NEW JERSEY SCHOOL BOARDS ASSOCIATION INSURANCE GROUP v. EAST COAST FIRE PROTECTION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1414-10T3

NEW JERSEY SCHOOL BOARDS ASSOCIATION

INSURANCE GROUP a/s/o BLOOMFIELD BOARD

OF EDUCATION, 450 Veterans Drive,

Burlington, NJ 08016,

Plaintiff-Appellant,

v.

EAST COAST FIRE PROTECTION, 25 Bowlby

Street, Hampton, NJ 08827,

Defendant-Respondent.

_______________________________________

August 10, 2011

 

Argued June 6, 2011 - Decided

 

Before Judges Grall and C.L. Miniman.

 

On appeal from Superior Court of New

Jersey, Law Division, Hunterdon County,

Docket No. L-246-09.

 

J. Michael Kvetan argued the cause for

appellant (White and Williams, LLP,

attorneys; Mr. Kvetan, of counsel; William

L. Doerler, on the brief).

 

Jeffrey M. Kadish argued the cause for

respondent (Golden, Rothschild, Spagnola,

Lundell, Boylan & Garubo, P.C., attorneys;

Mr. Kadish, of counsel and on the brief;

Daniel B. McMeen, on the brief).

PER CURIAM

Plaintiff New Jersey School Boards Association Insurance Group, as subrogee of the Bloomfield Board of Education, filed a complaint seeking damages for loss allegedly caused by defendant East Coast Fire Protection's negligence. The judge granted defendant's motion for summary judgment, and plaintiff appeals. We reverse.

On the morning of February 7, 2007, a component of the school's sprinkler system either a sprinkler pipe or head in a classroom immediately below the attic malfunctioned and flooded parts of the building. The malfunction triggered an alarm in the town's fire department, and the fire department responded and shut off the electricity. Without electricity, the building had no heat.

The sprinkler system was a dry system, meaning one in which there is no water in the pipes until conditions warranting operation trigger the opening of a sprinkler head and release of the air pressure that holds back the water. Systems of this type are used in areas where temperature conditions pose a risk of pipes bursting due to the water inside them freezing.

Several of Bloomfield's officials and employees responded to the alarm. They were Thomas Pelaia, the chief inspector, fire officer and fire subcode official; Raymond Raimondi, the head custodian; Charles Collins, the director of school facilities; and Jerry Parisi, a maintenance manager. After consulting with one another and recognizing the need for prompt action, they called East Coast because the company was doing work in the town's high school at that time, even though East Coast had not installed this system. The school had to be closed because the system was not operational, and getting it working so the children could come back to school was a priority for Pelaia.

East Coast sent Robert Damato, Jr. and Kevin Maheffey to the school. Pelaia had the electricity shut off and told Damato he had directed someone to remove the sprinkler head that had activated and fill the system with water to see if there were other leaks. According to Damato, he and Maheffey were "directed to see what might have happened, what caused this problem." They were taken around the building and Damato saw a lot of water damage; he wanted to see "the actual pipe that had the sprinkler head installed in it." That head was not visible from the classroom. It was installed in the attic above it, about two feet above the acoustic-tile drop ceiling and beneath the wooden eave of the roof. Using a level, Damato and Maheffey determined that the pipe over the classroom was pitched away from the main feed and toward the sprinkler head. They knew that the pitch should have been in the opposite direction, toward the main feed and away from the sprinkler head. They also knew that the improper pitch would leave water in the pipe, which could freeze.

Damato showed Collins the problematic pitch and explained its significance. There were other school personnel present, and Pelaia recalled a discussion of the improperly pitched pipe. Collins was also aware of the problem.

