FIRE SAFETY IN SHOPPING MALLS

& PREMISES LIABILITY

By John O. Hayward
*
There are other real and re!ent dan"er! #n the $all% #n&l'd#n" (#re%
the "reate!t threat to l#(e #n any en&lo!'re #n A$er#&a.
) *.S. +ow#n!,#% The Malling of America
I. INTRO-./TION
Probably no structure reflects American culture more than the shopping mall. The
Egyptians built pyramids as tombs for their pharaohs. The Greeks and Romans erected temples to
honor their gods and goddesses. Our medieval ancestors constructed cathedrals and mosues. !e"
on the other hand" put up vast malls to pay homage to our urge to shop. One author describes the
great American shopping mall as the present day incarnation of #the souks" ba$aars" arcades"
bourses" and markets of olden days.%
&
'alls" like any retailing center" face substantial public liability e(posure for a host of risks"
including slip and falls" assault" unla)ful imprisonment if a customer is incorrectly detained by
mall security" and even physical and biological attack.
*
These risks include fire" )hich is no
stranger to shopping malls. +n &,--" a uarter of the !estgate 'all in .ethlehem" Pennsylvania
burned do)n and another Pennsylvania shopping center )as destroyed by arson on /hristmas Eve"
&,0&.
1
.oth )ere closed at the time. 'ore recently" in 2ovember *334" a fire at the !illo) Grove
Park mall in Abington" Pennsylvania" outside of Philadelphia" forced the evacuation of more than
si( thousand people though no in5uries )ere reported.
6
Another fire" in April *33-" at a 'ilford"
2e) 7ealand shopping mall also caused hundreds of people to be evacuated from the smoke8filled
structure.
9
+n 'ay *330" a three8alarm bla$e destroyed a shopping center in /helsea" 'ichigan.
4

One month earlier" a fire in a strip mall in Anaheim" /alifornia ravaged three businesses causing
*
'.P.A." :arvard ;niv." <.=. > A..." .oston ;niv.? @enior Aecturer" .entley ;niv." !altham" 'assachusetts.
&
PA/O ;2=ER:+AA" /AAA OB T:E 'AAA C@imon > @chuster" 2D? *336E at 6.
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Roseanne !hite Geisel" Public Liability a Major Exposure for Retail Centers, .;@+2E@@ +2@;RA2/E" 'ar. &,"
*33-" at &6. As regards liability for terrorist attacks" a 2ational +nstitute of <ustice study found that shopping malls
have received #too little attention% from security officials as potential sites for terrorist and other attacks. See R./.
=avis" /. Orti$" /. R. Ro)e" <. .ro$" G. Rigakos" and P. /ollins" An Assessment of the Preparedness of Aarge Retail
'alls to Prevent and Respond to Terrorist Attack Cpdf" 93 pagesE" final report submitted to the 2ational +nstitute of
<ustice" =ecember *334 C2/< *&446&E" uoted by =avis et al." Shopping Malls: Are They Prepare to Pre!ent an
Respon to Attac"#$ 2+< <O;R2AA" 2O. *9," 'arch *330 C2/< **&931E. This article is available at
httpFGG))).o5p.usdo5.govGni5G5ournalsG*9,Gshopping8malls.htmClast visited @ept 4" *330E.
1
!+AA+A' @EHER+2+ IO!+2@I+" T:E 'AAA+2G OB A'ER+/A C!illiam 'orro) > /o." 2D? &,09E
at 1418146.
6
Tanya .arrientos" Store %ire %orces Mall E!acuation, T:E P:+AA=EP:+A +2J;+RER" 2ov *4" *334" at .31.
9
httpFGG))).n$herald.co.n$GsectionG&Gstory.cfmKcLidM&>ob5ectidM&3619-9- Clast visited @ept 4" *330E.
4
httpFGG))).chelseastandard.comGstoriesG393030GlocL*330393033&.shtml Clast visited @ept 4" *330E.
&
N&03"333 in damages"
-
and three months earlier in <anuary" a ten hour fire in the Galleria .aclaran
@hopping 'all in Pasay /ity" outside 'anila" The Philippines" resulted in damages estimated at
N&.0 million dollars.
0
Auckily" none of these conflagrations resulted in loss of life. :o)ever" on
/hristmas =ay *334" a seven8hour fire in the ;nitop General 'erchandising @tore in the Ormoc
'all in Ormoc /ity" near 'anila" claimed the lives of thirty8one people.
,

!hy do shopping malls present a serious fire riskK According to one commentatorF
#TodayOs Pshopping mallQ buildings are scandalously vulnerable because of the use
of volatile plastics" )hich can instantly emit killing chemical fumes and smoke.
although large buildings )ith inadeuate protection and evacuation procedures
are common" virtually all regional malls have fire alarm and sprinkler systems R%
&3

#R Pmalls haveQ smoke trapping enclosures" R PaQ central court )ith possible
updrafts R Pand aQ mall8)ide air8conditioning system. 'alls in suburban and rural
areas may also be relatively distant from fire companies" )hich may be too small
and poorly euipped to respond to a ma5or fire. There may also be insufficient )ater
pressure to fight a large fire" either because of a remote location or overbuilding in
the immediate vicinity.%
&&
On the other hand" statistical data sho) that shopping malls do not present a significant risk
to life from fire.
&*
@o even though malls )ith their customary atriums and high ceilings appear not
to present a serious fire threat" it is prudent to remember the tragic :artford circus fire of <uly 4"
&,66" )here &40 people lost their lives )hen a Ringling .ros. and .arnum and .ailey /ircus tent
caught fire and collapsed in flames.
&1
Prior to that time" fe) believed large tents posed a ma5or fire
ha$ard. Also" the lesson of the sinking of the #unsinkable% Titanic during the night of April &6 8&9"
&,&*
&6
shouldnOt be forgotten. +t stunned the )orld and stands as a reminder that the unthinkable
can happen.
&9
@o although to date there has been no large8scale loss of life in shopping mall fires"
-
httpFGG))).ocregister.comGarticlesGfire8businesses8anaheim8*3&1--08sabol8firefighters Clast visited August 4" *330E.
0
httpFGG))).sunstar.com.phGstaticGnetG*330G3&G36Gfire.hits.baclaran.mall.html Clast visited @ept 4" *330E.
,
httpFGG))).ne)sflash.orgG*336G3*GhlGhl&36,1-.htm Clast visited @ept 4" *330E. Government officials brought
criminal charges of reckless imprudence resulting in multiple homicide and in5ury against the managers of the mall.
See httpFGG))).gmane)s.tvGstoryG*609*G2.+8readies8raps8vs8Ormoc8mall8o)ner& +nitially t)enty8five people
perished in the bla$e" but eventually the death toll reached thirty8one. See httpFGG))).manilastandardtoday.comGK
pageMne)s*Ldec*0L*334 Clast visited @ept 4" *330E.
&3
Io)inski" supra at 141.
&&
'& at 146.
&*
.ennetts" +. =." Poh" I. !." Poon" @. A." Thomas" +. R." Aee" A. /." .eever" P. B." Ramsay" G. /." Timms" G. R. and
Eaton" /. R." SBire @afety in @hopping /entresS" Bire /ode Reform /entre" Pro5ect 4" <uly &,,0" at ,. This report is
available at httpFGG))).abcb.gov.auGinde(.cfmKob5ectidM30*A&*0=8..&&81E138/63*=994B40=0*.0 Clast
visited @ept 4" *330E.
&1
httpFGGen.)ikipedia.orgG)ikiG:artfordL/ircusLBire Clast visited @ept 4" *330E. Bor an in8depth analysis of the fire
and its aftermath" see :E2RD /O:E2 > =AH+= .OAA+ER" T:E GREAT :ARTBOR= /+R/;@ B+RE CDale ;niv.
Press" 2e) :aven? &,,&E.
&6
2D T+'E@ C2DTE" April &4" &,&* at &.
&9
Bor a highly readable account of the tragic sinking of the Titanic" see !AATER AOR=" A 2+G:T TO RE'E'.ER
C.antam .ooks" 2D? &,99E. To uote Aord at *&F #.ut it )as still a shock. After all" the Titanic )as considered
unsinkable. And not 5ust in the travel brochures. The highly technical maga$ine Shipbuiler described her
compartment system in a special edition in &,&&" pointing out" TThe /aptain may" by simply moving an electric s)itch"
instantly close the doors throughout and make the vessel practically unsinkable.O % AordOs book served as the basis for
the &,90 .ritish film of the same name. Other cinematic treatments of the Titanic sinking are :olly)oodOs &,91
*
the potential for such a disaster should not be lightly dismissed.
This essay )ill inuire into shopping mall fire safety by revie)ing the effectiveness of
sprinklers" smoke control" signage and alarms" and evacuation strategies" as )ell as e(amining the
ability of prescriptive versus performance8based building codes to enhance mall fire safety. The
liability of mall o)ners and retailers as it pertains to fire safety )ill then be revie)ed.
II. FIRE SAFETY AN- THE SHOPPING MALL
@hopping malls dot the landscape" both in the ;@ and throughout the )orld. .y one
estimate" America is populated by more than &"&-9 of these glittering hubs of retailing.
&4
The first
shopping mall in America designed as a fully enclosed" comfort8controlled" t)o8level mall )as
@outhdale" built in &,94 in Edina" 'innesota" a suburb of 'inneapolis.
&-

