Velma Veasley v. Monitronics International, Inc.

• Court: Court of Appeals of Georgia
• Decided: July 16, 2013
• Docket: A13A0091
• Status: Published

Opinion

WHOLE COURT

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

July 16, 2013

In the Court of Appeals of Georgia A13A0090, A13A0091. MONITRONICS INTERNATIONAL, INC. v. VEASLEY; and vice versa.

DILLARD, Judge.

Velma Veasley was sexually assaulted by an intruder, who broke into her home

earlier in the day while she was at work and remained there despite triggering her

home’s security-system alarm numerous times. Veasley sued Monitronics

International, Inc. (“Monitronics”), the company she paid to monitor her security

system, alleging that she suffered harm as a result of its negligence. Following a jury

verdict and judgment in Veasley’s favor, Monitronics moved for judgment

notwithstanding the verdict (j.n.o.v.), to enforce a contractual limitation-of-liability

clause, and alternatively, for a new trial, all of which the trial court denied. In Case No. A13A0090, Monitronics appeals the denial of its motions for

j.n.o.v., to enforce the limitation-of-liability clause, and new trial, arguing that the

trial court erred in (1) finding that genuine issues of material fact precluded j.n.o.v.

on Veasley’s extra-contractual negligence claim; (2) holding that the limitation-of-

liability clause in Monitronics’s contract with Veasley was unenforceable; (3) striking

its notices of apportionment; (4) failing to instruct the jury on assumption of the risk;

and (5) instructing the jury that Monitronics had a duty to comply with industry

standards. In Case No. A13A0091, Veasley argues that if this Court holds that

Monitronics is entitled to a new trial, it should further hold that the trial court erred

in finding that Monitronics could not be liable for negligently performing its

contractual duties. For the reasons set forth infra, we affirm the jury’s verdict and the

trial court’s judgment. Accordingly, we dismiss Veasley’s cross-appeal as moot.

Construed in favor of the jury’s verdict,1 the evidence shows that in October

1998, not long after she purchased her Stone Mountain home, Velma Veasley also

purchased a home security system from Tel-Star Alarms, Inc. (“Tel-Star”). Pursuant

to the purchase contract, Tel-Star installed the system, which included an alarm,

several door sensors, and an internal motion sensor, and assumed responsibility for

1 See Horton v. Hendrix, 291 Ga. App. 416, 416 (662 SE2d 227) (2008).

2 monitoring the system. To facilitate Tel-Star’s monitoring of the system, Veasley

provided the company with her work phone number (including her personal

extension), and designated her older sister, Barbara Warren, as her emergency contact

by providing her sister’s phone number as well. In addition, the contract contained

a clause that purported to limit Tel-Star’s liability to $250 for any loss resulting from

its performance of the contract. And less than one month after Veasley purchased the

home-security system, Tel-Star assigned the contract to Monitronics, which then

assumed responsibility for monitoring the system.

On March 29, 2006, Veasley left her home shortly after 4:00 a.m. and traveled

to her job at a Target department store. At 10:27 a.m., the alarm for Veasley’s home-

security system sounded after an internal motion sensor was triggered. Upon

receiving the alert at its monitoring site in Texas, a Monitronics representative called

Veasley’s home and dispatched police when the home phone was not answered. A

few minutes later, the representative attempted to contact Veasley by calling her work

number. But when the representative’s call was answered by an automated message

directing the caller to dial an extension number or press one to speak with an

operator, the representative—despite having Veasley’s extension

number—terminated the call. Instead, the representative called Veasley’s sister

3 (Warren) to inform her about the alarm, but was not immediately successful in

reaching her.

In the meantime, alarms for Veasley’s security system continued to sound.

Specifically, at 10:41 a.m., an internal motion sensor was again triggered, and two

minutes later, an alert indicated that the door leading into the home’s attached garage

had been opened. At 11:27 a.m., an internal motion sensor was triggered for a third

time, and approximately five minutes later, the door leading into the garage was again

opened. Following these two alarms, a Monitronics representative called Veasley’s

work number but again ended the call upon reaching Target’s automated-message

system. The representative then attempted to call Veasley’s sister again but only

reached her answering machine.

At 11:46 a.m., an internal motion sensor was triggered for a fourth time, and

the Monitronics representative called the police again to inform them of the multiple

alerts. Nearly 30 minutes later, the representative finally successfully contacted

Veasley’s sister, who stated that she could meet the police at Veasley’s home and

would arrive there within 20 minutes. Nevertheless, at 1:06 p.m., an internal motion

sensor was triggered for yet a fifth time. Once again, the Monitronics representative

called Veasley’s work number but did not call her extension and thus did not reach

4 her. In fact, by this point, Veasley had left Target to go to her second job at a daycare

center. The representative then attempted, once again, to contact Veasley’s sister and

spoke to the sister’s husband, who told the representative that his wife had not yet

returned. A short time later, the police contacted Monitronics and informed the

representative that they would not respond to further dispatches to Veasley’s house

unless a key-holder was on the scene to meet them. But for the rest of the afternoon,

no additional alarms were triggered; and despite the fact that it never determined the

actual cause of the alarms, Monitronics made no further attempts to contact Veasley,

her sister, or the police.

Veasley returned home from work at approximately 7:25 p.m. And while her

sister had left a note about the alarms near the entrance to the garage, Veasley did not

see it and, thus, was not aware that the alarm for her security system had been

triggered multiple times throughout the day. Instead, she parked in her garage, exited

the vehicle, and then started to open the internal door leading inside the house when

the alarm sounded.

As she went inside and turned off the alarm, a Monitronics representative

called her home telephone. Veasley told the representative that she was fine but that

she did not understand why the alarm had triggered. And despite the fact that the

5 representative had access to the information indicating that Veasley’s security system

had alerted multiple times throughout the day, the representative told Veasley that the

alarm most likely sounded because the door she entered did not have a delay timer.

Veasley did not believe that the representative was correct about the delay timer, but

she nevertheless accepted her explanation and remained in her home.

Thereafter, Veasley went to her bedroom where she noticed that the bed looked

as if someone had disturbed it. She also noticed a tequila bottle and a cell phone that

she did not recognize next to her bed. And feeling that things were not quite right in

her home, Veasley called her sister and left a message on her answering machine

about the alarm (along with a request that she return the call). Nevertheless, over the

course of the next 20 minutes or so, Veasley finished some paperwork, took a shower,

and ate a quick meal. Subsequently, she returned to her bathroom to get ready for bed,

at which point she was grabbed by a stranger brandishing a knife. As Veasley

screamed, the assailant—later identified as Stephen Okrah—dragged her to the living

room, told her to shut up, and demanded money. And when Veasley told him that she

did not have any cash in the home, Okrah forced her into her car and drove to several

ATMs in an attempt to withdraw money from Veasley’s bank account. Then, for

several terrifying hours, Okrah drove around in Veasley’s car while threatening her

6 life. Ultimately, he drove back to Veasley’s house, forced her into her bedroom, and

raped her.

Not long thereafter, Okrah passed out due to the fact that he had apparently

been drinking alcohol throughout the day. Consequently, Veasley escaped from her

home, ran to her neighbors’ house, and had her neighbors call the police, who arrived

quickly and arrested Okrah without further incident. Okrah eventually pleaded guilty

to numerous offenses, including rape, and is currently incarcerated.

On August 18, 2009, Veasley filed suit against Monitronics alleging, inter alia,

breach of contract, negligence, and fraudulent misrepresentation. Monitronics filed

an answer, and discovery ensued. In July 2011, after discovery had closed,

Monitronics filed notices stating that it would seek to apportion fault to non-parties

Okrah and Warren (Veasley’s sister). But after the trial court set the trial for

November 7, 2011, Veasley successfully argued that Monitronics’s notices of

apportionment were untimely, and the trial court struck them.

In the interim, on July 20, 2011, Monitronics filed a motion for summary

judgment, arguing that it owed no duty to Veasley beyond the terms of the contract

between the parties; that its actions were not the proximate cause of her injuries; and

that the terms of the contract limited its liability to $250. Veasley filed a response to

7 Monitronics’s motion, but before doing so, she filed an amended complaint, which

no longer contained a breach-of-contract claim. And following a hearing on the

matter, the trial court denied Monitronics’s summary-judgment motion, finding that

genuine issues of material fact remained as to whether Monitronics breached a duty

of care owed to Veasley and caused her injuries. The trial court further held that the

limitation of liability in the home security purchase contract was not applicable

because Veasley was suing on a tort theory and because genuine issues of material

fact remained as to whether Monitronics was grossly negligent, which would also

preclude the applicability of any such clause. One week later, Monitronics filed a

motion requesting that the trial court reconsider its denial of summary judgment on

the issue of the enforceability of the limitation-of-liability clause. And finding that

its previous order was confusing, the trial court vacated it. But in its new order, the

court reiterated the denial of Monitronics’s motion for summary judgment, holding

that the limitation-of-liability clause was “unconscionable and void as against public

policy.”

