2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-16-2003

Roma v. USA

Precedential or Non-Precedential: Precedential

Docket No. 02-3820

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PRECEDENTIAL

Filed September 16, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3820

MARK ROMA, and his wife,

MELANIE ROMA,

Appellants

v.

UNITED STATES OF AMERICA; UNITED STATES

DEPARTMENT OF THE NAVY; NAVAL FIREFIGHTER

CAPTAIN; JOHN DOE; CONTRACTOR JOHN DOE; FIRE

CHIEF JOHN DOE; BATTALION CHIEF JOHN DOE; JOHN

DOE ENTITIES, (1-10), jointly, severally or in the

alternative; J.A. JONES MANAGEMENT SERVICES, INC.

t/a Jones Management Services; VASPOLI CUSTOM

BUILDERS, INC. t/a Vaspoli Custom Builders; WIGAND

AND SONS, previously identified as John Doe Contractor

I, jointly, severally or in the alternative

v.

WILLIAM GREEN, d/b/a Green Carpentry;

GREEN CARPENTRY, INC.; HARLEYSVILLE INSURANCE

COMPANY

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Civil No. 99-cv-05080

District Judge: The Honorable Mary Little Cooper

Argued: July 15, 2003

Before: McKEE, BARRY, and ROSENN, Circuit Judges
(Opinion Filed: September 16, 2003)

Ross Begelman, Esq. (Argued)

Begelman & Orlow

411 Route 70 East, Suite 245

Cherry Hill, NJ 08034

Attorney for Appellants

Stephen R. Dumser, Esq. (Argued)

Gercke, Dumser, Shoemaker &

Sierzega

1236 Brace Road, Suite E

Cherry Hill, NJ 08034

Attorney for Appellee J.A. Jones

Management Services, etc.

J. Andrew Ruymann, Esq. (Argued)

Assistant U.S. Attorney

Office of the United States Attorney

402 East State Street

Trenton, NJ 08608

Attorney for Appellee

United States of America

OPINION OF THE COURT

BARRY, Circuit Judge:

Appellant Mark Roma suffered smoke-inhalation injuries

on November 24, 1997 while fighting a hangar fire at the

United States Naval Air Engineering Station in Lakehurst,

New Jersey (“NAES Lakehurst”). Roma’s second amended

complaint alleges thirteen counts of negligence against

numerous defendants, including the United States, the

Navy, several unidentified Navy firefighters, and other

federal employees (collectively, “the federal defendants”), as

well as the civilian contractors working on the hangar roof

renovation project where the fire occurred. In essence, the

complaint alleges two distinct tort claims at issue on

appeal: (1) the federal defendants and the civilian

2
contractors are liable for negligently starting the fire or

failing to prevent it; and (2) the federal defendants are liable

for Roma’s injuries because they negligently instructed him

to remove his self-contained breathing apparatus (“SCBA”)

on the night of the fire.1

Roma now appeals from the District Court’s September 5,

2002 order granting motions for summary judgment by the

federal defendants and two of the civilian contractor

defendants, J.A. Jones Management Services, Inc. (“J.A.

Jones”) and Vaspoli Custom Builders, Inc. (“Vaspoli”). We

have jurisdiction over the appeal pursuant to 28 U.S.C.

§ 1291.2 For the reasons which follow, we will affirm that

portion of the District Court’s order granting summary

judgment as to the federal defendants, but will reverse that

portion of its order granting summary judgment as to J.A.

Jones and Vaspoli. 

I.

Mark Roma joined the East Dover Township Volunteer

Fire Department, located in East Dover, New Jersey, in

1991, and was an active member of the department until

he left to join the Army in October 1995. Roma again

became an active member of the department after he was

1. The complaint also asserted a loss of consortium claim on behalf of

appellant Melanie Roma. Since the Romas did not address the District

Court’s dismissal of this claim in their brief, we do not address it in this

opinion. 

2. After Roma filed his notice of appeal, the Clerk’s office, sua sponte,

raised an issue of appellate jurisdiction regarding the timeliness of the

notice of appeal. The notice of appeal was filed on October 2, 2002 —

after the District Court’s September 5, 2002 Memorandum and Order

granting summary judgment, but before the District Court entered a

final order on October 9, 2002 dismissing all remaining counter-claims,

third-party claims, and cross-claims as moot and closing the case. “[A]

premature notice of appeal filed after disposition of some claims before

a district court, but before the entry of final judgment, will ripen upon

the court’s disposal of the remaining claims,” absent any showing of

prejudice to the appellee. Lazy Oil Co. v. Witco Corp, 166 F.3d 581, 585

(3d Cir. 1999) (citing Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d

Cir. 1983)). As there is no prejudice alleged by appellees, we have

jurisdiction over the appeal. 

