Opinion
CIVIL ACTION NO. 4:21-cv-66-AT
2022-03-24
FIREMAN'S FUND INSURANCE COMPANY a/s/o Art Flock & Screen, Inc. d/b/a Kane Carpet, Plaintiff, v. CARPET CAPITAL FIRE PROTECTION, INC., Defendant.
David M. Bessho, Cozen O'Connor, Atlanta, GA, Mark Edward Opalisky, Pro Hac Vice, Cozen O'Connor, Philadelphia, PA, for Plaintiff. Jonathan Skye Wellesley, Michael J. Rust, Gray Rust St. Amand Moffett & Brieske, LLP, Atlanta, GA, for Defendant.
David M. Bessho, Cozen O'Connor, Atlanta, GA, Mark Edward Opalisky, Pro Hac Vice, Cozen O'Connor, Philadelphia, PA, for Plaintiff.
Jonathan Skye Wellesley, Michael J. Rust, Gray Rust St. Amand Moffett & Brieske, LLP, Atlanta, GA, for Defendant.
OPINION AND ORDER
Amy Totenberg, United States District Judge
On September 26, 2019, a fire occurred in a carpet warehouse in Calhoun, Georgia. The warehouse was owned and operated by Art Flock & Screen, Inc. d/b/a Kane Carpet ("Art Flock"). The fire caused extensive damage that required Art Flock's insurer, Plaintiff Fireman's Fund Insurance Company ("FFIC"), to make payments in excess of $11 million. Before the fire occurred, Art Flock had retained Defendant Carpet Capital Fire Protection, Inc. ("Carpet Capital") to provide inspection, maintenance, testing, and repair services to the sprinkler system at the warehouse. Carpet Capital neither designed nor installed the sprinkler system. In this action, the property insurer, FFIC, brings negligence and breach of contract claims against Carpet Capital for its alleged failure to detect and alert Art Flock to potential dangers in the design and installation of the sprinkler system. Now before the Court is Defendant Carpet Capital's Motion to Dismiss [Doc. 8]. The Court's rulings are set forth below. I. BACKGROUND
The Court derives the facts from Plaintiff's Complaint, which are presumed true for purposes of resolving Defendant's Motion to Dismiss. See Duke v. Cleland , 5 F.3d 1399, 1402 (11th Cir. 1993).
This case arises from a fire in a carpet warehouse that occurred on September 26, 2019. (Compl., Doc. 1 ¶ 6.) The wholesale carpet warehouse was owned and operated by Art Flock. (Id. ¶ 7.) The property was insured by Plaintiff FFIC. (Id . ¶ 5.) The warehouse itself contained multi-level metal storage shelves that stored rolls of carpet, with six levels of shelving in total. (Id. ¶¶ 7-8.) The sixth, or top, level of the metal shelves was covered by a corrugated metal sheet. (Id. ¶ 9.) The warehouse also contained an automatic fire suppression system, comprised of sprinkler pipes and sprinkler heads. (Id. ¶ 10.) However, the sprinklers were only located on the second and fifth levels of the shelving. (Id. )
Upon amending the complaint, as discussed herein, Plaintiff should consider including pictures that depict the shelving and sprinkler system from the relevant time period, if available.
An investigation into the September 26 fire revealed that the fire originated on the sixth level of shelves. (Id. ¶ 13.) When this sixth level caught fire, the sprinklers were activated and functioned properly; however, because (1) there were no sprinklers on the sixth level of shelving and (2) the metal sheet running atop the sixth level of the shelves prevented water from reaching that level, the fire was able to spread and cause significant damage. (Id. ¶ 14.)
It is not clear from the Complaint whether the corrugated metal sheet was present when the sprinkler system was designed and installed or whether it was added at a later date.
For a period of years prior to the occurrence of the fire, Art Flock had retained Defendant Carpet Capital to inspect, test, maintain, and repair the automatic fire suppression system. (Id. ¶¶ 11, 15.) Carpet Capital did not design or install the sprinkler system. However, Plaintiff alleges that because Carpet Capital conducted regular tests of the sprinkler system, it was aware of the obstruction to the sprinkler heads as well as the lack of sprinklers on the sixth level and should have warned Art Flock of this hazard and the sprinkler system's overall deficiencies. (Id. ¶¶ 17-18.)