The case then proceeded to trial, and on the first day, the trial court responded

to an issue discussed in the parties’ motions in limine by ruling that the focus of the

trial would be as to whether Monitronics breached extra-contractual duties it owed

8 to Veasley, which it undertook when its representative spoke to her on the telephone

approximately 20 minutes before Okrah attacked her, and when it sought to comply

with home-security industry standards. The court further ruled that whether

Monitronics negligently performed its obligations under the purchase contract was

not an issue for trial.

During the trial, Veasley testified about returning home from work and being

held and attacked by Okrah. In addition, her expert witness discussed Monitronics’s

handling of the multiple alarms on the day in question and opined that it had not

complied with industry standards. And after Veasley concluded presenting her

evidence, Monitronics moved for a directed verdict on grounds similar to those

argued in its motion for summary judgment. The trial court denied the motion, and

Monitronics then presented its case.

At the conclusion of the trial, the jury found in favor of Veasley. Specifically,

pursuant to a special verdict form, the jury found that Monitronics did not exercise

ordinary care, increased the danger to Veasley, and failed to comply with industry

standards. The jury then apportioned 96 percent of the fault to Monitronics and 4

percent of the fault to Veasley, awarding Veasley $9,000,000 in damages. But the jury

further found that Monitronics’s actions were not grossly negligent, that its conduct

9 was not willful or wanton, and therefore, that punitive damages were not warranted.

Shortly thereafter, the trial court issued a judgment in favor of Veasley but slightly

reduced her damages to $8,640,000 based on the jury’s finding that she was 4 percent

at fault.

Subsequently, Monitronics filed a motion for j.n.o.v., a motion to enforce the

limitation-of-liability clause in light of the jury’s finding that Monitronics was not

grossly negligent, and alternatively, a motion for a new trial. The trial court held a

hearing on these issues, after which it denied all three motions. These consolidated

appeals follow.

1. Monitronics first contends that the trial court erred in finding that genuine

issues of material fact precluded j.n.o.v. on Veasley’s extra-contractual negligence

claim. Specifically, Monitronics argues that it owed no duty of care to Veasley, that

she did not rely on any misstatements by Monitronics, and that its conduct was not

the proximate cause of her harm. We disagree.

It is well established that on appeal from the denial of a motion for a directed

verdict or for j.n.o.v., we construe the evidence “in the light most favorable to the

party opposing the motion, and the standard of review is whether there is any

10 evidence to support the jury’s verdict.”2 Indeed, because the jurors are “the sole and

exclusive judges of the weight and credit given the evidence,” we must construe the

evidence with “every inference and presumption in favor of upholding the verdict,

and after judgment, the evidence must be construed to uphold the verdict even where

the evidence is in conflict.”3 We do, however, review questions of law de novo.4 With

these guiding principles in mind, we turn now to Monitronics’s specific claim that the

trial court erred in allowing this case to be decided by the jury.

Monitronics contends that it owed Veasley no duty of care beyond the terms

of the home-security-system purchase contract, that its conduct was not relied upon

by Veasley, and that it did not increase her risk of harm.5 But under well-established

2 Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011) (punctuation omitted). 3 Wood v. B & S Enterprises, Inc., 314 Ga. App. 128, 135 (5) (723 SE2d 443) (2012) (footnote and punctuation omitted). 4 Eason v. Dozier, 298 Ga. App. 65, 65 (679 SE2d 89) (2009). 5 As previously noted, just prior to the start of trial, the trial court ruled that whether Monitronics negligently performed its obligations under the home-security- system purchase contract was not an issue to be decided at trial. This ruling is the subject of Veasley’s conditional cross-appeal, which we need not address given the fact that we affirm the jury’s verdict. Nevertheless, it is axiomatic that “a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty

11 Georgia law, “a person may be held liable for the negligent performance of a

voluntary undertaking.”6 Specifically,

one who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon.7

And whether such a relationship exists between the parties “such as that which would

authorize the finding of an independent harm is a question of fact to be resolved by

a jury.”8

owed to plaintiff independent of contract to avoid harming him.” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (6) (203 SE2d 587) (1973); see Brookview Holdings LLC v. Suarez, 285 Ga. App. 90, 93-94 (1) (645 SE2d 559) (2007) (holding that genuine issues of material fact remained as to whether defendant was negligent and thus breached a duty arising out of contract with plaintiff to provide security). 6 Osowski v. Smith, 262 Ga. App. 538, 540 (1) (586 SE2d 71) (2003). 7 Id. at 540 (1) (punctuation omitted); see also Restatement (Second) of Torts § 323 (1965). 8 Lenny’s, Inc. v. Allied Sign Erectors, Inc., 170 Ga. App. 706, 709 (3) (318 SE2d 140) (1984).

12 Here, there was some evidence to support the jury’s finding that Monitronics

owed Veasley an extra-contractual duty of care that it breached when its

representative spoke to Veasley on the telephone—after she returned home and the

final alarm sounded—and (1) provided her with misinformation regarding why the

final alarm sounded and (2) failed to inform her that the security-system alarm had

been triggered multiple times throughout the day. Furthermore, although Veasley

testified that she did not think the Monitronics representative was correct when the

representative told her that the alarm sounded because the door she entered did not

have a delay timer, she also testified that she nevertheless felt safe due to (1) the

reassurances given to her during that conversation and (2) the fact that she had an

alarm system. And such conflicts in the evidence were for the jury to resolve, which

it did in Veasley’s favor.9 Additionally, Veasley testified that she would not have

remained in her home if she had been informed of the multiple alarms that had alerted

throughout the day without resolution. Thus, there was some evidence that Veasley

not only relied upon Monitronics’s misstatements but that those misstatements and

Monitronics’s failure to provide her with full information about the alarms increased

9 See Wood, 314 Ga. App. at 135 (5) (holding that weighing credibility is the province of the jury, and the evidence must be construed to uphold the jury’s verdict even when the evidence is in conflict).

13 her risk of harm. Accordingly, the trial court did not err in denying Monitronics’s

motion for j.n.o.v. as to its claims that it owed no extra-contractual duty to Veasley.10

Monitronics further asserts that as a matter of law its conduct was not the

proximate cause of Veasley’s harm. However,

questions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff’s injuries are, except in plain, palpable and indisputable cases, solely for the jury, and the courts will decline to decide such questions unless reasonable minds cannot differ as to the conclusions to be reached.11

10 See Osowski, 262 Ga. App. at 540-41 (1) (reversing because there was a genuine issue of material fact as to whether property owner agreed to undertake duty of ensuring that dogs on property would not pose a risk of harm to plaintiff as he installed cable, precluding summary judgment for property owner on negligence claim asserted by plaintiff in connection with alleged attack by dog); see also Boyce v. Gregory Poole Equip. Co., 269 Ga. App. 891 896-97 (1) (c) (605 SE2d 384) (2004) (reversing summary judgment on the ground that seller of product who made investigations into product’s expected use assumed a duty of ordinary care to warn users of patent defect in product and whether seller breached that duty was a question for the jury); Compare Abundant Animal Care, LLC v. Gray, 316 Ga. App. 193, 196- 97 (2) (728 SE2d 822) (2012) (holding that plaintiff could not assert a claim of negligent performance of a voluntary undertaking when she failed to show that she was even aware of defendant’s voluntary undertaking); Griffin v. AAA Auto Club S., Inc., 221 Ga. App. 1, 3 (2) (470 SE2d 474) (1996) (affirming grant of summary judgment to employer when employee did not show that she relied on employer’s security measures to protect her from attack by boyfriend). 11 Hayes v. Crawford, 317 Ga. App. 75, 79 (730 SE2d 26) (2012) (punctuation omitted); see Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003) (“What amounts to proximate cause is undeniably a jury question . . . .” (punctuation

14 And here, given the evidence that Veasley would not have remained in her home if

she had been fully informed of the multiple alarms that had been triggered throughout

the day, there was some evidence that Monitronics’s conduct was the proximate cause

of her harm.12 Accordingly, the trial court did not err in submitting this issue to the

jury.

2. Monitronics also contends that the trial court erred in holding that the

limitation-of-liability clause included in the home-security-system purchase contract

between Tel-Star and Veasley—which was assigned to Monitronics—was

unenforceable. Again, we disagree.

In considering this argument, we begin by noting that an issue of contract

construction is usually a question of law for the court to resolve and, as such, it is

subject to de novo review.13 This review is guided by three fundamental principles of

omitted)). 12 See Hayes, 317 Ga. App. at 79 (reversing summary judgment because genuine issue of material fact existed as to whether driver of lead truck was a proximate cause of fatal collision); Vann v. Finley, 313 Ga. App. 153, 162-63 (2) (721 SE2d 156) (2011) (reversing summary judgment because genuine issue of material fact existed as to whether electrical inspector’s failure to check mobile home for smoke detectors was a proximate cause of children’s death in a later fire). 13 Mon Ami Int’l, Inc. v. Gale, 264 Ga. App. 739, 740-41 (592 SE2d 83) (2003).

