APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 99-cv-05080 District Judge: The Honorable Mary Little Cooper
Before: McKEE, Barry, and Rosenn, Circuit Judges
The opinion of the court was delivered by: Barry, Circuit Judge
Appellant Mark Roma suffered smoke-inhalation injuries on November 24, 1997 while fighting a hangar fire at the United States Naval Air Engineering Station in Lakehurst, New Jersey ("NAES Lakehurst"). Roma's second amended complaint alleges thirteen counts of negligence against numerous defendants, including the United States, the Navy, several unidentified Navy firefighters, and other federal employees (collectively, "the federal defendants"), as well as the civilian contractors working on the hangar roof renovation project where the fire occurred. In essence, the complaint alleges two distinct tort claims at issue on appeal: (1) the federal defendants and the civilian contractors are liable for negligently starting the fire or failing to prevent it; and (2) the federal defendants are liable for Roma's injuries because they negligently instructed him to remove his self-contained breathing apparatus ("SCBA") on the night of the fire.*fn1
Roma now appeals from the District Court's September 5, 2002 order granting motions for summary judgment by the federal defendants and two of the civilian contractor defendants, J.A. Jones Management Services, Inc. ("J.A. Jones") and Vaspoli Custom Builders, Inc. ("Vaspoli"). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.*fn2 For the reasons which follow, we will affirm that portion of the District Court's order granting summary judgment as to the federal defendants, but will reverse that portion of its order granting summary judgment as to J.A. Jones and Vaspoli.
Mark Roma joined the East Dover Township Volunteer Fire Department, located in East Dover, New Jersey, in 1991, and was an active member of the department until he left to join the Army in October 1995. Roma again became an active member of the department after he was honorably discharged from the Army in August of 1997. As an active member of the East Dover Fire Department, Roma took several firefighter training classes and participated in fighting hundreds of fires.
From September 22, 1983 through at least the date of Roma's alleged injury, the Board of Fire Commissioners for Dover Township, District No. 1, which included the East Dover Fire Department and the NAES Lakehurst Fire Department, were parties to a written mutual aid fire fighting assistance agreement, in which each party agreed to provide fire fighting assistance to the other party when requested, if the requested personnel and equipment were available. The agreement further provided that if assistance was rendered, "[t]he senior officer of the fire department of the requesting service shall assume full charge of the operations." The agreement also included a waiver provision, stating that "[t]he parties hereto waive all claims against every other party for compensation for any loss, damage, personal injury, or death occurring in consequence of the performance of this agreement."
On the afternoon of November 24, 1997, at approximately 2:00 p.m., a fire broke out on the roof of Hangar No. 1 at NAES Lakehurst. Hangar No. 1 was an enormous building — approximately 960 feet long, 350 feet wide, and over 220 feet high — which had once housed the Hindenberg and had been designated as a national historic monument. After the NAES Fire Department arrived at the scene and realized the magnitude of the fire, mutual aid assistance was requested from fire departments in the surrounding communities. Nineteen fire companies comprising 140 mutual aid personnel responded to NAES Lakehurst's call, including the East Dover Fire Department.
The hangar fire was burning between the two roofs of Hangar No. 1, where Vaspoli had been doing renovation work to enlarge the roof 's drainage gutters. The firefighters worked to contain the fire both from the inside and from on top of the roof. In order to manage the many mutual aid firefighters fighting such a large fire on the roof of such an enormous building, the NAES Lakehurst Fire Department put an Incident Command System in place with Acting Assistant Chief of the NAES Fire Department, Joseph Catapano, serving as the overall commander and other NAES Fire Department supervisors directing the firefighting activities in particular areas.
According to Roma, he and six other volunteer firefighters from the East Dover Fire Department, led by a Lieutenant Cheblowski, responded to NAES Lakehurst's call for assistance. Soon after their arrival, an NAES Lakehurst firefighter instructed Lieutenant Cheblowski to send three firefighters to the hangar, and Cheblowski sent Roma and firefighters Jay Melby and Dave Carus. As they approached the hangar, an NAES Lakehurst firefighter instructed them to cover some flight simulators in the hangar with tarps. Once they covered the flight simulators, they were sent back to their truck.
Roma testified that as he, Melby, and Carus passed the main command vehicle on their way back to the truck, they were told by either the NAES Lakehurst Chief or Assistant Chief to retrieve their SCBAs and tools and report back to the hangar because additional assistance was required on the roof. When they got to the East Dover truck, they explained to Lieutenant Cheblowski what they had been told to do, and Cheblowski instructed them to follow those instructions. The three then reported to the base of the hangar elevator shaft transporting firefighters and equipment to the roof.
When Roma arrived at the roof with Melby and Carus, an NAES Lakehurst firefighter instructed them to drop their SCBAs, get into harnesses, and go out onto the roof. When Roma questioned the order to remove his SCBA, he was told by the NAES firefighter that it was not needed on the roof, and was not allowed. Roma followed the order and left his SCBA in a pile of 20 or 30 SCBAs lying at the top of the elevator. None of the many firefighters making their way onto the roof from the top of the elevator was wearing an SCBA. Roma then followed another order (apparently from the same NAES firefighter at the top of the elevator) to deliver some saws to other firefighters working on the roof. After he made his way out onto the roof, Roma delivered the saws to a group of 20 to 30 firefighters. None of those firefighters was wearing an SCBA.
After delivering the saws, Roma was told to help out on the roof wherever needed, and began passing additional tools to the firefighters working on the roof trench. Then, according to Roma, two NAES firefighters in white hats directed him to relieve a firefighter who was sitting in a square hole in the roof, spraying water from a fire hose down into the hole onto the wooden subroof below. The wooden subroof was not simply exposed wood, but was coated with a rubber roofing material, similar to shingles, and had been the top roof before the metal roof was added.
Roma followed these instructions, took his place in the hole, and began spraying water onto the wooden subroof. According to him, when he began spraying, the wood was not on fire and he did not notice any smoke coming from the hole. Just before he was relieved, however, Roma testified that "some steam, it seemed like, it wasn't even smoke, it was steam, like a mist, started coming back at me as they were cutting trenches further down." Although Roma stated that the steam or mist disappeared after a couple of minutes, he inhaled some of it first.
Roma was relieved by other firefighters shortly thereafter and made his way to the elevator. On his way back across the roof, he observed white steam or misty smoke rising from holes in the roof. Roma testified that there were then approximately 60 firefighters working on the roof, and he did not see a single one wearing an SCBA. When he arrived at the elevator, Roma retrieved his SCBA, took the elevator back ...