As discussed further below, the inspection of sprinkler systems in Georgia is governed by a set of professional standards, the National Fire Protection Association Publication 25 ("NFPA 25"). (Id. ¶ 31.) The NFPA 25 has been adopted as part of Georgia's fire codes. (Id. ) See also O.C.G.A. § 25-2-4 ; § 25-11-12. Plaintiff FFIC alleges in Count III that Carpet Capital failed to inspect the sprinklers at issue in accordance with the guidelines set forth in the NFPA 25. (Id. ¶ 34.) The parties dispute to what extent the Court should consider the NFPA 25 for purposes of Defendant's Motion to Dismiss. That dispute is addressed below.
As a result of significant damage caused by the fire, Art Flock submitted a claim to FFIC for reimbursement and indemnity for losses covered under the relevant insurance policy. (Id. ¶ 20.) Under the policy, FFIC has made payments to Art Flock in excess of $11 million dollars. (Id. ¶ 21.) In this action, therefore, Plaintiff FFIC brings claims as a subrogee of Art Flock. FFIC alleges claims for common law negligence, breach of contract, negligence per se, and attorneys’ fees.
II. LEGAL STANDARD
A court may dismiss a pleading for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable legal theory. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1216 (3d ed. 2002) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the non-movant's favor and accepts the allegations of facts therein as true. See Duke v. Cleland , 5 F.3d 1399, 1402 (11th Cir. 1993). The pleader need not have provided "detailed factual allegations" to survive dismissal, but the "obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In essence, the pleading "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).
III. DISCUSSION
A. Consideration of the National Fire Protection Association Publication 25 ("NFPA 25")
As noted above, the NFPA 25 is a document that provides national standards for the inspection, testing, and maintenance of water-based fire protection systems. In the Complaint, Plaintiff alleges that Carpet Capital committed negligence per se because it did not comply with the guidelines set out in the NFPA 25. (Compl., ¶¶ 33-34.) The Complaint also acknowledges that the NFPA 25 "has been adopted and modified as law by the Safety Fire Commissioner for the State of Georgia." (Id. ¶ 31.) Although relying on the NFPA 25 as a basis for Count III, Plaintiff did not attach the document to its Complaint. Conversely, Defendant Carpet Capital attached the NFPA 25 to its Motion to Dismiss in connection with its defensive position that it complied with the operative professional standards and therefore did not have any duties beyond those outlined in the NFPA 25. (NFPA 25, Doc. 8-2.)
In briefing, Plaintiff FFIC argues that the Court should not consider the NFPA 25 for purposes of Counts I (negligence) and II (breach of contract) but should consider the document for purposes of Count III (negligence per se). (Pl. Resp., Doc. 10 at 7.) Defendant argues that the NFPA 25 should be considered for all claims. (Def. Reply, Doc. 11 at 2.)
Where a plaintiff "refers to certain documents in the complaint, and those documents are central to the plaintiff's claim," a district court may consider those documents part of the pleading for purposes of a motion to dismiss. Bickley v. Caremark RX, Inc. , 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) ("[T]he defendant's attaching such documents to their motion to dismiss will not require conversion of the motion into a motion for summary judgment") (internal citation omitted); Day v. Taylor , 400 F.3d 1272, 1276 (11th Cir. 2005) (explaining that a document is central to a complaint when it is "a necessary part of [a plaintiff's] effort to make out a claim"). Here, Plaintiff FFIC has plainly referenced the NFPA 25 in its Complaint—indeed, it is the entire basis for Count III.
