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Hunter v. BPS Guard Services1/31/1995
there was no partnership or joint venture between Guardian and Certified and that Guardian was not liable for the negligence, if any, of Certified in installing the alarms. Judgment to this effect was entered on April 29, 1994, with the additional finding that there was no just reason for delay.
Appellant's first, third and fourth assignments of error are related and will be considered together. In these assignments of error, appellant asserts that the trial court erred in granting summary judgment to Guardian on the issues of negligence and breach of contract.
To establish negligence, appellant must show the existence of a duty, the breach of that duty and injury resulting proximately therefrom. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O. 3d 177, 423 N.E.2d 467. In Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 15 OBR 179, 472 N.E.2d 707, the court stated that the existence of a duty depends on the foreseeability of the injury. The test for foreseeabihty is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance of an act. The foreseeabihty usually depends on the defendant's knowledge. Holland v. Riverside Methodist Hosp. (1990), 70 Ohio App.3d 112, 590 N.E.2d 430.
The contract entered into between Ken's Cardinal and Guardian provides:
"3. The parties agree that the Company's [Guardian] sole obligation under this agreement shall be to monitor signals received from the protective system located on Subscriber's [Ken's Cardinal] premises. The Company, upon receipt of a signal shall make every reasonable effort to transmit notification of the alarm promptly to the police, fire or other authorities and to the person or persons whose names and telephone numbers are provided to the Company by Subscriber, unless there is reason to assume that an emergency condition does not exist.
"* * *
5. The customer understands that the Company's only obligation is to monitor signals from the customer's electro-protective system and respond to the signals when received. * * *
"* * *
"10. The Company can also not be responsible for losses or damages suffered by a customer caused by:
"A. Defects or deficiencies in the electro-protective system owned by the customer.
"B. Delay in response time or failure to respond by any person or authority notified by the Company according to customer's instructions in this contract."
In this case, whether or not Guardian owes appellant a duty under this contract turns on whether a reasonably prudent person would have anticipated that appellant would be injured as a result of Guardian's alleged negligence. Because Guardian provides monitoring services for the security system at Ken's Cardinal, it is likely that, should Guardian receive a signal that there was an event occurring at the store which triggered the security system, someone in the store, like appellant, could be harmed. Guardian owed appellant a duty to make a reasonable effort to notify the police upon receiving a signal from Ken's Cardinal.
There is a question of fact in this case as to whether Guardian received and responded to the signals sent from Ken's Cardinal within a reasonable time. Guardian's evidence shows that it received a signal from Ken's Cardinal at 7:06 P.M., and that, within sixty seconds of receiving that signal, it notified the police and the police were dispatched. However, there is also evidence that panic buttons installed at Ken's Cardinal were pushed prior to 7:06 and that Guardian did not respond to those signals. Both Jones and Ferguson indicated that ten to fift
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