15 contract construction: (1) If the agreement is unambiguous, “the court will look to the

contract alone to find the intention of the parties”;14 (2) the existence or nonexistence

of an ambiguity is a question of law for the court;15 and (3) the issue of interpretation

becomes a jury question only when there appears to be “an ambiguity in the contract

which cannot be negated by the court’s application of the statutory rules of

construction.”16

And here, the relevant section of the home-security-system purchase contract,

which was printed on the back of the one-page document along with the rest of the

terms, read as follows:

5. DAMAGES - Subscriber acknowledges that it is impracticable and extremely difficult to fix the actual damages, if any that might proximately result to Subscriber from either Tel-Star’s failure to perform any of the obligations under this agreement or the failure of the System to properly operate because of among other things . . .

(e) the police or fire department or other organization to which the connection may be made or an alarm signal may be transmitted may invoke the provisions hereof against any claims by the Subscriber or by

14 Id. at 741 (punctuation omitted). 15 Id. (punctuation omitted). 16 Id. (punctuation omitted).

16 others due to any failure of such organization. Subscriber therefore agrees that if Tel-Star should be found liable for loss or damages caused by a failure of Tel-Star’s to perform any of its obligations under this agreement (including but not limited to installation, maintenance, monitoring or service or the failure of the System or equipment in any respect whatsoever), Tel-Star’s total liability shall be limited to $250.00. This liability shall be exclusive, and the provisions of this section shall apply to any loss or damage, regardless of cause, which results directly and indirectly from Tel-Star’s performance or non-performance of the obligations imposed under this Agreement or under law from any negligence of the part of Tel-Star, its agents, employees or assigns. EXCEPT FOR DAMAGES DESCRIBED IN THIS SECTION, TEL- STAR SHALL NOT BE LIABLE TO PURCHASER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

As previously noted, in its denial of Monitronics’s motion for summary

judgment, the trial court held that the limitation-of-liability clause was

unconscionable and void as against public policy, and it reaffirmed this ruling in its

denial of Monitronics’s motions for j.n.o.v. and other post-trial relief. But setting

aside whether the trial court was correct in ruling that this limitation-of-liability

clause was unconscionable, we nevertheless agree with the court’s ultimate

conclusion that the clause was unenforceable, and a summary judgment ruling that

17 is right for any reason—particularly a ruling that involves construction of a

contract—must be affirmed.17

At the outset, we note that Georgia’s appellate courts are required to construe

agreements in a manner that respects the parties’ sacrosanct freedom of contract.18

Indeed, it is well settled that contracts will not be avoided by the courts on the

grounds that they violate public policy, “except where the case is free from doubt and

where an injury to the public interest clearly appears.”19 It is also well settled that

exculpatory clauses in which a business seeks to relieve itself from its own

negligence are valid and binding in this State, “and are not void as against public

policy unless they purport to relieve liability for acts of gross negligence or wilful or

17 See Board of Comm’rs of Crisp County v. City Comm’rs of the City of Cordele, 315 Ga. App. 696, 700 (727 SE2d 524) (2012) (“[w]e . . . affirm the court’s judgment, even though we interpret the contract somewhat differently from the trial court.”); Caswell v. Anderson, 241 Ga. App. 703, 706 (527 SE2d 582) (2000) (affirming trial court’s grant of summary judgment as right for any reason given that trial court’s ultimate construction of contract was correct). 18 See Colonial Properties Realty Ltd. Partnership v. Lowder Const. Co., Inc., 256 Ga. App. 106, 111-112 (567 SE2d 389) (2002); Duncan v. Integon General Ins. Corp., 267 Ga. 646, 650 (482 SE2d 325) (1997) (“Georgia has historically afforded great protection to the freedom to contract with another person. Georgia courts are thus bound to enforce contracts as made so long as they are not contrary to law or public policy.”). 19 See Colonial Properties, 256 Ga. App. at 111-112.

18 wanton conduct.” 20 Nevertheless, because exculpatory clauses may amount to “an

accord and satisfaction of future claims and waive substantial rights, they require a

meeting of the minds on the subject matter and must be explicit, prominent, clear and

unambiguous.”21 Moreover, any ambiguities in exculpatory clauses are “construed

against the drafters.” 22

Here, the limitation-of-liability clause is found on the back of the one-page,

two-sided contract in subsection (e) of paragraph 5, which is titled “DAMAGES.”

And rather than being set off in its own paragraph—or even its own

20 Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 477 (2) (644 SE2d 311) (2007). We take a moment here to note that although the section of the contract at issue is more accurately characterized as a limitation-of-liability clause rather than an exculpatory clause, the parties have not argued that we should review the enforceability of such clauses differently, and Georgia case law does not appear to treat such clauses differently for purposes of review. See, e.g., Lanier at McEver, L.P. v. Planners & Eng’rs Collaborative, Inc., 284 Ga. 204, 205-06 (1) (663 SE2d 240) (2008) (holding a limitation-of-liability clause unenforceable on the grounds that it violates public policy); RSN Properties, Inc. v. Eng’g Consulting Servs., Ltd., 301 Ga. App. 52, 54-55 (686 SE2d 853) (2009) (holding that a limitation-of-liability clause did not violate public policy). 21 Holmes, 284 Ga. App. at 477 (2) (punctuation omitted); see Parkside Ctr., Ltd. v. Chicagoland Vending, Inc., 250 Ga. App. 607, 611 (2) (552 SE2d 557) (2001) (holding that exculpatory clauses must be “explicit, prominent, clear and unambiguous” (punctuation omitted)). 22 Holmes, 284 Ga. App. at 477 (2).

19 subparagraph—the $250 limitation appears toward the end of the second, long

sentence in subsection (e), after a nearly equally long sentence discussing the liability

of police or fire departments, and it is far removed from the paragraph 5 title that

indicates the subject matter of the paragraph. In addition, while the sentence

indicating that Monitronics is not liable for incidental or consequential damages is

in capitalized typeface, neither the $250 limitation nor the fact that it applies to acts

of negligence is capitalized or set off in any unique or prominent way. To the

contrary, this important language is written in the same small, single-spaced typeface

as the majority of the contract. Given these circumstances, we conclude that the

limitation-of-liability clause in the home-security-system purchase contract cannot

be characterized as explicit, and it certainly lacks the requisite indicia of

prominence.23

23 See Parkside Ctr., Ltd., 250 Ga. App. at 611-12 (2) (holding that exculpatory clause that “has no separate paragraph heading and has typeface the same size as all of the surrounding numbered paragraphs . . . that all appear on the last page of the form lease under [a] general heading . . .” lacked indicia of prominence and, therefore, was unenforceable). Cf. Leland Indus., Inc. v. Suntek Indus., Inc., 184 Ga. App. 635, 636-37 (1) (362 SE2d 441) (1987) (holding that disclaimer was not conspicuous as required by OCGA § 11-2-316 (2) given that only the introductory language was capitalized and the actual disclaimer language was in exactly the same size and color type as the remainder of the contract). Compare Imaging Sys. Int’l, Inc. v. Magnetic Resonance Plus, Inc., 227 Ga. App. 641, 644-45 (1) (490 SE2d 124) (1997) (holding that exculpatory clause was enforceable when clause was set off in

20 Although not stating as much explicitly, the dissent attempts to distinguish the

limitation-of-liability clause at issue here from the exculpatory clause that the

dissent’s author found unenforceable in Parkside Ctr., Ltd. v. Chicagoland Vending,

Inc.24 by claiming that the capitalized reference to “incidental or consequential

damages” alone renders this clause sufficiently prominent. But while this particular

part of the limitation-of-liability clause may be prominent, the rest of the long

subsection (e), including the $250 limitation-of-liability and the reference to its own

negligence upon which Monitronics actually relies, is not. Indeed, as previously noted

and quite similar to the exculpatory clause at issue in Parkside Ctr., Ltd., the

limitation-of-liability clause itself was not set off in any meaningful way here.25

Accordingly, we find that the clause is unenforceable, albeit for a reason different

than that relied upon by the trial court.

its own paragraph with a capitalized heading and with all key language capitalized); Grace v. Golden, 206 Ga. App. 416, 417 (1) (b) (425 SE2d 363) (1992) (holding that exculpatory clause in security deed was enforceable when the typeface of the clause was “larger and bolder than that in the preprinted portions of the deed”). 24 250 Ga. App. 607. 25 See id. at 611-12 (2) (holding that exculpatory clause that with no separate paragraph heading, typeface the same size as all of the surrounding numbered paragraphs and that appears on the last page of the form lease under a general heading was unenforceable).

21 3. Monitronics next contends that the trial court erred in striking its notices of

apportionment as untimely. Again, we disagree.