Moreover, the NFPA 25 is not only a document referenced in the complaint. The parties agree that it is a set of professional standards that has been adopted by the Safety Fire Commissioner for the State of Georgia as necessary to promote fire safety. See O.C.G.A. § 25-2-4 (noting that the Fire Commissioner "shall adopt such rules and regulations as he deems necessary" and that those regulations "shall have the force and effect of law ..."); O.C.G.A. § 25-11-12 (allowing the Fire Commissioner to promulgate the rules and regulations he or she deems necessary); Parc v. Duluth, LLC v. Cintas Corp. No. 2 , 2012 WL 113650, at *4 (N.D. Ga. Jan. 13, 2012) (Story, J.) (acknowledging that Fire Commissioner is entitled to deference in his selection of particular edition of NFPA 25). See also Ga. Fire Regs. 120-3-3-.04 (adopting the 2017 Edition of the NFPA 25, Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems).
Accordingly, because the NFPA 25 is central to Plaintiff's Complaint and because it has the force and effect of law, the Court considers it for all purposes in evaluating Defendant's Motion to Dismiss.
B. Negligence Per Se (Count III)
In the Complaint, Plaintiff FFIC alleges that Defendant Carpet Capital failed to comply with the NFPA 25 and therefore failed to detect and report an improperly installed sprinkler system. (Compl. ¶ 33.) This alleged failure, according to Plaintiff, constitutes negligence per se. (Id. ¶ 34.) In moving to dismiss, Carpet Capital contends that the allegations as to Count III are insufficient because Plaintiff does not allege how Carpet Capital violated the NFPA 25 and indeed does not mention any particular provision of the NFPA 25 at all. (Mot. to Dismiss, Doc. 8-1 at 11.) In addition, Carpet Capital argues that it had no duty under the NFPA 25 to recognize or alert Art Flock to any installation or design errors because the NFPA 25 requires only duties related to the inspection and maintenance of the sprinkler system, and in fact explicitly disclaims duties related to the evaluation of a sprinkler system's overall design. (Id. )
"Generally, negligence per se arises when a statute or ordinance is violated." Schaff v. Snapping Shoals Elec. Membership Corp. , 330 Ga.App. 161, 767 S.E.2d 807, 810 (2014) (internal citation omitted). "The violation of certain mandatory regulations may also amount to negligence per se if the regulations impose a legal duty." Id. Where a violation of a statute, ordinance, or certain mandatory regulation occurs, the first two elements of a negligence claim are satisfied as a matter of law, and the plaintiff must then "demonstrate that the defendant's statutory breach was the proximate cause of the plaintiff's injury." Amick v. BM & KM, Inc. , 275 F.Supp.2d 1378, 1381 (N.D. Ga. 2003) (citing Hubbard v. Dep't of Transp. , 256 Ga.App. 342, 568 S.E.2d 559, 566 (2002) ).
The Amick Court explained that "[t]he same result is reached through application of [O.C.G.A. §] 51-1-6, which provides: ‘When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for breach of such legal duty if he suffers damage thereby.’ " Id. at 1381-82.
However, for negligence per se to apply at all, a court must first "consider (1) whether the injured person falls within the class of persons [the statute, ordinance, or regulation] was intended to protect and (2) whether the harm complained of was the type of harm the statute was intended to guard against." Schaff , 767 S.E.2d at 810. Put another way, "negligence per se arises when a statute[,]" ordinance, or regulation carrying the force of law "is violated, the person injured by the violation is within the class of persons the statute was intended to protect, and the harm complained of was the harm the statute was intended to guard against." Goldstein, Garber & Salama, LLC v. J.B. , 300 Ga. 840, 797 S.E.2d 87, 92 (2017) (citing Murphy v. Bajjani , 282 Ga. 197, 647 S.E.2d 54, 58 (2007) ).
