On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-210-10.
The opinion of the court was delivered by: Fasciale, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically October 15, 2012
Before Judges Parrillo, Sabatino and Fasciale.
The opinion of the court was delivered by FASCIALE, J.A.D.
Plaintiff Crystal Ice-Bridgeton, LLC, appeals from two orders*fn1 granting summary judgment to defendants City of Bridgeton, City of Bridgeton Bureau of Fire Prevention (collectively referred to as "Bridgeton"), Robert Mixner (Mixner), David E. Schoch (the Chief) (the aforementioned defendants are collectively referred to as "the City defendants"), and David Gates Excavating, Inc. (Gates) (all defendants are collectively referred to as "the defendants"). The core question presented is whether plaintiff was entitled to notice before Gates demolished portions of plaintiff's fire-damaged building. We affirm.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewed most favorably to plaintiff, the summary judgment record established the following facts.
In February 2008, a fire occurred in a vacant 17,000 square foot commercial building that plaintiff owned in Bridgeton. The building, located near a residential area, was made of timber, brick, and steel, and contained a propane tank and a generator in the middle of the structure. Bridgeton's fire alarm sounded at 1:36 a.m.; firefighters arrived at the building four minutes later and witnessed the entire building engulfed in flames. The last fire unit cleared the scene of the fire at 10:39 a.m. The fire destroyed the building.
The Chief observed that "[sixty-five percent] of the structure was engulfed in flames, . . . [and t]he whole first story . . . was showing fire through the roof." The roof "was partially collapsed," the windows were boarded up, and the doors were "locked from the inside or padlocked from the outside." The Chief was familiar with the building from a previous inspection and knew that there was no floor in the center of the structure. As a result, firefighters attacked the fire from the outside of the building because "if someone entered the building, they would [have] fall[en]" through the floor.
Under the Chief's supervision, firefighters attempted unsuccessfully to use two aerial devices that each pumped 1000 gallons of water per minute to "blow [a] wall apart" to reveal any hidden fires, and the Chief called in tankers from other fire departments because of an inoperable fire hydrant. Around 5:50 a.m., the firefighters dialed 9-1-1 and called Gates "to tear parts of the building down to open up hidden pockets of fire" because the "fire was still burning."*fn2 The Chief determined that the fire was "under control" by 6:25 a.m., but did not then declare that the fire was out.
Regarding the partial demolition of plaintiff's building, the Chief asserted that "[t]he two remaining walls . . . were taken down because they were deemed unsafe." David Gates, a co-owner of Gates, acknowledged that the Chief instructed Gates "to demolish certain portions of [the building that Bridgeton] and
[b]uilding/[c]onstruction [d]department [o]fficials had determined . . . to be structurally unsafe." And, Robert Mixner, the City of Bridgeton's construction official and zoning officer, certified that "[the Chief] and [I] agreed that the two sections of wall should come down." (Emphasis added). Thereafter, "[m]utual aid units were released over the next couple of hours." In total, firefighters were at the scene for approximately nine hours.
The defendants moved for summary judgment and plaintiff cross-moved for partial summary judgment on the issue of liability.*fn3 The defendants contended that the Chief had the sole authority to direct operations at the fire scene and acted pursuant to N.J.S.A. 40A:14-54.1. The defendants asserted that they had no duty to provide notice of the demolition to plaintiff. Plaintiff argued that it was entitled to twenty-four hours' notice of the ...