3
honorably discharged from the Army in August of 1997. As

an active member of the East Dover Fire Department, Roma

took several firefighter training classes and participated in

fighting hundreds of fires. 

From September 22, 1983 through at least the date of

Roma’s alleged injury, the Board of Fire Commissioners for

Dover Township, District No. 1, which included the East

Dover Fire Department and the NAES Lakehurst Fire

Department, were parties to a written mutual aid fire

fighting assistance agreement, in which each party agreed

to provide fire fighting assistance to the other party when

requested, if the requested personnel and equipment were

available. The agreement further provided that if assistance

was rendered, “[t]he senior officer of the fire department of

the requesting service shall assume full charge of the

operations.” The agreement also included a waiver

provision, stating that “[t]he parties hereto waive all claims

against every other party for compensation for any loss,

damage, personal injury, or death occurring in consequence

of the performance of this agreement.” 

On the afternoon of November 24, 1997, at approximately

2:00 p.m., a fire broke out on the roof of Hangar No. 1 at

NAES Lakehurst. Hangar No. 1 was an enormous building

— approximately 960 feet long, 350 feet wide, and over 220

feet high — which had once housed the Hindenberg and

had been designated as a national historic monument. After

the NAES Fire Department arrived at the scene and realized

the magnitude of the fire, mutual aid assistance was

requested from fire departments in the surrounding

communities. Nineteen fire companies comprising 140

mutual aid personnel responded to NAES Lakehurst’s call,

including the East Dover Fire Department.

The hangar fire was burning between the two roofs of

Hangar No. 1, where Vaspoli had been doing renovation

work to enlarge the roof ’s drainage gutters. The firefighters

worked to contain the fire both from the inside and from on

top of the roof. In order to manage the many mutual aid

firefighters fighting such a large fire on the roof of such an

enormous building, the NAES Lakehurst Fire Department

put an Incident Command System in place with Acting

Assistant Chief of the NAES Fire Department, Joseph

4
Catapano, serving as the overall commander and other

NAES Fire Department supervisors directing the firefighting

activities in particular areas. 

According to Roma, he and six other volunteer firefighters

from the East Dover Fire Department, led by a Lieutenant

Cheblowski, responded to NAES Lakehurst’s call for

assistance. Soon after their arrival, an NAES Lakehurst

firefighter instructed Lieutenant Cheblowski to send three

firefighters to the hangar, and Cheblowski sent Roma and

firefighters Jay Melby and Dave Carus. As they approached

the hangar, an NAES Lakehurst firefighter instructed them

to cover some flight simulators in the hangar with tarps.

Once they covered the flight simulators, they were sent

back to their truck. 

Roma testified that as he, Melby, and Carus passed the

main command vehicle on their way back to the truck, they

were told by either the NAES Lakehurst Chief or Assistant

Chief to retrieve their SCBAs and tools and report back to

the hangar because additional assistance was required on

the roof. When they got to the East Dover truck, they

explained to Lieutenant Cheblowski what they had been

told to do, and Cheblowski instructed them to follow those

instructions. The three then reported to the base of the

hangar elevator shaft transporting firefighters and

equipment to the roof. 

When Roma arrived at the roof with Melby and Carus, an

NAES Lakehurst firefighter instructed them to drop their

SCBAs, get into harnesses, and go out onto the roof. When

Roma questioned the order to remove his SCBA, he was

told by the NAES firefighter that it was not needed on the

roof, and was not allowed. Roma followed the order and left

his SCBA in a pile of 20 or 30 SCBAs lying at the top of the

elevator. None of the many firefighters making their way

onto the roof from the top of the elevator was wearing an

SCBA. Roma then followed another order (apparently from

the same NAES firefighter at the top of the elevator) to

deliver some saws to other firefighters working on the roof.

After he made his way out onto the roof, Roma delivered

the saws to a group of 20 to 30 firefighters. None of those

firefighters was wearing an SCBA. 

5
After delivering the saws, Roma was told to help out on

the roof wherever needed, and began passing additional

tools to the firefighters working on the roof trench. Then,

according to Roma, two NAES firefighters in white hats

directed him to relieve a firefighter who was sitting in a

square hole in the roof, spraying water from a fire hose

down into the hole onto the wooden subroof below. The

wooden subroof was not simply exposed wood, but was

coated with a rubber roofing material, similar to shingles,

and had been the top roof before the metal roof was added.

Roma followed these instructions, took his place in the

hole, and began spraying water onto the wooden subroof.