Here, the Complaint alleges in a conclusory fashion that Defendant Carpet Capital "failed to comply with NFPA 25 while inspecting Art Flock's sprinkler system and, as a consequence, failed to detect and report the improperly installed sprinkler system." (Compl. ¶ 33.) Plaintiff does not allege what provision of the NFPA 25 that Defendant supposedly violated and does not include any facts at all that speak to how Defendant purportedly violated the regulations at issue, which, as noted, "have the force and effect of law." O.C.G.A. § 25-2-4. While it is plain that FFIC need not provide "detailed factual allegations," it must provide sufficient facts as to how Carpet Capital's actions constituted a violation of a particular provision of the NFPA 25. Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (noting that a plaintiff must provide "more than labels and conclusions"); see also Champion Windows of Chattanooga, LLC v. Edwards , 326 Ga.App. 232, 756 S.E.2d 314, 321 (2014) (reversing trial court's grant of judgment, after bench trial, to plaintiff on negligence per se claim where plaintiff's expert did not identify any specific code sections of the building code as having been violated); Norman v. Jones Lang LaSalle Americas , 277 Ga.App. 621, 627 S.E.2d 382, 389 (2006) (affirming summary judgment to defendant on negligence per se claim where plaintiff failed provide evidence as to what specific sections of building code were violated). This is particularly so where Defendant argues that the NFPA 25 explicitly disclaims any duty on the part of the inspector to verify the adequacy or design of the sprinkler system. (See NFPA 25, Doc. 8-2 at ECF 11, 1.1.3.1.) ("This standard does not require the inspector to verify the adequacy of the design of the [fire protection] system.").
Although Plaintiff points to certain language in the NFPA 25 in its response brief, the Complaint itself does not mention any of these provisions at all and is therefore insufficient to state a claim.
Accordingly, because Plaintiff's pleadings in support of its negligence per se claim are conclusory and vague, Count III is DISMISSED WITHOUT PREJUDICE , with leave to amend, as Plaintiff requested. Upon amending the Complaint, Plaintiff must point to a particular provision of the NFPA 25 that Defendant violated and allege specific facts that will, if true, establish that violation in order to survive dismissal. In addition, the Court notes that neither side devoted attention in briefing as to whether the NFPA 25 is an appropriate basis for a negligence per se claim in the first place. In review, the Court has found no prior case in which a negligence per se claim was brought for a violation of the NFPA 25 or other comparable regulations adopted by the Georgia Fire Commissioner. The Court expects that the parties will address this preliminary issue in the event of any future briefing on this claim.
In Count IV of the Complaint, Plaintiff alleges Defendant's failure to comply with the NFPA 25 constitutes bad faith and, therefore, Plaintiff is entitled to attorney's fees. (Compl. ¶¶ 36-37.) As the Court dismisses Count III, Count IV—which is contingent upon Count III—is also DISMISSED WITHOUT PREJUDICE .
C. Breach of Contract (Count II)
In Count II, Plaintiff FFIC alleges that Carpet Capital carried out its inspections of the sprinkler system pursuant to a contract and that this contract included an implied duty to perform the work in a "good, professional, and workmanlike manner." (Compl. ¶¶ 26-27.) The Complaint further alleges that Carpet Capital breached this implied duty in failing to detect and report to Art Flock problems related to (1) the lack of sprinklers on the sixth level and (2) the corrugated steel covering on the sixth level that would prevent water from reaching that level. (Id. ¶ 28.) Plaintiff does not attach the relevant contract and does not cite to any express contractual provision or agreement between Defendant and Art Flock. In its Motion to Dismiss, Defendant argues that Plaintiff has alleged no basis in any contract for any duty to recognize and warn of design deficiencies in terms of the location of sprinklers or the obstacle of the corrugated metal sheet. (Mot. at 10-11.)
To state a claim for breach of contract, a plaintiff must allege a factual framework showing: (1) parties able to contract; (2) consideration moving to the contract; (3) the assent of the parties to the terms of the contract ; and (4) a subject matter upon which the contract can operate. Weathers v. Dieniahmar Music, LLC , 337 Ga.App. 816, 788 S.E.2d 852, 858 (2016) (emphasis added) ("Each of these four essential elements must be certain .... a petition must set forth a contract of such certainty and completeness that either party may have a right of action upon it.") (internal quotation omitted). Once the contract is established, a plaintiff must allege (1) breach of the contract and (2) resultant damages (3) to the party that has the right to complain about the contract being broken. Canton Plaza, Inc. v. Regions Bank, Inc. , 315 Ga.App. 303, 732 S.E.2d 449, 454 (2012).
