On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-1525-02.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Newman, Axelrad and R.B. Coleman.
Plaintiff Monica Rivers appeals from an order dismissing her complaint for personal injuries and property damage on summary judgment as to all parties. We affirm.
On May 10, 2001, plaintiff was using an acetone-based solution to soak off her acrylic nails, with a lit candle about five feet away. The candle sparked and ignited the bowl of acetone that was located on plaintiff's lap, causing a flash fire. The fire ignited her robe and nightgown, and spread to the couch where she was sitting. Her children, who were in the apartment at the time, came to her immediate aid and put out the fire with a fire extinguisher. The fire damage was restricted to the sofa on which plaintiff was sitting.
On March 15, 2002, plaintiff filed suit against LSC Partnership d/b/a Hamilton Square (LSC), the owner and manager of the building where plaintiff resided at the time of the incident. She claimed LSC was negligent in the installation and maintenance of the sprinkler system in her apartment, which was not activated by the fire, and in allowing the windows to be painted shut during prior exterior maintenance to the building. Plaintiff also asserted products liability claims against several fictitious defendants. According to plaintiff, she suffered significant burns and scarring to her body as a result of the fire. She also asserted a claim for psychological injuries, including constant anxiety attacks, fear of death, night tremors and insomnia. Plaintiff was hospitalized in the burn unit at St. Barnabas Medical Center from May l6, 2001 through June 7, 2001.
The case was assigned to Track 2 with a 300-day discovery period, which ran from either the first answer or ninety days after service on the first defendant, whichever came first. Pursuant to Rule 4:5A-2, plaintiff's counsel sought without success to have the case reassigned to Track 3 with a 450-day discovery period based on the products liability allegation. In May 2002 LSC filed an answer, and in response to a discovery request provided information that the fire system was tested and monitored by Affiliated Central, Inc. (Affiliated), the alarm monitoring service was Totally Secure, Inc. (Totally Secure) and C.P. Painting, Inc. (C.P. Painting), painted the exterior of plaintiff's apartment. On August l9, 2002, plaintiff requested more specific answers to interrogatories.
By leave of court, in November 2002, plaintiff filed the first amended complaint naming as additional defendants Totally Secure, Affiliated, and C.P. Painting. Pursuant to a notice to produce, LSC provided additional documents on February 4, 2003.
On April 14, 2003, plaintiff was granted leave to amend the complaint for a second time to add defendants based on LSC's response to plaintiff's notice to produce and discovery was extended through September 30, 2003. Plaintiff filed a second amended complaint adding Kennedy Valve Company (Kennedy Valve), Victaulic Company of America (Victaulic), Milwaukee Valve Company (Milwaukee Valve), and Central Sprinkler Company (Central Sprinkler) as entities which manufactured components of the sprinkler system in plaintiff's apartment; and Associated Fire Protection (Associated Fire) as the party which maintained the sprinkler system.*fn1 Answers were filed by defendants and various motions to propound discovery were filed by plaintiff.
On July 17, 2003, plaintiff filed a motion to remove the case from its present discovery track, extend the discovery period, and schedule the matter for a case management conference. Plaintiff's counsel certified in support of the motion that the case was a complicated products liability matter involving several products, including one that caused a fire, in addition to a construction-related defect regarding a malfunctioning sprinkler. He further stated that he had only received information regarding the manufacturers in February 2003, and it had taken over a year to receive the information needed relative to the general contractors, the sprinkler system installer and the manufacturers of different components of the sprinkler system. Counsel also stated that several defendants had not filed answers to the April 2003 amended complaint or had only done so recently; thus, he might identify additional defendants through extended discovery. Accordingly, plaintiff's counsel requested a case management conference which was denied without prejudice by Judge Sabbath on August 25, 2003, based on insufficiency of counsel's certification. The court also denied the change of track request and extension of discovery as precluded by Rule 4:5A-2(b).
On September 26, 2003, summary judgment was granted in favor of Totally Secure and unopposed by plaintiff. In September 2003, the file was transferred by plaintiff's counsel to another law firm. On September 24, 2003, plaintiff's successor counsel filed a motion for leave to file a substitution of attorney, amend the complaint for the third time and extend discovery by 120 days, stating that defendants Victaulic, Kennedy Valve, Affiliated, and Meadowlands had not responded to plaintiff's discovery requests. The motion was returnable October 10, 2003, which was after the discovery end date of September 30, 2003. Defendant LSC opposed extension of the discovery period, certifying that plaintiff had adjourned her deposition at least six times. LSC also noted that the original discovery end date of July 30, 2003 had already been extended to September 30 by Judge Sabbath's order. Plaintiff's counsel had never identified any expert or provided any report implicating any of the named defendants in either a products liability or negligence cause of action. Nor had he provided any expert medical report regarding the claimed physical and psychological damages resulting from the accident.
Defendants Central Sprinkler, Kennedy Valve and Associated Fire also opposed the motion based on similar arguments. Central Sprinkler submitted an expert report prepared by John G. O'Neill, P.E., of the Protection Engineering Group, which found that the fire did not result in sufficient heat to raise the temperature around the sprinklers in the living room to their activation point and that the temperature ratings of the sprinklers were in accordance with applicable codes and standards. The report concluded that heat from the fire, although intense enough to quickly result in the burn injuries received by plaintiff, never raised the temperature at the ceiling to activate the 155˚F temperature-rated sprinklers, evidenced by the ceiling directly above the fire not requiring repainting due to soot or blistering from flames.
Judge Sabbath signed an order granting plaintiff's substitution of attorney and allowing plaintiff to file an amended complaint within twenty days, but denying any extension of discovery. The judge noted there had been 512 days of discovery since the filing of the complaint and since plaintiff's motion was made returnable after the discovery end date, the "exceptional circumstances" test applied in accordance with Rule 4:24-1(c) and Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003). He stated that the extension request was primarily based on the fact that prior counsel did not complete discovery, but incomplete discovery and substitution of counsel alone did not constitute ...