According to him, when he began spraying, the wood was

not on fire and he did not notice any smoke coming from

the hole. Just before he was relieved, however, Roma

testified that “some steam, it seemed like, it wasn’t even

smoke, it was steam, like a mist, started coming back at me

as they were cutting trenches further down.” Although

Roma stated that the steam or mist disappeared after a

couple of minutes, he inhaled some of it first. 

Roma was relieved by other firefighters shortly thereafter

and made his way to the elevator. On his way back across

the roof, he observed white steam or misty smoke rising

from holes in the roof. Roma testified that there were then

approximately 60 firefighters working on the roof, and he

did not see a single one wearing an SCBA. When he arrived

at the elevator, Roma retrieved his SCBA, took the elevator

back to the ground floor, and had a sandwich and some

juice with other firefighters in the rehabilitation area. 

Roma then returned to the East Dover fire truck, which

was soon released by the incident commander. On the way

back to the East Dover fire station, he began to cough up

blood. Once back at the station, a first aid squad was

called, and he was transported to the hospital, where he

remained for a day or two. 

The fire on the roof of Hangar No. 1 started in the course

of drainage renovation work being done on the roof by

Steven Vaspoli, Bill Green, and Lane Friesen, employees of

Vaspoli, who in turn had been subcontracted the work by

J.A. Jones. As the general contractor and the only party

6
with a direct contract with the government, J.A. Jones was

responsible for quality control, and supervised and directed

Vaspoli to ensure that it performed the work in accordance

with the government’s contractual requirements. For

example, J.A. Jones provided Vaspoli with a Safety and

Health Plan which identified hazards of the project and

required certain safety controls. A J.A. Jones employee also

visited the job site daily to inspect progress on the project

and ensure it was being completed in accordance with

contractual requirements. 

In addition to frequent inspections by J.A. Jones, Vaspoli

was required to obtain a Hot Work Permit from an NAES

Lakehurst Fire Department inspector when necessary on

any given day. According to Buck Shimp, the fire inspector

who issued the vast majority of the permits to Vaspoli, a

Hot Work Permit was required any time spark-producing

equipment or an acetylene torch was used on the roof

project. According to Mr. Vaspoli, however, a Hot Work

Permit was only required on days his crew was using an

acetylene torch. In any event, an NAES fire inspector issued

a Hot Work Permit to Vaspoli on nearly every day that it

was working on Hangar No. 1., including the day of the fire.

For fire prevention purposes, and to satisfy Hot Work

Permit requirements, Vaspoli kept two fire extinguishers

and several buckets of water on the roof of the hangar on

every work day, and had an employee keep fire watch on

the ground on those days that its crew was using the torch.

The roof drainage improvements involved cutting into the

existing metal roof to make space for a larger gutter, and

then covering the new plywood gutter with rubber roofing

material. In order to cut through the metal roof, Vaspoli

used a gas-powered demolition saw (also called a “chop

saw”) which gave off sparks as it cut into the metal roof.

J.A. Jones’s inspector, the government project inspector,

and the NAES Lakehurst fire inspector were all aware that

the chop saw gave off sparks when it came into contact

with the roof. At no time did any of these individuals advise

Mr. Vaspoli to use a different kind of saw due to a risk of

fire. 

After Mr. Vaspoli and his co-workers had completed one

third of the gutter work on the west side of the roof, they

7
discovered, in the ten to twelve-inch space between the

metal roof and the wooden subroof, boxes and packing

material that had been left behind several years earlier by

the contractor who had originally installed the metal roof

over the wooden subroof. Vaspoli removed the trash, which

filled approximately 15 industrial garbage bags, and

informed J.A. Jones, in daily notes, and the naval project

inspector, that trash had been found and requested

instructions about what to do with it. 

Vaspoli only found and removed trash on that one day

while working on the west side of the roof, and did not

encounter any more trash until it began work on the east

side of the roof. Mr. Vaspoli explained that it was

impossible to know whether there was trash under a

particular portion of the roof until that portion was actually

cut and removed. At no time did Mr. Vaspoli contemplate

that the trash might present an increased risk of fire.

Neither did Keith McDonough, the government quality

control inspector, who visited Vaspoli’s work site every day

of the project, even conceive of the possibility that the trash

presented an increased risk of fire. 

The day of the fire, November 24, 1997, the Vaspoli crew

started in the morning with a “burn,” using an acetylene

torch to cut a steel roof beam. After lunch, they began

cutting the next 30 feet of the roof to prepare it for the

roofing contractor. At around 1:30 p.m., as they began to

lift the roof panels that had just been cut by the chop saw,

they noticed smoke coming from below where the roof had

been cut but the metal panels not yet removed. When they

removed the panels from that area, they observed a small

fire on top of the wooden subroof. They lifted another panel

and smoke poured over them. They then emptied the two

fire extinguishers and poured the buckets of water on the

fire, but the smoke did not subside. They pulled the fire

alarm, radioed their man on the ground to tell him there

was a fire, and evacuated the roof. 

