ELIZABETH BABOGHLIAN, Individually and as EXECUTRIX OF THE
ESTATE OF VARTKES O. BABOGHLIAN, VARTKES BABOGHLIAN SHELTER
TRUST, VIGEN BABOGHLIAN, VARTKES K. BABOGHLIAN, ESTATE OF
RAHILE BABOGHLIAN, and ARTISTIC FURNITURE & LIGHTING CO.,
INC. and/or VARTKES O. BABOGHLIAN and ELIZABETH BABOGHLIAN
t/a ARTISTIC FURNITURE & LIGHTING COMPANY,
Plaintiffs-Appellants, v. SWIFT ELECTRICAL SUPPLY., a
Corporation, a/k/a SWIFT ELECTRICAL SUPPLY CO., INC., SWIFT
ELECTRIC SUPPLY CO., a Corporation, SWIFT ELECTRIC SUPPLY
CO., as Successor-in Interest to SWIFT ELECTRICAL SUPPLY
CO., AUGUST SADORA, Individually and t/a SWIFT ELECTRICAL
SUPPLY CO. and/or SWIFT ELECTRIC SUPPLY CO., and AUGUST
SADORA, JR., individually and t/a SWIFT ELECTRICAL SUPPLY
CO. and/or SWIFT ELECTRIC SUPPLY CO., Defendants/Third-Party
Plaintiffs-Respondents, v. JMG ELECTRICAL CONTRACTORS, INC.,
Third-Party Defendant-Respondent, and ELECTRO SIGNAL LABS,
INC., Third-Party Defendant.
DOCKET NO. A-6563-04T3
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2007 N.J. Super. LEXIS 158
January 30, 2007, Argued
May 24, 2007, Decided
SUBSEQUENT HISTORY: Approved For Publication May 24, 2007.
PRIOR HISTORY: On appeal from the Superior Court of New Jersey, Law Division,
Hudson County, Docket No. L-5260-01.
COUNSEL: Robert E. Rochford argued the cause for appellants (Winne, Banta,
Hetherington, Basralian & Kahn, attorneys; Mr. Rochford, of counsel and on the
brief; Helen Griff Weisgal, on the brief).
Janet L. Poletto argued the cause for the Swift/Sadora respondents (Hardin,
Kundla, McKeon & Poletto, attorneys; Ms. Poletto, of counsel and on the brief;
Adam G. Husik, on the brief).
No brief was filed by any other party.
JUDGES: Before Judges Kestin, Payne and Lihotz. The opinion of the court was
delivered by LIHOTZ, J. T.C. (temporarily assigned).
OPINION BY: LIHOTZ
The opinion of the court was delivered by
LIHOTZ, J. T.C. (temporarily assigned).
This case involves a dispute between adjacent property owners whose buildings
were damaged by fire and subsequently demolished. The fire began in Swift
Electric's building. Plaintiffs assert that Swift had a nondelegable duty
New Jersey's Uniform Fire Code (Code), to apply for a permit and conduct
inspections in connection with the installation of their fire alarm system,
that the failure to do so breached that duty, causing a delay in the system's
activation, which allowed the fire to spread to and destroy plaintiffs'
property. We examine the question of whether the duties imposed on property
owners by the Code are nondelegable.
Elizabeth Baboghlian and her late husband, Vartkes, owned and operated
Artistic Furniture (Artistic), a business engaged in the sale of "high-end
furniture and accessories." Artistic occupied a three-story commercial
located at 4401-03 Bergenline Avenue in Union City. Artistic's showroom was on
the first floor and inventory was kept in the basement and on the first,
and third floors of the building.
The Baboghlians, their sons, and Elizabeth's mother resided in an adjoining
two-story residential building, which contained several apartments and the
business's workshop. The two buildings had separate entrances but were
internally. The properties were equipped with fire extinguishers and smoke
detectors, but not a fire alarm system.