The apportionment-of-damages statute provides, in part, that “[n]egligence or

fault of a nonparty shall be considered if the plaintiff entered into a settlement

agreement with the nonparty or if a defending party gives notice not later than 120

days prior to the date of trial that a nonparty was wholly or partially at fault.”26 And

the notice “shall be given by filing a pleading in the action designating the nonparty

and setting forth the nonparty’s name and last known address, or the best

identification of the nonparty which is possible under the circumstances, together

with a brief statement of the basis for believing the nonparty to be at fault.”27

Importantly, the Supreme Court of Georgia has acknowledged that the apportionment

statute changes the common law, and “statutes in derogation of the common law must

be limited strictly to the meaning of the language employed, and not extended beyond

the plain and explicit terms of the statute.”28

26 See OCGA § 51-12-33 (d) (1). 27 See OCGA § 51-12-33 (d) (2). 28 Couch v. Red Roof Inns, Inc., 291 Ga. 359, 364 (1) (729 SE2d 378) (2012) (punctuation omitted).

22 In this matter, discovery ended on June 30, 2011. But Monitronics waited until

July 12, 2011, to file a notice that it would seek to apportion fault to Okrah and

waited until July 27, 2011, to file a similar notice regarding Warren (Veasley’s sister).

On August 2, 2011, the court set the trial for November 7, 2011, which resulted in

Monitronics’s notices of apportionment being filed less than 120 days before trial

and, therefore, untimely.29 Consequently, Veasley moved to strike both notices of

apportionment, and the trial court granted same.

Monitronics’s argues, unsurprisingly, that its notices were not initially untimely

when filed but only became so after the trial court set the trial date. While this is

undoubtedly true, it is important to note that “trial courts have discretion to set their

trial calendars and manage the call of cases for trial, limited by the due process

requirement that notice be reasonable under the totality of the circumstances.”30 Thus,

as the end of discovery approached in this matter, Monitronics should have been

aware that setting the case for trial was imminent and acted accordingly.

29 See OCGA § 51-12-33 (d) (1). 30 Jones, Martin, Parris & Tessener Law Offices, PLLC v. Westrex Corp., 310 Ga. App. 192, 194 (2) (712 SE2d 603) (2011) (punctuation omitted); see Thornton v. Nat’l Am. Ins. Co., 269 Ga. 518, 518-19 (1) (499 SE2d 894) (1998).

23 Furthermore, we are not at all persuaded by Monitronics’s argument that its

notices of apportionment should not have been struck because it substantially

complied with the statute. The statutory deadline is what it is, and the plain and

unambiguous meaning of OCGA § 51-12-33 (d) (1)’s text mandates strict

compliance—i.e., “negligence or fault of a nonparty shall be considered . . . if a

defending party gives notice not later than 120 days prior to the date of trial that a

nonparty was wholly or partially at fault.” As such, a defending party either complies

with the 120-day notice requirement or it does not. And here, there is no question that

Monitronics failed to comply with this statutory requirement.

What Monitronics really takes issue with is not the statutory deadline, but

rather the trial court’s decision to set the trial date when it did. The proper line of

inquiry then is whether the trial court abused its discretion in this respect; and we

conclude that it did not.

Monitronics cannot assert any credible reason for waiting until after discovery

ended to file its notices of apportionment. Monitronics was well aware of Okrah’s

role in causing Veasley’s harm from the moment she filed suit, if not sooner.

Likewise, Warren was deposed on July 21, 2010, and thus whether to attribute any

fault to her could have been determined nearly a year before Monitronics finally

24 attempted to do so. Indeed, the fact that Monitronics filed a notice that it would seek

to apportion fault to DeKalb County law-enforcement authorities on March 4, 2010,

belies any contention that it was unable to file similarly timely notices regarding

Okrah and Warren. We, therefore, find that strict compliance with OCGA § 51-12-33

(d) (1) was required and that the trial court was well within its right to set the trial

date when it did.31 Accordingly, the trial court did not err in striking Monitronics’s

notices of apportionment.

4. Monitronics next contends that the trial court erred in denying its request to

instruct the jury on the law of assumption of the risk. Once again, we disagree.

It is axiomatic that “[a] jury charge must be adjusted to the evidence, apt, and

a correct statement of the applicable law.”32 And a refusal to give a requested jury

charge is not error unless “the request is entirely correct and accurate; is adjusted to

the pleadings, law, and evidence; and is not otherwise covered in the general

31 Cf. Swanigan v. Leroux, 240 Ga. App. 550, 550-51 (1) (524 SE2d 244) (1999) (holding that service pursuant to nonresident-motorist statute was in derogation of the common law and, thus, required strict compliance) 32 Wood, 314 Ga. App. at 130 (1) (punctuation omitted).

25 charge.”33 With these guiding principles in mind, we turn now to address

Monitronics’s contention by first discussing what “assumption of the risk” entails.

In Georgia, the affirmative defense of assumption of the risk bars a plaintiff

from recovering on a negligence claim if “it is established that [she] without coercion

of circumstances, chooses a course of action with full knowledge of its danger and

while exercising a free choice as to whether to engage in the act or not.”34 And a

defendant asserting an assumption-of-the risk defense must “establish that the

plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the

risks associated with such danger; and (3) voluntarily exposed [herself] to those

risks.”35 Importantly, knowledge of the risk is “the watchword of assumption of risk,

and means both actual and subjective knowledge on the plaintiff’s part.”36

Specifically, the knowledge that a plaintiff who assumes a risk must subjectively

possess is “that of the specific, particular risk of harm associated with the activity or

33 Preston v. Sabetazm, 269 Ga. App. 451, 454 (2) (604 SE2d 224) (2004). 34 Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996) (punctuation omitted). 35 Id. 36 Id. (footnote and punctuation omitted).

26 condition that proximately causes injury.”37 And the knowledge requirement does not

refer to “a plaintiff’s comprehension of general, non-specific risks that might be

associated with such conditions or activities.” 38

Monitronics and the dissent argue that there is circumstantial evidence that

Veasley assumed the risk that resulted in her being harmed because she knew that the

Monitronics representative’s statement about the lack of a delay timer on the internal

garage door was incorrect and saw the tequila bottle and unfamiliar cell phone in her

bedroom, but chose to remain in her home. But our case law holds that a charge on

assumption of the risk would have been appropriate here only if there was evidence,

circumstantial or otherwise, that Veasley had specific knowledge that a violent

intruder was inside her home but, nevertheless, chose to stay.39 Here, there was no

37 Id.; see Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 81 (2) (532 SE2d 159) (2000) (“A charge on assumption of the risk is appropriate where there is evidence that the plaintiff had subjective knowledge of the specific, particular risk of harm associated with the activity or condition that proximately causes injury, yet proceeded anyway.” (punctuation omitted)). 38 Vaughn, 266 Ga. at 864 (1) (punctuation omitted). 39 See Vaughn, 266 Ga. at 865 (2) (holding in personal-injury action brought by police officer that evidence did not warrant an assumption-of-the risk charge because even though officer was driving on the wrong side of the road with his emergency lights flashing, there was no evidence that he saw the signal on the truck before it pulled in front of him and thus had no knowledge of the dangerous condition

27 such evidence. While Veasley acknowledged seeing the tequila bottle and cell phone

in her bedroom, she also testified that it was not uncommon for her sister and her

sister’s husband to “come by” her house when she was not there. Indeed, it is

somewhat ironic that Monitronics argues that Veasley possessed the requisite

knowledge to warrant an assumption of the risk charge, yet does not dispute that its

representative provided her with incorrect information about the delay timer and

that awaited him at the intersection); Vaughn, 243 Ga. App. at 82-83 (2) (holding that assumption-of-the-risk charge was not warranted because although plaintiff’s decedent, who was riding on the back of a flatbed truck, knew that truck’s brakes were faulty, and thus knew that truck may not be able to stop, he did not assume the risk of being hit by another vehicle being driven in a negligent manner); Jimenez v. Morgan Drive Away, Inc., 238 Ga. App. 638, 640 (1) (519 SE2d 722) (1999) (reversing trial court’s decision to charge on assumption of the risk because plaintiff’s knowledge of the dangers of driving a truck on the highway when the clutch is malfunctioning and parking a disabled truck in the emergency lane was not sufficient to establish knowledge that a vehicle would come into the emergency lane and strike the truck); Beringause v. Fogleman Truck Lines, Inc., 200 Ga. App. 822, 824-25 (4) (409 SE2d 524) (1991) (holding that evidence did not support assumption-of-the-risk charge when plaintiff–police officer was speeding and straddling median at the time of the collision given that there was no evidence that once truck swerved into his lane, officer made the conscious decision to proceed and risk a collision). Compare Landings Ass’n, Inc. v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012) (holding that victim of fatal alligator attack was aware that wild alligators were present in the development and thus assumed the risk of walking at night in areas inhabited by such alligators); Teems v. Bates, 300 Ga. App. 70, 72-73 (1) (684 SE2d 662) (2009) (holding that assumption-of-the-risk instruction was warranted in case in which teenage plaintiff was injured while car-surfing given that plaintiff knew this to be an obviously dangerous activity).