On January 22, 1998, Roma submitted to the Navy the

administrative claim form required to make a claim under

the Federal Tort Claims Act, Standard Form 95 (SF-95),

seeking damages for the injuries he suffered fighting the

November 27, 1997 fire. In that SF-95, Roma described the

8
basis for his claim as follows: “During fire emergency

claimant was ordered to remove breathing respirator. As a

result of same, claimant sustained significant damage to

his respitory [sic] system, (note - claimant was a volunteer

firemand [sic] for Dover Township Fire Department.” In the

space for the amount of the claim on the SF-95, Roma filled

in the word “unknown.” 

In a letter dated March 23, 1998, a representative of the

Navy Legal Service Office Mid-Atlantic advised Roma’s

counsel that the administrative claim was invalidly

presented because it failed to include a specified damages

amount, adequate information to allow for an investigation,

or medical records or bills documenting Roma’s injuries.

On April 14, 1998, the Navy received Roma’s second or

amended SF-95, which included a specified damages

amount of $1,000,000, and restated essentially the same

basis for the claim — that is, that Roma “was instructed to

remove his breathing apparatis [sic] and was injured as a

result of same while trying to ‘fight’ the fire . . . .” 

In a letter dated July 22, 1999, the Navy denied Roma’s

administrative claim. The letter stated that “[a] thorough

examination of the facts of this claim indicates the United

States is not liable under the Federal Tort Claims Act.

There is no evidence of negligence on the part of the United

States or a Government employee.”

II.

Roma challenges the District Court’s grant of summary

judgment on three grounds: First, he argues that the

District Court improperly concluded that the New Jersey

“fireman’s rule” barred his claims against the contractors

and the federal defendants based on their negligence in

starting the fire or failing to prevent it. Second, he contends

that the District Court erred in dismissing his FTCA claim

against the United States for its negligence in preventing

the fire because he failed to allege this claim in his

amended administrative claim form. Third, he argues that

the District Court erred in finding that the undisputed facts

showed that he was a “special employee” of the NAES Fire

Department on the night of the fire, precluding his claim for

9
damages against the United States under New Jersey’s

statutory workmen’s compensation scheme, N.J. Stat. Ann.

§ 34:15-1, et seq.

We exercise plenary review over the District Court’s grant

of summary judgment, and accordingly apply the same

standard as the District Court. Wastak v. Lehigh Valley

Health Network, 333 F.3d 120, 124 (3d Cir. 2003). That is,

summary judgment is proper if “the pleadings, depositions,

answers to interrogatories, and admissions on file together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). “A factual dispute is material if it bears on an

essential element of the plaintiff ’s claim, and is genuine if

a reasonable jury could find in favor of the nonmoving

party.” Natale v. Camden County Corr. Facility, 318 F.3d

575, 580 (3d Cir. 2003).

A.

We begin by addressing Roma’s argument that the

District Court incorrectly concluded that his claims against

the federal defendants, Vaspoli, and J.A. Jones for their

negligence in starting or failing to prevent the fire were

barred by the New Jersey fireman’s rule. According to the

fireman’s rule, “the owner or occupier [of a premises] is not

liable to a paid fireman for negligence with respect to

creation of a fire.” Krauth v. Geller, 157 A.2d 129, 130 (N.J.

1960). In holding that the fireman’s rule applied to Roma’s

claims, the District Court relied upon Kelly v. Ely, 764 A.2d

1031, 1034-35 (N.J. Super. Ct. App. Div. 2001), certification

denied, 772 A.2d 937 (N.J. 2001), in which the Appellate

Division of the Superior Court of New Jersey held that N.J.

Stat. Ann. § 2A:62A-21, passed by the New Jersey

Legislature in 1994, did not abolish the common law

fireman’s rule, but only partially abrogated it. 

We agree with Roma that Kelly’s holding is inconsistent

with the plain language of section 2A:62A-21, which

certainly appears to have abolished the fireman’s rule in its

entirety and, therefore, cannot be used as an accurate

predictor of how the Supreme Court of New Jersey would

10
interpret the statute. In order to properly explain this

conclusion, it is first necessary to provide some limited

background on the origin of the New Jersey fireman’s rule

and its subsequent permutations. 

The fireman’s rule was first applied as a common law

principle by the Supreme Court of New Jersey in 1960.

