Brotherhood Mutual Insurance Company as subrogee of Mound Evangelical Free Church et al v. ADT LLC of Delaware et al
Filing
90
ORDER granting 35 Motion to Dismiss; granting 66 Motion to Exclude Expert Testimony; granting 72 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 7/2/2014. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-1870(DSD/JJK)
Brotherhood Mutual Insurance
Company as subrogee of Mound
Evangelical Free Church, and
Mound Evangelical Free Church,
Plaintiffs,
ORDER
v.
ADT, LLC of Delaware d/b/a ADT
Security Services, a Delaware
corporation, and Tyco Fire Products,
d/b/a Tyco Fire Suppression & Building
Products, a Delaware corporation,
Defendants.
Jessica L. Boyle, Esq. and Hanson, Lulic & Krall, LLC,
700 Northstar East, 608 Second Avenue South, Minneapolis,
MN 55402, counsel for plaintiffs.
Sarah L. Baltzell, Esq. and Shook, Hardy & Bacon, LLP,
2555 Grand Boulevard, Kansas City, MO 64108 and Michael
R. Docherty, Esq., 7713 Glasgow Drive, Edina, MN 55439,
counsel for defendants.
This matter is before the court upon the motions for summary
judgment by defendants ADT, LLC of Delaware, d/b/a ADT Security
Services (ADT)1 and Tyco Fire Suppression & Building Products
(Tyco) (collectively, defendants) and the motion to exclude expert
1
Tyco Integrated Security LLC, formerly known as ADT Security
Services, argues that ADT, LLC was improperly named in this matter.
See ECF No. 63, at 1. For consistency, however, the court refers
to the defendants as they are reflected in the case caption.
testimony by Tyco.
Based on a review of the file, record and
proceedings herein, the court grants the motion to exclude expert
testimony and the motions for summary judgment.
BACKGROUND
This property-damage dispute arises out of water damage to the
building
of
Evangelical).
plaintiff
Mound
Evangelical
Free
Church
(Mound
On July 6, 2012, a sprinkler head activated and
flooded parts of Mound Evangelical.
Am. Compl. ¶ 5. The sprinkler
head was designed, manufactured and sold by Central Sprinkler
Company, which was subsequently acquired by Tyco.
Ex. C, ECF No. 75, at 1-2.
Docherty Aff.
The sprinkler head was designed to
release water upon reaching 155 degrees and was not intended for
installation in areas with ambient temperatures above 100 degrees.
See id.
The sprinkler head was installed near the top of the vaulted
sanctuary of the church building, approximately 30 feet above the
floor.
Ofori-Amanfo Dep. 33:21-34:2.
The sanctuary was air-
conditioned only during weekend church services.
Dep. 13:14-20.
See Abernethy
Weather conditions in Mound, Minnesota around the
time of the incident reached about 102 degrees Fahrenheit.
Ofori-
Amanfo Dep. 29:24-30:17; Peterson Dep. 29:8-9.
ADT
provided
security
and
monitoring
services
Evangelical pursuant to a written contract (Contract).
2
for
Mound
Am. Compl.
¶ 3.
On July 6, 2012, the Mound Evangelical alarm system sent two
signals to ADT, a “low air” signal followed one minute later by a
“restore” signal.
Docherty Aff. Ex. A, ECF No. 64, at 3.
Later
that evening, an ADT representative contacted Mound Evangelical
trustee
Mark
Peterson,
informed
him
that
it
had
received
notification of the alarms and stated that no action was required
of Peterson.
See Peterson Dep. 20:10-14.
On July 7, 2012, ADT
received notification of a “waterflow” signal and alerted the fire
department.
Docherty Aff. Ex. A, ECF No. 64, at 2.
The sprinkler
head at issue had activated and flooded parts of the church
building,
causing
extensive
Plaintiff
Brotherhood
damage.
Mutual
Peterson
Insurance
Dep.
Company
28:9-20.
(Brotherhood)
compensated Mound Evangelical for the damage as provided for by its
insurance contract with Mound Evangelical.
On
October
28,
2013,
Brotherhood,
Am. Compl. ¶ 2.
as
subrogee
of
Mound
Evangelical, filed an amended complaint, alleging negligence claims
against
ADT
Brotherhood
and
a
products
thereafter
liability
retained
Matt
claim
Doughty
against
and
Kent
Tyco.