Here, Plaintiff FFIC alleges only that Defendant carried out its work of inspecting the sprinklers pursuant to a contract. (Compl. ¶ 26.) Plaintiff does not allege whether that contract was written or oral, what the express terms of the contract were , or any particular provisions that were allegedly breached. Without pointing to any express provisions of the contract, Plaintiff's allegations rest only on a breach of a common law implied duty to carry out work "in a professional and workmanlike manner." (Id. ¶ 27.) This common law implied duty to perform work in a "workmanlike manner" is often applied in the context of agreements to build. See. e.g., Hall v. Harris , 239 Ga.App. 812, 521 S.E.2d 638, 643 (1999) ("[I]mplied in every contract by a builder-seller is the implied duty that construction was performed in a ‘fit and workmanlike’ manner.") (citing Holmes v. Worthey , 159 Ga.App. 262, 282 S.E.2d 919 (1981), aff'd , 249 Ga. 104, 287 S.E.2d 9 (1982) ); Howell v. Ayers , 129 Ga.App. 899, 202 S.E.2d 189, 190-91 (1973) (applying this concept in context of claims related to faulty construction of house). However, as discussed further below, there is a duty "implied in every contract for work or services" to perform skillfully and "in a workmanlike manner." Schofield Interior Contractors, Inc. v. Standard Bldg. Co., Inc. , 293 Ga.App. 812, 668 S.E.2d 316, 318 (2008).
There has been some confusion in past Georgia case law as to whether a violation of this duty to perform work in a "workmanlike" manner appropriately sounds in contract or tort. Compare Bowen & Bowen, Inc. v. McCoy-Gibbons, Inc. , 185 Ga.App. 298, 363 S.E.2d 827, 830 (1987) (viewing duty to perform soil testing in careful, skillful, workmanlike manner as arising in context of negligence) with Alco Standard Corp. v. Westinghouse Elec. Corp. , 206 Ga.App. 794, 426 S.E.2d 648, 650 (1992) (physical precedent only) (finding that potential failure to "wind" transformers in workmanlike manner could constitute breach of contractual obligation where agreement was specifically to "re-wind" transformers).
However, this confusion can be reconciled by looking to the specific alleged violation:
A single act or course of conduct may constitute either a breach of contract or an independent tort. If such act or conduct violates a contract obligation, suit may be brought on the breach. If the act or conduct violates a duty owed to plaintiff, independent of contract ... suit may be brought on the tort.
Bowen & Bowen , 363 S.E.2d at 830 (internal quotation and citation omitted); Brookview Holdings, LLC v. Suarez , 285 Ga.App. 90, 645 S.E.2d 559, 564 (2007) ("[I]t is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of contract to avoid harming him") (emphasis added).
Where the conduct at issue is alleged to have violated an express contractual obligation, the claim is appropriately brought as breach of contract. Hudgins v. Bacon , 171 Ga.App. 856, 321 S.E.2d 359, 366 (1984) (en banc ) (explaining that "where the duty to build a fit and workmanlike product is the builder's express contractual obligation[,]" the claim is for breach of contract). But where there is no express violation of the contract alleged, "the negligence claim stands alone." Id.
Under such circumstances, Georgia courts have therefore clarified that claims related to the duty "implied in every contract for work or services" to perform "skillfully, carefully, diligently, and in a workmanlike manner" arise "in tort and exists independently of any claim for breach of contract." Schofield , 668 S.E.2d at 318 (assessing claim for alleged violation of implied duty to build in workmanlike manner, referring to claim as one for negligent construction); Fields Bros. Gen. Contractors v. Ruecksties , 288 Ga.App. 674, 655 S.E.2d 282, 285 (2007) (assessing negligent construction claim and explaining that the "standard of proof on [a] contract claim for breach of the express duty to build the house in a fit and workmanlike manner [is] essentially the same as for proof of negligent construction") (emphasis added).
