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Wayne Davis and Irene Laverne Davis, Individually and On Behalf of the v. Brickman Landscaping

July 5, 2012

WAYNE DAVIS AND IRENE LAVERNE DAVIS, INDIVIDUALLY AND ON BEHALF OF THE ESTATES OF COURTNEY DAVIS AND MYLES DAVIS, DECEASED, PLAINTIFFS-APPELLANTS,
v.
BRICKMAN LANDSCAPING, LTD., D/B/A BRICKMAN LANDSCAPING, GENERATED MATERIALS, LLC, NORTHERN FIRE AND SAFETY, TOWNSHIP OF FRANKLIN, COUNTY OF SOMERSET, JOHN GOODMAN, DENISE GOODMAN, JANET DEMARY, ANN KINGSTON, CONNIE GORDON, KAY STYLES-TIMMONS, WENDY LAFORTUNE, AND TYSHEE STYLES. DEFENDANTS, AND ATLANTIC FIRE SERVICE, CINTAS CORPORATION AND MASTER PROTECTION LP D/B/A FIREMASTER LP, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0026-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2012

Before Judges Payne, Simonelli and Hayden.

In this wrongful death matter, plaintiffs Wayne Davis and Irene Davis appeal from three June 21, 2011 Law Division orders, which granted summary judgment to defendants Cintas Corporation (Cintas), Atlantic Fire Service (Atlantic), and Master Protection L.P. (Master), and dismissed the complaint and all cross-claims with prejudice.*fn1 We affirm in part, and reverse in part.

We derive the following facts from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Irene Davis, and her daughter, age 16, and son, age 11, resided in a second-floor suite at the Staybridge Suites Hotel in Franklin Township. Their primary means of ingress and egress to their suite was via a staircase that had a storage closet located under it, which contained wooden tables, chairs and foam cushions. The storage closet was not part of the hotel's original construction; it was constructed sometime between 1992 and 1995, and contained no sprinkler.

On May 13, 2005, a fire began at the hotel when someone threw a lit cigarette from the balcony of a neighboring suite into the landscaping mulch located directly adjacent to the building. The fire spread to the storage closet and up the staircase to the second floor. Irene and the children were unaware of the fire, and became trapped when it reached their suite. Both children died and Irene sustained serious injuries from smoke inhalation. Plaintiffs filed a complaint against numerous individuals and entities, including defendants, who had inspected the sprinkler system and/or the fire alarm system.*fn2

New Jersey has adopted the safety regulations promulgated by the National Fire Protection Association (NFPA). N.J.S.A. 52:27D-198a; N.J.A.C. 5:75-2.1(a); N.J.A.C. 5:70-3.2 (a)(9)(xiv) and -4.13(c)(10)(i). NFPA 13 originally required the installation of sprinklers throughout the premises of residential buildings, including in closets and storage places. However, NFPA 13R, enacted in 1989, did not require such installation. Nevertheless, the appendix to NFPA 13R warned as follows:

It should be recognized that the omission of sprinklers from certain areas could result in the development of untenable conditions in adjacent spaces. Where evacuation times may be delayed, additional sprinkler protection and other fire protection features such as detection and compartmentation, may be necessary.

NFPA 25 sets forth the requirements for inspecting sprinkler systems. It only requires a sprinkler inspector to conduct a visual examination of the sprinkler system to verify that it appears to be in operating condition and free of physical damage. The NFPA handbook explains that NFPA 25 only requires an inspector to look for signs of normal wear and tear of the sprinkler system and components, not installation flaws or code compliance violations, for these reasons: (1) in many instances the inspector is not necessarily trained to evaluate a sprinkler system year after year for compliance with installation standards; and (2) it is not cost effective for such an evaluation to take place each year. However, the handbook also explains that inspectors are expected to note certain deficiencies they discover during their visual inspection.

Master inspected the hotel's sprinkler system once in 1994, and noted that the building was "completely" sprinklered. This, however, was inaccurate because for a building to be considered "completely" sprinklered, it had to comply with NFPA 13, requiring sprinklers in closets, which the hotel did not have. Atlantic inspected the sprinkler system on three occasions in 2004, and noted that the system was "limited" in certain residential areas of the hotel. Cintas inspected the sprinkler system on March 21, 2005, and noted that the system had been extended to all visible areas of the building. None of the defendants noted that the storage closet had no sprinkler.

In addition to the sprinkler system, Master inspected the fire alarm system once in 1992, Atlantic inspected the system on August 26, 2004, and Cintas never inspected it. As of February 21, 2005, the fire alarm system was apparently functioning because a false fire alarm had transmitted a signal to the fire alarm monitoring company. Plaintiffs alleged that the fire alarm system failed to operate properly on the day of the fire.

Plaintiffs' expert, Jack Mawhinney, opined that NFPA 25 was the minimum standard of care for sprinkler inspectors; inspectors have a higher standard to use reasonable care to note life-safety hazards and report them to the building owner; the reasonable care standard is contained in the appendix to NFPA 13R and the NFPA handbook's commentary on NFPA 25 and is generally accepted in the fire protection community; and defendants ...


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