Jones,
registered Professional Engineers employed by Encompass, Inc., as
experts to testify in support of its claims.
No. 82, Ex. C.
See Boyle Aff., ECF
On November 12, 2013, ADT moved to dismiss the
amended complaint.
On March 4, 2014, the court notified ADT that
it would construe its motion as a motion for summary judgment. See
3
ECF No. 59.
Tyco then moved for summary judgment and to exclude
the expert testimony of Doughty and Jones.
DISCUSSION
I.
Expert Testimony
Tyco moves to exclude the testimony of Doughty and Jones.
“[T]he admissibility of expert testimony in diversity cases is
governed by federal law.”
Unrein v. Timesavers, Inc., 394 F.3d
1008, 1011 (8th Cir. 2005) (citation omitted).
ensure
that
relevant.”
all
scientific
testimony
is
The court “must
both
reliable
and
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757
(8th Cir. 2006) (citing Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 580 (1993)).
“To satisfy the reliability requirement,
the proponent of the expert testimony must show by a preponderance
of the evidence both that the expert is qualified to render the
opinion and that the methodology underlying his conclusions is
scientifically valid.”
A.
Id. at 757-58 (citation omitted).
Qualifications
Tyco first argues that Doughty and Jones are not qualified to
offer expert testimony.
Federal Rule of Evidence 702 provides
that:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an
opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized
4
knowledge will help the trier of fact to
understand the evidence or to determine a fact
in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is
the product of reliable principles and
methods; and (d) the expert has reliably
applied the principles and methods to the
facts of the case.
Under Rule 702, the court acts as a gatekeeper to determine
“whether the witness is qualified to offer expert testimony.”
Schmidt v. City of Bella Villa, 557 F.3d 564, 570 (8th Cir. 2009)
(citations omitted).
This standard is satisfied when the expert’s
testimony “advances the trier of fact’s understanding to any
degree.” Robinson v. GEICO Gen. Ins. Co., 447 F.3d 1096, 1100 (8th
Cir. 2006) (citation and internal quotation marks omitted).
Rule
702 nonetheless requires that “the area of the witness’s competence
matches the subject matter of the witness’s testimony.”
Id. at
1101 (citation and internal quotation marks omitted).
Here,
Tyco
argues
that
Doughty
and
Jones
have
no prior
experience in (1) analyzing sprinkler head design and installation
and
(2)
diagnosing
activation.
The
defects
court
related
agrees.
registered Professional Engineers.
82, at 4-5.
to
Doughty
improper
and
Jones
sprinkler
are
both
See Boyle Aff. Ex. C, ECF No.
Doughty’s experience, however, relates to conveyor
processes, HVAC systems and “piping and plumbing designs.” See id.
at 4.
Jones has experience in various forms of structural design
and analysis.
See id. at 5.
Both individuals have experience in
piping systems and some aspects of structural engineering, although
5
Brotherhood does not address how such experience is relevant to
sprinkler head activation.
See id. Ex. E, ¶ 4; id. Ex. F, ¶ 7.
Neither Doughty nor Jones has prior experience relating to
sprinkler heads.
neither
See Jones Dep. 19:3-5; 92:3-7.
individual
sprinkler
head
instant dispute.
has
activation
previously
under
investigated
circumstances
Similarly,
a
premature
similar
to
the
See Doughty Dep. 49:15-20; Jones Dep. 25:20-25.
No evidence before the court suggests that either individual is
trained,
experienced
or
educated
in
sprinkler
head
system
activation or defect diagnosis. See Anderson v. Raymond Corp., 340
F.3d 520, 523 (8th Cir. 2003) (noting that “[e]ven though some
engineering principles can be applied universally,” engineering
expert’s opinion should be excluded where expert had never designed
or consulted on design of the product in question).
In sum,
Brotherhood does not meet its burden to show that sprinkler head
activation is within the experience and knowledge of Doughty or
Jones.
See e.g., Wheeling Pittsburgh Steel Corp. v. Beelman River
Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001) (finding expert
testimony excludable where proponent who was qualified in some
areas related to the underlying claims “lacked the education,
employment, or other practical personal experiences to testify as
an expert specifically regarding” the key matter at issue).
As a
result, for this reason alone, the court grants the motion to
exclude the testimony of Doughty and Jones.
6
B.