After that, Damato and Maheffey drained the system and removed the pipe. This section of pipe was about thirty feet from the feed and the air pressure compressor, which maintains the pressure in the system and keeps the water out. Damato acknowledged that this type of system generally has an alarm-pressure switch. Damato explained that the alarm indicates when the pressure is too low, before the low pressure can cause activation of sprinkler heads. He did not recall whether the school's system had such a switch. Because the power was off, Damato and Maheffey did not replace the pipe until the next day. From Damato's testimony, it is not clear whether they corrected the pitch of the pipe.

Damato and Maheffey returned the next day to finish the job. The school business administrator, Michael Derderian, appeared and asked about the cost. Damato and Maheffey were not authorized to quote a price, and Damato's boss did not want to quote a price without knowing the extent of the problem and what it would take to fix it.

According to Damato, Derderian spoke with someone in East Coast's office and seemed unhappy with the answer he got. Derderian told him to put the plug back in and start the system. Damato did not tell Derderian about the problem with the pitch of the pipe or any other problem. He put a screw plug in the pipe and activated the system by resetting the dry valve.

Damato did not recall whether he drained the system a second time on February 8, and he did not check the pitch of the other pipes. Damato thought they had successfully drained it the day before and was "satisfied" that there was no water in the system. He admits telling Maheffey he was concerned that they had not been allowed to do any more work or research, but he claims he saw nothing that led him to believe the system would fill with water and freeze again in a short period of time.

Damato completed forms describing the work done on February 7 and 8, 2007. On the form for February 7, Damato wrote, "adjusted the line hangers as much as possible," "the head activated due to freeze up" and "the sprinkler line does not have the proper pitch and needs to be reinstalled." On the form for February 8, he wrote, "the pipe contained water," "reactivated the dry pipe sprinkle system," "the sprinkler pipe needs to be reinstalled at a later date." That form was signed by Jerry Parisi. On both forms, Damato indicated that the work was "incomplete." No one from the school district or town arranged for another fire protection company to inspect or repair the school's sprinkler system.

Bloomfield's employees assert that East Coast did not alert them that there was still a problem to fix when Damato and Maheffey were directed to complete their work. Pelaia claims he was not told there was a danger that water remained in the pipes and that he would not have allowed them to start up the system if he knew there was. Collins thought East Coast had corrected the pitch problem and that anything out of alignment had been fixed.

Plaintiff's expert was of the opinion that Damato failed to meet the standard of care in four respects: 1) failing to check all pipes before resetting the system; 2) failing to advise that ice adhering to the wall of the pipes could thaw, recollect and refreeze; 3) failing to discover and advise that a low-pressure alarm that was not connected; and 4) failing to warn that additional drainage may be necessary. No party points to any evidence that the low-pressure alarm was not connected. Damato does not recall whether this system had that type of alarm, and he admits he would bring a problem with the low pressure alarm to a customer's attention.

On February 18, 2007, the sprinkler system malfunctioned and activated again. The leak was in a different area than the repair, but, according to the certification of plaintiff's expert who inspected the system, his investigation disclosed that the second incident was caused by freezing in a pipe that "was part of the same pipe line" as the first incident. Plaintiff alleges that the February 18 malfunction resulted in about $450,000 of property damage.

On defendant's motion for summary judgment, plaintiff stipulated to defendant's statement of material facts, which included the opinions of plaintiff's expert. Plaintiff did not submit a statement of material facts of its own indicating additional undisputed material facts or material facts in dispute as provided in Rule 4:46-2(b).

The judge granted defendant's motion for summary judgment on these findings: East Coast had no duty to conduct further inspections or warn anyone about the condition of the sprinkler system because East Coast was summoned "to determine what caused a particular pipe to burst in a particular classroom"; that "there is no reason to believe that East Coast would have become aware of any problems other than those that it observed on February 7"; that although defendant "submits in its brief[] that ice contributed to the leak and that the sprinkler system needed to be drained, there is no dispute on the record that it was the improper pitch of the pipe in the classroom where the leak occurred that caused the freezing conditions in the pipe system"; plaintiff admits that it told East Coast "not to perform further work"; and plaintiff's expert report is a "mere net opinion" because it states a "purported duty of care" without explaining "how that duty was determined, other than a personal say so."

