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Cartel Capital Corp. v. Fireco of New Jersey

January 23, 1980

CARTEL CAPITAL CORPORATION, ET AL., PLAINTIFFS,
v.
FIRECO OF NEW JERSEY, DEFENDANT-APPELLANT, AND ANSUL, INC., DEFENDANT-RESPONDENT, AND COUNTRY BURGER OF RAMSEY, INC., PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, V. FIRECO OF NEW JERSEY, DEFENDANT-APPELLANT, AND CROSS-RESPONDENT.



On certification to Superior Court, Appellate Division, whose opinion is reported at 161 N.J. Super. 301 (1978).

Before Mr. Chief Justice Wilentz, Mr. Justice Sullivan, Mr. Justice Pashman, Mr. Justice Clifford, Mr. Justice Schreiber, Mr. Justice Handler, and Mr. Justice Pollock.

Schreiber

The opinion of the court was delivered by SCHREIBER, J.

Plaintiff, Country Burger of Ramsey, Inc. (Country Burger), sued Fireco of New Jersey (Fireco), the retailer, installer and servicer of plaintiff's fire extinguishing equipment, and Ansul, Inc. (Ansul), manufacturer of that equipment, for property damage caused by a fire during which the equipment allegedly failed to operate.*fn1 Plaintiff's cause of action against Ansul was based upon negligence and strict liability arising out of a design defect. The action against Fireco involved strict liability because of the same design defect and negligence in improperly servicing the system. The codefendants asserted cross-claims

against each other under the Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 et seq., and for indemnification.

At the outset of the trial Ansul settled with plaintiff for $50,000, voluntarily dismissed its cross-claims and successfully moved for dismissal of Fireco's cross-claims. Plaintiff then proceeded against Fireco alone. In response to a set of special interrogatories, the jury found that Fireco was negligent, that Ansul had defectively designed the equipment, and that both the negligence and defect were proximate causes of plaintiff's damages. The jury determined that plaintiff had also been guilty of negligence. It fixed damages due to the malfunctioning of the fire extinguishing equipment to operate at $113,400 and the percentages of fault as follows: Plaintiff--41%, Fireco--30%, and Ansul--29%. The trial court then entered a judgment in favor of plaintiff for $34,020, plus interest and costs.

Fireco appealed, asserting that the trial court had incorrectly calculated the percentage of fault, and plaintiff cross-appealed, contending that the trial judge erred in reducing the judgment. The Appellate Division, relying upon Cepeda v. Cumberland Engineering Co., 76 N.J. 152 (1978), held that the Comparative Negligence Act was not applicable to strict liability suits and reversed. 161 N.J. Super. 301 (1978). We granted plaintiff's petition and Fireco's cross-petition for certification. 78 N.J. 407 (1978).

The facts may be summarized as follows. Country Burger operated a fast food restaurant on Route 17 in Ramsey, New Jersey. At the time of the fire it was housed in a one-story brick structure of approximately 3,900 square feet consisting primarily of a dining area and a kitchen. A counter island in the kitchen contained two grills and four deep-fat fryers. Above the grill was an updraft hood through which an exhaust fan vented air to the outside.

Fireco was a recognized distributor of Ansul equipment. In 1967 Fireco sold and installed an Ansul fire extinguishing system in the restaurant. The system consisted of a tank, piping

and ejection nozzles located above and directed toward the grills and fryers. The tank, which was affixed to one side of the counter island, contained a chemical in powder form. A canister, filled with pressurized liquid carbon dioxide was attached to the tank. When released the carbon dioxide acted as a propellant and forced the chemical through the piping and out the nozzles. The chemical mist would then settle on the area at which the nozzle was directed and suffocate any fire at that location. The heat of a fire would automatically activate the system by melting a link which would release a spring and in turn cause a hammer to break open a seal on the canister. The equipment could also be activated manually by pulling down on a lever connected to the same hammer which would fracture the canister seal.

Fireco twice extended the system when additional equipment was added in the restaurant. Following a fire in 1969, it had reset and recharged the Ansul mechanism. In August 1972, Kenneth Hakes, a Fireco serviceman, replaced a broken handle manually used to trigger the activation device. Fireco checked the system about once every six months. Its last inspection prior to the fire was around August 1973.

On November 30, 1973, at about 9:30 p.m. some paper plates which had been stacked on a shelf above the grill fell onto the grill and were ignited. No one was in the kitchen at the time. Two customers seated at the counter alerted the employees. John Foti, Jr., the cook, and David Mandara, the night manager, rushed in and Foti pushed the paper plates to the floor and stomped out the fire. However, grease on the grill and the wall behind the grill were aflame. Mandara used a steel brush to control the fire on the grill. Meanwhile the fire on the wall continued to spread. The air passage through the hood over the grill served as a draft and sucked the flames upward. The Ansul system was not operating and Michael Garamone, another employee, attempted without success to activate it manually by pushing the lever. Mandara and Foti then threw flour on the

spreading fire. This was ineffectual. The walls and roof were soon aflame and the building was abandoned when the fire department arrived. By the time the fire was brought under control, the building and its contents were substantially destroyed or damaged.

About a week after the fire, Edward Jacobs, an assistant manager at the restaurant, removed the Ansul tank and canister from the wall. He noticed the tank was extremely heavy, removed the cap and saw that it was still filled with the chemical powder. On December 21, 1973, David C. Pool, a mechanical engineer, examined the tank, the bottle of carbon dioxide and the activating mechanism. He found that it was inoperable because a screw had been inserted into the handle of the lever from the wrong direction. This prevented the handle from rotating and releasing a coil spring which would have caused the release of the carbon dioxide. If the screw had been placed in the opposite side of the shaft, from right to left, the mechanism would have operated. Pool concluded that there was a design defect because the problem, the possibility of inserting the screw improperly, would have been eliminated if there had been an opening on only one side.

Fireco countered with the testimony of its president George Weise. He had been working with Ansul systems for ten years, and had attended Ansul's training school where he had been instructed in the use and operation of this particular Ansul unit. He said that the design was proper because a recess around the opening on one side of the shaft accommodated the head of the screw preventing it from protruding. He also testified that it was very difficult to insert the screw incorrectly, that is from left to right. Fireco also attempted to show that its serviceman Hakes, who had begun working for Fireco in July 1972, had attached the new handle properly. However, this was apparently the first occasion on which Hakes performed that assignment. He did not remember if the Ansul manual had instructions concerning a handle change and in any event he had not read any before his visit to Country Burger.

The major thrust of the defense was directed toward plaintiff's conduct. It attempted to show that plaintiff permitted grease to accumulate on the walls. The local board of health had cited plaintiff for a build-up of grease over the deep fry area in September 1973. However, upon reexamination two days after the fire, the health inspector found the premises to be in a "satisfactory" condition. Fireco also emphasized the allegedly careless conduct of plaintiff's employees in stacking the paper plates so near the grill and leaving the kitchen unattended. Lastly, Fireco's president had examined the Ansul equipment in January 1976, more than two years after the fire. He claimed that someone had tampered with the equipment, for he found that a seal on the carbon dioxide canister had been broken and a seal on the tank had been replaced. Fireco implied that these conditions had existed before the date of the fire.

The special interrogatories and answers furnished by the jury were:

YES NO

1. (a) Was defendant, Fireco of New

Jersey, guilty of negligence? X

(b) Was that negligence, if any,

a proximate cause of the inci-

dent? X

2. (a) Was plaintiff, Country Burger

of Ramsey, guilty of negligence? X

(b) Was that negligence, if any,

a proximate cause of the inci-

dent? X

3. Was the fire extinguisher ...


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