28 failed completely to inform her about the multiple alarms that alerted throughout the

day without resolution. Given these circumstances, an instruction on assumption of

the risk would have been inapt, incorrect, and not reasonably raised or authorized by

the evidence.40 Thus, the trial court’s denial of Monitronics’s request to instruct the

jury on assumption of the risk was entirely proper.

5. Monitronics further contends that the trial court committed reversible error

in instructing the jury that Monitronics had a duty to comply with industry standards.

Again, we disagree.

As previously noted, jury instructions “must be adjusted to the evidence, apt,

and a correct statement of the applicable law.”41 In addition, the review of allegedly

erroneous jury instructions is a legal question, and we therefore “owe no deference

to the trial court’s ruling and apply the ‘plain legal error’ standard of review.”42

40 See City of Baldwin v. Woodard & Curran, Inc., 316 Ga. App. 768, 775-76 (6) (730 SE2d 486) (2012) (holding that it was not error for trial court to refuse to give requested charge that was not adjusted to evidence), overruled on other grounds by City of Baldwin v. Woodard & Curran, Inc., ___ Ga. ___ , Slip op. (Case No. S12G1842; decided May 20, 2013). 41 Wood, 314 Ga. App. at 130 (1) (punctuation omitted). 42 Id. (punctuation omitted).

29 Here, during the trial, Veasley’s expert testified regarding Monitronic’s

conduct in responding to Veasley’s home-security-system alarms on the day in

question and opined that some aspects of that conduct failed to comply with generally

accepted standards within the home-security-system industry. Then, at the trial’s

conclusion, the trial court charged the jury as follows: “I further charge you that when

Monitronics spoke to Ms. Veasley at 7:25 p.m. it had a duty to exercise ordinary care,

a duty to act without increasing the danger or harm to her, and a duty to comply with

industry standards.” The special verdict form reflected this charge, asking the jury to

answer separately whether Monitronics exercised ordinary care, acted without

increasing the danger or harm to Veasley, and complied with industry standards.

Monitronics argues that this instruction was a misstatement of law and,

therefore, constituted reversible error. In doing so, Monitronics is correct in noting

that standards or recommendations published by a private entity for use as guidelines

“do not create a legal requirement to comply with those standards, and violation of

such privately set guidelines, although admissible as illustrative of negligence, does

30 not establish negligence.”43 Nevertheless, “expert testimony as to the practices of an

industry [is] acceptable.” 44 And furthermore,

[t]he law imposes upon [those] performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession.45

Moreover, as demonstrated by the special-verdict form, the jury here found that

Monitronics’s conduct constituted a failure to exercise ordinary care toward Veasley

and a failure to act without increasing the danger or harm to her. Thus, even if the

trial court’s instruction on industry standards was error, Monitronics has not shown

that the charge caused any harm. Indeed, to show reversible error, “there must be

harm as well as error and the lack of harm makes this enumeration of error without

43 Muller v. English, 221 Ga. App. 672, 678 (2) (c) (472 SE2d 448) (1996) (punctuation omitted). 44 Thomas v. MARTA, 300 Ga. App. 98, 103 (2) (b) (684 SE2d 83) (2009) (punctuation omitted). 45 Schofield Interior Contractors, Inc. v. Standard Bldg. Co., 293 Ga. App. 812, 814 (668 SE2d 316) (2008) (emphasis supplied) (punctuation omitted).

31 merit.”46 Accordingly, the trial court’s decision to instruct the jury on industry

standards did not amount to reversible error.

6. Finally, in Case No. A13A0091, Veasley argues that if this Court holds that

Monitronics is entitled to a new trial, it should further hold that the trial court erred

in finding that Monitronics could not be liable for negligently performing its

contractual duties. But given that we are affirming the jury’s verdict and the trial

court’s judgment, we need not reach the merits of Veasley’s cross appeal.

Accordingly, we dismiss Veasley’s cross-appeal, as well as Monitronics’s motion to

dismiss the cross-appeal, as moot.

Judgment affirmed in Case No. A13A0090; appeal dismissed as moot in Case

No. A13A0091. Phipps, C. J. and McFadden, J., concur. Boggs and McMillian, JJ.,

concur fully and specially. Doyle, P. J., concurs specially. Andrews, P. J., dissents.

46 Teems, 300 Ga. App. at 77 (2) (punctuation omitted); see McCorkle v. Dep’t of Transp., 257 Ga. App. 397, 404-05 (4) (571 SE2d 160) (2002) (holding that trial court’s instruction that was erroneous as a matter of law was harmless when there was substantial other evidence produced at trial to show defendant’s liability); Campbell v. Beak, 256 Ga. App. 493, 497-98 (4) (568 SE2d 801) (2002) (holding that although trial court’s charge was erroneous “the jury’s verdict may stand because the evidence presented supports it under the correct standard”).

32 A13A0090, A13A0091. MONITRONICS INTERNATIONAL, INC. v. VEASLEY, and vice versa.

BOGGS, Judge, concurring specially.

I concur fully with the majority opinion, with the exception of Division 2. I

agree that the limitation of liability clause in the contract does not bar Veasley’s

action, but for a different reason: the clause in question can be interpreted to apply

only to property damage or loss, not personal injury.

Paragraph 4, pertaining to “WARRANTY LIMITATIONS AND

EXCLUSIONS,” refers only to “the value of Subscriber’s premises and possessions.”

Moreover, in paragraph 5, “DAMAGES,” the first subparagraph attributes the

difficulty in fixing actual damages to “the uncertain amount or value of property

belonging to the Subscriber or others and kept on the premises which may be lost,

stolen, destroyed, damaged or otherwise affected by Occurrences which the System

or service is designed to detect or avert.” (Emphasis supplied.) In this light, the repeated references to “loss or damages” throughout paragraph 5 could appear, to a

lay reader, to refer to property loss or damage only, not personal injury.

As Judge McMillian correctly notes in her special concurrence, an exculpatory

clause must be clear and unambiguous and is construed against the drafter. I would

therefore conclude that this language, at a minimum, creates an ambiguity as to

whether this clause applies to a personal injury claim.

2 A13A0090. MONITRONICS INTERNATIONAL, INC. v. VEASLEY.

A13A0091. VEASLEY v. MONITRONICS INTERNATIONAL, INC.

MCMILLIAN, Judge, concurring fully and specially.

I concur fully with Divisions 1, 3, 4, and 5. However, with respect to Division

2, although I agree that the limitation-of-liability clause does not bar Veasley’s

negligence claim, I reach that conclusion for a different reason. Thus, I concur

specially in Division 2.

1. The majority concludes that the limitation-of-liability clause is

unenforceable because it is not sufficiently prominent in the contract. However, the

majority minimizes the significance of the language in the same paragraph providing:

“EXCEPT FOR THE DAMAGES DESCRIBED IN THIS SECTION,

[MONITRONICS] SHALL NOT BE LIABLE TO PURCHASER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.” Conceding that this language

is prominent, the majority nevertheless finds that because the previous sentence

describing the specific limitations on damages was not capitalized or bolded, it cannot

be enforced. This is not the law in Georgia, nor do I believe it should be.

The majority cites no cases striking an exculpatory clause like the one in this

case, which contains prominent and explicit language stating that the drafting party’s

liability is limited to the damages described in that section, thus alerting the

contracting party that her ability to recover damages may be limited as further

explained in the section as a whole. To the contrary, Leland Industries, Inc. v. Suntek

Industries, Inc., 184 Ga. App. 635, 636-637 (1) (362 SE2d 441) (1987),1 upon which

the majority relies, notes that the prominent introductory language in that case was

only general in nature and did not relate to the warranty disclaimers, suggesting that

if the introductory language had referred to the disclaimers, the clause could have

satisfied OCGA § 11-2-316 (2). Moreover, even though the other cases upon which

the majority relies upheld exculpatory clauses that were capitalized or in larger or

1 I question whether Leland Industries applies to exculpatory clauses outside the warranty context as the issue in that case was whether the warranty disclaimer language complied with the specific requirements of OCGA § 11-2-316 (2), which is not at issue here.