Defendants August Sadora and August Sadora, Jr. owned and operated defendant
Swift Electrical Supply Co., Inc. (Swift), which was located in a two-story
building adjacent to plaintiffs' property, at 4405-09 Bergenline Avenue. When
Swift renovated its property to create a light fixture showroom in 1987, it
hired JMG Electrical Contractors, Inc. (JMG) to install a fire alarm system.
installed a system manufactured by Electro Signal Labs, Inc. (ESL), with the
assistance of an ESL representative. The system consisted of smoke detectors
placed throughout the two floors and heat detectors placed in a "peak" or
area, as well as a fire alarm panel with a telephone line connected to a
station. JMG serviced the system when requested, including checking and
the smoke detectors on January 19, 1990, replacing a water-damaged smoke
detector on November 20, 1990, and servicing the fire alarm system on March
1993. JMG never tested any of the heat detectors, and was never requested to
On August 22, 1995, plaintiffs' store was closed. At approximately 4:50 p.m.,
Elizabeth and Vartkes returned home. At about 5:15 p.m., Elizabeth heard a
"like a clock ticking." She looked out a window and saw a faintly flashing
light. When Elizabeth looked out of her bedroom window, she saw "white
smoke," and then observed black smoke from the kitchen window. At 5:25 p.m.,
Elizabeth called her son and telephoned the Union City Fire Department.
Elizabeth's son had briefly left his apartment with a friend around 5:00 p.m.,
and at that time, had smelled smoke but did not hear a fire alarm. The
Baboghlians evacuated their building at 5:30 p.m.
Sadora, Jr. testified he was working at his desk after his father and the
employees had finished work at 5:00 p.m. He noticed smoke in the lunchroom and
called the operator to report a fire in Swift's building. Sadora, Jr. heard
building's fire alarm sound around 5:30 p.m.
Firemen arrived at approximately 6:00 p.m. According to police reports, the
fire officials viewed a "heavy fire condition" upon arriving at Swift's
building. One fire captain wrote that he saw "low level smoke near the floor
the [Swift] supply sales area" and when he climbed the stairs to the second
floor, he "observed fire at the ceiling level, to the right of the stairs."
fire quickly spread to plaintiffs' property and finally, was brought under
control by 11:00 p.m.
The next morning the buildings were inspected by Nicholas C. Recanati, who
was the Union City building inspector, the police and fire department
inspectors, and at least three private investigators who were allowed to view
the property to reconstruct the circumstances of the fire and evaluate the
damage. The investigation failed to reveal the fire's exact onset, cause, or
point of origin; however, the various examiners concluded that the fire was
intentionally set and that it originated, generally, in the area between the
second-floor ceiling and the roof-line near the rear of Swift's building.
After consulting with the municipal engineer and other building officials,
Recanati declared plaintiffs' property unsafe and an imminent hazard. Recanati
issued a written notification ordering plaintiffs to obtain the necessary
permits, pursuant to N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32, to demolish
their buildings by August 24, 1995.
On the morning of August 24, plaintiffs and their movers were permitted to
enter the first floor of the three-story building to remove inventory.
Elizabeth's sons and a videographer videotaped some of the damage on the
and third floors before police ordered them to leave. By evening, plaintiffs
salvaged approximately ten to fifteen percent of their business inventory from
the showroom but had lost all of their personal property. Plaintiffs'
were demolished that evening, and the business never recovered.
Plaintiffs' complaint, filed August 20, 2001, alleged that plaintiffs
sustained damages as a "direct and proximate result of defendants' negligence
permitting a hazardous condition to exist, and in failing to provide for
sufficient fire-fighting equipment, devices, and other measures to prevent the
spread of the fire" that occurred on August 22, 1995. Defendants added JMG and
ESL as third-party defendants. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 On February 4, 2005, the court entered summary judgment in favor of ESL.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
During the fourteen-day jury trial, the legal relationship between Swift and
JMG became an important issue. Plaintiffs urged the application of a
principal/agent relationship and/or that the obligation to comply with the
provisions of the Code was not delegable to its hired contractor, JMG.
Plaintiffs' theory of the case was that any negligence of JMG must be deemed
negligence of Swift. The trial court declined to adopt plaintiffs' proposed
instructions on agency and that compliance with the Code was nondelegable. The
jury charge given by the trial court included the following statements:
Liability for injury to others through the escape of fire from
premises under a person's control must be predicated upon negligence.