A& (!er!ie) of %ire Safety 'ssues
Hery often people flock to malls not 5ust to shop but also to be entertained and be part of a
social scene.
&0
'all o)ners are acutely a)are of this and strive to lure cro)ds to their facilities
)ith carousels" game arcades" museums" and cinemas.
&,
This often makes the structure of many
malls unlike any other edifice. One author describes mall architecture thuslyF
#The problem )ith shopping malls is that they are comple(. They are generally
different in style" si$e and can be very non8standard in their design. They can be
single or multiple storey" part of a hotel comple( or an airport" can incorporate
large atria Pa large open space )ithin a buildingQ using modern architecture
and ne) materials. They often include food courts" cinemas" restaurants" bars"
as )ell as offices" )ith the various parts connected by stairs" escalators and elevators.%
*3
=o)nto)n malls built to compete )ith their suburban counterparts often are multi8storied
and present uniue problems" both from a fire safety and fire fighting perspective. One
commentator 8 himself a firefighter 8 describes ho) multi8storied buildings can fill )ith smoke
before sprinklers can e(tinguish a fireF
#A problem associated )ith multi8storied structures is the presence of trash chutes"
)hich terminate at the first floor or basement locations )here the trash is unloaded
into metal trash containers or a compactor system. These areas are trouble spots for
firefighters because fires often occur )ithin the systems. A smoldering fire can fill
melodrama #Titanic% and <ames /ameronOs similarly titled &,,- blockbuster.
&4
;nderhill" supra at &1.
&-
Io)inski" supra at &&48&&-. The author chronicles the development of the nationOs first mall in /hapter &*" #The
+nvention of the 'allF Eureka in Edina" 'innesota"% at &&98&*6.
&0
;nderhill" supra at ,.
&,
/laudia :. =eutsch" Co**ercial Property: Shopping Malls: Luring Cro)s + an ,uyers + -ith %un an .a*es,
2DT" @ept. *-" &,,*" @ection 1 #.usiness"% at B 9.
*3
Robert Baruhar" %ire Protection in Shopping Malls, B+RE @ABETD E2G+2EER+2G" Hol. ," U1" at &0 C'ay
*33*E. This article is available at httpFGG))).accessmylibrary.comGcoms*GsummaryL3*048*991-4&6L+T' Clast
visited @ept 4" *330E.
1
large areas )ith smoke and set off smoke alarm systems before enough heat is given
off to activate a sprinkler head and e(tinguish the fire.%
*&

'alls are designed to accommodate many stores" )hich in itself can contribute to
spreading a fire. As the author e(plainsF
#!alls bet)een the mall stores are often partition )alls" a fle(ibility that permits
increasing or decreasing the si$e of the stores. The fire resistance of these )alls
could be uestionable" allo)ing a fire to spread and encompass other stores. @uspended
ceilings may be installed" or the underside of the roof may be painted and left e(posed.
+f a suspended ceiling is present" partition )alls often end at the underside of the suspended
ceiling. This feature allo)s fire to move above the suspended ceiling to e(tend to other stores.%
**
+n addition" the front of many mall stores are often e(posed during business hours. After
hours" security is maintained by open8)eb metal gates )hich permit security guards to see inside
the store. This allo)s fire to e(tend from one store to another.
*1
@hopping mall architecture is unconventional and commercial uses )ithin malls vary
)idely. As one observer statesF
#They PmallsQ are comple( in the multiplicity of commercial users" leasers and
o)ners" including large fashion shops" supermarkets" =+D Pdo8it8yourselfQ stores"
hotel chains and book shops" some )ith their o)n multi8level open or atria designs.
They are often also comple( in use" in that some are open *6 hours" )hile others
secure their entrances overnight.%
*6
Adding to the fire safety concerns of shopping malls is that protective measures and
evacuation procedures in ad5oining offices or hotels may be different than those reuired in the
main mall.
*9
:o) fires develop also affects mall fire safety. Bire development is very comple(" a
mi(ture of heat convection" radiation and conduction" influenced by )here it is initiated" the
surrounding environment of materials used" the prevalence of air conditioning" as )ell as the
overall space in )hich to spread.
*4
Aastly" shopping mall fire safety is the shared and collective
responsibility of the mall o)ner and tenants" )ho often have varied approaches to training staff
and dealing )ith fire protection.
*-
Thus shopping malls present uniue fire safety challenges.
Burthermore" ho) fire spreads in a mall is similar to ho) it spreads in other buildings. This
phenomenon Ckno)n as #fire spreadOE is recorded in the ;.@. under the follo)ing categoriesF
*&
<ames P. @mith" Enclose Shopping Malls: A %ire /epart*ent Perspecti!e, B+RE:O;@E" Hol. 11" U6" at 13 CApr.
*330E. This article is available at httpFGGcms.firehouse.comGprintGBirefighting8@trategy8and8TacticsGEnclosed8
@hopping8'alls88A8Bire8=epartment8PerspectiveG&6N*-&, Clast visited @ept 4" *330E.
**
'& at 13.
*1
'.
*6
Baruhar" supra at &0.
*9
'&
*4
'&
*-
'&
6
confined to ob5ect of origin
confined to part of room or area of fire origin
confined to room of fire origin
confined to fire8rated compartment of fire origin
confined to floor of fire origin
confined to structure of origin
e(tended beyond structure of fire origin
*0
@tatistics reveal that more fires occur in the daytime than at night" but daytime fires are
more likely to be confined to the ob5ect of origin" )hile nighttime fires have a greater chance of
becoming large.
*,
+n addition" more fires occur during normal operating hours due to the greater
demand on electricity" heating" cooking and the use of appliances.
13
2evertheless" the ma5ority of
these fires are detected by the occupants and e(tinguished before they can e(tend beyond the area
of fire origin.
1&
These are small fires that may not reuire fire apparatus to e(tinguish. Therefore"
the building occupants have the best chance to control these situations.
1*
:o)ever" it has been
argued that this may not happen in shopping malls" )here store employees are often paid minimum
)ages and are seldom trained in fire safety procedures.
11
'any employees are unfamiliar )ith the
store" to say nothing of the mall itself.
16
The same can also be said for security staff" )hose
emphasis during training is security" not fire safety and prevention.
19

One commentator has )ritten that
#The use of fire drills is looked upon as an annoyance and disruption of business.
.ecause profit is the primary purpose of the malls" understaffing occurs and response
to fire alarms may become a secondary consideration after security problems are
handled. !ith little training and no practical application" a fire usually brings chaos
and panic.%
14

