Enforcing NFPA 25

1. Enforcing NFPA 25 Linda S. Pieczynski Attorney at Law, P.C. Codeattorney.com

2. 4.1.1 Responsibility of Property Owner or Designated Representative. The property owner or designated representative shall be responsible for properly maintaining a water based fire protection system. Who is responsible for non-compliance?

3. Corporation, limited liability company or individual? • Check with Recorder of Deeds • Check corporate status with Secretary of State - http://www.ilsos.gov/corporatellc/ But, who is the owner?

4. How do you know one has been appointed and actually has authority? Verbal? In writing? • What type of entity is it? If management company, corporation or limited liability company? Individual? What if there is a designated representative?

5. 4.1.1.2 Inspection, testing and maintenance shall be performed by qualified personnel. Who is responsible?

6. 225 ILCS 317/12 No person shall act as a fire sprinkler contractor, or advertise or assume to act as such, or use any title implying that such person is engaged in such practice or occupation unless licensed by the State Fire Marshal. •     No firm, association, or corporation shall act as an agency licensed under this Act, or advertise or assume to act as such, or use any title implying that the firm, association, or corporation is engaged in such practice, unless licensed by the State Fire Marshal. • 225 ILCS 317/15) •     Sec. 15. Licensing requirements. •     (a) It shall be unlawful for any person or business to engage in, advertise, or hold itself out to be in the business of installing or repairing fire sprinkler systems in this State after 6 months after the effective date of this Act, unless such person or business is licensed by the State Fire Marshal. Who is qualified to do the work?

7. 4.1.1.3 Where the property owner or designated representative is not the occupant, the property owner or designated representative shall be permitted to delegate the authority for testing, inspecting, maintenance and the managing of impairments of the fire protection system to a delegated representative. Delegation of authority

8.  4.1.1.4 Where a designated representative has received the authority for testing, inspecting, maintenance and the managing of impairments, the designated representative shall comply with the requirements identified for the property owner or designated representative throughout this standard. Delegation of authority

9. Is the property owner still responsible if the designated representative doesn’t follow the requirements of NFPA 25? • What if the designated representative is the occupant? • What if the designated representative doesn’t have the funds to make any corrections? • Consider other alternatives Who is responsible?

10. 4.1.2 Freeze protection. The property owner or designated representative shall ensure that water-filled piping is maintained at a minimum temperative of 40 F (4 C) unless an approved antifreeze solution is utilized. • 4.1.3 Accessibility. The property owner or designated representative shall provide ready accessibility to components of water-based fire protection systems that require inspection, testing and maintenance. Duties of owner or representative

11. Need consent of owner or representative, or • Need administrative search warrant, or • Need exigent circumstances What if accessibility is denied?

12. 4.1.4 Notification of System Shutdown or Testing. The property owner or designated representative shall notify the authority having jurisdiction, the fire department, if required, and the alarm-receiving facility before testing or shutting down a system or its supply. • 4.1.4.2 The authority having jurisdiction, the fire department and the alarm-receiving facility shall be notified when the system, supply or component is returned to service or when the test is complete. Other duties of owner or representative

13.  4.1.5.2 Corrections and repairs shall be performed by qualified maintenance personnel or a qualified contractor. Correction and repairs

14. 4.1.5.1 The property owner or designated representative shall correct or repair deficiencies or impairments that are found during the inspection, test, and maintenance required by this standard. Correction and repair

15. 4.1.6 Changes in Occupancy, Use, Process or Materials. The property owner or designated representative shall not make changes in the occupancy, the use or process, or the materials used or stored in the building without evaluation of the fire protection systems for their capability to protect the new occupants, use or materials. Changes in occupancy

16. 4.1.7.2 When the evaluation reveals that the installed system is inadequate in protecting the building or hazard in question, the property owner or designated representative shall make the required corrections. What if the new use, process or materials requires an upgrade?

17. 4.3.1 Records shall be made available for all inspections, tests and maintenance of the system and its components and shall be made available to the authority having jurisdiction upon request. • 4.3.3 Records shall be maintained by the property owner. Records

18. 4.5 Inspection. System components shall be inspected at intervals specified in the appropriate chapters. Inspection requirements

19. 4.6.1 All components and systems shall be tested to verify that they function as intended. • 4.6.5 When a component or subsystem is adjusted, repaired, reconditioned or replaced, it shall be tested in accordance with the original acceptance test required for that subsystem or the requirements where specified by the standard. • 4.8 Maintenance shall be performed to keep the system equipment operable or to make repairs. Testing requirements

20. 4.9.5.2 The property owner or designated representative shall advise anyone performing inspection, testing and maintenance on any system under the scope of this document, with regard to any hazardous materials stored on the premises. Safety duties

21. Not much to your agency or you but public safety is compromised. What happens if my jurisdiction does not enforce NFPA 25?

22. Absolute immunity - set forth in statute • Qualified immunity - despite violation of constitutional or statutory right, rights were not clearly established at the time of the violation Defenses

23. 375 Ill.App.3d 574, 873 N.E.2d 944, 314 Ill.Dec. 14(2007) • June 2003 Lincoln Park porch collapse - 13 deaths • Built without a permit • No anchored support beams • Porch's square footage was excessive • Inadequate live load capacity • Built with an unacceptable grade of wood Ware v. City of Chicago

24. Whether the trial court erred in holding that plaintiffs stated a legally sufficient claim that the City breached a duty to them when its inspectors allegedly committed acts or omissions in the execution or enforcement of the City's building code which amounted to willful and wanton conduct? Issues

25. Whether the trial court erred in holding that the plaintiffs' claims were not barred by sections 2-103, 2-205, 2-105 and 2-207 of the Local Governmental and Governmental Employees Tort Immunity Act? Issues

26. Whether the trial court erred in holding that a triable issue of fact exists as to whether the failure of the City's inspectors to issue violation notices for the porch at 713 West Wrightwood constituted willful and wanton conduct? Issues

27. Confers immunities and defenses • Not new duties • Local government may have a duty but may be immune under the Act What Does the Tort Immunity Act Provide?

28. A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct. • 745 ILCS 10/2-202 Immunity

29. No duty owed to individuals to protect them from porch collapse • Since no duty is owed, doesn’t matter if behavior is willful and wanton Porch case - Issue #1

30. A local public entity and public employees are not liable for injury caused by their failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property, other than that of the public legal entity, to determine whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety. • 745 ILCS 10/2-105 Porch Case - Issue #2

31. Plain language of the statute applies • No express exception for willful and wanton behavior Porch Case - Issue #2

32. To find an exception for willful and wanton behavior: • The municipality was uniquely aware of the particular danger or risk to which the plaintiff is exposed • Specific acts or omission by the municipality occurred • Specific acts were willful in nature • Injury occurred while the plaintiff was under the direct and immediate control of municipal employees Porch Case - Issue #2

33. Plaintiff couldn’t show that City acted willfully and wantonly“a course of action which shows an actual or deliberate intention to cause harm which if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” 745 ILCS 10/1-210 • Plaintiff can’t show that the victims were under the direct and immediate control of the City of its inspectors when the porch collapsed Porch Case - Result

34. State fire marshall immune in absence of proof of bad faith or malice for failure to enforce fire code • Under Rhode Island law, allegations that town officials failed to fulfill their common law duty to act with care in inspecting nightclub and enforcing fire code stated negligence claim against town and officials, to be analyzed under public duty doctrine, in action arising from nightclub fire that was triggered by fireworks ignited at concert and caused numerous injuries and deaths. Gray v. Derderian 400 F.Supp.2d 415 D.R.I.,2005- Rhode Island Station Fire