Your analysis then is to focus on whether the owner was negligent
in the installation, maintenance[,] or inspection of its fire alarm
system so that the reasonably foreseeable result was the spread of the
fire to [the] adjacent property[,] which was therefore a proximate
cause of the destruction of the property.
The plaintiffs contend that the defendant, [Swift], violated the
[U]niform [F]ire [C]ode, in particular that [Swift] did not obtain a
permit from the local construction official before installing a fire
alarm system. And in addition, [Swift] did not arrange for either the
initial inspection upon the installation of the system or the annual
inspections every year thereafter.
If you find that the defendant, [Swift], did not comply with the
[U]niform [F]ire [C]ode, you may consider that as evidence of
negligence. As the trier of the facts, you will have to determine the
weight to be given to that evidence as with all the evidence in this
case and it is for you ultimately to determine whether the[U]niform
[F]ire [C]ode violations constitute negligence as I am defining it for
. . . .
[T]he plaintiffs have brought this action against the defendant,
Swift Electric. [Swift] . . . denies any negligence on its part but
has brought a third-party complaint against JMG in which it contends
that should you find that Swift Electric is liable to plaintiff for
damages, JMG should likewise be liable to Swift Electric.
During deliberations, the jury submitted two questions seeking clarification.
The first query was: "Does an inspection by JMG constitute an 'official'
inspection or does an 'official' inspection need to be conducted by a Union
official?" The second inquiry asked: "Does Swift have to be negligent in order
for JMG to be negligent?"
The trial judge responded to the jury's first question by stating that there
was no testimony directed to that issue. Then the court reminded the jurors to
review the testimony of the Union City fire sub-code official and plaintiffs'
expert, and to rely on their recollections of the evidence. In response to the
second question, the trial judge instructed: "[I]n order to hold JMG
Swift Electric must be found to be negligent, at least in part[,] so there has
to be a finding of negligence as to Swift, at least partially before you get
On May 18, 2005, the jury returned its verdict finding Swift negligent, but
unanimously concluding that Swift's negligence was not a proximate cause of
plaintiffs' damages. Although the jury, in keeping with the court's
after not having found Swift liable, did not render a formal verdict as to
it nevertheless indicated on its verdict form that it found JMG negligent, but
that JMG's negligence was not a proximate cause of plaintiffs' damages.
was entered dismissing plaintiffs' complaint, with prejudice. Plaintiffs'
motions for judgment notwithstanding the verdict or, in the alternative, for a
new trial were denied.
On appeal, plaintiffs raise the following arguments for our consideration:
DEFENDANTS OWED PLAINTIFFS A NONDELEGABLE DUTY TO COMPLY WITH THE NEW
JERSEY UNIFORM FIRE CODE.
THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON MATERIAL ISSUES OF LAW,
INCLUDING WHEN THE JURY REQUESTED GUIDANCE ON THOSE ISSUES.
THE TRIAL COURT IMPROPERLY DISMISSED THE COMPLAINT AS TO AUGUST
SODORA, SR.; HE PLAINLY CONSTITUTES AN "OWNER" UNDER THE NEW JERSEY
UNIFORM FIRE CODE.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED DEFENDANTS'
LIABILITY EXPERT TO PRESENT TESTIMONY AND EXHIBITS FAR, FAR BEYOND THE
SCOPE OF HIS NEVER AMENDED OR SUPPLEMENTAL EXPERT REPORT.
The Legislature adopted the Uniform Fire Safety Act, N.J.S.A. 52:27D-192 to
-213 (UFSA), to ensure that "[a]ll areas of the State are protected by a
uniform, minimum, fire safety code which will protect the lives and property
the State's citizens." N.J.S.A. 52:27D-195a. The UFSA delegated to the
Commissioner of the Department of Community Affairs (DCA) "all the powers
necessary or convenient to effectuate the purposes of this act[,]" N.J.S.A.
52:27D-197, including the power to promulgate "regulations to insure the
maintenance and operation of buildings and equipment in such a manner as will
provide a reasonable degree of safety from fire and explosion." N.J.S.A.
