The opinion of the court was delivered by: Nordberg, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant American District Telegraph Company ("ADT"), has
brought a motion for summary judgment against the plaintiff,
Allendale Mutual Insurance Company ("Allendale"), and for summary
judgment against its co-defendant Leaseway Warehouse, Inc.
("Leaseway"). Leaseway has also moved for summary judgment
against the plaintiff, Allendale. For the foregoing reasons,
Leaseway's motion is denied, and both motions of ADT are granted.
ADT and Leaseway entered into a contract whereby ADT agreed to
provide Leaseway with supervisory sprinkler and water flow alarm
service which would detect any water leakage from the sprinkler
system within Leaseway's warehouse. The contract contained the
"The subscriber (Leaseway) does not desire this
contract to provide for full liability of the
contractor (ADT) and agrees that the contractor shall
be exempt from liability for loss, damage or injury
due directly or indirectly to occurrences or
consequences therefrom which the service or system is
designed to detect or avert; . . ."
In the event any person, not a party to this
agreement, shall make any claim or file any lawsuit
against the contractor for failure of its equipment
or service in any respect, subscriber agrees to
indemnify, defend and hold contractor harmless from
any and all such claims and lawsuits including the
payment of all damages, expenses, costs and
The plaintiff, Allendale, was not a party to this contract, nor
were its subrogors.
A contract did exist between the subrogor and Leaseway whereby
Leaseway agreed to store Interstate Industries, Inc.
("Interstate") stereo consoles at its warehouse. According to
Leaseway, its liability for any losses for damages was limited by
the warehouse receipts which contained the terms and conditions
of the bailment. The receipts stated the time period in which a
claim must be made (60 days) and the time period for the
commencement of an action (nine months) against Leaseway.
On the night of January 27, 1979 a large chunk of ice fell from
the roof and wall of the Leaseway warehouse where the stereo
consoles were stored. The ice broke a water pipe connected to the
sprinkler system. The alarm sounded and was received by ADT. ADT
notified the Alsip Fire Department and sent out an alarm
investigator. Both found nothing. ADT also alerted a Leaseway
employee, who told ADT he would check out the situation. However,
the employee never arrived at the warehouse because his auto got
stuck in the snow. He contacted ADT and told them that he would
be unable to respond to the alarm. ADT did not call or notify any
other Leaseway employee. Water continued to flow from the broken
pipe, damaging the property of Interstate.
In addition to claims against Leaseway, the plaintiff contends
that ADT is liable to it in tort. According to the plaintiff
liability is imposed under § 324A of the Restatement which
creates liability when a person negligently performs an
undertaking. The Restatement states:
"One who undertakes, gratuitously or for
consideration, to render services to another which he
should recognize as necessary for the protection of a
third person or his things, is subject to liability
to the third person for physical harm resulting from
his failure to exercise reasonable care to protect
his undertaking, if
(a) his failure to exercise reasonable care increases
the risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the ...