.ecause shopping malls present such comple( fire safety issues" many specialists
recommend mall o)ners undertake a full fire protection risk assessment and engineering revie) as
part of an overall building design approach.
1-
This a revie) )ould address concerns about
occupant density" high fire load and inadeuate fire safety provisions" such as passive building
design" active fire protection" and fire safety management.
10
+t )ould include a site survey to
*0
.eever" P. B." Aee" A. /." .ennetts" +. =." Poh" I. !. and Poon" @. A." SRevie) of Bire @afety in @hopping /entresF
The Iey +ssuesS" Bire /ode Reform /entre" Pro5ect 4" Bebruary &,,-" at 1. This report is available at
httpFGG))).abcb.gov.auGinde(.cfmKob5ectidM3&=A-14E833==819//8,*0/*B3.90-E39,4 8 Clast visited @ept 4"
*330E.
*,
'& at 6.
13
.ennetts et al." supra at ,.
1&
'&
1*
'&
11
@mith" supra at *,.
16
'&
19
'&
14
'&
1-
Baruhar" supra at &0.
10
!.I. /ho) > '.D. 2g" %ire Ris" to a Local Shopping Mall, +2TER2AT+O2AA <O;R2AA OB R+@I
A@@E@@'E2T A2= 'A2AGE'E2T" Hol. 1" 2os. * G1G6" at &9* C*33*E. This article is available at
9
determine the geometry of the mall and the shops concerned" fire safety provisions" including
means of escape" fire services installations" and transient occupant loading.
1,
Binally" it )ould
contain a fire risk analysis of the shops concerned to study the potential ha$ards of the building and
its contents" life safety" and the activities being carried out in the mall.
63
+t is instructive at this point to e(amine ma5or fire safety technologies and procedures that
can be deployed to ma(imi$e shopping mall fire safety.
6&
,& Sprin"lers
Although the public may perceive sprinklers as primarily intended to protect property" they
also have an essential role to play in preserving human life.
6*
+ndeed" the safety of building
occupants depends on the proper functioning of the sprinkler system.
61
@prinkler systems can be
ranked according to their efficacy and reliability, )hich taken together is e(pressed as sprinkler
effecti!eness.
66
As one fire safety report e(plainsF
#These terms Pefficacy and reliabilityQ can each be represented numerically by a number
bet)een 3 and &.
69
@prinkler efficacy can be defined as the ability of the sprinkler system
to function in accordance )ith A@ *&&0 Pthe Australian national building codeQ assuming
that the system has activated. @prinkler reliability" on the other hand" is concerned )ith
)hether the system )ill activate Cdeliver )aterE and takes into account such matters as
isolation of the system and failure of the )ater supply. @prinkler effecti!eness is defined as
Effecti!eness 0 Efficacy x Reliability$
12
As the document makes clear" the efficacy of a sprinkler system in controlling a fire is a
function ofF
the type and arrangement of fuel?
the geometry of the room and the arrangement and type of sprinkler heads?
)hether the area in )hich the fire occurs is fully sprinklered in accordance
)ith A@ *&&0 or )hether only parts of the building are sprinklered.
6-
!hile it is important to uantify sprinkler effectiveness in laboratory tests" a more crucial
uestion is ho) )ell the sprinkler system performs under actual conditions. According to another
httpFGG))).inderscience.comGbro)seGinde(.phpKissueM*G1G6>5ournal+=M*6>volM1>yearM*33* Clast visited @ept 4"
*330E.
1,
'&
63
'&
6&
Bor a discussion of fire safety in green or sustainable buildings" see !.I. /ho)" %ire Safety in .reen or
Sustainable ,uilings: Application of the %ire Engineering Approach in 3ong 4ong, AR/:+TE/T;RAA @/+E2/E
REH+E!" vol. 64" U1" at *,- C@ep. *331E.
6*
.ennetts et al." supra at 14.
61
Brancis A. .rannigan" 5pate: Preplanning the ,ig ,ox Store, B+RE E2G+2EER+2G" Hol. &9*" U&&" at ,1 C2ov.
&,,,E. Bor a case holding a manufacturer liable for a defective sprinkler system" see 0380* Greene @treet /orp. v.
ABA Protective @ystems" +nc." &33 'isc.*d 116" 6&0 2.D.@.*d ,-& C&,-,E.
66
.ennetts et al." supra at 14.
69
#&% is the highest level of performance.
64
'.
6-
'.
4
fire safety study" )hich dra)s heavily on ;.@. fire statistics" sprinkler performance is recorded in
one of the follo)ing categoriesF
euipment operated?
euipment should have operated but did not?
euipment )as present but the fire )as too small to reuire
operation of the sprinkler system? or
no euipment )as present in the room or space )here the fire originated.
60
As to the effectiveness of sprinklers in containing fires" the study" again citing ;.@.
statistics" notes that
#The statistics sho) that sprinklers are very effective in containing the fire" as
)ould be e(pected. !ith sprinklers present" )hether they operated or not" 43V
of fires )ere confined to the ob5ect of origin )hereas )ithout sprinklers" the
figure is 66V. !ith sprinklers present" ,6V of fires do not spread beyond the
room of fire origin" )hile )ithout sprinklers the figure is -0V. Another )ay
of e(pressing these figures is to note that )ith sprinklers present" **V of fires
caused damage beyond the room of fire origin" but )ith sprinklers present this
is reduced to 4V 8 a four fold reduction.%
6,

One report e(pressed concern that recent trends in retail stores involving high shelving and
greater use of plastic material could cause a fire in a mall to spread more rapidly and shield the fire
from )ater.
93
:igh shelving is often prevalent in toy stores" shoe storage areas" and some ma5or
stores" including variety stores and supermarkets.
9&
'oreover" the document continues" the spacing
bet)een shelves can be substantially less than the sprinkler head spacing and the heads may be
positioned )ell a)ay from the location of the fire.
9*
This is of special concern in clothing or fabric
stores )hich comprise about one8third of all stores in shopping malls.
91
Once a shopping mall installs a sprinkler system" it is imperative to maintain and test it
regularly" other)ise its safety might be compromised. As one fire safety engineer cautionsF
#Dou can put all the systems in you )ant 8 stair pressuri$ation and smoke
e(haust" passive systems )ith compartmentali$ation 8 but if these systems
are not maintained" are not tested and regularly checked" then all the dollars
you spent on them" including the sprin"ler syste* Cemphasis addedE" is money
do)n the drain.%
96
@o it is imperative for fire safety that shopping mall management implement a program to
maintain and test their sprinkler systems on a regular basis.
60
.eever et al." supra at 6.
6,
'.
93
.ennetts et al." supra at 14.
9&
'. at 1481-.
9*
'. at 1-.
91
'&
96
<ames P. .uckley" PE" uoted in Tim .aker > @cott Arnold" %ire 6 S*o"e, :PA/ E2G+2EER+2G C<uly *333E"
at 1&.
-
Another area of concern in a shopping mall is that as tenants come and go" sprinkler
systems may be impaired by renovations" modifications" or e(pansions. The reliability of these
systems depends very much on ho) they are managed during these changes.
99
@ound management
practices should includeF
using primarily one company for sprinkler isolations Cshutting
do)n the sprinkler system in certain areas )ithin the mallE?
re8activating the system at the completion of each dayOs )ork?
implementing an approval system that reuires )ritten permission
from management before sprinkler isolation can take place and a
statement as to ho) long the isolation )ill continue Cshould be less
than one dayE?
reuiring that the contractor sign8off after the )ork is completed? and
assessing penalties for contractors )ho fail to comply )ith the above
reuirements.
94
.ecause of the height of many mall atria" sprinklers may not be effective.
9-
Therefore" other
fire protection strategies should be employed" including specific sprinklering of concession kiosks
)ithin the mall or spacing them in a manner that minimi$es the spread of fire.
90
C& S*o"e Control
Although sprinkler systems are critical" some fire safety e(perts argue they are not a #cure8
all.%
9,
+n any fire in an enclosed area" such as a mall" smoke represents a ma5or threat to human
life" since #smoke8related in5uries and deaths outnumber fire8related in5uries and deaths four to one
R%
43

One fire safety study succinctly describes the ha$ards of smoke. To uoteF
#@moke is generated by combustion and contains" in addition to to(ic gases" small
particles of matter suspended in air. +t is these particles that indicate the presence of
potentially to(ic gases and assist in the containment of heat )ithin a layer of smoke.
:igh temperatures in a hot layer of smoke also present a threat to the occupants.
+n the event of a fire" because it is hotter than air" smoke )ill rise and move through
a building including enclosures used by the occupants" thereby putting them at risk.
@moke management" )hen understood in the broadest sense" is concerned )ith managing
smoke )ithin the building such that the likelihood of e(posure of the occupants to
99
.ennetts et al." supra at 10.
94
'&
9-
The ,ennetts Report determined sprinklers )ould be ineffective at heights greater than &3 meters C1*.0 ftE. ' at 1,.
90
'&
9,
.uckley" supra at 13.
43
'& at 16" uoting from Hickie <. Aovell" a fire safety building code consultant. The lethal nature of smoke )as sadly
demonstrated in a fire in Gothenburg" @)eden" in October &,,0" )here e(posure to smoke )as responsible for the
deaths of si(ty8three teenagers. See Aars .enthorn > :kan Brant$ich" Managing E!acuating People %ro* %acilities
/uring a %ire E*ergency" BA/+A+T+E@" Hol. &-" U,G&3 at 1*9 C&,,,E.
0
ebilitating smoke is minimi$ed.%
4&

Too often the fire scenario at stores reads as follo)sF
#There )as light smoking sho)ing. All of a sudden" huge volumes of black smoke
developed" and visibility )as $ero.%
4*
@ometimes $ero visibility is the result of sprinklers driving the smoke do)n to the floor.
41

The 2ational Bire Protection Association C2BPAE" a .oston8based organi$ation charged )ith
creating and maintaining minimum fire safety standards" publishes guidelines for controlling
smoke in shopping malls" but they are only recommendations not mandatory reuirements.
46
@ome
fire safety e(perts maintain these guidelines are adeuate because #every smoke8control system is
different.%
49
2evertheless" the performance ob5ectives of the system must be understood
beforehand and designed to achieve those goals. As one fire safety engineer statedF
#Dou have to look at )hat are the performance ob5ectives of that smoke8control
system. !hat is the life8safety dependency on that smoke8management systemK
+s it there for helping to clear out smoke after the fire department arrives so that
they can do their mop8up operationsK Or is it there to provide a tenable means of
egress for the building population during fire emergencyK%
44
Other fire safety e(perts fault various building codes for not taking a consistent approach to
smoke control" an e(ample being the +nternational /ode /ouncil C+//E vote in *333 against
reuiring closed elevator lobbies" thereby permitting smoke to travel from floor to floor in a
building or shopping mall.
4-
'any malls" especially those involving urban revitali$ation )here large department stores
or abandoned mills are converted to shopping comple(es" reuire e(tensive parking facilities
)here smoke control and ventilation are vital for occupant safety.
40
Recent technological
developments have made it possible to keep smoke completely a)ay from occupant escape routes
in multi8storied underground parking facilities )ithout the need for smoke curtains or physical
barriers.
4,
CA #smoke curtain% is any barrier deployed in the event of a fire to contain andGor
channel a)ay smoke" heat and superheated gases.
-3
E
4&
.ennetts et al." supra at -1. Through the use of the term #debilitating"% the authors make the point that not all
e(posures to smoke lead to serious in5ury or death.
4*
.rannigan" supra at ,1.
41
'.
46
7%PA 89,: Stanar for S*o"e Manage*ent Syste*s in Malls, Atria, an Large Areas C*339E.
49
Gregory E. :arrington" PE" uoted in Tim .aker > @cott Arnold" %ire 6 S*o"e, supra at 16.
44
'.
4-
<ohn :. Ilote" =@c" PE" '& Bor a study of a smoke control system at a large shopping store" see 'asayuki :irota"
:ideki 'i$ouchi and @hu5i Iakega)a" A /e*onstrational Test of Pressuri:ation S*o"e Control Syste* at a Large+
Scale Shopping Store, B+RE @/+E2/E A2= TE/:2OAOGD" Hol. *9" 2o. 1" at *&18*1- C*334E.
40
Article CanonymousE" Shopping in Safety, B+RE @ABETD E2G+2EER+2G" Hol. &6" U*" at 1, C'ar. *33-E. This
article features the installation of many recent mall fire safety improvements" including the latest smoke control
technology" in a large" ne)ly8built shopping center in /arlo)" +reland" that has four levels of underground parking.
4,
'.
-3
See #@moke curtains 8 smoke barriers and compartmentation PsicQ% available at httpFGG))).smokecurtains.bi$GClast
visited @ept 4" *330E.
,
/ontemporary technological innovations in smoke sensing devices are no) available that
provide greater shopping mall fire safety.
-&
Bor e(ample" multi8sensor detectors incorporating
certain algorithms for heat and smoke can detect smoke and at the same time reduce the incidence
of false alarms. @ome devices also use /O Ccarbon mono(ideE and smoke sensing" the /O
providing a non8particulate based means of detecting a fire.
-*