Krauth, 157 A.2d at 130. The Court recognized that

application of the rule was, in essence, a “policy decision [ ]

that it would be too burdensome to charge all who

carelessly cause or fail to prevent fires with the injuries

suffered by the expert retained with public funds to deal

with those inevitable . . . occurrences.” Id. at 131. The

Court also noted an analogous non-economic justification,

reasoning that firefighters, in choosing their profession,

willingly accept the risks engendered by others’ negligence

in starting fires, and thus “cannot complain of negligence in

the very occasion for [their] engagement.” Id.

Whatever its policy justifications, New Jersey courts

substantially broadened the rule over the next thirty years.

In 1979, the rule was applied to volunteer firefighters,

Ferraro v. Demetrakis, 400 A.2d 1227, 1229 (N.J. Super. Ct.

App. Div. 1979), and in 1983 to the negligence claims of

police officers. Berko v. Freda, 459 A.2d 663, 666 (N.J.

1983). Then, in 1991, the Supreme Court of New Jersey

further broadened the fireman’s rule, holding that, in

addition to barring liability for negligent acts which caused

the fire or emergency, the rule also barred liability where

the injuries arose from other negligent acts by third parties,

unrelated to the fire or emergency, that firefighters and

police officers in the normal course of their duties should

expect to meet. Rosa v. Dunkin’ Donuts of Passaic, 583 A.2d

1129, 1133 (N.J. 1991) (“To hold otherwise creates artificial

distinctions between the negligence that occasioned one’s

presence and the negligence defining the scene at which

one arrives . . . .”). 

In 1994, the New Jersey Legislature intervened, passing

N.J. Stat. Ann. § 2A:62A-21, which provides, in pertinent

part:

In addition to any other right of action or recovery

otherwise available under law, whenever any law

11
enforcement officer, firefighter, or member of a duly

incorporated first aid, emergency, ambulance, or

rescue squad association suffers any injury, disease or

death while in the lawful discharge of his official duties

and that injury, disease or death is directly or

indirectly the result of the neglect, willful omission, or

willful or culpable conduct of any person or entity,

other than that law enforcement officer, firefighter, or

first aid, emergency or rescue squad member’s

employer or co-employee, the law enforcement officer,

firefighter, or first aid, emergency, ambulance or rescue

squad member suffering that injury or disease . . . may

seek recovery and damages from the person or entity

whose neglect, willful omission, or willful or culpable

conduct resulted in that injury, disease or death.

The plain and extremely broad language of the statute

appears to have abolished the fireman’s rule by allowing a

firefighter recovery for any injury that “directly or indirectly”

is the “result of the neglect . . . of any person or entity.”

(emphasis added). Indeed, the only Supreme Court of New

Jersey case to even mention the fireman’s rule after the

statute was passed noted in dicta that “[b]ecause the

Legislature has, in effect, abolished the firefighters’ rule in

New Jersey, this case will probably be the last in which this

Court will consider an application of the rule.” Boyer v.

Anchor Disposal, 638 A.2d 135, 136 (N.J. 1994) (citation

omitted).3 Since Boyer, at least two other courts have also

suggested in dicta that section 2A:62A-21 abolished the

fireman’s rule in New Jersey. See James v. Arms Tech., Inc.,

820 A.2d 27, 48 (N.J. Super. Ct. App. Div. 2003); Camden

County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp.,

123 F. Supp. 2d 245, 260 n.10 (D.N.J. 2000). 

Despite acknowledging the Boyer dicta, the Appellate

Division, in the only New Jersey case to have considered

the continuing viability of the fireman’s rule after N.J. Stat.

3. The Supreme Court in Boyer did not need to address the continuing

viability of the New Jersey fireman’s rule because the case concerned an

accident that occurred before the statute was passed, and because the

Court also found that, in any event, the pre-statute rule did not bar the

claim at issue. Boyer, 638 A.2d at 139. 

12
Ann. § 2A:62A-21 was passed, held in Kelly that the statute

did not abolish the rule. In Kelly, the plaintiff firefighter

sought damages for injuries he sustained when he tripped

on a curb when responding to a fire allegedly caused by the

defendant’s negligence. The Appellate Division held that the

New Jersey Legislature did not intend to do away with the

fireman’s rule in its entirety by passing section 2A:62A-21,

but only intended to restore the rule to its pre-Rosa state

— that is, to “afford protection to a firefighter injured as a

result of the negligence unrelated to and independent of,

the onset of the fire. It was not intended to make a

homeowner responsible for a firefighter’s injuries when the

only negligence present related to the start of the fire itself.”

Kelly, 764 A.2d at 1034-35. 