Here, there are no allegations in the Complaint that Defendant violated any express provision or term of its contract with Art Flock or what specific conduct constituted such a violation. Accordingly, Plaintiff FFIC fails to state a claim for breach of contract. See Brooks v. Branch Banking and Trust Co. , 107 F.Supp.3d 1290, 1296 (N.D. Ga. 2015) (Jones, J.) (explaining that "a plaintiff asserting a breach of contract claim must allege a particular contractual provision that the defendants violated to survive a motion to dismiss") (citing Anderson v. Deutsche Bank Nat'l Trust Co. , 2012 WL 3756512, at *5 (N.D. Ga. Aug. 6, 2012) ). However, the Court assesses Plaintiff's allegations related to Defendant's alleged failure to perform its work in a skillful and diligent manner as arising in tort and independent of any contract claim, as discussed below. Count II is therefore DISMISSED WITHOUT PREJUDICE . If Plaintiff chooses to assert a breach of contract claim anew in any amended complaint, Plaintiff is advised that such a claim will only pass muster if Plaintiff can allege with specificity the details of the contract, the particular term or provision that was allegedly breached, and facts asserting how that provision was breached. If a written contract exists, it should be attached to the amended complaint.
While the violation of an implied (as opposed to express) duty to perform on a workmanlike manner is, as discussed, properly brought as a tort claim, this tort claim is necessarily informed by the professional relationship created by the contract.
The written contracted may be a signed document or a series of letters.
D. Negligence (Count I)
In Count I, Plaintiff alleges that Defendant breached a duty of care in conducting its inspection of the sprinkler system by failing to detect problems with the installation of the sprinkler system and the design, specifically as related to the lack of sprinklers on the sixth level and the corrugated metal sheet covering on the sixth level. (Compl. ¶ 25.) Defendant Carpet Capital argues that it owed no duty beyond what is required by the NFPA 25 and that the NFPA 25 explicitly disclaims a duty to verify the adequacy of the design of the system.
To state a cause of action for negligence in Georgia, a plaintiff must allege: (1) the existence of a duty on the part of the defendant, (2) a breach of that duty, (3) causation of the alleged injuries, and (4) damages resulting from the alleged breach of the duty. Rasnick v. Krishna Hosp., Inc. , 289 Ga. 565, 713 S.E.2d 835, 837 (2011). The question of negligence often boils down to the question of duty. In Dep't of Lab. v. McConnell , the Georgia Supreme Court made clear that, to maintain a claim for negligence, a plaintiff must show a specific, recognized legal duty under Georgia law as opposed to a generalized duty to all the world. 305 Ga. 812, 828 S.E.2d 352, 358 (2019).
Generally speaking, a legal duty to exercise ordinary care is the obligation to conform to a standard of conduct under the law for the protection of others against the foreseeable, unreasonable risk of harm from such conduct. Rasnick , 713 S.E.2d at 837 ; Ellington v. Tolar Constr. Co. , 237 Ga. 235, 227 S.E.2d 336, 339 (1976) ("Negligence consists of exposing another to whom one owes a duty to a foreseeable unreasonable probability of harm."). The particular legal duty cited "can arise either from valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the case law" of this State. Rasnick , 713 S.E.2d at 837 (citing Murray v. Ga. Dep't of Transp. , 284 Ga.App. 263, 644 S.E.2d 290 (2007) ). The existence of a legal duty is a question of law for the court. Id. ; City of Rome v. Jordan , 263 Ga. 26, 426 S.E.2d 861 (1993).
Here, the Court has already addressed in Section B (related to negligence per se) the legal duty outlined in the relevant Fire Commissioner Regulations that have been adopted under Georgia law. See O.C.G.A. § 25-2-4 (noting that the Fire Commissioner "shall adopt such rules and regulations as he deems necessary" and that those regulations "shall have the force and effect of law ..."). See also Ga. Fire Regs. 120-3-3-.04 (adopting the 2017 Edition of the NFPA 25, Standard for the Inspection, Testing, and Maintenance of Water-Based Fire Protection Systems). The NFPA 25 therefore outlines a duty Defendant Carpet Capital owed to Art Flock under regulations "for the inspection, testing, and maintenance of water-based fire protection systems." (See NFPA 25, Doc. 8-2.) As noted in the discussion of Count III, Plaintiff FFIC has not adequately alleged in the Complaint how and by what conduct Defendant violated its duty under these set of professional standards. Whether Plaintiff will be able to cure the pleading deficiencies to establish a violation of the duties listed in the NFPA 25 will require re-assessment after the filing of an amended complaint.