2 bolder typeface or invalidated clauses that lacked “any indicia of prominence,”2 those

cases do not stand for the proposition that an exculpatory clause with indicia of

prominence, but containing words that are not capitalized or bolded, is necessarily

unenforceable. Rather, in my view, a limitation-of-liability clause that is not

specifically capitalized or bolded may still be sufficiently prominent if other language

referencing the drafter’s limited liability within the same section is capitalized, bolded

or otherwise made sufficiently prominent so as to draw the contracting party’s

attention to the language containing the limitation-of-liability clause. Therefore, I

agree with Division 1 of the dissent to the extent that it finds that the limitation-of-

liability clause in this case is valid and enforceable.3

2. However, given the peculiar procedural posture of this case and the theory

of liability that went to the jury, I do not find that the limitation-of-liability clause

bars Veasley’s negligence claim. Before trial, the court limited Veasley’s negligence

claim to whether Monitronics assumed any extra-contractual duties and whether those

2 See Parkside Center, Ltd. v. Chicagoland Vending, Inc., 250 Ga. App. 607, 612 (3) (552 SE2d 557) (2001) and other cases contained in footnote 23 of majority opinion. 3 But I expressly do not agree with footnote 1 of the dissent or in Division 2 with respect to the refusal to give Monitronics’ request to give the pattern jury charge on the defense of assumption of risk.

3 extra-contractual duties were breached; the court ruled that whether Monitronics

negligently performed its duties under the contract was not an issue for trial.4

Therefore, the question before us is whether the limitation-of-liability clause applies

to the negligence claim actually submitted to the jury.

Under Georgia law,

[e]xculpatory clauses must be clear and unambiguous, they must be specific in what they purport to cover, and any ambiguity will be construed against the drafter of the instrument. The reason why exculpatory clauses should be explicit, prominent, clear and unambiguous[] is that such an agreement amounts to a waiver of substantial rights, could be an accord and satisfaction of possible future claims, and requires a meeting of the minds on the subject matter.

(Citations and punctuation omitted.) DOT v. Arapaho Constr., Inc., 180 Ga. App.

341, 343 (1) (349 SE2d 196) (1986), aff’d DOT v. Arapaho Constr., Inc., 257 Ga. 269

(357 SE2d 593) (1987).

Here, the limitation-of-liability clause limits Monitronics’ liability to $250

should Monitronics “be found liable for loss or damages caused by a failure of

[Monitronics] to perform any of its obligations under this agreement (including but

not limited to installation, maintenance, monitoring or service or the failure of the

4 This ruling is the subject of Veasley’s cross-appeal.

4 System or equipment in any respect whatsoever).” Thus, the limitation-of-liability

clause may be interpreted as covering claims brought as a result of a failure to

perform obligations under the contract. Although the next sentence refers to liability

resulting from Monitronics’ “performance or non-performance of the obligations

imposed under this Agreement or under law or from any negligence of the part of

[Monitronics]” (emphasis supplied), this language must be considered in context. See

Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 478 (2) (644 SE2d 311)

(2007). Here, the contract section at issue, including the limitation-of-liability clause,

focuses on Monitronics’ performance under the contract and any resulting liability

for its non-performance of such obligations, whether under a negligence theory or

otherwise.

Although Monitronics argues for a much broader interpretation of the language

referencing any negligence under the law, this Court has long recognized that a clause

purporting to relieve a defendant of negligence liability with respect to every legal

duty requires clear, explicit language expressing such an intent. “[A] clause having

such broad consequences could be effective only by unambiguous language clearly

expressing the intention of the parties to exculpate from liability for negligence of

every kind.” (Citations and punctuation omitted.) Parkhill Trust Fund, Inc. v. Carroll,

5 115 Ga. App. 108, 110 (1) (153 SE2d 615) (1967). And “[i]n cases of doubt, the

contract will be construed most strongly against the one who prepares the

instrument.” (Citations and punctuation omitted.) Id. See also OCGA § 13-2-2 (5);

Holmes, 284 Ga. App. at 477 (2) (“Ambiguities in exculpatory clauses are construed

against the drafters.”) (citation omitted). Thus, any ambiguity in the limitation-of-

liability clause in this case must be construed against Monitronics.

Applying these principles, I find that the limitation-of-liability clause in this

case is not sufficiently specific or explicit to preclude a negligence claim against

Monitronics based on breach of an extra-contractual duty. See e. g., DOT v. Arapaho

Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and

unambiguous to cover claim based upon failure to provide right-of-way, where such

a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2)

(finding that exculpatory clause, when considered in context, only provided for a

waiver of claims if it did not invalidate insurance coverage); DOT v. Dalton Paving

& Constr., Inc., 227 Ga. App. 207, 219 (6) (a) (489 SE2d 329) (1997) (exculpatory

clause did not preclude recovery of prejudgment interest for breach of contract claims

against DOT, where language does not contemplate such a claim); Altama Delta

Corp. v. Howell, 225 Ga. App. 78, 79-80 (1) (483 SE2d 127) (1997) (holding

6 exculpatory clause ambiguous where it conflicts with other provisions of party’s

agreement, precluding summary judgment where drafter of agreement not identified);

DOT v. APAC-Ga., 217 Ga. App. 103, 106 (3) (456 SE2d 668) (1995) (refusing to

apply exculpatory clause to claim not contemplated by parties in contract); Parkhill

Trust Fund, 115 Ga. App. at 110 (1) (construing exculpatory clause against lessor as

drafter as not barring claim for injuries resulting from lack of repair). Accordingly,

I agree with the majority that the limitation-of-liability clause does not bar Veasley’s

claim, albeit for a different reason, and would affirm. 5

5 The dissent reaches the conclusion that the limitation-of-liability clause covers Veasley’s negligence claim but without analyzing the language of the limitation-of-liability clause. Moreover, Steiner Corp. v. American District Telegraph, 683 P2d 435, 439-440 (Idaho 1984), upon which the dissent relies, involves an exculpatory clause with materially broader language.

7 A13A0090, A13A0091. MONITRONICS INTERNATIONAL, INC. v. VEASLEY; and vice versa.

DOYLE , Presiding Judge, concurring specially.

I concur in the judgment affirming the jury’s award, but, for the reasons below,

I do not agree with all that is said.1 Therefore, I concur specially.

As noted by the majority, Veasley dismissed her breach of contract claim

against Monitronics, and the trial court, prior to trial, expressly limited the scope of

the trial to address only whether Monitronics breached duties arising from its extra-

1 In addition to the discussion below, I find the result in Division 3 overly harsh. Monitronics’s notices of apportionment were filed 103 days (and not 120 days) prior to trial only because of the trial date chosen by the court after Monitronics had already filed its notices. While not reversible error, this case illustrates an unnecessary trap for the unwary resulting from the current statutory scheme established by the legislature in OCGA § 51-12-33 (d) (1). contractual conduct. The trial court found the potential for such a breach based on an

earlier representation by Monitronics’s former counsel that Monitronics’s contract did

not require it to telephone Veasley. Therefore, the trial court concluded that any

phone calls made to Veasley were voluntary undertakings outside the scope of the

contract. Based on this theory, the trial court ruled that Monitronics could be subject

to liability if it failed to exercise ordinary care with respect to making those phone

calls, if it increased the risk of harm to her, or if it violated a self-imposed industry

standard that required it to call its customer upon receiving an alarm signal.

I disagree that Monitronics’s actions in making the phone calls to Veasley and

her sister (a backup emergency contact Veasley had provided to Monitronics) fell

outside the scope of the contract. The services Veasley contracted for “consist[ed] of

the receipt, analysis[,] and response (dispatch of proper authorities) [sic] to signals

from the System installed under [the] Agreement.” It is undisputed that Monitronics

made the phone calls as part of its response process prior to dispatching police to

Veasley’s residence. Accordingly, I believe the trial court erred by ruling that the

phone calls were voluntary undertakings and not a part of the service Veasley paid

for under the contract. Likewise, I believe that the trial court’s pre-trial framing of the

issues was erroneous.

2 Nevertheless, this was not fatal to the verdict and judgment. Generally, a

breach of contract, with nothing more, does not give rise to a tort action because a

“tort is the unlawful violation of a private legal right other than a mere breach of

contract.” 2 “To maintain an action in tort because of a breach of duty growing out of

a contractual relation, the breach must be shown to have been a breach of [an

independent] duty imposed by statute or a duty imposed by a recognized common law

principle.”3 Thus, “a single act or course of conduct may constitute not only a breach

of contract but an independent tort as well, if in addition to violating a contract

obligation it also violates a duty owed to plaintiff independent of contract to avoid

harming him.”4

Here, because I believe Monitronics was not engaged in a voluntary

undertaking, it did not owe her the duty of ordinary care associated with such acts.5

But it still had a duty to Veasley independent of the contract because it was

2 OCGA § 51-1-1. 3 Deacon v. Deacon, 122 Ga. App. 513 (177 SE2d 719) (1970). 4 (Emphasis supplied.) Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587) (1973). 5 See, e.g., Osowski v. Smith, 262 Ga. App. 538, 540 (1) (586 SE2d 71) (2003) (“a person may be held liable for the negligent performance of a voluntary undertaking”).

3 performing a service for her that was necessary for her protection. As stated in

Section 323 of the Restatement (Second) of Torts,

[o]ne 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.6

Therefore, based on the nature of the services provided by Monitronics, it had a duty

to exercise reasonable care to avoid increasing the risk of harm to Veasley and to

avoid causing harm to Veasley resulting from her reliance on Monitronics’s services.

