MEGAN KATHLEEN CLARK v. COLLINGSWOOD BOARD OF EDUCATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5000-04T55000-04T5

MEGAN KATHLEEN CLARK,

Plaintiff-Appellant,

v.

COLLINGSWOOD BOARD OF

EDUCATION and COLLINGSWOOD

HIGH SCHOOL,

Defendants-Respondents.

______________________________________

 

Submitted: December 19, 2005 - Decided January 10, 2006

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-142-04.

Hockfield, Hasner & Associates, attorneys for appellant (Barry J. Hockfield, on the brief).

Mitchell S. Berman, attorney for respondents.

PER CURIAM

Megan Kathleen Clark, a student at Collingswood High School, sustained injuries to her hand on January 17, 2002, when a fire extinguisher hanging on a hook above her became dislodged. At the time, she was sitting on the floor outside a classroom waiting for her teacher to arrive for class. When the teacher arrived, Clark started to stand up. As she did so, her body came into contact with the extinguisher hanging on the wall directly above her. The extinguisher fell on her hand and caused an injury. Clark sued the high school and the Collingswood Board of Education (collectively "Collingswood") on a "dangerous condition of public property" theory. Her complaint against Collingswood was dismissed on summary judgment. We reverse.

The proofs presented to the motion judge can be summarized as follows. Robert Malanga, P.E., a risk engineering expert, rendered the following opinions "within a reasonable degree of engineering and scientific certainty:"

1. Fire extinguishers are generally required to be installed where they would be readily accessible as well as immediately available in the event of a fire; to this end, the preferred or required location is typically in the normal path(s) of egress. However, fire extinguishers must not be located so as to cause a blockage or obstruction to the required means of egress or where they would introduce a safety hazard.

2. The subject Extinguisher was supported on a "J-hook" type bracket, the type which is typically suitable for protected, enclosed or otherwise out-of-the-way areas. Fire extinguisher manufacturers generally provide this type of hook for use in stationary or otherwise quiescent locations.

3. Based on the size and weight of a normal 5 lb. agent (10-lb total weight) fire extinguisher, it is not particularly difficult for these devices to become dislodged when installed in [a] manufacturer-supplied "J"-hook type bracket. For this reason, strap-type brackets are typically provided for mobile, vehicular and other applications where dislodgement can be expected.

4. As an area susceptible to relatively heavy pedestrian traffic, the extinguisher was located [in what] would be considered a "high-traffic area," as such, protection from dislodgement should have been considered.

5. NFPA10 (STANDARD 10 of the National Fire Protection Association) requires that fire extinguishers installed under conditions where they are subject to dislodgement shall be installed in specifically-designed brackets suitable for the intended hazard; the appropriate type would be the aforementioned strap-type. As an alternative, however, the Extinguisher could have been placed in a surface or flush-mount cabinet, or within a wall recess or alcove.

6. In addition to presenting a dislodgement hazard, i.e., [placement] in a "high traffic area" the Extinguisher created an obstruction within the exit pathway. Installation at a height of approximately 30-inches above the floor further increase[s] the likelihood of the Extinguisher being dislodged due to greater anthropometric, typical dimensions for persons that would be expected to use the hallway.

7. In general, the Owner of a facility is responsible for the installation as well as the inspection, testing and maintenance of fire protection equipment. The Owner also has the responsibility to determine whether any additional safeguards beyond those legally or otherwise required should be implemented.

8. In this case, [Collingswood] assumed sole responsibility to perform all inspections, as well as [to] ensure that the required testing, maintenance and service functions were completed.

9. Based on the foregoing, it is concluded that the manner, considering [the] specific location, in which the subject fire Extinguisher was mounted constituted a dangerous condition, which either was or should have been foreseen by [Collingswood]. As such, this condition was clearly unacceptable to the extent that no prudent person would be expected to approve the installation.

10. This unacceptable installation was the proximate cause, which resulted in the Fire Extinguisher becoming dislodged, of the resultant injury to Ms. Clark.

John Riley, a teacher at the high school whose classroom was located in the same hallway where the accident occurred, testified that during the school day, between classes, anywhere from fifty to seventy-five students travel the hallway. The accident occurred right outside of his classroom. The fire extinguisher that caused the accident had been simply hung on a hook. Since the accident, fire extinguishers are now mounted using a more secure strap method.

Beverly Nieman, a teacher at the high school, testified that the fire extinguisher outside of her classroom had become dislodged on approximately three occasions prior to Clark's accident. However, the fire extinguisher outside of her classroom had been secured with a strap-type bracket, unlike the bracket which had held the subject fire extinguisher. Joseph Gillespie, another teacher, confirmed that the fire extinguisher outside of Nieman's classroom had been secured by a strap-type of mechanism.

In pre-trial depositions, Al Hird, Collingswood's Supervisor of Buildings and Grounds, testified that, at the time of the accident, the fire extinguisher was hung with a hook-like bracket that was provided by the extinguisher manufacturer. This bracket is the only type provided by the manufacturer with the fire extinguisher. According to Hird, the maintenance staff inspects the fire extinguishers on a monthly basis. This particular fire extinguisher had last been inspected in December 2001. In addition, all fire extinguishers at the school were inspected on an annual basis by the Collingswood Fire Department. Approximately three months before Clark's accident, the Collingswood Fire Department issued a New Jersey Uniform Fire Code Certificate of Inspection that stated that the premises of the high school "conformed to all applicable regulations of the Uniform Fire Code."

The judge considered all the proofs submitted in the light most favorable to Clark, pursuant to the Brill standard, and found that Clark had not demonstrated a prima facie case. Specifically, the judge found no proof of the element of palpably unreasonable conduct by the public entity. The judge denied a subsequent motion for reconsideration.

On appeal, Clark contends that the judge erred in failing to submit the issue of palpable unreasonableness to a jury. We agree. We begin our analysis by noting our conclusion that, although this is a close case, Clark has raised sufficient issues of material facts as to whether the action or inaction of Collingswood was palpably unreasonable as to require resolution by a jury.

The thrust of Malanga's opinion is that the location of the fire extinguisher required a "strap-type bracket" rather than the "J-hook bracket." Therefore, Collingswood's proof that the J-hook was provided by the manufacturer does not meet Malanga's opinion. Such a hook is an appropriate means for securing the fire extinguisher in a "protected, enclosed or otherwise out of the way area." The alleged palpably unreasonable conduct by Collingswood is using the J-hook in a "high traffic area." Such areas present a danger of dislodgement. Moreover, Malanga offered an opinion, unrebutted by Collingswood, that installation at a height of approximately thirty inches increased the likelihood of dislodgement.

Given these proffered facts and opinions, a jury could conclude that Collingswood's conduct was palpably unreasonable. Vincitore v. N.J. Sports & Expo. Auth., 169 N.J. 119, 130 (2001); Wooley v. Bd. of Chosen Freeholders, 218 N.J. Super. 56, 62 (App. Div. 1987).

 
The summary judgment entered on March 18, 2005 and the April 29, 2005 order denying reconsideration are reversed. The matter is remanded to the Law Division, Camden County. We do not retain jurisdiction.

Reversed.

Clark also filed a separate complaint against the seller and manufacturer of the fire extinguisher. That action was consolidated with this one. Thereafter, the suit against the seller and manufacturer was settled.

Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995).

(continued)

(continued)

7

A-5000-04T5

January 10, 2006