The version of the NFPA 25 attached by Defendant is the 2014 edition. (Id. ) It appears to the Court that the current regulation has adopted the 2017 edition of the NFPA 25. The parties are directed in any future briefing to clarify their positions as to which version of the NFPA 25 governs the dispute related to the fire in question that occurred in September of 2019. The Court, however, recognizes that there may be no meaningful difference between the 2014 and 2017 versions for purposes of this dispute.
In light of this posture, the question thus becomes: did Defendant have a common law duty, recognized in the case law, to discover and alert Art Flock to the sprinkler system's flaws beyond what is required by the NFPA 25? As discussed in connection with Count II, Georgia courts have recognized a duty of care to perform work in a skillful, careful, diligent and workmanlike manner. Bowen & Bowen , 363 S.E.2d at 830 (finding a duty imposed by law to perform soil testing in skillful, careful and diligent manner); Hudgins v. Bacon , 171 Ga.App. 856, 321 S.E.2d 359, 364 (1984) (en banc ) ("It is well established that the law imposes upon persons performing architectural, engineering, and other professional and skilled services the obligation to exercise a reasonable degree of care, skill, and ability ..."); Howell , 202 S.E.2d at 190-91 (same); Schofield , 293 Ga.App. at 814, 668 S.E.2d 316 (same); KMC Acquisition Corp. v. Escoe Industrial Mechanical, Inc. , 2018 WL 1528210, at *5 (M.D. Ga. Mar. 28, 2018) (same, and characterizing claim as one for "professional negligence"); In re Clark , 2010 WL 8545153, at *3 (S.D. Ga. Br. Feb. 25, 2010) (recognizing that tort claim may arise "where [a] contract is within those certain classes of contracts that create a relation from which the law implies duties"); see also O.C.G.A. § 51-1-8 ("Private duties may arise from statute or from relations created by contract ... The violation of a private duty, accompanied by damage, shall give a right of action" in tort ).
See Harvey v. Merchan , 311 Ga. 811, 860 S.E.2d 561, 568 (2021) (referring to O.C.G.A. § 51-1-8 in connection with commission of torts).
In determining the parameters of the duty in the context of claims of negligence based on professional contractual relationships, the reasonable degree of care required "is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employment by others of the same profession." Howell , 202 S.E.2d at 190-91 ; KMC Acquisition Corp. , 2018 WL 1528210, at *5 (same); Hudgins , 321 S.E.2d at 364 (same).
In arguing for dismissal, Defendant contends that the degree of care is necessarily defined by the NFPA 25 as the instrument that outlines the standards of the profession. Defendant particularly emphasizes provisions of the NFPA 25 stating that "this standard does not require the inspector to verify the adequacy of the design of the [fire protection] system" and "design review ... is outside the scope of this standard." (NFPA 25, Doc. 8-2 at ECF 11, 1.1.3.1; id. at ECF 30, 7.5.4.) But in so arguing, Defendant cites to no authority, and the Court has found none, holding that compliance with professional standards is an absolute defense to common law negligence.
