Enforcing NFPA

25
Linda S. Pieczynski
Attorney at Law, P.C.
Codeattorney.com
• 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?
• Corporation, limited liability company or individual?
• Check with Recorder of Deeds
• Check corporate status with Secretary of State -
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But, who is the owner?

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• 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?
• 4.1.1.2 Inspection, testing and maintenance shall be
performed by qualified personnel.

Who is responsible?
• 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?
• 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
•

•  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
• 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?
• 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
• Need consent of owner or representative, or
• Need administrative search warrant, or
• Need exigent circumstances

What if accessibility is denied?

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

Correction and repairs

• 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

• 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
• 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?
• 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
• 4.5 Inspection. System components shall be inspected at
intervals specified in the appropriate chapters.
•  

Inspection requirements
• 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
• 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
• Not much to your agency or you but
public safety is compromised.

What happens if my jurisdiction

does not enforce NFPA 25?
• 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
• 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

• 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
• 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
• 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
• 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?
• 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
• 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

• 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

• Plain language of the statute applies
• No express exception for willful and wanton behavior

Porch Case - Issue #2

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

Porch Case - Issue #2

• 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

• 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