THERE IS AN INTERESTING CASE IN OHIO where a free smoke detector was installed with an intelligent home system as a promotional add-on explicitly not intended to be a primary or code-compliant fire safety system. Thereafter, a resident died from smoke inhalation resulting from a fire. The husband of the descendant, who is the administrator of her estate, filed a lawsuit seeking to hold the alarm company responsible for damages resulting from the fire, alleging that the alarm company was negligent. The defendant alarm company filed an action for summary judgment claiming that its only possible liability lies in contract — not tort — and therefore is entitled to summary judgment on any claim sounding in tort.

The alarm company claimed that the free smoke detector supplied with the system was a promotional add-on explicitly not intended to be a primary or code-compliant fire safety system. In addition, the alarm company claimed that the smoke detector began to send dying battery signals but, despite their reaching out to the descendant with several notices of the problem and with free replacement batteries, there is no evidence that they ever replaced the batteries, and she canceled a service call that the alarm company set up.

The plaintiff moved for summary judgment, seeking a conclusion by the court that the alarm company was negligent per se in violating Ohio Rev. Code Sections 3737.51 and 3737.65, which provided in relevant part: “No person shall knowingly violate any provision of the state fire code or any order made pursuant to it. … No person shall sell, offer for sale or use any fire protection or firefighting equipment that does not meet the minimum standards established by the fire marshal in the state fire code.”

The court stated that to establish a claim of negligence per se under Ohio law, the plaintiff must show a violation of a statute; that the violation of the statute proximately caused the plaintiff’s injuries, and that the defendant knew or should have known of the factual circumstances that proximately caused said injuries.

Here, general negligence and gross negligence are based on a common law duty to exercise ordinary and reasonable care in the marketing, installation, service, monitoring and maintenance of the home security system and smoke detector. Neither make reference to any statute that the defendant allegedly violated, nor make any allegations as to how such a statute might impose a specific duty on the defendants for the protection of others, or how the defendants may have failed in such duty.

The court further stated that “the rule is that where a legislative enactment imposes upon any person a specific duty for the protection of others, and his failure to perform that duty proximately results in injury to another, he is liable per se or as a matter of law to such other for the injury.”

The defendant claimed that any possible liability lies in contract, not tort.

The court concluded there was a contract between the alarm company and the deceased and that any duty owed by the alarm company arose out of the contract and although the alarm company may have been negligent in its contractual obligations, no separate duty existed between the parties to allow the plaintiff to pursue a tort theory of recovery. The court pointed out that even had the plaintiff asserted claims for breach of contract, the terms of the agreement would have eliminated, or at least limited the plaintiff’s liability. Therefore, the plaintiff’s motion for summary judgment was denied and the defendants’ motion for summary judgment was granted.