Methodology
Even
if Doughty
and
Jones
were
qualified
to
offer
such
testimony, Tyco argues that the methodology they employed in
formulating their expert opinion renders such testimony unreliable.
The court agrees.
The court must “ensure that any and all
scientific testimony or evidence admitted is not only relevant, but
reliable.”
Schmidt, 557 F.3d at 570 (citations and internal
quotation marks omitted). The court considers several nonexclusive
factors when determining the reliability of an expert’s opinion,
including:
(1) whether the theory or technique can be
(and has been) tested; (2) whether the theory
or technique has been subjected to peer review
and publication; (3) the known or potential
rate of error; ... (4) whether the theory has
been generally accepted; ... [(5)] whether the
expertise was developed for litigation or
naturally flowed from the expert’s research;
[(6)] whether the proposed expert ruled out
other
alternative
explanations;
and
[(7)] whether the proposed expert sufficiently
connected the proposed testimony with the
facts of the case.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 687 (8th Cir. 2001)
(citations and internal quotation marks omitted).
This “flexible
and fact specific” inquiry allows the court to “use, adapt, or
reject [the] factors as the particular case demands.”
F.3d at 1011 (citation omitted).
Unrein, 394
“The proponent of the expert
testimony must prove its admissibility by a preponderance of the
evidence.”
Lauzon, 270 F.3d at 686 (citation omitted).
7
Here, consideration of these factors weighs in favor of
exclusion.
First, the report produced by Doughty and Jones fails
to sufficiently connect the proposed testimony with the facts of
the case.
For example, the applicable industry guidelines suggest
that the sprinkler head should not be installed in a location with
a ceiling temperature exceeding 100 degrees.
108:1-109:24; Jones Dep. 63:4-64:6.
See Doughty Dep.
The joint report produced by
Doughty and Jones, however, failed to examine whether the ceiling
temperature exceeded 100 degrees on the date of the activation.
See Doughty Dep. 114:19-22.
Further, Tyco argues that Doughty and Jones failed to properly
rule out alternative explanations.
Brotherhood responds that the
report considered alternative causes and, after an evaluation of
the plausibility of each cause, properly concluded that a product
defect “likely caused the sprinkler head to activate.”
Ex. C, ECF No. 82, at 3.
Boyle Aff.
In certain cases, such a “differential
diagnosis satisfies Daubert and provides a valid foundation for
admitting an expert opinion.”
Turner v. Iowa Fire Equip. Co., 229
F.3d
2000).
1202,
Brotherhood
1208
(8th
points
to
Cir.
no
As
authority
a
threshold
stating
that
diagnoses apply to a non-medical expert’s testimony.
matter,
differential
See, e.g.,
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999)
(defining
differential
technique
of
diagnosis
identifying
the
as
cause
8
“a
of
a
standard
medical
scientific
problem
by
eliminating the likely causes until the most probable one is
isolated” (citation omitted)); see also Bland v. Verizon Wireless,
(VAW) L.L.C., 538 F.3d 893, 897 (8th Cir. 2008).
Here, even if a differential analysis is applicable to the
instant
facts,
such
an
analysis
must
methodology to be considered reliable.
employ
an
appropriate
“A differential diagnosis
involves the systematic ruling out of other possible causes.”
Stevens v. City of Virginia, No. 99-1033, 2001 WL 391568, at *4 (D.
Minn. Mar.
29,
2001)
(citation
omitted).
The
joint report,
however, does not reveal anything systematic about the manner in
which alternative potential causes were excluded.
As already
explained, Doughty and Jones did not consider that temperatures
between 100 and 155 degrees may have contributed to the activation.
Similarly, the joint report did not explain the basis on which
tampering or physical damage was excluded as a possible cause.
Such omission is particularly problematic given the observable
damage to the support cup of the sprinkler head.
Ex. C, ECF No. 75, at 8.
See Docherty Aff.
Nor did the joint report discuss
corrosion or installation problems, two factors later acknowledged
as having the potential to cause activation, as possible reasons
for the sprinkler head activation.
Jones
Dep.
66:1-3.
Finally,
the
See Doughty Dep. 114:10-18;
report
was
developed
for
litigation and did not naturally flow from expert research.
“An
expert’s finding that flows from research independent of litigation
9
is less likely to be biased and the expert is limited to the degree
to which he can tailor his testimony to serve a party’s interests.”