52:27D-198a. The UFSA directed that the regulations "shall include a uniform
fire safety code primarily based on the standards established by [uniform
national fire codes]." Ibid.; Venuti v. Cape May County Constr. Bd. of
231 N.J. Super. 546, 550, 555 A.2d 1175 (App. Div. 1989). The DCA subsequently
promulgated the Code, n2 which applied to new and existing buildings. N.J.A.C.
The Code was designed "for the safeguarding to a reasonable degree of life
and property . . . from conditions hazardous to life or property in the use or
occupancy of buildings or premises." N.J.A.C. 5:18-1.3(a). The Code requires
buildings identified as "life hazard uses" to install fire alarm systems and
be subject to inspections. N.J.A.C. 5:18-2.5. Other buildings that voluntarily
installed any fire alarm system were required by the Code to obtain a
construction permit issued by the construction official prior to installation
the system. N.J.A.C. 5:18-3.4(a) 2. n3 The Code does not direct the type or
nature of the fire protection system to be installed.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 The regulations were recodified as N.J.A.C. 5:70, effective July 1, 1998,
30 N.J.R. 2644(a) (July 20, 1998). All references to the Uniform Fire Code in
this opinion will refer to the regulations in effect at the time of the fire,
unless otherwise specified.
n3 At the time of the fire, this provision was included in the Code. No
provision mirroring the requirements of N.J.A.C. 5:18-3.4 is found in the
recodified Code, N.J.A.C. 5:70.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The Code required annual inspections of all buildings that installed fire
safety systems, N.J.A.C. 5:18-3.4(a)6, and mandated that all tests of any fire
alarm system "shall be conducted by and at the expense and risk of the owner
a representative of the owner." N.J.A.C. 5:18-3.4(a)(3). The Code explicitly
recognizes that the owner is responsible for the "safe and proper maintenance
the premises at all times." N.J.A.C. 5:18-2.2(a). The Code at N.J.A.C.
5:18-2.2(d) states: "A person shall be deemed to have violated or caused to
violated a provision of this Code if an officer, agent or employee under his
control and with his knowledge has violated or caused to have violated any of
the provisions of this Code."
Both the UFSA and the Code define "owner" as "a person who owns, purports to
own, manages, rents, leases or exercises control over a building, structure or
premises." N.J.S.A. 52:27D-196(i); N.J.A.C. 5:18-1.5. It is indisputable that
Swift owned the building where the fire originated, making Swift responsible
under the Code for the building's safety and maintenance. N.J.A.C.
Plaintiffs first argue that the trial court erred in denying the use of
proposed jury instructions defining the agency relationship between Swift and
JMG. Plaintiff contends that Swift was responsible for the acts of its agent,
JMG, which failed to comply with the mandatory permit and initial inspection
provisions of the Code when the fire alarm system was installed, N.J.A.C.
5:18-3.4(a)2, and the inspection requirements during the eight subsequent
when annual inspections or testing were required pursuant to N.J.A.C.
We disagree with this contention. The Code expressly limits an owner's
liability for an agent who commits a Code violation. N.J.A.C. 5:18-2.2(d). The
agent specifically must be under the control of and act with the knowledge of
the owner for liability to attach to the owner. Ibid. In this matter, no
evidence was presented showing that Swift controlled the work of JMG or that
Swift had knowledge of JMG's violations of the Code. The absence of a
"master-servant" relationship between Swift and JMG defeats the applicability
the law of agency. Ibid.; see also JMB Enters. v. Atl. Employers Ins. Co., 228
N.J. Super. 610, 617, 550 A.2d 764 (App. Div. 1988).
Plaintiffs next challenge Swift's assertion that it had no liability stemming
from the negligent installation of the fire safety system by JMG and stemming
from JMG's other allegedly negligent acts of failing to obtain a permit and
initial inspection and to conduct subsequent inspections. See Puckrein v. ATI
Transport, Inc., 186 N.J. 563, 574, 897 A.2d 1034 (2006). Plaintiffs argue
in this regard, the trial court's failure to instruct the jury that the
obligations imposed on owners by the Code are nondelegable was error.
state, "[a]s owners of the property, defendants owed plaintiffs a
duty to comply with the mandatory provisions of the [Code]." Thus, any
negligence by JMG must be attributable to Swift.