@hopping malls )ith large atria and very high roofs present a special problem because it is
difficult for a smoke8sensing device to detect smoke before it dissipates into the air. One solution is
use of long path beam smoke detectors that can monitor smoke across large areas of empty space.
Other means include installation of optical beam sensors that are effective in detecting smoldering
fires" or aspirating detectors that dra) air into highly sensitive smoke detection chambers instead
of )aiting for the smoke to reach the sensor.
-1
Aastly" malls can be euipped )ith infra8red
detectors that can sense flame and e(tinguish a fire on the mall floor by setting off long thro)
sprinkler systems mounted on the roof.
-6

Aastly" so8called #smart% detectors can actually monitor themselves. One fire safety e(pert
describes them as follo)sF
#@mart smoke detection and alarm systems are also available )hich can automatically
ad5ust the sensitivity of the detectors to meet ambient or changing environment conditions
as )ell as self8check their o)n sensitivity capability. !hen one detector goes into alarm"
detectors in surrounding locations can be made more sensitive for earlier confirmation of
the fire. @mart smoke detectors can also change their sensitivity according to the time of
day. The intelligence for self8ad5ustment can either be built into the sensor head or some
intelligence retained )ithin the PfireQ panel soft)are.%
-9
/learly these devices offer great opportunities to enhance fire safety and protect shoppers
from mall fires.

/& Signage 6 Alar*s
+n the event of a fire in a shopping mall" the occupants should look for the nearest EW+T
sign and make their )ay out of the building in an orderly manner. :o)ever" this is not al)ays the
case. At a fire in a Pennsylvania mall" shoppers )anting to get to a big sale at a store at one end of
the mall ignored a raging fire at the other end.
-4

E(it signs should be clear and unambiguous" and in the event of a po)er and light failure"
-&
Baruhar" supra at *3. Bor cases holding manufacturers liable for defective smoke detectors" see Aaaperi v. @ears"
Roebuck > /o." -0- B.*d -*4 C&
st
/ir P'assQ &,04E" //: Prod Aiab Rep. X&3,-*? Pearsall v. Emhart +ndustries" +nc."
9,, B. @upp *3- CE= Pa &,06E" //: Prod Aiab Rep. X&366,? .utler v. Pitt)ay /orp." --3 B.*d - C*
nd
/ir P2DQ &,09E"
//: Prod Aiab Rep. X&34*,. See also +nterstate Engineering" +nc." v. .urnette" 6-6 @o.*d 4*6 CAla. &,09E Cmfg. of
defective heat detector liable under strict liability for )rongful deathE. Bor a case )here the mfg. )as held not liable
under the stateOs smoke detector la)" see Rao v. Rodrigue$" ,*1 @.!.*d 031 CTe(. App.8 .eaumont &,,4E.
-*
Baruhar" supra at *3.
-1
'&
-6
'&
-9
'&
-4
.rannigan" supra at ,*.
&3
emergency battery back8up systems are a necessity.
--
Permanent signs that glo) in the dark and
indicate self8luminous e(it paths should also be provided.
-0
A ne) technology for assisting people
to e(it buildings is the use of special directional sound that can lead a person to an e(it if the
building is dark or filled )ith dense smoke.
-,
This is often the case in shopping mall fires.
@igns must also be easily recogni$able and understood so that mall shoppers can take
appropriate action in the event of a fire.
03
+n one study" sub5ects )ere presented )ith si( different
signs and asked if they recogni$ed and understood the meaning of each sign.
0&
Everyone
understood the 2O @'OI+2G sign and E'ERGE2/D EW+T )ith a man running sign but only
91V understood the sign for fire hose.
0*
The authors caution that only half the population
understands such signs.
01
Brom a mall fire safety perspective" this finding should be cause for
concern.
Once smoke sensing devices detect a fire" an alarm should sound.
06
A ring signal should be
the first alarm but it might not be sufficient to get the attention of shoppers. The signal should be
follo)ed by a voice message telling shoppers to leave the mall through the normal e(its or
emergency e(its.
09
'any fire alarm panel systems no) come euipped )ith smart built8in voice
alarm messages that provide shoppers )ith messages that depend on location and even furnish
local individual messages.
04

E& E!acuation Strategies
Once smoke detectors alert mall management to the fire and sprinklers begin
operating and alarms sound" everyone" including shoppers and store and mall personnel must
evacuate the premises as uickly and orderly as possible.
0-
Any delay in evacuation or inability to
--
Baruhar" supra at &,.
-0
'&
-,
'&
03
Aars .enthorn > :kan Brant$ich" supra at 1*,.
0&
'& The authors themselves conducted the study. See #Bire Alarm in a Public .uildingF :o) =o People Evaluate
+nformation and /hoose an Evacuation E(itK% Report 130*" =epartment of Bire @afety Engineering" Aund ;niv."
@)eden C&,,4E.
0*
'&
01
'&
06
'anufacturers of fire alarms customarily include e(culpatory clauses in their contracts limiting their liability
should their product fail to perform as )arranted. @uch limitations are all too often enforceable. See American =ist.
Tel. /o. v. Roberts > @on" *&, Ala. 9,9" &** @o. 01- C&,*,E? Atkinson v. Pacific Bire E(tinguisher /o." 63 /al.*d
&,*" *91 P.*d &0 C&,91E? Abel :olding /o. v. American =ist. Tel. /o." &6- 2.<. @uper. *41" 1-& A.*d &&& C&,--E?
Antical /hemicals" +nc." v. !estinghouse @ecurity @ystems" +nc." 04 App. =iv.*d -40" 660 2.D.@.*d *-, C6
th
=iv.
&,0*E? @teiner /orp. v. American =ist. Tel. /o." &34 +daho -0-" 401 P.*d 619 C&,06E? :artford Bire +nsurance /o. v.
Architectural 'anagement" +nc." &,6 +ll.App.1d &&3" 993 2.E.*d &&&3 C&
st
=ist. &,,3E? ArthurOs Garage" +nc. v.
Racal8/hubb @ecurity @ystems" +nc." ,,- @.!.*d 031 CTe(. App. =allas &,,,E. Other courts" ho)ever" have refused
to enforce such limitations. See Bire @upply > @ervice" +nc. v. /hico :ot @prings" &,4 'ont. 619" 41, P.*d &&43
C&,0*E? Abel :olding /o." supra, Climitation not effective against telephone companyE? /hampion :ome .uilders
/o. v. A=T @ecurity @ervices" +nc." &-, B. @upp.*d &4 C2.=. 2D *33&ECdecision amended <an *9" *33*E? see generally
1- A.A.R.6
th
6- C&,09E Cliability of fire alarm installers for fire lossE.
09
'& The authors point out that studies of people evacuating buildings during a fire indicate they prefer to enter and
leave the building by the same entrance even if an emergency e(it is closer.
04
Baruhar" supra at *3.
0-
Bor a study of evacuation patterns in si(ty8nine atria using the computer soft)are building EWO=;@ to simulate a
&&
e(it the mall could result in fatalities.
00
As one commentator admonishesF
#Ensuring that the public can make a rapid e(it from a shopping mall" should a
fire result" is a prime consideration. Evacuation is generally satisfied through
use of multiple e(its" either through the rear of individual shops or through the
main entrance and e(it routes. The key reuirements" ho)ever" that such large
numbers of people sometimes present )ithin a shopping mall" are to prevent
panic and to aim to evacuate first those closest to the fire.%
0,
Everyone must be able to reach a place of safety outside the mall or in a fire8protected
corridor.
,3
E(its must be adeuate in number" safe and readily accessible.
,&
Reuirements for
evacuation safety should includeF
sufficient number of e(it routes )ith adeuate capacity that are suitably
located to enable persons to escape to a place of safety in case of fire?
the routes should be sufficiently protected from the effects of the fire?
the routes should be adeuately lit?
the e(its should be adeuately signed?
appropriate means should be available to limit smoke from entering
the escape routes" or
suitable measures taken to restrict the fire and remove smoke from
the building.
,*
=istances to the nearest mall e(it are usually regulated by national fire codes" )hich often
vary from country to country. They are divided into t)o distinct categories 8 direct distances and
travel distances. =irect distances are measured from any point in the mall to the nearest story e(it"
)hile travel distances consider the total building design" including features such as partitions and
office layouts.
,1
One commentator compares ;.@. and European building codes in terms of
providing safe fire e(its from shopping malls.
,6
Birst" he observes that
shopping mall and another public access area" see <. Ai > !.I. /ho)" 7u*erical Stuies on E!acuation Patterns
in Atria, AR/:+TE/T;RAA @/+E2/E REH+E!" Hol. 64" U6" at 6*- C*331E available at
httpFGG))).accessmylibrary.comGcoms*GsummaryL3*048&,00064*L+T' Clast visited @ept 4" *330E.
00
=avid R. Gibson" Means of Escape in Case of %ire + A %lexible Approach, @TR;/T;RAA @;RHED" Hol. &9" U6
at &9- C&,,-E.
0,
Baruhar" supra at &,. Bor a discussion of the dangers of panic during a fire" see <.=. @ime" #The /oncept of Panic"%
in B+RE@ A2= :;'A2 .E:AH+O;R" =. /antor CEd.E" C<. !iley > @ons" /hichester" ;I? &,03E at 4180&" cited
in Aars .enthorn > :kan Brant$ich" supra at 1*981*4.
,3
Gibson" supra at &43.
,&
Aars .enthorn > :kan Brant$ich" supra at 1*0. 'a(imum capacity Ci.e." occupancy loadE also determines these
criteria. See #E(ample of /alculating Occupancy from Bloor Plans"% available at
httpFGG))).corn)all.gov.ukGinde(.cfmKarticleidM*643 Clast visited @ept 4" *330E.
,*
Adapted from =epartment of the Environment P;IQ" The ,uiling Regulations, Appro!e /ocu*ent , %ire Safety
P:'@OQ" cited in Gibson" supra at &90.
,1
Gibson" supra at &9,8&43.
,6
Antonio /. /aro" P.E." Shopping Centre Life Safety, +2TER2AT+O2AA B+RE PROTE/T+O2" at *," available at
httpFGGtechnotribe.netGpdfsGBireLProtectionLforL@hoppingL/entresLC/aroE.pdf. Clast visited @ept 4" *330E. The codes
)ere 2BPA C2ational Bire Protection AssociationE &3&
Y
C*33E Calso kno)n as the Life Safety Coe
Y
E )hich is
utili$ed by nearly all the ;.@. model building codes for reuirements of life safety and fire protection and the
@panish fire safety code 2.E8/P+8,4 C7or*a ,