Conversely, at least one Georgia case suggests that a professional's common law duty is not confined to only the professional standard of care. See Hudgins , 321 S.E.2d at 364-65 (finding that, "in this case," of defectively built home, "although it may be the rare one, the jury could find clear and palpable proof of actionable negligence without advertence to the standard of care in the profession" and noting that the "professional standard" is only a means to the end of proving negligence). This makes sense considering the fact that Chapter 5 of the NFPA 25 explicitly states that "[t]his chapter shall provide the minimum requirements for the routine inspection, testing, and maintenance of the sprinkler systems." (NFPA 25, Doc. 8-2 at ECF 19, 5.1.1.1) (emphasis added). Indeed, courts in other states evaluating this very issue—whether compliance with the NFPA 25 is an absolute defense to common law negligence—have reasoned that "[c]ompliance with NFPA 25 does not, as a matter of law, prevent a finding of negligence." Davis v. Brickman Landscaping, Ltd. , 219 N.J. 395, 98 A.3d 1173, 1181-82 (2014) (noting that "safety codes represent minimum standards and do not establish the complete duty of the utility under all circumstances" but finding that summary judgment for inspector was appropriate where plaintiffs presented no viable expert opinion regarding alternative appropriate level of care required); Philadelphia Indem. Ins. Co. v. Jerome Fire Equip. Co. , 2013 WL 4054637, at *44 (N.D.N.Y. Aug. 12, 2013) ("While breaching the NFPA may certainly give rise to a negligence claim, complying with the NFPA [25] may not serve as an absolute defense to such a claim. This is because NFPA [25] guidelines and specifications are often minimums."); Deleon v. Northrop Grumman Sys. Corp. , 2004 WL 3186504, at *3 (D.N.M. June 15, 2004) (finding that "regardless of compliance with NFPA 25, there remains a genuine dispute regarding whether [defendant] breached a duty owed to Plaintiff ...").
See also Sims v. Am. Cas. Co. , 468, 131 Ga.App. 461, 206 S.E.2d 121, 127 (1974) (explaining that, even if safety inspections are undertaken in accordance with contractual provisions , the inspector may still be held liable for breach of common law duty to use reasonable care and skill in making inspections), aff'd sub nom. Providence Washington Ins. Co. v. Sims , 232 Ga. 787, 209 S.E.2d 61 (1974).
Thus, while the NFPA 25 may not have required Carpet Capital to verify the adequacy of the design of the sprinkler system, it is not clear to the Court that Defendant's common law duty to perform its inspection work in a skilled and diligent manner necessarily excluded, as a matter of law, recognizing allegedly obvious obstacles to the sprinkler system functioning as intended (i.e., the corrugated metal sheet and the lack of sprinklers on the sixth level of shelves). In comparable cases, questions related to the scope of a professional's common law duty of care have required courts to evaluate expert evidence or at least evidence related to the level of skill ordinarily employed by others in the field. See, e.g., Georgia Cas. & Sur. Co. v. Salter's Indus. Service, Inc. , 318 Ga.App. 620, 734 S.E.2d 415, 419 (2012) (in summary judgment decision based on extensive review of evidence, finding that defendants did not violate duty of reasonable care in inspecting and servicing refrigerators and electrical equipment prior to warehouse fire); Brickman Landscaping, Ltd. , 98 A.3d at 1181-82 (evaluating competing expert opinions in suit where plaintiffs alleged that fire sprinkler inspection company failed to inform hotel owner of flaw in the design of the hotel's sprinkler system, specifically, the lack of additional sprinklers in particular locations).
Therefore, at this juncture, the Court cannot rule as a matter of law that Defendant's common law duty did not encompass recognizing and informing Art Flock of the aforementioned fire hazards. After an evaluation of the evidence, it may ultimately be shown that Defendant exercised the degree of care and skill expected by others in the industry of sprinkler system inspections, maintenance, testing, and repair. Indeed, the evidence may show that the sprinkler system's designer, the system's installer, the building owner itself, or some combination of entities were responsible for evaluating the design concept and potential obstructions to effective overall functioning of the sprinkler system. At this juncture, however, this discussion is premature. With respect to Count I, Defendant's Motion is DENIED .
IV. Conclusion
In light of the foregoing discussion, Defendant's Motion to Dismiss [Doc. 8] is GRANTED IN PART AND DENIED IN PART . Counts II, III and IV are DISMISSED WITHOUT PREJUDICE . Plaintiff is required to file any amended complaint within 14 days of this Order. The parties are DIRECTED to exchange initial disclosures and submit the joint preliminary report and discovery plan within 14 days of the date of this Order. Discovery shall commence that same day.
IT IS SO ORDERED this 24th day of March 2022.