Frost v. Adt, LLC

947 F.3d 1261 (10th Cir. 2020)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

An accidental house fire ignited in P's home, claiming her life. At 1:30 a.m., D received a 'sensor tamper' alert for 'glass break' in P's dining room. At 1:32 a.m., D received an alert for 'expansion module failure.' At approximately 1:43 a.m., D attempted to call P twice but was unable to reach her. At 1:49 a.m., D attempted to call P's grandmother, who was listed as the next contact number on P's account. D was also unable to reach P's grandmother. Between 2:01 a.m. and 2:04 a.m., D again attempted to call P's number and her grandmother's number but was unable to reach either. When calling D's number appeared as an unlisted number and did not identify D as the caller. Around 2:04 a.m., without having made contact with P, P's grandmother, or any emergency services, D 'fully cleared' the alarms. Around 2:52 a.m., City of Topeka Public Works Department employees noticed the house fire and called 911. First responders arrived at the scene at approximately 2:58 a.m. A fire crew conducted a search of the house and found P face down, unconscious, in a hallway in her home. She was still alive at the time first responders discovered her. P was eventually pronounced dead. The cause of death was inhalation of smoke and soot from the fire. P sued D. P claims she 'reasonably relied' on certain representations on D's website, including the following: • 'The ability to remotely learn of possible hazards and to dispatch responders is key to how security monitoring works.' • '24/7 professional monitoring centers will address alarms immediately to ensure that help is on the way.' • 'In the event of an emergency, local police or fire assistance will be notified.' • 'A trained employee immediately attempts to call you to notify you of the disturbance in case it is a false alarm. If you confirm a false alarm, the employee will see if there is anything else you need before letting you hang up. If the employee is unable to contact you, or if you confirm that the alarm is genuine, the authorities will be notified. A dispatch will then send police officers to your residence to evaluate the situation.' In D’s contract it states: WE ARE NOT AN INSURER,… Section 7 limits ADT's liability to 'the lesser of (i) $300.00; or (ii) Six (6) times the monthly service fee [$227.99 in this case].' Section 9 establishes a one-year suit-limitation period: Legal Actions. NO CLAIM OR LEGAL ACTION EITHER OF US MAY HAVE ARISING OUT OF THIS CONTRACT, YOUR SYSTEM OR OUR SERVICES (WHETHER BASED ON CONTRACT, NEGLIGENCE, OR OTHERWISE) MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE DATE THE CAUSE OF ACTION FOR SUCH CLAIM ACCRUED. Section 10 outlines the monitoring services to be provided: When the Center receives an actionable alarm signal from your system (an 'Alarm Event'), we will make reasonable efforts, consistent with local laws and our response policies, to make the appropriate notifications. These notifications may include the local emergency response provider . . . , the person designated on your Monitoring Information Schedule or the monitored premises. . . . P filed a lawsuit more than one but less than two years after P's death for wrongful death, negligence, fraud, contract, and violations of the Kansas Consumer Protection Act. D moved to dismiss in that the complaint was time-barred by the Contract's one-year suit-limitation provision. D’s motion was granted. P appealed.