sica e la Eificacin + Coniciones e Protection Contra

&*
#Although fire safety approaches have varied )hen comparing American standards
)ith European standards" both have been challenged by this ne) development of
super retail structures better kno)n as retail malls in 2orth America or shopping
centres in Europe.%
,9
After an analysis of each codeOs reuirements for the number" )idth" and fire protection
capabilities of mall stair)ay enclosures" he concludesF
#+t is apparent that the Life Safety Coe
Y
reuires )ider stairs )ith narro)er
entrances )hile the 2.E8/P+8,4 reuires narro)er stairs but )ider entrances.
;nder the European approach" a bottleneck is e(pected to e(ist )ithin the
stair)ay enclosure" )hich is assumed to be safe from the elements of fire.
;nder the American approach" a bottleneck is e(pected at the entry)ay or
transition point from the space to the stair)ay.%
,4
:e does not favor one approach over another" but rather believes that in the future they )ill
not be so drastically different due to the increased use of computer models that serve as analytical
tools in conducting fire ha$ard analysis.
,-
2o matter )hat code is used" shopping mall evacuation
is so important for fire safety that in *336 a 'aryland circuit court ruled that the Americans )ith
=isabilities Act CA=AE
,0
reuires places of public accommodation" including malls" to consider the
needs of people )ith disabilities )hen developing emergency evacuation plans.
,,
Obviously prompt and orderly evacuation during a fire emergency is absolutely essential to
shopping mall fire safety.
%& Prescripti!e !s& Perfor*ance+,ase
,uiling Coes for %ire Safety

Any discussion of mall evacuation strategies involves the issue of prescriptive versus
performance8based building codes for fire safety" a topic that in the last decade or so has generated
a fair amount of controversy.
&33
@upporters of performance8based codes argue that they permit
'ncenios en los EificiosE" )hich is primarily based on European standards established by the European /ommittee
for @tandardi$ation.
,9
'&
,4
'& at 11.
,-
'&
,0
6* ;.@./. Z&*3& et se.
,,
@avage et al." v. /ity Place Aimited Partnership" et al." /ivil 2o. *63134 C=ebelius" <.E available at
httpFGG))).dep)eb.state.pa.usGofcchiefcounselGc)pGvie).aspKaM1>M9*939* Clast visited @ept 4" *334E. The facts in
this case are that plaintiff Iatherine @avage" )ho uses a )heelchair" )as trapped on the second floor of 'arshallOs
=epartment store in /ity Place 'all in @ilver @pring" '=" )hen a fire alarm )as activated. @he )as evacuated into the
'all along )ith the other customers" but because the elevators )ere inoperable due to the fire alarm emergency" she
)as unable to escape the 'all until after the emergency had passed.
&33
See <ames P. .egley" P.E." Perfor*ance+,ase %ire Safety /esign, .;+A=+2G OPERAT+2G 'A2AGE'E2T
C@ep. *336E Pno page numbers in originalQ available at
httpFGGfindarticles.comGpGarticlesGmiLa1,**GisL*3363,GaiLn,696496 Clast visited @ept 4" *330E and Hytenis
.abrauskas" Ph.=." Perfor*ance+,ase ,uiling Coes: -hat -ill 3appen to the Le!els of Safety# available at
httpFGG))).doctorfire.comGB@ELcodesLstory.pdf Clast visited @ept 4" *330E.
&1
more fle(ibility in design )hile maintaining a high level of safety.
&3&
Opponents disagree" making
the case that performance8based codes are vague" non8uantifiable and have the potential to
compromise fire safety.
&3*

@imply put" prescriptive codes #typically prescribe specific design criteria" such as the
number of e(its or the number of feet to an e(it. These are numeric criteria that can easily be
measured.%
&31
On the other hand" performance8based codes #allo) for the use of any design that
demonstrates compliance )ith the safety goals of the code.%
&36
Performance8based codes" )hich
can be found in provisions of many codes and standards"
&39
have been allo)ed for some time but
are no) specifically recogni$ed in code te(ts.
&34
!hile prescriptive code reuirements are numeric
and allo) no deviation" performance8based codes inuire into the main purposes of the numerical
prescriptive reuirements to determine the intent of the code.
&3-
/ompliance )ith prescriptive
codes is straightfor)ard 8 it involves measurement of )hatever must be in compliance. :o)ever"
)ith performance8based codes" compliance is not uantified
&30
and rests in the eye of the beholder.
Bor e(ample" t)o provisions from the first draft of the &,,0 +nternational .uilding /ode
C+./E provide that
Appliances and services shall be installed so that they )ill not
become a source of ignition?
!all" floor" and ceiling assemblies shall limit the spread of fire.
&3,
;nder such a code" )hat constitutes complianceK :o) is anyone to decide that an
appliance )onOt become a source of ignitionK ;nder a prescriptive code" certain appliances )ould
be prohibited or a test for ignition )ould be included. +f the appliance passed the test" it complied.
+f it didnOt" it failed. @imilarly" )hat determines if a )all or floor limits the spread of fireK Again" a
prescriptive code )ould prohibit certain materials or include a passGfail test. .ut under a per8
formance8based code" the designer is )ithout guidance" and" more importantly" the safety of the
building occupants is at the mercy of the code enforcement officer. +ndeed mall fires resulting in
loss of life are more prevalent in 5urisdictions dominated by performance8based codes.
&&3

One )ay out is to provide guidance in the code by )ay of a range of acceptable design
&3&
.egley" supra.
&3*
.abrauska" supra.
&31
.egley" supra.
&36
'&
&39
E&g&, The +nternational Bire /ode C+B/E" the 2ational Bire Protection Association C2BPAE &" ;niform Bire /ode" >
2BPA &3&" Life Safety Coe
Y
& '&
&34
'&
&3-
.egley" supra.
&30
.abrauska" supra&
&3,
'& at &8*.
&&3
Iaren Tiongson8'ayrina" %ire (fficials Lea!e Mall Safety Largely in the 3ans of ()ners, G'A 2e)s C'anila"
The PhilippinesE 'ar. 39" *330" available at httpFGG))).gmane)s.tvGstoryG0163,GBire8officials8leave8mall8safety8
largely8in8the8hands8of8o)ners Clast visited @ept 4" *330E. The article describes ho) t)o million shoppers each day
visit 'etro 'anilaOs forty8five malls" most of )hich have numerous fire safety code violations. @adly" on /hristmas
=ay" *334" thirty8one people died in a mall fire in a suburb outside 'anila. See 2ote ," supra&
&6
solutions.
&&&
This provides ma(imum fle(ibility and design freedom. !hile there is no obligation to
adopt any particular solution" if a suggested solution is adopted" that is evidence tending to sho)
compliance )ith the code.
&&*
:o)ever" if no solutions in the code are follo)ed" that is evidence
tending to sho) non8compliance. The burden then shifts to the designer to sho) that the chosen
solution complies )ith the code.
&&1
This appears to be a compromise bet)een prescriptive and
performance8based codes.