Lauzon, 270 F.3d at 692 (citation and internal quotation marks
omitted).
As a result, the report of Doughty and Jones is not
sufficiently reliable for the purposes of Rule 702 and, for this
additional reason, exclusion is warranted.
II.
Summary Judgment
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
A party asserting that a genuine dispute
exists - or cannot exist - about a material fact must cite
“particular parts of materials in the record.”
10
Fed. R. Civ. P.
56(c)(1)(A).
If a plaintiff cannot support each essential element
of a claim, the court must grant summary judgment because a
complete
failure
of
proof
regarding
an
essential
necessarily renders all other facts immaterial.
element
Celotex, 477 U.S.
at 322-23.
A.
Tyco
Brotherhood asserts a products liability claim against Tyco
based on theories of negligence and breach of warranty.
Under
Minnesota law, in a products liability case alleging defective
design, such theories of recovery “merge into one theory for
consideration.”
1984).
Bilotta v. Kelley Co., 346 N.W.2d 616, 622 (Minn.
To recover on the products liability claim, Brotherhood
must establish that the sprinkler was in “a defective condition
unreasonably dangerous for its intended use.”
Trost v. Trek
Bicycle Corp., 162 F.3d 1004, 1009 (8th Cir. 1998) (applying
Minnesota law) (citations and internal quotations omitted).
Tyco argues that, given the exclusion of the joint report by
Doughty
and
demonstrates
Jones,
any
there
defect
is
no
evidence
associated
with
in
the
the
record
sprinkler
that
head.
Brotherhood responds that a genuine issue of material fact remains
because it can establish a defect on the basis of res ipsa
loquitur.
In
general,
a
res
ipsa
loquitur
plaintiff
must
demonstrate that “(1) the accident in question was the kind that
does not occur without someone’s negligence; (2) at the time of the
11
injury,
the
instrumentality
causing
the
accident
was
in
the
exclusive control of the defendant; and (3) the condition which
resulted in the injury was not due to the conduct of the plaintiff
or some third party.”
1124, 1128-29
(D.
Mozes v. Medtronic, Inc., 14 F. Supp. 2d
Minn.
1998)
(citations
omitted).
“If
the
accident may reasonably be attributable to one or more causes for
which defendant is not responsible, the doctrine does not apply.”
Id. at 1129 (citation omitted).
Further, “[i]n Minnesota res ipsa
loquitur alone cannot make out a products liability case.”
162 F.3d at 1009 (citation omitted).
Trost,
In other words, a plaintiff
seeking to invoke res ipsa loquitur in a products liability case
must introduce “something more than evidence that the accident
occurred in order to prove defect and causation,” which may be in
the
form
evidence.
of
proper
expert
testimony
or
other
circumstantial
Rohwer v. Fed. Cartridge Co., No. 03-2872, 2004 WL
2677200, at *3 (D. Minn. Nov. 18, 2004) (citations and internal
quotation marks omitted).
Here, Brotherhood fails to establish that the doctrine of res
ipsa loquitur applies. First, the improper activation of sprinkler
heads does not typically occur only due to negligence, as even
Brotherhood recognized numerous other potential causes of sprinkler
head activation.
See, e.g., Boyle Aff. Ex. C, ECF No. 82, at 3
(identifying alternative reasons for which a sprinkler head may
improperly activate); see also Doughty Dep. 114:6-16 (identifying
12
various reasons for improper activation other than negligence).
Moreover, as already explained, exclusion of the testimony of
Doughty and Jones is warranted, and no other evidence before the
court suggests the presence of a defect.
Rather, the record
demonstrates that the sprinkler head was tested and subjected to
various quality control measures prior to its installation.
See
Docherty Aff. Ex. C, ECF No. 75, at 4.
As a result, no reasonable
jury
head
could
find
that
the
sprinkler
was
in
a
defective
condition unreasonably dangerous for its intended use, and summary
judgment as to Tyco is warranted.
B.
ADT
ADT argues that summary judgment is warranted because its
duties to Mound Evangelical arose solely from the contract between
the parties and that a breach of that contract cannot support a
tort claim.