On those findings of fact, the court concluded that the expert report did not establish "a duty of care to inspect the entire system" and determined there is no "basis for imposing on defendant a duty to inspect an[] entire sprinkler system because one part malfunctioned." After considering oral argument on the motion, the court supplemented its reasoning by noting that East Coast did not undertake the risk for the entire system, and did not after being told to leave have the opportunity to exercise care for the entire system. Addressing the principles of fairness and public policy on which imposition of a duty rests, the court found that in this circumstance, contractors would hesitate to do emergency repairs if the undertaking exposed them to risk of liability "they have no reason particularly to expect."

On review of a motion for summary judgment, this court applies the same standard as the trial court. Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 603 (App. Div. 2004). In this case, this court must consider the evidence in the light most favorable to plaintiff to determine whether East Coast was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We cannot conclude that it was.

We agree with the court's conclusion that plaintiff's decision to halt East Coast's work is relevant to the scope of East Coast's duty. The "opportunity and ability to exercise care" are important factors relevant to the imposition of a duty to exercise reasonable care. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). But plaintiff's claims of negligence do not rise or fall on whether East Coast had a duty beyond the scope of the work it undertook when called in to address this emergency. Nor do they rest on the adequacy of the expert's opinion to support the proposition that East Coast's failure to perform in accordance with that broad duty deviated from the applicable standard of care.1 There is evidence that would permit reasonable jurors to conclude that East Coast's employees were negligent based solely on the work they undertook and were allowed to complete. See Sarris v. A. A. Pruzick & Co., 37 N.J. Super. 340, 349 (App. Div. 1955) (recognizing that dereliction in the performance of an electrician could permit a finding of negligence imputable to his employer).

There is no dispute that Damato and Maheffey knew the system had been filled with water and that they undertook the task of draining it. And, there is no evidence that they had any intention to do additional work with respect to draining the system. Based on that evidence and the undisputed fact that water in the system again caused the system to fail ten days after East Coast supposedly drained the system and left the job, reasonable jurors could infer that they did not accomplish that task and did not warn the plaintiff that they might have failed.

Reasonable jurors could also infer that East Coast's employees should have known there was a risk that they had not succeeded in draining the system because ice could have formed in the pipes. The employees knew the system had been filled and knew that there was no heat in the building when they drained the pipes. Plaintiff's expert referred to the risk of ice adhering to the interior of the pipes. Even without that expert analysis, jurors of common knowledge and understanding could conclude that East Coast's employees should have been aware of the risk that ice had formed and should not have been "satisfied" that there was no water in the system. There is evidence that East Coast employees informed Bloomfield's responsible personnel that they had drained the system and never warned anyone of a risk that they had not been successful.

On those facts alone, plaintiff could establish a prima facie case of negligence that required submission to the jury. Accordingly, defendant was not entitled to summary judgment as a matter of law.

Reversed.

1 The trial court concluded that that plaintiff's expert opinion was a net opinion because the expert failed to articulate the basis for the standard of care he claimed East Coast failed to follow. That was error. A reasonable reading of the report compels the conclusion that the standard of care he articulated was one generally recognized by those who work on such fire protection systems and known to him because of his extensive training and experience in the field. Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-20 (App. Div. 2003) (concluding that experience as a security professional and familiarity with basic security principles gave expert knowledge "sufficient . . . to serve as a foundation for his opinion), certif. denied, 178 N.J. 454 (2004); see N.J.R.E. 702 (permitting qualification by knowledge, skill, experience, training or education). At this stage of the proceeding, it was error to strike the opinion as one based only on standards personal to the expert.

That said, we recognize that the trial court may exclude expert testimony on deviations from a standard of care that are irrelevant to the applicable duty of reasonable care. See N.J.R.E. 702 (expert testimony only admissible when it will assist the jury in determining a fact at issue).