Given the inherent vagueness and lack of uantification of performance8based codes" one
critic nevertheless presents their advantagesF
resources can be allocated to meeting real needs" instead of
satisfying code provisions )hich may be ineffectual or
unnecessarily duplicative?
a rational design may be made in pro5ects )hich are sufficiently
unconventional that they are not amenable to analysis under
prescriptive codes?
an o)ner desiring to increase the level of safety over the legal
minimum has a rational tool for doing so.
&&6
This same critic is deeply concerned that performance8based codes )ill be used for large"
e(pensive pro5ects that are precisely the ones )here the greatest number of people )ill be at risk.
&&9
:e argues that such codes present the follo)ing problemsF
&&4
the level of safety is not uantified Ce.g." risk computations
are not madeE?
uantitative performance evaluation formulas are not offered
to determine if any particular fire safety subsystem is adeuate?
redundancy
&&-
is considered as something to e(punge" not as a
valuable aid to safety?
an assumption is built in that fire dynamics are fully kno)n?
designs start )ith" and are largely based on" fire scenarios )hich
the designer is free to define or select?
&&0
The role of redundancy in fire safety is especially significant and the author finds its
&&&
Approved =ocument . P&,,* EdQ" =epartment of the Environment .uilding Regulations P;IQ" cited in Gibson"
supra at &9-.
&&*
'&
&&1
'
&&6
.abrauska" supra at &.
&&9
'& at *.
&&4
'&
&&-
Redundancy% in the language of engineering means #duplication of critical components of a system )ith the
intention of increasing reliability of the system" usually in the case of a backup or fail safe.% See
http:;;en&)i"ipeia&org;)i"i;Reunancy<=engineering> Clast visited @ept 4" *330E. Bor e(ample" a 5etliner )ith
four inepenent braking systems can land and safely stop even if three systems are inoperable.
&&0
Bire safety engineering starts )ith positing some type of fire and then designing systems to control or suppress it.
.abrauska" supra at 9.
&9
removal in performance8based building codes most disturbing. As he observesF
#Traditionally" prescriptive building codes have achieved a si$eable fraction of
their safety level by redundancy. /ommonly" they mandate fire endurance A2=
restrict fuel load in various )ays A2= reuire fire sprinklers A2= a )hole host
of other arrangements. +t can certainly be argued that any one of these measures
should obviate the need for the others. ;nfortunately" not only has this been argued"
but authorities have often been persuaded by such an argument. Perhaps it is best
to point out here that there ha0e 1een 0ery (ew $a2or (#re d#!a!ter! wh#&h d#d
not #n0ol0e a !er#e! o( (a#l're!. ;nder traditional fire protection philosophies" if
any one safety system fails" normally )hat results is a nuisance fire" not a disaster.
/atastrophes tend to take place only )hen a string of failures occur in a ro). .ut
redundancies cost money.%
&&,
PE*phasis in originalQ
The )riterOs safety message is clear 8 as more levels of safety are removed" the potential for
disaster increases. This bodes ill for many types of construction Chigh rise office buildings come
immediately to mindE. +t should be of special concern for shopping malls )here thousands of
people gather daily to shop or sociali$e.
2evertheless" performance8based building codes can enhance fire safety by uantifying the
level of safety" making certain elected officials" not building designers" determine the appropriate
safety level" and incorporating redundancy into performance8based reuirements.
&*3
Even though
they are being used less freuently" prescriptive codes have a longer and more reliable safety
record.
2o) that the effectiveness of selected fire safety technologies has been e(amined" it is
appropriate to e(amine the liability of mall o)ners and tenants for mall fire safety.
III. PREMISES LIABILITY FOR MALL FIRE SAFETY
A& 'ntrouction
'all o)ners and tenants come under the same legal umbrella as other business
establishments as regards liability for loss or in5uries resulting from fire.
&*&
;nless a statute
provides a different standard of liability"
&**
legal responsibility for loss or in5uries resulting from
fire usually is based on negligence or some )rongful act or omission.
&*1
This liability can be
&&,
'& at 1.
&*3
'& at 4.
&*&
Of course" mall o)ners and tenants must also be concerned about protecting their customers from criminal assault
as )ell as providing them reasonably safe and )ell8maintained premises. See ?Aiability of o)ner or operator of
shopping center" or business housed therein" for in5ury to patron on premises from criminal attack by third party"%
1& A.A.R.9
th
993 C&,,9E and #Aiability of o)ner or operator of shopping center to patrons for in5uries from defects or
conditions in side)alks" )alks" or pedestrian passage)ays"% ,9 A.A.R. *d &16& C&,46E.
&**
@ampson v. :ughes" &6- /al. 4*" 0& P. *,* C&,39E? :ill v. Aehtinen" &1& 'e. &*," &9, A. -13 C&,1*E? !offord v.
v. <ohnson" *93 'iss. &" &46 @o.*d 690 C&,46E? see generally 19A A' <;R *d #Bires"% Z*3" at -*1.
&*1
@ycamore Preserve !orks v. /hicago > 2.!. Ry. /o." 144 +ll &&" - 2.E. *d -63" &&& A.A.R. &&11 C&,1-E" opinion
conformed to" *,1 +ll. App. *3" &* 2.E.*d 6* C*d =ist. &,1-E? 2orth)estern 'ut. Bire AssOn v. Allain" **4 Aa. -00"
&4
related to starting a fire
&*6
or failing to provide efforts to e(tinguish it
&*9
and can be modified by
contributory negligence
&*4
or pro(imate cause.
&*-
,& Liability for %ire an Res 'psa Lo@uitur
/ourts are split on )hether res ipsa louitur CR+AE is applicable to fires.
&*0
Generally" 5ust
because an in5ury occurs does not create a presumption of negligence.
&*,
:o)ever" under R+A"
facts or circumstances accompanying an in5ury can raise a presumption or permit an inference of
negligence on the defendantOs part. +n most 5urisdictions" three elements are necessary for R+A to
applyF &E the defendant must be in e(clusive control of )hatever caused the in5ury or damage?
*E the accident must be such that it )ould not have occurred unless someone )as negligent? 1E the
plaintiff must be free of contributory negligence" i.e." not have contributed to the accident in any
)ay.
&13
Aastly" some 5urisdictions use a fourth element 8 the evidence must be more easily
accessible to the defendant than to the plaintiff.
&1&