Careful review of the opinion in Kelly leaves little if any

doubt that the Appellate Division based its interpretation of

section 2A:62A-21 neither on the language of the statute

nor upon relevant legislative history (which, as the

Appellate Division recognized, does not exist), but instead

explicitly based its interpretation solely on public policy

considerations. Id. The Appellate Division reasoned that if

the statute indeed abolished the fireman’s rule, giving

injured firefighters a cause of action against individuals

who negligently started a fire, “the scope of potential

liability would be virtually unlimited.” Id. at 1034. Thus, it

concluded, it was “highly unlikely that the Legislature

would have intended to enlarge the scope of a property

owner’s liability” as well as providing a harmful incentive

for property owners to “delay summoning aid out of fear of

incurring liability to a responding firefighter.” Id.

Because the Supreme Court of New Jersey has never

interpreted section 2A:62A-21 (and the passing dictum in

Boyer was not interpretation), our task, in reviewing the

District Court’s interpretation of that statute, is to predict

how the Supreme Court would rule on this question of New

Jersey law. U.S. Underwriters Ins. Co. v. Liberty Mut. Ins.

Co., 80 F.3d 90, 93 (3d Cir. 1996). Ordinarily, in so

predicting, “[t]he rulings of intermediate [state] appellate

courts must be accorded significant weight.” Id. We are not

bound by the interpretations of intermediate state appellate

tribunals, however, if other sources present “a persuasive

13
indication that the highest state court would rule

otherwise.” Id.

Our review of the plain and extremely broad language of

section 2A:62A-21 leads inexorably to the conclusion that

the New Jersey Legislature has abolished the fireman’s

rule. The statute explicitly gives a firefighter a right of

action against any party who “directly or indirectly” caused

his or her injury through simple “neglect,” and there is no

language which even hints that this was not what the

Legislative intended to do.4 Despite the arguable merit of

the public policy concerns it expressed in Kelly, the

Appellate Division did not even attempt to base its holding

on the language of the statute. 

Accordingly, we find that the plain language of section

2A:62A-21 constitutes, in and of itself, a “persuasive

indication” that the Supreme Court of New Jersey would

not follow Kelly, but would instead conclude that the

fireman’s rule no longer precludes tort claims by a

firefighter against persons who negligently started the fire

that injured him or her. Thus, Roma’s negligence claims

against Vaspoli and J.A. Jones are not barred by the

fireman’s rule, and the District Court’s grant of summary

judgment in their favor will be reversed.5

4. The only exception, inapplicable here, is if the injury is caused by the

firefighter’s employer or co-employee. 

5. In light of our holding that the New Jersey fireman’s rule does not

preclude Roma’s negligence claims against Vaspoli and J.A. Jones, we

need not address Roma’s contention that the District Court erred in

concluding that there was insufficient evidence to create a triable issue

of fact as to whether Vaspoli’s or J.A. Jones’s conduct was so egregious

as to fall under the common law exception to the fireman’s rule for

“willful and wanton conduct.” See Mahoney v. Carus Chem. Co., Inc., 510

A.2d 4, 12 (N.J. 1986). Our review of the record, however, has yielded no

evidence that suggests that either Vaspoli’s or J.A. Jones’s conduct was

“willful and wanton” under New Jersey law. See McLaughlin v. Rova

Farms, Inc., 266 A.2d 284, 293 (N.J. 1970) (for conduct to be willful and

wanton, “it must appear that the defendant with knowledge of existing

conditions, and conscious from such knowledge that injury will likely or

probably result from his conduct, and with reckless indifference to the

consequences, consciously and intentionally does some wrongful act or

omits to discharge some duty which produces the injurious result”). 

14
B.

While we will reverse the District Court’s grant of

summary judgment to Vaspoli and J.A. Jones on Roma’s

negligence claims, we will affirm the District Court’s grant

of summary judgment to the federal defendants. The FTCA

expressly provides, in 28 U.S.C. § 2401(b), that “[a] tort

claim against the United States shall be forever barred

unless it is presented in writing to the appropriate Federal

agency within two years after such claim accrues . . . .”

Similarly, 28 U.S.C. § 2675(a) provides that “[a]n action

shall not be instituted upon a claim against the United

States” for damages caused by “the negligent or wrongful

act or omission of any employee of the Government while

acting within the scope of his office or employment, unless

the claimant shall have first presented the claim to the

appropriate Federal agency and his claim shall have been

finally denied by the agency in writing . . . .” In light of the

clear, mandatory language of the statute, and our strict

construction of the limited waiver of sovereign immunity by

the United States, we have held that the requirement that

the appropriate federal agency act on a claim before suit

can be brought is jurisdictional and cannot be waived.

Livera v. First Nat’l State Bank of New Jersey, 879 F.2d

1186, 1194 (3d Cir. 1989). 

