                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-2542



THE HARFORD MUTUAL INSURANCE COMPANY, subrogee
of Carriage Hill Apartments,

                                              Plaintiff - Appellant,


           versus

APRIA HEALTHCARE, INCORPORATED,

                                               Defendant - Appellee,


           and

MALLINCKRODT, INCORPORATED,

                                                            Defendant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-03-
180-RWT)


Argued:   September 20, 2005             Decided:    December 15, 2005


Before LUTTIG and GREGORY, Circuit Judges, and Robert J. CONRAD,
Jr., United States District Judge for the Western District of North
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Jeffrey Allan Wothers, NILES, BARTON & WILMER, L.L.P.,
Baltimore, Maryland, for Appellant. Gerard Joseph Gaeng, Kevin J.
Pascale, ROSENBERG, MARTIN, FUNK & GREENBERG, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: Jeanie S. Ismay, NILES, BARTON
& WILMER, L.L.P., Baltimore, Maryland, for Appellant. T. Christine
Pham, ROSENBERG, MARTIN, FUNK & GREENBERG, L.L.P., Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
PER CURIAM:

       The Harford Mutual Insurance Company ("Harford"), subrogee of

Carriage Hill Apartments, appeals the district court’s grant of

summary judgment that Apria Healthcare, Incorporated ("Apria") was

not negligent in distributing, delivering, installing and storing

oxygen cylinders, nor had it failed to provide adequate warning or

instruction      for   its   products.       Harford   also   appeals   certain

evidentiary decisions of the district court.                  For the reasons

stated below, we affirm the district court’s grant of summary

judgment on the issues of duty of care and negligence.             Because we

find that the district court properly granted summary judgment on

these issues, we need not reach the issue of its evidentiary

decisions.



                                     I.

       Harford    provides     insurance      coverage   to    Carriage   Hill

Apartments ("Carriage Hill"), an apartment complex in Maryland. In

December 1999, one of Carriage Hill’s apartment buildings was

severely damaged by a fire accidentally started when the five-year

old grandson of tenant Daisy Blakes played with matches on Blakes’s

bed.    Harford paid approximately $1.5 million to Carriage Hill to

cover this damage.

       Apria operates a nation-wide business that delivers such

products as cylinders of medical oxygen to its customers’ homes.


                                         3
At the time of the events central to this case, Apria had delivered

medical oxygen cylinders to Daisy Blakes for several months.              When

they were delivered, Apria placed its cylinders on a bookshelf in

Blakes’s seventeen-by-eleven foot bedroom.              By December 1999,

Blakes’s garden apartment contained approximately thirty oxygen

cylinders.     Twenty-seven cylinders were recovered after the fire.

      Harford contends Apria’s oxygen cylinders exacerbated the

fire.   It filed suit against Apria, alleging negligence in failing

to properly deliver, install and store medical oxygen cylinders in

Blakes’s     apartment.      Specifically,   Harford   asserted    that   the

relevant paragraphs of NFPA 99, which require gas equipment used in

home health care to be stored at least twenty feet from combustible

materials or in a "fire rated cabinet", were incorporated into

Maryland law, and created a statutory duty of care.             In addition,

Harford alleged that Apria failed to warn the tenant of the fire

and explosion hazards associated with such cylinders.            Apria moved

for summary judgment, arguing that the standard sought to be

applied for oxygen storage was not incorporated into Maryland law,

and   that   no   evidence   had   been   offered   regarding   the   alleged

defectiveness of the warning label.

      The district court granted Apria’s motion for summary judgment

on all claims.     Harford appeals this judgment.




                                      4
                                         II.

     This court reviews de novo a district court’s grant of summary

judgment. See Monumental Paving & Excavating v. Pennsylvania Mfrs.

Assoc. Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999).



                               A. Duty of Care

     Appellate    briefing         and   oral    argument    in    this   case       have

narrowed this issue to whether the entirety of the National Fire

Protection Association’s (“NFPA”) Model Code 99 (“NFPA 99") has

been incorporated into NFPA Model 101, and whether sufficient

evidence has been offered that Apria’s alleged violation of County

Code 11-265 caused the damage.



