "panic button". A transmitter would transmit electronic signals to the master control if the electronic contacts on the transmitter were disconnected or moved. If that occurred or if the panic button was pushed, the master control unit would activate three alarms. The first alarm, which sounded immediately, was a high-pitched tone called "sonalert" which could be heard inside but not outside the house. The second alarm was a loud separate siren outside the house that sounded for a period of 10 minutes. Finally, the master control unit would automatically dial Rollins's "central station" giving the name and location of the residence. The control station would then notify the Houston Police Department and a neighborhood police service. The latter two alarms would go off if the first alarm was not deactivated, by inserting a key into the master control unit, within 20 seconds. The panic button was a device that the customer could carry in her hand or purse, and would activate the three systems, even if the transmitters did not detect an intrusion. The Rollins representative, in selling Mrs. Pope on the system, told her that the average response time of the local police was from three to five minutes.

Testimony later showed that the so-called "central station" was an answering service with no special access to the police and would not even notify Rollins of an alarm call. Moreover, the average police response time in 1973 was twenty-six minutes.

When Rollins installed the system, Pope noticed that the wires running from the master control unit were installed outside the sheetrock wall in her broom closet and were visible if the door to the closet was open. Rollins's representative assured her that if the wires were cut all of the alarms would go off. Actually, if the wires to the individual alarms were cut, they would not operate. The system did not have an independent power source for the siren. If the wire to the outside siren was cut, there would be no way the siren could sound. There was evidence at trial that the Rollins representative knew that a burglar could disarm the alarms by cutting the wires running from the master control unit. Other evidence indicated that Rollins knew in 1978 that burglars in the Houston area were aware of this deficiency in the design of the burglar alarm system. About fifty times in 1978, Rollins went back to its customers to reinstall the wires behind the walls. Rollins gave no warning to Pope about the deficiencies in the system.

On January 28, 1978, Mrs. Pope returned to her home around 7:00 p.m. When she opened the back-door to her house, she noticed the absence of the customary sound of the inside high-pitched sonalert alarm. This did not bother her, however, because the same thing had happened a month before because of low batteries for the transmitter on her back-door. Then she discovered that some of the wires running from her master control unit had been cut. ¹ She ran from the house screaming. As she ran, she heard a scuffling sound behind her, so she pushed the panic button in her purse to set off the outdoor siren. The siren did not go off. The burglars, two men in ski masks, caught her outside the back door, brought her back into the house, threw her onto the floor of the utility room, and held a gun to her head while other burglars searched her house. She hit her head on the washer-dryer, and feigned unconsciousness. She remained on the floor twenty minutes with a gun to her head. During this time, the men took her watch and bracelet from her wrist, a pin from her scarf, and her wedding ring. One of the burglars ran his hands around her neck. They rifled her purse.

The burglars had entered Mrs. Pope's home through a glass door that was protected by a Rollins transmitter. They disarmed the Rollins system, however, by cutting the exposed siren and antenna wires at the master control unit. They did not cut the dialer telephone cable, however.

A neighbor of Pope's heard her scream and called the local police service. A security officer came to Pope's home, made a cursory inspection of the premises, but did not discover any evidence of the burglary. By the time he returned to the station, the pre-recorded telephone message had been delivered and he returned and discovered Pope. The burglars fled before the security officer returned.

Harry Caldwell, a former Chief of the Houston Police Department, testified that in his opinion, the only real function of a burglar alarm system is to scare the burglars away. He testified that the only effective deterrent to crime is a loud bell or siren. Such a system has no real value if the bell or siren does not work. Tim Pals, a former Rollins installer, who inspected Mrs. Pope's home after the burglary, concurred that the only portion of the Rollins system that was designed to protect Mrs. Pope (the siren) had been disarmed by the burglars. He also testified that having the wires installed in the wall would have made it more difficult to disarm the system in the twenty seconds before the siren would sound.

Pope tried her case to a jury. Pope testified that she had suffered severe anxiety because of her experience. She was unable to stay in her home until a new alarm system was installed. A psychiatrist testified that she suffered from chronic post-traumatic stress disorder as a result of her involvement in the life-threatening situation. The psychiatrist expected Pope's disability to continue for a number of years.

The jury found Rollins liable to Pope on several theories. It found that Rollins had misrepresented the characteristics of the alarm system in violation of Sec. 17.46(b)(5) of the Texas Deceptive Trade Practices Act (DTPA). It found that Rollins had caused confusion regarding the telephonic feature of the system in violation of Sec. 17.46(b)(3) of the DTPA. It found that Rollins had been grossly negligent in its installation and design of the burglar alarm system, and in failing to warn Pope that burglars could disarm the system. Finally, Rollins was held strictly liable to Pope because the jury found that Rollins had leased Pope a defective burglar alarm system. There was evidence from which the jury could have inferred that the operation of the siren would have warned Pope not to enter her home, or that the siren would cause the burglars to flee, or both. The jury awarded Pope $15,250 for loss of property, $150,000 for past and future mental anguish, and $150,000 punitive damages for Rollins's gross negligence. The trial court granted Rollins's motion for judgment n.o.v. with regard to the punitive damages and trebled the other damage elements pursuant to the DTPA.

Liability Under the Texas DTPA

At trial, Pope tried to show that Rollins's conduct breached the DTPA in two ways. First, Pope contended that Rollins misrepresented the system's ability to deter burglars and to operate if the wires running from the control unit were cut. Second, Pope maintained that Rollins deceived her when it told her that the recorded message relayed by the system would be received by Rollins personnel. Instead, an answering service received the message and notified the police. Pope contended that, had Rollins's employees received the message, they would have relayed the message more quickly. She testified that had Rollins told her the truth about the effectiveness of the alarm system and the message relay procedure, she would not have agreed to lease the system.

The jury considered the evidence and returned special verdicts pertaining to the elements of Pope's DTPA claim. The jury found that Rollins represented to Pope that its burglar alarm system had "characteristics, uses or benefits" that it did not have. ² The jury also found that Rollins had caused "confusion or misunderstanding" regarding its affiliation with the answering service. Finally, the jury found that the misrepresentations and confusion were producing causes of Pope's mental anguish.

On appeal, Rollins argues that Pope presented no evidence or, at most, insufficient evidence that its representations were producing causes of her mental anguish. Moreover, Rollins contends that the DTPA does not allow her to recover damages for her mental anguish. We hold that the trial court did not err in allowing Pope to recover under the DTPA.

At the time the system was installed and at the time of the incident, before amendment in 1979, Tex.Bus. & Com.Code Ann. Sec. 17.50 (Vernon Supp.1978) provided, in relevant part:

(a) A consumer may maintain an action if he has been adversely affected by:

(1) the use or employment by any person of an act or...