“Although an administrative claim need not propound

every possible theory of liability in order to satisfy section

2675(a), . . . a plaintiff cannot present one claim to the

agency and then maintain suit on the basis of a different

set of facts.” Deloria v. Veterans Admin., 927 F.2d 1009,

1011-12 (7th Cir. 1991) (citations and internal quotations

omitted). In other words, notice in the form of an

administrative claim “satisfies section 2675’s requirement

. . . if the claimant (1) gives the agency written notice of his

or her claim sufficient to enable the agency to investigate

and (2) places a value on his or her claim.” Tucker v. United

States Postal Serv., 676 F.2d 954, 959 (3d Cir. 1982). 

Roma does not dispute that the amended administrative

claim he filed with the Navy on April 14, 1998 set forth as

the only basis for his claim that the NAES Lakehurst

firefighter’s negligent instruction that he remove his SCBA

caused his injuries. Neither his initial nor his amended

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administrative claim alleged that the United States or its

employees caused his injuries by negligently failing to

prevent the fire. Roma argues, however, that his allegation

in the initial administrative claim that his injuries were

caused by the Hangar No. 1 fire gave the Navy sufficient

notice that it also had to investigate potential negligence on

the part of federal employees in failing to prevent the fire

and, therefore, satisfied 28 U.S.C. § 2675(a)’s administrative

exhaustion requirement. 

We disagree. The facts concerning how the fire started

and any negligence by federal employees in failing to

prevent it are entirely distinct from the conduct involved in

supervising the firefighting operations, including the NAES

Lakehurst firefighter’s instruction to Roma to remove his

SCBA. In other words, the allegation that an NAES

Lakehurst firefighter negligently caused Roma’s injuries by

ordering him to remove his SCBA did not provide any notice

to the United States that it not only had to investigate the

way the firefighting was handled by federal employees, but

that it also had to engage in a much broader investigation

concerning whether the negligence of other, non-firefighter,

federal employees may have contributed to the start of the

fire itself. Accordingly, while we will reverse the District

Court’s grant of summary judgment in favor of Vaspoli and

J.A. Jones for their alleged negligence in starting or failing

to prevent the fire, we will affirm the District Court’s

dismissal of the analogous claim against the federal

defendants for lack of jurisdiction.

C.

Finally, Roma contends that the District Court erred in

holding that his remaining, properly exhausted claims

against the federal defendants were precluded by New

Jersey’s workman’s compensation scheme because, under

New Jersey law, he was a “special employee” of the NAES

Fire Department on the night of the hangar fire.

Specifically, Roma argues that his limited role in fighting

the hangar fire did not satisfy the test for being a special

employee because the federal defendants did not pay his

wages and did not have the power to hire or fire him.

Neither of these elements, however, is part of the three-part

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special employee test promulgated by the Supreme Court of

New Jersey in Volb v. G.E. Capital Corp., 651 A.2d 1002,

1004-05 (N.J. 1995). Accordingly, we will affirm the District

Court’s grant of summary judgment in favor of the federal

defendants on the remaining claims against them. 

Under New Jersey’s workmen’s compensation scheme,

N.J. Stat. Ann. § 34:15-1, et seq., “an employee’s exclusive

remedy against [his] employer for ordinary work injuries is

a statutory remedy without regard to fault. In return, the

employee forgoes a common law tort remedy.” Gore v.

Hepworth, 720 A.2d 350, 353 (N.J. Super. Ct. App. Div.

1998); see N.J. Stat. Ann. § 34:15-8 (acceptance of

workmen’s compensation “shall be a surrender by the

[employee] . . . of [his] rights to any other method, form, or

amount of compensation”). In addition to barring tort

claims against an employer for employment injuries, New

Jersey law also bars tort claims against a plaintiff ’s coemployee for allegedly negligent actions in the course of his

employment. N.J. Stat. Ann. § 34:15-8.6 The workmen’s

compensation statute also expressly provides that its

benefits and limitations apply to volunteer firefighters, and

provides the same measure of protection to volunteer

firefighters as it does to paid firefighters. N.J. Stat. Ann.

§ 34:15-43; Ohrel v. Continental Cas. Co., 350 A.2d 310,

318 (N.J. Super. Ct. Law Div. 1975). 

It is well settled under New Jersey law that an employee

may have two employers for purposes of the workmen’s

compensation scheme — a primary employer and a

“special” employer — and is barred from bringing a tort

lawsuit against either employer. Volb, 651 A.2d at 1006;

Gore, 720 A.2d at 353. Obviously, because Roma was not

directly employed by the NAES Fire Department, his

properly exhausted negligence claims against the federal

defendants for their alleged negligence in supervising him

on the night of the fire and instructing him to remove his

6. N.J. Stat. Ann. § 34:15-8 provides, in part: “If an injury or death is

compensable under this article, a person shall not be liable to anyone at

common law or otherwise on account of such injury or death for any act

or omission occurring while such person was in the same employ as the

person injured or killed, except for intentional wrong.” 