Accordingly, the case was properly tried as a tort case, regardless of whether the

conduct at issue arose out of the performance of the contract.

6 (Emphasis supplied.) Cf. Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587) (1973) (“an independent harm may be found because of the relationship between the parties, or because of defendant’s calling or because of the nature of the harm”), citing E. & M. Construction Co. v. Bob, 115 Ga. App. 127 (153 SE2d 641) (noting a duty of care independent of a contract).

4 Furthermore, despite erroneously characterizing Monitronics’s phone calls as

extra-contractual, the trial court nevertheless did not limit the actual trial proceedings

to the purported extra-contractual conduct. The parties presented evidence outlining

Monitronics’s entire course of conduct (despite the trial court’s prior delineation

between the phone calls and other alarm services), and the jury was not limited in its

consideration of the evidence. Also, the trial court instructed the jury as to the

applicable duties and the general negligence standard of care, and the verdict form

shows that the jury’s findings were not predicated on an erroneous legal theory. Both

parties agree in their briefing in the cross-appeal, in light of the way the trial played

out and the way the jury was instructed, it was ultimately irrelevant whether or not the

duties arose from extra-contractual conduct.7 Therefore, the record before us does not

require reversal.

7 In Case No. A13A0091, Monitronics’s brief states that “it is significant that the court instructed the jury that Monitronics had a duty to exercise ordinary care without limiting that duty to extra-contractual conduct. . . [B]ecause of the phrasing of the jury charge, Ms. Veasley cannot show harm” from the trial court’s purported limitation of the issues at trial. Likewise, Veasley’s brief states that “‘because of the phrasing of the jury charge,’ it does not matter to the jury’s verdict whether Monitronics’s duty to exercise ordinary care arose from a contractual duty or an assumed extra-contractual duty.” I believe both parties are correct in this regard.

5 A13A0090, A13A0091. MONITRONICS INTERNATIONAL, INC. v. VEASLEY; and vice versa.

ANDREWS, Presiding Judge, dissenting.

The contract for home security services between Velma Veasley and

Monitronics International, Inc. contains a valid and enforceable limitation of liability

clause which limits Monitronics’s liability to $250 for the personal injury tort

damages awarded by the jury in this case. The trial court erred by ruling that the

clause is unconscionable, void, and against public policy, and by refusing to enforce

the clause as a limit against the $8,640,000 judgment entered against Monitronics.

Applying a different rationale, the majority opinion erroneously concludes that the

limitation of liability clause is unenforceable because the clause is not sufficiently

explicit or prominent compared to other portions of the contract. Because the

limitation of liability clause is valid and enforceable, this case should be remanded

to the trial court in Case No. A13A0090 with directions that the clause be enforced; that the judgment amount of $8,640,000 be vacated; and that the amount of the

judgment entered against Monitronics be reduced to $250. On condition that

Monitronics accepts the judgment against it in the amount of $250, the judgment

should stand affirmed.

Otherwise, the judgment should be reversed and a new trial awarded in Case

No. A13A0090 because the trial court erroneously refused to give Monitronics’s

requested jury instruction on the defense of assumption of the risk. The majority

opinion erroneously concludes that no assumption of the risk instruction was required

because Veasley lacked “specific knowledge” that an intruder was in the house. To

the contrary, the circumstantial evidence that Veasley knew an intruder was present,

yet chose to stay in the house, was more than sufficient to require the trial court to

give the requested instruction.

For these reasons, I respectfully dissent.

1. Under the home security system services contract at issue, Veasley paid $49

for “sale and installation” of the security system and agreed to pay $29.95 per month

for monitoring services. Veasley entered into the contract in 1998 with Tel-Star

Alarms, Inc, which assigned the contract to Monitronics. On the front of the contract

signed by Veasley appears the statement:

2 Terms and conditions of this Purchase agreement appear on the back of this document. Read them before you sign it.

The back of the contract is set out in 13 numbered paragraphs, each paragraph

starting with a description of its contents set forth in bold type. The relevant portions

of the paragraphs provide as follows:

Paragraph number four provides:

4. WARRANTY LIMITATIONS AND EXCLUSIONS – Subscriber acknowledges that [Monitronics] is not an insurer and that all payments hereunder are based solely on the value of the System and service, as set forth herein, and are unrelated to the value of Subscriber’s premises and possessions. Subscriber alone is responsible for purchasing any desired insurance. [MONITRONICS] HEREBY LIMITS THE DURATION OF ALL IMPLIED WARRANTIES TO ONE YEAR FROM THE DATE OF INSTALLATION OF THE SYSTEM. FURTHER, [MONITRONICS] MAKES NO WARRANTY OF GUARANTEE (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) THAT THE EQUIPMENT OR SERVICES SUPPLIED WILL AVERT OR PREVENT OCCURRENCES OR THE CONSEQUENCES THEREFROM WHICH THE SYSTEM OR SERVICE IS DESIGNED TO DETECT OR AVERT.

Paragraph number five provides:

5. DAMAGES – Subscriber acknowledges that it is impracticable and extremely difficult to fix the actual damages, if any, that might proximately result to Subscriber from either [Monitronics’s] failure to perform any of the obligations under this agreement or the failure of the System to properly operate because of among other things: (a) the uncertain amount or value of property belonging to the Subscriber or others and kept on the premises which may be lost, stolen,

3 destroyed, damaged or otherwise affected by Occurrences which the System or service is designed to detect or avert. (b) the uncertainty of the response time of any police or fire department, should the police or fire department be dispatched as a result of a signal being received or an audible device sounding. (c) the inability to ascertain what portion, if any, of any loss would be proximately caused by [Monitronics’s] failure to perform or by failure of its equipment to operate. (d) the nature of the service to be performed by [Monitronics]. (e) the police or fire department or other organization to which the connection may be made or an alarm signal may be transmitted may invoke the provisions hereof against any claims by the Subscriber or by others due to any failure of such organization. Subscriber therefore agrees that if [Monitronics] should be found liable for loss or damages caused by a failure of [Monitronics] to perform any of its obligations under this agreement (including but not limited to installation, maintenance, monitoring or service or the failure of the System or equipment in any respect whatsoever), [Monitronics’s] total liability shall be limited to $250.00. This liability shall be exclusive, and the provisions of this section shall apply to any loss or damage, regardless of cause, which results directly or indirectly from [Monitronics’s] performance or non-performance of the obligations imposed under this Agreement or under law or from any negligence of the part of [Monitronics], its agents, employees, or assigns. EXCEPT FOR THE DAMAGES DESCRIBED IN THIS SECTION, [MONITRONICS] SHALL NOT BE LIABLE TO PURCHASER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

The provisions in the contract between Veasley and Monitronics plainly show

a reasoned agreement to limit damages to $250 resulting directly or indirectly from

Monitronics’s performance or non-performance of obligations imposed under the

4 contract, or under law, or from any negligence of its agents or employees related to

the contract.1 The agreement to limit damages is based on a recognition that the

agreed cost of the monthly monitoring fee ($29.95) is based on the value of the

service rather than the nature of the occurrences the system is designed to detect or

prevent and the risk of damages if those occurrences are not detected or prevented.

Moreover, the parties agreed that no guarantee can be made that the system will

detect or prevent the occurrences; and that, if damages occur, the amount is

unpredictable and responsibility is difficult to assign. An agreement to limit damages

on this basis facilitates the provision of home security services for an affordable price.

1 The trial court found that the monitoring provisions in the contract were narrowly written, and that the only “response” required by contract after Monitronics received and analyzed the signal from Veasley’s house was the “dispatch of proper authorities” as set forth in the contract. Accordingly, the negligence claim was tried to the jury on the basis that, when Monitronics contacted Veasley by phone, it assumed an extra-contractual duty, and, having assumed this duty, Monitronics could be held liable for negligence if it acted unreasonably, made Veasley’s situation worse by increasing the danger, misled Veasley into the belief that the danger was removed, or deprived Veasley of the possibility of help from other sources. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 n. 2 (405 SE2d 474) (1991). This was a theory of liability based on duties similar to those set forth in Restatement (Second) of Torts § 323. The broad provisions of the limitation of liability clause in the contract are effective to limit liability for negligence under this theory. See Steiner Corp. v. American District Telegraph, 683 P2d 435, 439-440 (Idaho 1984) (limitation of liability provision in fire alarm system contract was sufficiently broad to limit liability on a negligence claim under Restatement (Second) of Torts § 323 related to the contract).

5 Especially given the competitive market for home security systems, the limitation of

liability clause violates no public policy and is valid and enforceable.

It is the paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract. A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest. Exculpatory clauses in Georgia are valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.