The court refused to apply R+A in .ic"ing !& 4i*berlin,
AB9
)here a fire spread from one
shop to another in a shopping center. The court held that the cause of the accident )as merely
speculative because it )as eually probable that the accident )as caused by some fault for )hich
the shop )here the fire originated )as not responsible. :o)ever" in .ranata !& SchaeferCs ,a"e
Shop, 'nc."
&11
the court" )hile not resting its decision for the plaintiff on the application of R+A"
nevertheless indicated )ithout elaboration that it )as applicable to the facts in the case" )hich
involved a fire caused in a store ad5oining the plaintiff[s type)riter company by the unattended
operation of a Sfry8o8latorS that had caught fire on a previous occasion.
C& Liability for %ire an Sufficiency of E!ience
Often the legal issue in store fire cases )here the fire spreads to ad5oining establishments is
not R+A but the sufficiency of the evidence.
&16
Bor e(ample" in Re*y !& Michael /Cs Carpet
-- @o.*d 1,9" 6, A.A.R. 14* C&,96E? 'enth v. .ree$e /orp." 6 2.<. 6*0" -1 A.*d &01" &0 A.A.R. *d &3-& C&,93E?
/riscola v. Guglielmelli" 93 !ash. *d *," 130 P.*d *1, C&,9-E? A' <;R *d" supra,Z&-" at -*3.
&*6
.oynton v. Bo( =enver Theaters" &*& /olo. **-" *&6 P.*d -,1" *6 A.A.R. *d *19 C&,93E Cstarting trash fireE?
:ome @av. .ank v. @avransky" 13- 'ass. 43&" 13 2.E.*d 00& C&,6&E? !offord v. v. <ohnson" *93 'iss. &" &46 @o.*d
690 C&,46E Cfire set on defendantOs landE? A' <;R *d" supra,Z*&" at -*6.
&*9
Aouisville > 2.R. /o. v. @cruggs > Echols" &4& Ala. ,-" 6, @o. 1,, C&,3,E? 'ullen v" Otter Tail Po)er /o." &13
'inn. 104" &91 2.!. -64 C&,&9E? Globe 'alleable +ron > @teel /o. v. 2e) Dork /ent. > :.R.R." **- 2.D. 90" &*6
2.E. &3," 9 A.A.R. &460 C&,&,E? Iirstein v. Philadelphia > R. Ry. /o." *9- Pa. &,*" &3& A. 110" 9 A.A.R. &464 C&,&-E?
RE@TATE'E2T C@E/O2=E OB TORT@ ZZ1*-" 1*0 C&,-6E? A' <;R *d" supra,Z1-" at -14.
&*4
/leveland" /." /. > @t. A. Ry. /o. v. Tauer" &-4 +nd. 4*&" ,4 2.E. -90 C&,&&E? A' <;R *d" supra,Z10" at -1-.
&*-
E)en v. .loch" &-1 @o. *d 1&6 CAa. /t. App. &
st
/ir. &,49E. The liability of a person setting a fire usually e(tends
only to the pro(imate results of his act. 'oon v. Payne" ,- /al. App. *d -&-" *&0 P.*d 993 C6
th
=ist. &,93E? A' <;R
*d" supra,Z61" at -6&.
&*0
2guyen v. ;nifle( /orp." 1&* @./. 6&-" 663 @.E.*d 00- C/t. App. &,,6E Cre5ecting R+A for firesE? see generally
#Res ipsa louitur as to cause of or liability for real8property fires"% *& A.A.R. 6
th
,*, C&,01E.
&*,
PRO@@ER O2 TORT@ C6
T:
Ed &,-&E Z1," at *&&.
&13
'& at *&6.
&1&
'&
&1*
&-3 /al. App. 1d -1" *&9 /al Rptr 016 C*
nd
=ist &,09E.
&11
6 /onn. /ir 10*" *1* A.*d 9&1 C&,4-E.
&16
On occasion the cause of mall fires can become uite contentious. +n Dobes !& E!angelista, 14, 2.<. @uper. 106"
06, A.*d &04" *336 2.<. @uper AEW+@ &00" the court affirmed damage a)ards to anchor store employees for
&-
(utlets,
ABE
a fire spread to several businesses from a carpet outlet business. The court held there
)as evidence from )hich a 5ury could have concluded that employees of the carpet outlet business
had stored foam padding too close to the ceiling light bulbs in spite of their kno)ledge of the
flammable uality of the foam padding" and that this had caused the foam padding to ignite" and
that even if the fire had been caused by electrical failure" it )as clear to the court that the foam
padding acted as an accelerant and caused the rapid spread of the fire into the all8consuming
conflagration )hich destroyed several businesses. +n Pacific 'ne*& Co& !& Tho*pson+Faeger,
'nc&,
AB2
a fire spread from a hard)are store to other stores in a strip8type shopping center. The court
affirmed the 5udgment of the trial court" holding that there )as sufficient evidence to find the
hard)are store liable" )here it )as alleged that its employees had placed )aste paper and card8
board bo(es close to a furnace. This caused the materials to ignite and contribute to the fire.
Another case involving improper storage of combustible material too close to an ignition source is
3a:e)in"el !& Tho*as&
ABG
There the o)ner and manager of a grocery store piled up paper )aste and
litter near an open furnace in his basement. A fire started and spread to an ad5oining foot)ear store.
The court held there )as sufficient evidence to hold him liable for damages from the fire.
:o)ever" there )as insufficient evidence and no definite cause of the fire could be established in
Dero*e Thrift)ay /rug, 'nc&, !& -inslo),
ABH
)here a fire spread from a department store to a drug
store. The court took the position that there )as no 5ustification for the conclusion that negligence
)as the most likely e(planation for the fire because there )as testimony that the fire damage )as
so e(tensive that its point of origin could have been burned up and lost.
/& Lanlor 3as 7o /uty at Co**on La)
To Pro!ie %ire Safety E@uip*ent
'all o)ners" like other landlords" have no duty at common la) to provide fire8fighting or
safety euipment.
&1,
Thus in 7euber !& Royal Realty Co&,
A1I
an action by a tenant employee against
the landlord for in5uries sustained in a fire on demised premises resulting from a tenantOs negligent
use of flammable materials" the court held that evidence that the landlord failed to enclose an open
stair)ay bet)een floors )ith fire8resistant materials pro(imately contributed to employee in5uries
)as insufficient to take the case to the 5ury. +n (lin !& 3onstea"
&6&
the court ruled that the landlord
defamation" malicious prosecution" and false8light invasion of privacy )hen the local fire chief accused them of
not timely reporting the mall fire to the authorities.
&19
1,& Pa @uper 614" 9-& A.*d 664 C&,,3E.
&14
*43 2.!.*d 960 C'inn. &,--E Csuperseded by statute on other grounds as stated in :olstad v @outh)estern
Porcelain" +nc." 6*& 2.!.*d 1-& C'inn. App. &,00E" //: Prod Aiab Rep X&&-*&" 9 ;// Rep.@erv.*d ,&*E
Cdisapproved on other grounds by :apka v Pauin Barms" 690 2.!.*d 401 C'inn. &,,3E" //: Prod Aiab Rep
X&*969" &* ;// Rep.@erv.*d 43E Csuperseded by statute on other grounds as stated in @ch)an[s @ales Enterprises v
/arlson > @te)art Refrigeration" +nc." &,,& !A &9&161" 'inn. App AEW+@ -,0E and Csuperseded by statute on other
grounds as stated in 7um.erge v 2orthern @tates Po)er /o." 60& 2.!.*d &31 C'inn. App &,,*E" &4 ;// Rep.
@erv.*d ,4*E and Csuperseded by statute on other grounds as stated in +ndependent @chool =ist 2o.4** v. Ieene
/orp." 6,9 2.!.*d *66 C'inn. App. &,,1E" ** ;// Rep.@erv.*d &313" //: Prod. Aiab. Rep. X&1"949E.
&1-
*19 'ich. 16," *3, 2.!. 6& C&,*4E.
&10
&&3 +daho 4&9" -&- P.*d &311 C&,04E.
&1,
.idlake v. Douell" +nc." 9& !ash. *d 9," 1&9 P.*d 466 C&,9-E? @te)art v. Raleigh /ounty .ank" &*& !. Ha. &0&" *
@.E.*d *-6" &** A.A.R. &4- C&,1,E? Pennyroyal /o. v. <ordan et al" **, Iy. 4,1" &- @.!. *d -*3 C&,*,E" 44 A.A.R.
&1,3 C&,13E? .lotcky v. Gaham" &30 2eb. *-9" &0- 2.!. 463 C&,**E? see also :ome +nsurance /o. of +llinois et al
v. 2ational Tea /o. et al" 9-- @o. *d 49" &,,3 Aa. App. AEW+@ *,49 Cinfra>&
&63
04 /al. App. *d 9,4" &,9 P.*d 93& C*
nd
=ist. &,60E.
&6&
43 +daho *&&" ,& P.*d 103 C&,1,E.
&0
)as under no common la) duty to euip a building" )hich )asnOt sho)n to be more than one story
high" )ith fire escapes" in the absence of a contract" statute" or ordinance reuiring it. And in /o
!& 7a:aro)s"i"
&6*
the court decided that simply because under a given set of circumstances a tenant
may attempt to escape from a burning building through a )indo) does not of itself place a duty on
the landlord to maintain it as means of escape.
E& %ire Regulations as Exercise of the Police Po)er
2o doubt in response to the common la) rule that landlords are under no obligation to
furnish their premises )ith fire8fighting or safety euipment" legislatures passed ordinances and
regulations reuiring installation of such apparatus.
&61
'all o)ners and operators must comply
)ith these reuirements" )hich are intended to lessen the danger and spread of fire" as recogni$ed
in Morelli ! %ire Coe ,& of Appeals of East -hitelan T)p&"
&66
)here the court held that a
shopping center o)ner could be reuired to install a sprinkler system in the basement of his
building" even though the building )as built &4 years before the enactment of the code regulations"
finding that the regulations could be retroactively applied to his property. Other cases have upheld
the validity of retrofitting older buildings )ith sprinkler systems. Bor e(ample" in Thir 6
Catalina Assocs& ! City of Phoenix,
A1E
the court held that a city ordinance reuiring the retrofitting
of the plaintiff[s building )ith sprinklers )as not unconstitutional as a taking )ithout due process
of la) or 5ust compensation" and the fact that the ordinance reuired the retrofitting of commercial
high rise but not residential high rise buildings )ith sprinklers )as not unconstitutional as
violating Eual Protection rights. :o)ever" such regulations cannot be used to put an undue
burden on businesses the community may regard as undesirable.
&64
/ourts have also ruled that fire8safety regulations are a proper e(ercise of the police po)er
unless oppressive or unreasonable.
&6-
+n addition" state legislatures may authori$e cities and to)ns
to pass fire safety ordinances that have the effect of state la).
&60