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SCBA are only barred by the workmen’s compensation

statute if the NAES Fire Department may be considered his

“special employer” under New Jersey law. 

In Volb, the Supreme Court of New Jersey established a

three-prong test for determining whether a defendant

should be considered a “special employer” for workers’

compensation purposes. 651 A.2d at 1004-05. Under the

test, an employee is a special employee of the borrowing

employer if: “(a) The employee has made a contract of hire,

express or implied, with the special employer; (b) The work

being done is essentially that of the special employer; and

(c) The special employer has the right to control the details

of the work.” Id. at 1005. Although some New Jersey lower

courts have considered two additional elements — “(d) the

special employer pays the employees wages; and (e) the

special employer has the power to hire, discharge or recall

the employee,” Kelly v. Geriatric & Med. Servs., Inc., 671

A.2d 631, 633 (N.J. Super. Ct. App. Div.), aff ’d, 685 A.2d

943 (N.J. 1996) — other cases have minimized the

importance of these two additional factors. See, e.g., Santos

v. Standard Havens, Inc., 541 A.2d 708, 712 (N.J. Super.

Ct. App. Div. 1988) (whether special employer paid

employee’s wages is not determinative of employment

relationship). 

The Supreme Court of New Jersey has emphasized,

however, and most other New Jersey cases considering the

issue have reiterated, that “the most important factor in

determining a special employee’s status is whether the

borrowing employer had the right to control the special

employee’s work.” Volb, 651 A.2d at 1005. There can be

little doubt that the District Court correctly concluded that

Roma’s work fighting the November 24, 1997 fire for the

NAES Fire Department rendered him a paradigmatic

example of a special employee under Volb’s three-part test.

As to the first Volb prong — whether Roma had an

express or implied contract with NAES — an employee has

an implied contract with a special employer if “the employee

consents to the special employment relationship . . . [and]

voluntarily submit[s] to the employer’s direction and

control.” Antheunisse v. Tiffany & Co., Inc., 551 A.2d 1006,

1008 (N.J. Super. Ct. App. Div. 1988) (citations omitted). In

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his deposition testimony, Roma conceded that he consented

to the special employment relationship on the night of the

hangar fire, and that he voluntarily submitted to the

direction of the NAES Fire Department officers and

personnel who were directing the firefighting operation. 

Moving to the second prong, it is readily apparent that

the work performed by Roma — fighting the Hangar No. 1

fire — was “essentially the work of ” the NAES Fire

Department. New Jersey courts have articulated the

relevant question as whether the work done by the plaintiff

“was an integral part of the regular business” of the

borrowing employer, Rossnagle v. Capra, 318 A.2d 25, 30

(N.J. Super. App. Div. 1973), or whether “there is a

functional integration of [the] respective operations” of the

lending and borrowing employers. Santos, 541 A.2d at 711.

Under either articulation of the test, rendering assistance in

fighting a fire at NAES Lakehurst under a mutual aid

agreement which required each fire department to help the

other upon request renders the work of one fire department

“essentially the work of ” the other. 

Finally, as to the all-important third prong — whether the

NAES Fire Department had the right to control Roma as he

was combating the hangar fire — there is little or no

dispute that the NAES Lakehurst Fire Department had the

authority to and did control Roma’s activities. First, the

mutual aid agreement expressly provided that “the senior

officer of the fire department of the requesting service shall

assume full charge of the operations.” Second, when the

East Dover Fire Department responded to NAES

Lakehurst’s call for assistance on November 24, 1997,

Roma’s commander, Lieutenant Cheblowski, expressly

instructed him to follow the instructions of the NAES

firefighters directing the fire control effort. Finally, Roma

himself testified that at all times he followed the orders of

NAES Fire Department officers and other personnel, and

that following such orders caused his injuries. 

Accordingly, we will affirm the District Court’s grant of

summary judgment in favor of the federal defendants

dismissing Roma’s claims based on the NAES firefighter’s

instruction that he remove his SCBA before proceeding onto

the hangar roof — the only claim against the federal

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defendants as to which Roma properly exhausted his

administrative remedies.

III. CONCLUSION

For the foregoing reasons, we will reverse that portion of

the District Court’s September 25, 2002 order granting

Vaspoli Custom Builders, Inc.’s and J.A. Jones

Management Services, Inc.’s motions for summary

judgment and remand for further proceedings consistent

with this opinion. We will, however, affirm that portion of

the District Court’s order granting the federal defendants’

motion for summary judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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