                            1. NFPA 101 and NFPA 99

     The NFPA is a private association that publishes model codes.

Model   Code   NFPA    99    is     entitled      “Standard       for   Health       Care

Facilities.”

     Chapter   18     of    NFPA    99   is     entitled    “Electrical        and   Gas

Equipment for Home Care.”           It “addresses the requirements for the

safe use of electrical and gas equipment used for medical treatment

outside health care facilities.”                Paragraph 18-3.8 provides that

“[g]as equipment used in the home for health care shall conform to

such requirements of Chapter 8 as applicable.” Chapter 8 of NFPA 99

addresses   the   storage      requirements        for     the    types   of     oxygen


                                          5
cylinders that were in Blakes’s apartment.      Paragraph 8-3.1.11.2

provides that:

            Oxidizing gases such as oxygen . . . shall be
       separated from combustibles or incompatible materials by
       either:
            1.   A minimum distance of 20 ft (6.1 m); or
            2.   A minimum distance of 5 ft (1.5 m) if the
       entire storage location is protected by an automatic
       sprinkler system designed in accordance with NFPA 13 . .
       . ; or
            3.   An   enclosed    cabinet   of    noncombustible
       construction having a minimum fire protection rating of
       one-half hour for cylinder storage.          An approved
       flammable liquid storage cabinet shall be permitted to be
       used for cylinder storage.

       Paragraph 8-2.1.2.2 provides examples of combustible materials

that may be found near patients, including “hair oils, oil-based

lubricants, skin lotions. . .[and] bed linen.”

       Blakes’s bedroom was eleven by seventeen feet. And the oxygen

cylinders were stored on a bookshelf in her bedroom.       There has

been no suggestion that the apartment had an automatic sprinkler

system.    Therefore, under NFPA 99, the oxygen cylinders arguably

should have been placed more than twenty feet away from any

combustible materials.      At issue in this case is whether the

relevant paragraphs of NFPA 99 have been incorporated into Maryland

law.

       “NFPA 101” is the 1997 edition of National Fire Prevention

Associations Life Safety Code and was incorporated by reference in

Maryland’s State Fire Prevention Code. Md. Regs. Code. Tit. 29,

§ 06.01.06(B)(2)(a) (1999).


                                  6
       Chapter 33 of NFPA 101 states that the listed “documents or

portions thereof are referenced within this Code as mandatory

requirements and shall be considered part of the requirements of

this Code. . . . The numbers in parentheses represent the paragraph

numbers     from    chapters    of   this       Code    that    reference      the   given

publication in a mandatory way.”                (Emphasis added.)           The reference

to NFPA 99 appears as follows:

       NFPA 99,      Standard    for   Health          Care    Facilities,        1996
       edition.

       [6-4.4 Exception, 7-2.4, 12-2.9.2, 12-2.10.2, 12-3.2.1,
       12-3.2.2, 12-3.2.3, 12-3.2.4, 12-5.1.2, 12-5.1.3, 12-
       6.2.9.2, 12-6.3.2.1,12-6.3.2.2, 13-3.2.2, 13-3.2.3, 13-
       3.2.4, 13-6.2.9.2, 13-6.3.2.1,13-6.3.2.2]

The NFPA 101 paragraphs following the NPFA 99 reference each

require that NFPA 99 be applied under certain circumstances.                             The

references from Chapters 6 and 7 apply to laboratories.                           Eleven of

the nineteen references to NFPA 99 are in Chapter 12, which applies

only to “New Health Care Occupancies.”                   Appellee’s Adden.15.            Six

of the nineteen references to NFPA 99 are in Chapter 13, which

applies only to “Existing Health Care Occupancies.”                         Paragraph 8-

3.1.11.2 does not appear as a mandatory reference.                     And none of the

other references relate to home use of oxygen use.