Neighborhood Assistance Corp. &c. v. Dixon, 265 Ga. App. 255, 256 (593 SE2d 717)

(2004). “As a general rule[,] a party may contract away liability to the other party for

the consequences of his own negligence without contravening public policy, except

when such an agreement is prohibited by statute.” Lanier At McEver, L.P. v. Planners

and Engineers Collaborative, Inc., 284 Ga. 204, 205 (663 SE2d 240) (2008);

compare Peck v. Rollins Protective Services, Inc., 189 Ga. App. 381 (375 SE2d 494)

(1988) (contract clause limiting liability for negligent acts does not serve to limit

liability for wilful and wanton conduct). There is no statute which prohibited

Monitronics from limiting the consequences of its negligence to $250. Compare

former OCGA § 13-8-2 (contracts contravening public policy). We reached this

conclusion in a security system case in West Side Loan Office v. Electro-Protective

Corp., 167 Ga. App. 520 (306 SE2d 686) (1983), where Electro-Protective (EPC),

6 which provided burglar alarm systems, was sued by its customer for breach of

contract and negligence based on the system’s failure. The contract under which EPC

provided the system stated that: “EPC is not assuming responsibility for any losses

which may occur even if due to EPC’s negligent performance or failure to perform

any obligation under this Agreement.” Id. (punctuation omitted). We held that the

parties were free to contract to limit their rights and duties so long as no public policy

was violated, and that “a party may exempt himself by contract from liability to the

other party for injuries caused by negligence, and the agreement is not void for

contravening public policy.” Id. (punctuation and citation omitted). Applying these

principles, we found that “[t]he exculpatory clause here is not contrary to public

policy and bars appellant’s breach of contract and negligence claims.” Id.; Stefan

Jewelers, Inc. v. Electro-Protective Corp., 161 Ga. App. 385 (288 SE2d 667) (1982)

(exculpatory clause in contract for burglar alarm system was not unconscionable and

not void as against public policy). Moreover, limitation of liability clauses in home

security system contracts are commonly found valid and enforceable by other courts.

See Marjorie A. Shields, Validity, Construction and Application of Exculpatory and

Limitation of Liability Clauses in Burglary, Fire, and Other Home and Business

Monitoring Service Contracts, 36 ALR6th 305 (2008). Accordingly, the trial court

7 erred when it refused to enforce the limitation of liability clause on the basis that it

was unconscionable or that it violated public policy.

There is no basis to invalidate the clause limiting liability for damages, as the

majority opinion does, on a finding that the clause is not sufficiently explicit or

prominent compared to other portions of the contract. First, the front side of the

contract specifically refers to the terms and conditions on the back of the contract and

states: “Read them before you sign it.” Second, on the back of the contract, the clause

limiting liability for damages is contained in paragraph 5 which is captioned in bold

type with the word “DAMAGES.” Third, all of the subparagraphs (a) through (e) in

the damages paragraph are set apart from all of the other words on the page by being

prominently indented – the only indented wording on the page. Fourth, and most

importantly, subparagraph (e), which sets forth the clause limiting liability for

damages to $250, concludes with a sentence in all bold type which specifically refers

to and emphasizes the limitation of damages clause. That sentence states: “EXCEPT

FOR THE DAMAGES DESCRIBED IN THIS SECTION, [MONITRONICS]

SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL

DAMAGES.” This sentence alone is sufficient to satisfy any requirement that

“[p]rovisions severely restricting remedies act as exculpatory clauses and therefore

8 should be explicit, prominent, clear and unambiguous.” Imaging Systems

International, Inc. v. Magnetic Resonance Plus, Inc., 227 Ga. App. 641, 644-645 (490

SE2d 124) (1997).

2. The trial court committed reversible error by refusing Monitronics’s request

to give the pattern jury charge on the defense of assumption of the risk.

The record shows that Veasley was attacked by an intruder hiding inside her

house. There was persuasive circumstantial evidence that Veasley knew an intruder

was in her house before she was attacked, yet she remained in the house despite

having an opportunity to leave. This evidence was sufficient to require that the trial

court give Monitronics’s requested jury instruction on the defense that Veasley

assumed the risk of the attack.

Veasley gave the following testimony relevant to this issue: Veasley lived

alone in her house. Before Veasley opened the door to enter her house, the alarm

system installed at the house triggered and she heard the siren go off inside the house.

It was undisputed that Veasley’s alarm system had a motion sensor inside the house.

Nevertheless, Veasley entered the house, and turned off the alarm. Veasley then

received a telephone call from Monitronics in response to the alarm during which the

Monitronics representative speculated that the alarm sounded because the door she

9 entered did not have an alarm delay. Veasley knew this was incorrect because the

door did have a delay, and she knew that “something was wrong.” At that point,

Veasley called and left a phone message for her sister that “something is not right.”

Veasley then went to her bedroom, where she saw that her bed “looked like someone

had sat on it,” and where she also saw a cell phone and a bottle of tequila which she

knew did not belong to her and she had not left there. Veasley admitted that, after

seeing the bed, the cell phone, and the bottle of tequila, she was concerned and knew

that something was not right. Nevertheless, Veasley stayed in the house, went to the

kitchen to make a sandwich, did some paperwork, and took a shower, after which the

intruder came out of hiding and attacked her.

The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.

Muldovan v. McEachern, 271 Ga. 805, 807-808 (523 SE2d 566) (1999) (punctuation

and citations omitted). The knowledge that a plaintiff who assumes the risk must

possess is both actual and subjective knowledge “of the specific, particular risk of

10 harm associated with the activity or condition that proximately causes injury.”

Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866) (1996). “In the vast majority

of cases, the plaintiff’s consent to assume the risk is not express but rather is implied

by his or her conduct.” Teems v. Bates, 300 Ga. App. 70, 73 (684 SE2d 662) (2009).

In other words, evidence sufficient to support a jury charge on the defense of

assumption of the risk may be established by circumstantial evidence from which the

jury can reasonably infer that the elements of the defense have been established. Id.

at 72; Boyce v. Gregory Poole Equip. Co., 269 Ga. App. 891 (605 SE2d 384) (2004)

(circumstantial evidence may raise jury issue as to assumption of the risk). It follows

that, even though assumption of the risk requires evidence that the plaintiff had

subjective knowledge of the particular risk of harm, a jury is not compelled to accept

a plaintiff’s testimony that he was unaware of the particular risk of harm when there

is circumstantial evidence sufficient to support a reasonable inference that he was

aware. In the present case, before Veasley entered the house in which she lived

alone, she heard the alarm triggered inside, then entered the house and discovered that

her bed had been disturbed, and further discovered that a cell phone and a bottle of

tequila were in her bedroom that she did not put there and did not belong to her. This

was persuasive circumstantial evidence from which the jury could have reasonably

11 inferred that Veasley knew of the particular risk of being harmed by an intruder in her

house, yet stayed in the house and assumed the risk of the attack.

“A charge on a given subject is justified if there is even slight evidence from

which a jury could infer a conclusion regarding that subject.” Hendley v. Evans, 319

Ga. App. 310, 311 (734 SE2d 548) (2012) (punctuation and citation omitted). “A

trial court must instruct a jury on the law as to every controlling, material, substantial

and vital issue in the case.” Duffield v. Chui, 314 Ga. App. 214-215 (723 SE2d 506)

(2012) (punctuation and citation omitted). And “[w]here it fails to give the benefit

of a theory of the defense which is sustained by the evidence a new trial must be

granted.” Berger v. Plantation Pipeline Co., 121 Ga. App. 362, 364 (173 SE2d 741)

(1970) (punctuation and citation omitted). “The failure to charge on a properly

asserted and legally cognizable theory of [defense], whether requested or not, or

attention be called to it or not, is harmful as a matter of law.” Duffield, 314 Ga. App.

at 215 (punctuation and citation omitted); Fowler v. Gorrell, 148 Ga. App. 573, 577

(251 SE2d 819) 1978) (failure to charge on theory of the defense sustained by the

evidence requires new trial).

Based on the evidence presented in the case, Monitronics requested that the

trial court give the pattern jury instruction on the law of assumption of the risk:

12 When a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care for one’s own safety, that person cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of the other person.

Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. 1, Civil

Cases, Torts; Assumption of Risk, § 60.130 (2010). This instruction was a correct

statement of the applicable law, adjusted to the evidence, and the trial court

committed reversible error by refusing to give it.

3. The majority opinion does not address Veasley’s cross-appeal in Case No.

A13A0091. In the cross-appeal, Veasley contends that, in the event of a new trial,

this Court should address the trial court’s allegedly erroneous ruling that the only

basis for tort liability was extra-contractual duties assumed by Monitronics. See n. 1,

supra. To the extent the trial court so ruled, the record shows that Veasley sought the

ruling and acquiesced in it during the trial. “A party may not complain on appeal of

a ruling that he contributed to or acquiesced in by his own action, trial strategy, or

conduct.” Holcomb v. State, 268 Ga. 100, 103 (485 SE2d 192) (1997).