In Minnesota, “a party is not entitled to recover tort
damages for a breach of contract, absent an exceptional case where
the
breach
of
contract
independent tort.”
constitutes
or
is
accompanied
by
an
Cherne Contracting Corp. v. Wausau Ins. Cos.,
572 N.W.2d 339, 343 (Minn. Ct. App. 1997) (citation and internal
quotation marks omitted).
Brotherhood responds that ADT received
a notification of the alarm and its “wrongful conduct thereafter in
contacting the [c]hurch, placed [its] actions outside of the
written
contract
between
the
parties.”
Am.
Compl.
¶
12.
Specifically, Brotherhood argues that the statements to Peterson
13
exceeded
the
contractual
obligations
undertaken
by
ADT
and
constituted gross negligence or willful and wanton negligence.
A
tort
is
independent
from
a
breach
of
contract
if
“a
relationship would exist which would give rise to the legal duty
without enforcement of the contract promise itself.”
Hanks v.
Hubbard Broad., Inc., 493 N.W.2d 302, 308 (Minn. Ct. App. 1992)
(citation omitted).
In other words, although a contract between
parties generally forms the basis for their legal relationship,
where a party acts beyond the boundaries of the contract and
voluntarily assumes duties not contained therein, a claim may sound
in tort.
See Isler v. Burman, 232 N.W.2d 818, 822 (Minn. 1975)
(“It is well established that one who voluntarily assumes a duty
must exercise reasonable care or he will be responsible for damages
resulting from his failure to do so.”).
Here,
the
Contract
provides
that
“[i]f
an
alarm
signal
registers at [ADT]..., ADT will endeavor to notify the appropriate
Police
or
Fire
representative.”
Department
and
...
the
Customer’s
designated
See Mem. Supp. Ex. A, ECF No. 36, at 3.
The
contract expressly describes the boundaries of ADT’s contractual
obligations toward Mound Evangelical, specifying that ADT would
undertake to notify Mound Evangelical of alarm signals but would
not advise Mound Evangelical of how to respond to any signals.
Brotherhood argues, however, that ADT exceeded its contractual
obligations and voluntarily assumed a duty beyond that which was
14
provided
for
contractual
in
the
contract.2
obligations,
however,
Even
the
if
valid
ADT
exceeded
and
its
enforceable
exculpatory provision in the Contract nonetheless warrants summary
judgment for ADT.
1.
Exculpatory Clause
ADT argues that the exculpatory clause3 in the Contract bars
Brotherhood’s tort claim.
Brotherhood responds that ADT was
grossly negligent or willfully and wantonly negligent, and that
under Minnesota law, exculpatory clauses that seek “to release the
2
Under Minnesota law,
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other’s person or
things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable
care to perform his undertaking, if (a) his failure to
exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance
upon the undertaking.
Restatement (Second) of Torts § 323 (1965); see also Funchess v.
Cecil Newman Corp., 632 N.W.2d 666, 675 (Minn. 2001) (applying
§ 323).
3
The contract provides, in relevant part:
E. Limitation of Liability ... (2) ... ADT shall have no
liability for loss[,] damage or injury due directly or
indirectly to events, or the consequences therefrom,
which the System or Services are intended to detect or
avert .... (4) The provisions of this Section E shall
apply no matter how the loss, damage or injury or other
consequence occurs, even if due to ADT’s ... negligence,
active or otherwise ... or any other alleged fault on the
part of ADT, its agents or employees.
Mem. Supp. Ex. A, ECF No. 36, at 5.
15
benefited party from liability for intentional, willful or wanton
acts ... will not be enforced.”
Schlobohm v. Spa Petite, Inc., 326
N.W.2d 920, 923 (Minn. 1982). “Specifically, the Minnesota Supreme
Court has explained exculpatory clauses do not violate public
policy when applied to claims of ordinary negligence, but do
violate public policy, and are therefore unenforceable, against
claims of willful and wanton negligence.”
Gage v. HSM Elec. Prot.
Servs., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citation and
internal quotation marks omitted).
As an initial matter, the exculpatory clause is valid and
enforceable as to Brotherhood’s claims of ordinary negligence. See
Ball v. Waldoch Sports, Inc., No. C0-03-227, 2003 WL 22039946, at
*3-4 (Minn. Ct. App. 2003) (collecting cases and finding that
exculpatory clause limiting liability from claims “whether caused
by the negligence ... or otherwise” was valid and enforceable).
