                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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
                              2


           (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
                                     3


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.
                              4


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
                             5


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.
                             6


  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
                             7


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
                              8


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
                              9


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
                             10


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
                              11


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
                                   12


     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.
                               13


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
                                    14


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”).
                              15


                              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
                             16


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
                                   17


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 co-
employee 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.”
                             18


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
                             19


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
                              20


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