While the general rule of law limits a contractee's liability when engaging
an independent contractor, see Mavrikidis v. Petullo, 153 N.J. 117, 133, 707
A.2d 977 (1998); Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30
425, 431, 153 A.2d 321 (1959), the Supreme Court has enunciated exceptions to
the general rule's application. "There are three such exceptions, as
by the Majestic Court: '(a) where the landowner [or principal] retains control
of the manner and means of the doing of the work which is the subject of the
contract; (b) where he engages an incompetent contractor; or (c) where . . .
activity contracted for constitutes a nuisance per se.'" Mavrikidis, supra,
N.J. at 133 (quoting Majestic, supra, 30 N.J. at 431). These exception have no
applicability to this matter generally, or to the imposition of an owner's
duties enunciated in the Code, specifically.
However we have recognized another exception that arises "[i]n cases
involving a significant risk of grave harm, . . . the duty owed to the public
may be too important to allow its delegation to an independent contractor, and
therefore the legislature or the court may impose a nondelegable duty on the
principal." Great Northern Ins. Co. v. Leontarakis, 387 N.J. Super. 583, 591,
904 A.2d 846 (App. Div. 2006). The applicability of that exception to the
various acts of alleged negligence attributed to Swift requires further
In Leontarakis, the defendant employed an independent contractor for the
excavation of the foundation to build his home on a lot adjacent to the
plaintiff's property. Id. at 588. As a result of the contractor's performance,
the plaintiff's structure was damaged as it suffered the loss of lateral
support. Id. at 589. We explained, "[t]he primary reason for imposing a
nondelegable duty on the principal [for negligent acts of the independent
contractor] is that the duty is of extraordinary importance to the public."
at 592; see also Restatement (Second) of Torts § 424 (1965) (one bearing duty
provide specified safeguards for the safety of others imposed by statute or
administrative regulation is liable for harm caused by contractor's failure to
provide such safeguards); Majestic, supra, 30 N.J. at 439 (duty may be
nondelegable where its "social value to the community is so significant that
law cannot allow it to be transferred to another"); Marek v. Prof'l Health
Servs., Inc., 179 N.J. Super. 443, 440-41 (duty's importance to the community
determines whether it may be delegated), appeal dismissed, 93 N.J. 232 (1981).
We cannot agree with the sweeping assertion by plaintiffs, which suggests
Swift retains liability for all negligent acts of JMG merely because JMG
installed a fire safety system, triggering the application of the Code. The
Code's requirements imposed on an owner who voluntarily installs a fire safety
system include obtaining the initial permit, submittal of the system's plans
the fire sub-code official, arranging an initial system inspection after
installation, and scheduling annual system inspections thereafter. See
5:18-3.4(a). As noted above, the Code does not mandate the type and nature of
the fire safety equipment installed in a non-life hazard building. Therefore,
the decision to place smoke detectors in certain portions of Swift's building
and heat detectors in others was not governed by Code requisites. Even
plaintiffs' expert conceded that it was reasonable for a property owner, such
Swift, to rely upon a fire safety system's installer, such as JMG, to properly
design the system using appropriate equipment. Plaintiffs' suggestion that
was liable because improper equipment was installed has no relationship to the
assertion that Swift's duties under the Code were breached.
If the Code imposes a nondelegable duty on an owner who engages another to
install a fire safety system, it is only those defined duties in the Code that
cannot be abandoned. We are persuaded by the plaintiffs' argument that the
specific duties imposed on a property owner under the Code are nondelegable
because they direct action in an area designed to promote and protect public
safety. N.J.S.A. 52:27D-195(a). The Legislature recognized "the need for
fire safety codes as minimum standards for the maintenance and upgrading of
existing properties" to protect all areas of the State "by a uniform, minimum
fire safety code which will protect the lives and property of the State's
citizens." N.J.S.A. 52:27D-194g and -195a. The Code also identifies that the
need for prescribing fire safety and prevention regulations is a "nationally
recognized good practice." N.J.A.C. 5:18-1.3(a).