Thus, the claim for ordinary negligence against ADT is barred by
the exculpatory clause.
As a result, Brotherhood can survive
summary judgment only if a reasonable fact finder could conclude
that ADT’s actions or omissions amounted to gross negligence or
willful and wanton negligence, such that the exculpatory clause
does not apply.
See Gage, 655 F.3d at 827 (citation omitted).
a.
Willful and Wanton Negligence
“Willful and wanton negligence is reckless disregard of the
safety of the person or property of another by failing, after
16
discovering the peril, to exercise ordinary care to prevent the
impending injury.”
Hinkle v. Minneapolis, A.&C.R. Ry. Co., 202
N.W. 340, 340 (Minn. 1935) (citations omitted).
“[A] willful or
wanton act is one done with a consciousness of probable results but
with reckless indifference to them.”
Mueller v. Dewey, 198 N.W.
428, 429 (Minn. 1924) (citation omitted).
Here, ADT received two signals from the Mound Evangelical
alarm system on July 6, 2012: (1) a “low air” signal at 7:46 p.m.
indicating that air pressure in the sealed pipes of the dry
sprinkler system had fallen below a specified threshold and (2) a
“restore” signal at 7:47 p.m. indicating that air pressure had been
restored.
See Docherty Aff. Ex. A, ECF No. 64, at 3.
ADT argues
that “[i]f the operator does not see multiple low air signals, it
means the system’s air pressure was restored” and that its operator
understood the system to be functioning properly.
Id. at 4.
Moreover, ADT notes that it “is not an uncommon occurrence to see
a
‘low
air’
signal
followed
by
a
‘restore’
signal.”
Id.
Brotherhood does not adduce any evidence from which a reasonable
jury could
conclude
that
the
ADT
representative
-
given
the
proffered interpretation of the two signals - had any “knowledge or
consciousness ... of the peril” at issue.
N.W. 563, 566 (Minn. 1935).
Raths v. Sherwood, 262
In other words, Brotherhood cannot
demonstrate that ADT had any “consciousness of [the] probable
result[]” that the church would sustain damage, much less that ADT
17
was recklessly indifferent to such a result. See Mueller, 198 N.W.
at 429; see also Bryant v. N. Pac. Ry. Co., 23 N.W.2d 174, 181
(Minn. 1946) (“Wil[l]ful and wanton negligence cannot be predicated
upon honest misjudgment.” (citation omitted)).
As a result, no
reasonable jury could conclude that ADT acted willfully or wantonly
and the claim premised on willful or wanton negligence fails.
b.
Gross Negligence
ADT next argues that summary judgment is warranted on the
gross negligence claim. “Gross negligence is very great negligence
or absence of even slight care, but [it is] not equivalent to
wanton and willful conduct.”
Beehner v. Cragun Corp., 636 N.W.2d
821, 829 (Minn. Ct. App. 2001) (alteration in original) (citation
and internal quotation marks omitted).
Here, Brotherhood has
adduced no evidence that ADT’s actions reflected an “absence of
even slight care” or were “egregious enough to fall into [the]
public policy exception that prohibits the limitation of liability
for willful or gross negligence.”
Am. Litho, Inc. v. Imation
Corp., No. 08-5892, 2010 WL 681298, at *6 (D. Minn. Feb. 23, 2010)
(citation omitted) (Nelson, M.J.).
As already explained, the
record instead suggests that ADT followed its internal procedures
for responding to the alarm signals, even if its communication to
Peterson arguably did not expressly follow the language of the
Contract.
Moreover, Brotherhood does not argue that ADT failed to
report additional signals or other irregular readings that would
18
have merited further communications to Mound Evangelical.
See
Docherty Aff. Ex. A, ECF No. 64, at 4 (describing typical process
followed by ADT upon receiving “low air” and “restore” signals in
quick succession).
In sum, the alleged communication, without
more, is insufficient to show that ADT’s conduct was grossly
negligent.
As a result, no reasonable jury could conclude that
ADT’s actions were grossly negligent or willfully and wantonly
negligent and summary judgment is warranted.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.
The motion to dismiss by defendant ADT [ECF No. 35] is
construed as a motion for summary judgment and is granted;
2.
The motion to exclude expert testimony [ECF No. 66] is
granted;
3.
The motion for summary judgment by defendant Tyco [ECF
No. 72] is granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
July 2, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court
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