       Harford maintains that NFPA 101 incorporated the entirety of

NFPA   99   by     reference,   and,   therefore,             that   NFPA    99    has   the

authority of law in the state of Maryland.                           Harford’s primary

argument involves a parentheses/brackets distinction. The NFPA 101


                                            7
paragraphs that follow NFPA 99 are enclosed in brackets, not

parentheses.      The   paragraph      numbers    that   follow      the    other

provisions in that section are sometimes in brackets and sometimes

in parentheses.    Harford contends that “the drafters intended to

incorporate all of NFPA 99 into the Life Safety Code since there

are no sections appearing in parentheses.” (Emphasis added.)                  We

find this argument unpersuasive.

     First, Chapter 33 provides that “the listed documents are

mandatory only to the extent called for in [101 NFPA].”               Thus, it

is   apparent   that    Chapter   33       did   not   effect   a     wholesale

incorporation by reference of Chapter 99.

     Second, Harford offers no viable alternative explanation for

the numbers in brackets if they are not a listing of the specific

incorporations by reference.          Moreover, an examination of listed

paragraphs   reveals    that   they    are   sections    of   NFPA    101   that

expressly incorporate certain provisions of NFPA 99 and apply them

only to specific situations.1

     Thus NFPA 99's requirement that oxygen cylinders be stored

more than twenty feet from combustible materials is not applicable.




     1
      The most likely explanation for the alternating use of
brackets and parentheses is that, except for NFPA 99, the drafters
used brackets when the listed paragraph numbers included a lower
case letter enclosed in parentheses. We therefore find that the
Life Safety Code’s parenthetical references include bracketed
material.

                                       8
                2.   Prince George's County Code § 11-265

      Harford also argues there was sufficient evidence before the

district court that Apria breached the duty under Prince George's

County Code §11-265 regarding storage of compressed gases.2                   We

find that this argument also is unpersuasive.                  Even if it is

arguable whether Apria “stored” the cylinders, the district court

was correct that no evidence has been identified that the effects

of the fire were exacerbated by any alleged failure to secure the

tanks.    The analysis of Harford’s expert, Mr. Leshner, rested upon

his   primary    determination       that   the    cylinders   were   violently

propelled away from the explosion after one of the cylinders

failed.    There is no indication from Leshner, or anyone else, that

any of the cylinders failed because they fell or were knocked over.

      Thus, we find that Harford has failed to show that any

violation of § 11-265 caused the damage alleged to have occurred.



                           B. Failure to warn

      Harford asserts that the warnings on the cylinder labels are

defective    because    they   “do    not   warn    of   explosions   when   the

cylinders are exposed to fire if not properly stored.” We likewise

find this argument unpersuasive. These labels state, “WARNING HIGH



      2
      Prince George's County Code, Title 17, Subtitle 11, Division
4, § 11- 265(b)provides, “[a]ll compressed gas cylinders in service
or in storage shall be secured to prevent falling or being knocked
over.”

                                        9
PRESSURE OXIDIZING GAS VIGOROUSLY ACCELERATES COMBUSTION.”                     The

accompanying manual states, “Keep cylinders and oxygen tubing at

least five feet from any source of heat.”

      “Maryland does not require an encyclopedic warning.”                  Hood v.

Ryobi America Corp., 181 F.3d 608, 610 (4th Cir. 1999).                 Instead,

“a   warning    need    only    be     one    that   is   reasonable   under   the

circumstances.” Id. (quoting Levin v. Walter Kidde & Co., 248 A.2d

151, 153 (Md. 1968)).               In this case, the user was reasonably

cautioned that combustion would be “vigorously accelerated” and

that the cylinders and tubing should be kept at least five feet

away from any heat source.

      Harford contends on appeal even if adherence to NFPA 99 is not

mandatory in this situation, the MSDS provides some support for the

application     of     NFPA    99    standards.       Incorporation    of    these

standards, however, still would not seem to warn of any possible

explosion.     Because a warning need not be “encyclopedic,” Hood,181

F.3d at 610, and the warnings given in this case were “reasonable”,

we find that Harford has presented insufficient evidence to the

contrary to survive summary judgment.



                                         III.

      For the reasons stated herein, we affirm the district court’s

grant of summary judgment.

                                                                        AFFIRMED


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