Without question, fire poses a "significant risk of grave harm" not only to
the engulfed premises, but also to people and properties within the vicinity
the blaze. Enforcement of fire safety and prevention of the hazards of fire
significant to the community good.
The statute, UFSA, and its implementing regulations, the Code, place the
responsibilities defined in them directly on property owners implementing fire
safety procedures. Obtaining a permit alerts the municipal official of the
installation of the fire safety system. Release of the plans and the fire
sub-code official's initial inspection after installation assures that the
system, which will now be relied on to alert owners and the public of the
presence of fire, is in full operational order. Annual inspections ensure that
the equipment continues to operate as expected, providing notice of a fire
Although it may be reasonable for Swift to have relied on JMG for proper
installation of its fire safety system, Swift cannot be seen to have deputed
accountability for performing an owner's affirmative responsibilities to
a permit for and inspection of a fire safety system that it voluntarily
installed. We conclude that the duty to comply with the Code provisions
is of such extraordinary importance to the public safety that it is
Jury verdicts should be set aside in favor of new trials only with reluctance
and then, only in cases showing clear injustice. See Goss v. American
Co., 278 N.J. Super. 227, 239, 650 A.2d 1001 (App. Div. 1994). The trial court
instructed the jury to consider whether Swift was negligent when installing,
maintaining, and inspecting its fire alarm system. Also the trial judge
instructed that Swift's violation of the Code may be considered negligence.
These instructions fell short of fully presenting the applicable law, see
Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 580, 512 A.2d 507
(App. Div. 1986); Kaplan v. Haines, 96 N.J. Super. 242, 251, 232 A.2d 840
Div. 1967), aff'd o.b. 51 N.J. 404 (1968), because the trial court, did not
instruct the jury that Swift had a nondelegable duty under the Code to
safe premises. Once its fire safety system was installed, Swift was required
be sure that the system was inspected by the sub-code official, that it
operational and was inspected each year, and, further, that Swift could not be
relieved of these responsibilities by relying on an independent contractor,
as JMG. A properly instructed jury could find that failure to obtain the
necessary permits and initial inspection of the fire safety system by the
municipal fire sub-code official could be evidence of Swift's breach of its
nondelegable duty to assure its system was properly operating.
Defendants maintain that because the jury found both Swift and JMG negligent,
but determined that the negligence of neither was the proximate cause of
plaintiffs' damages, any misstatement of the nature of Swift's duty was
error. Unfortunately, it is not clear, given the nature of the jury's second
posed question, whether a full and accurate recitation of the law would have
rendered a different result. The jury charge was erroneous, and we conclude
this error was "clearly capable of producing an unjust result." R. 2:10-2.
Accordingly, we reverse the judgment and direct a new trial be held.
We briefly address the other issues presented in the remaining arguments on
appeal. No misapplication of discretion occurred in the trial judge's decision
to decline plaintiffs' request, after the jury had been charged, to take
judicial notice that the Code defines "fire official" at N.J.A.C. 5:18-1.5.
Earlier, during a N.J.R.E. 104(a) hearing, plaintiffs had objected to Swift's
suggestion that the trial court take judicial notice of the Code, suggesting
prerequisites of N.J.R.E. 201 were not fulfilled. Plaintiffs may not now claim
error in the exercise of discretion to decline to take judicial notice. See
v. Twp. of Parsippany-Troy Hills, 199 N.J. Super. 82, 89, 488 A.2d 557 (App.
Div.) (holding the plaintiffs could not claim on appeal that a jury
which they specifically had requested, constituted prejudicial error), certif.
denied, 101 N.J. 287 (1985)).
The use of the standard jury charge for proximate cause was not error;
however, on retrial the trial court is free to modify the charge as necessary.
We find no error, based on this record, in the determination to dismiss
Sr., a party defendant, or to allow the expert testimony. We note, however,
these issues may be specific to the concluded trial in respect of which we
set aside the judgment, and may not again arise on retrial.
In view of the foregoing, we set aside the jury's verdict, reverse the trial
court's order, and remand for a new trial.
ELIZABETH BABOGHLIAN, v. SWIFT ELECTRICAL SUPPLY
ELIZABETH BABOGHLIAN, Individually and as EXECUTRIX OF THE