&6*
6 +ll. App. 1d &-1" *03 2.E. *d 963 C&
st
=ist. &,-*E.
&61
See generally 41 A.A.R. 9
th
9&- C&,,0E" #Halidity and construction of statute or ordinance reuiring installation of
automatic sprinklers.%
&66
&*4 Pa /ommon)ealth *3*" 99, A.*d ,3 C&,0,E.
&69
&0* Ari$. *31" 0,9 P.*d &&9 C&,,6E.
&64
'yrick v .oard of Pierce /ounty /ommissioners" &3* !ash *d 4,0" 4-- P.*d &63 C&,06E" mod."&3* !ash. *d 4,0"
40- P.*d &&9* Ceven though no fire had occurred in massage parlors for ten years" regulation reuiring only massage
parlors to have sprinkler systems for purpose of fire prevention ruled unconstitutional because insufficient 5ustification
given for allo)ing other businesses to be unaffected by the reuirementE.
&6-
Jueenside :ills Realty /o. v @a( C&,64E" 1*0 ;@ 03" ,3 A Ed &3,4" 44 @. /t. 093 Capplying 2e) Dork la)E?
Rothner v /hicago" 44 +ll App 1d 6*0" *1 +ll. =ec. &,&" 101 2.E.*d &*&0 C&
st
=ist. &,-0E? /ongregation .eth
@holom > /ommunity /enter" +nc. v .uilding /omm[r of Bramingham" *- 'ass. App. *-4" 91- 2.E.*d 439
C&,0,E" rev. den 639 'ass &*3*" 96* 2.E.*d 43&? Earl > @ons Tire /enter" +nc. v. .oulder .oard of Appeals" &,*
/olo. 143" 99, P.*d *14 C&,--E? See also /ity of /hicago v. !ashington :ome of /hicago" *0, +ll. *34" &*6 2.E. 6&4"
4 A.A.R. &906 C&,&,E? 'c/allin v. !alsh" 46 A.=. *d 64" 63- 2.D.@. *d 09* C&
st
=epOt &,-0E" order affOd" 64 2.D.*d
030" 6&1 2.D.@. *d ,**" 104 2.E.*d 011 C&,-0E Cupholding alterations and installations proposed under fire safety
codes for certain high rise buildings in 2e) Dork /ityE ? see generally &1 A' <;R *d #.uildings"% Z*1"
at &6,.
&60
Bire =epartment of the /ity of 2e) Dork v. Gilmour" &6, 2.D. 691" 66 2.E. &-- C&0,4E? Rice v. 'erritt" 96, @o.
*d 930 CAla. /iv. App. &,0,E Cstate fire code promulgated by statutory authority has force and effect of state la)E?
/oonamessett +nn v. /hief of Balmouth Bire =ept" &4 'ass. App. /t. 41*" 696 2.E. *d ,&6 C&,01E Cupholding state
regulations reuiring installation of smoke or heat detectorsE? A' <;R *d i, at&93.
&,
+n addition" the federal government has legislated in the field of fire protection )ith
passage in &,-6 of the Bederal Bire Prevention and /ontrol Act.
&6,
+t provides fire prevention and
control guidelines for places of public accommodation.
&93
%& Status of Mall Shoppers
+n -alsh !& C 6 4 Mar"et, +nc."
&9&
the court held that visitors to a shopping mall are
business invitees even if they do not make a purchase" the mere possibility of a future purchase
being sufficient. +f they enter upon mall premises intending to use the facilities of one or more of
the stores" they are invitees as to the o)ner of the mall" even though the o)ner is the lessor of the
stores" because the o)ner of the shopping center e(tends an invitation to the public to visit the
mall" the success of )hich depends on the ability of the o)ner and store operators to attract
substantial business.
&9*
+n -alsh,the plaintiff sought damages for in5uries she suffered )hen the
automatic door at defendantOs grocery store malfunctioned and hit her as she )as entering. @he
appealed from a 5udgment that the trial court entered after granting defendantOs motion for a
directed verdict at the close of her case. The trial court held she )as a licensee at the time of her
in5ury" rather than an invitee. The Oregon /ourt of Appeals reversed. +t first presented the rules by
)hich they determine )hether a visitor is a licensee" invitee" or trespasserF
#Oregon adheres to the traditional rules governing the liability of an o)ner
or possessor of land" under )hich the duties that the occupier o)es to a person
)ho comes on the land depend on )hether the person is an invitee" licensee"
or trespasser. The occupier o)es the greatest duties to an invitee" including
both a duty to )arn of latent dangers and an affirmative duty to protect the
invitee against the dangers in the condition of the premises about )hich
the occupier kno)s or should reasonably have kno)n.%
&91
Pcitations o*itteQ
The court then sets out the tests to determine the status of anyone on the landlordOs
premisesF
#Oregon has adopted t)o tests for determining )hether a person is an invitee.
;nder the first" the #economic advantage% test" anyone )ho comes on the
premises for business that concerns the occupier" )ith the occupierOs e(press
or implied invitation" is an invitee. R ;nder the second" the #invitation% test"
a person is an invitee )hen the occupier" e(pressly or impliedly" leads the
person to believe that it intended visitors to use the premises for the purpose
that the person is pursuing and that the use )as in accordance )ith the intention
or design for )hich the premises )ere adapted or prepared.%
&96
PCitations o*itteQ
The 5ustices then applied the rules to the case before them" stating that the issue )as
)hether plaintiff )as an invitee )hen she )ent into defendantOs store" even though she did not
&6,
&9 ;@/A ZZ**3& et se@.
&93
'& at Z***9.
&9&
&-& Or. App. 914" &4 P.1d &&-, C*333E.
&9*
:icks v. '.:.A. +nc." &3- Ga. App. *,3. &*, @.E.*d 0&- C&,41E? ;nderhill v. @hactman" 11- 'ass. -13" &9&
2.E.*d *0- C&,90E? .runo v. Pendleton Realty /o." *63 @./. 64" &*6 @.E.*d 903" ,9 A.A.R. *d &111 C&,4*E?
!ilson v. Allday" 60- @o.*d -,1 C'iss. &,04E? 4*A A' <;R *d. #Premises Aiability"% Z61," at -,1.
&91
'& at 91," &&0&.
&96
'& See generally RE@TATE'E2T C@E/O2=E OB TORT@ Z11* C&,-6E.
*3
intend to purchase anything. They concluded that
#R the 5ury could find that the plaintiff )as both a public invitee under
the R invitation test and that she )as a business visitor" and thus an
invitee under the economic advantage test. +ndeed the tests tend to merge
in this situation" because a broad invitation may )ell be economically
advantageous to defendantOs business.%
&99
They then observed that
#R foot traffic of any sort is potentially beneficial to the business of
a store operator. As a result of that potential advantage" a store is held
to have e(tended a broad invitation to the public at large" making all
)ho enter public invitees. The e(pectation is that future economic
advantage )ill accrue from all )ho accept the invitation.%
&94
+t is )orth noting that some 5urisdictions have abandoned the #licensee" invitee" trespasser%
distinction in favor of a #reasonable care under the circumstances% test.
&9-
.& Liability of Mall ()ners to Tenants for %ire
;nder general principles of negligence" mall o)ners as lessors are reuired only to use
reasonable care in inspection and maintenance of leased property.
&90
Though there are cases to the contrary" the general rule is that in the absence of a statute or
municipal regulation" or agreement bet)een the parties" or unless the fire )as the result of the
landlordOs negligence or his agentOs in not repairing a defect in the leased premises )hich )as his
duty to repair" a landlord is not liable for the destruction or damage to his tenant[s goods by fire.
&9,

E(culpatory clauses in leases providing that landlords shall not be liable to tenants for fire damage
to their property are usually enforced"
&43
unless the fire damage results from the landlordOs active
&99
!alsh" supra, at 963" &&0*.
&94
'& at 961" &&01.
&9-
See Ro)land v. /hristian" 4, /al. *d &30" -3 /al. Rptr. ,-" 661 P.*d 94&" 1* A.A.R.1d 6,4 C&,40E? PRO@@ER
O2 TORT@ C6
th
Ed &,-&E Z4*" at p.1,0? :ARPER > <A'E@" AA! OB TORT@ C&,94E Z&,.4 8 Z&,.," at &30&8 &3,9.
&90
.radley v. !achovia .ank > Trust /o." 2.A." ,3 2./. App. 90&" 14, @.E.*d 04 C&,00E. A lessor can be liable to
business patrons of their lessees as a result of a defective condition of the premises )here the lessors" although a)are
of the defective condition" concealed or failed to disclose such condition" or )here he maintained a nuisance in the
premises )hich )as likely to cause in5uries to others" or )here he had certain control of the leased premises" or )here
he )as negligent in making repairs or improvements of the premises. See generally &- A.A.R. 1d 6** C&,40E"
#Aandlord[s liability to tenant[s business patron in5ured as a result of defective condition of premises.%
&9,
:ome +nsurance /o. of +llinois et al v. 2ational Tea /o. et al" 9-- @o.*d 49" &,,3 Aa. App. AEW+@ *,49? see
generally 44 A.A.R. &1,1 C&,13E" #Aandlord[s liability for damage to tenant[s property by fire.%
&43
Akin v. :ardeman8Aong /orp." &*, Ga. App. 131" &,, @.E.*d 4*& C&,-1E? Bord v. .ienvenu" 4-1 @o.*d &&,0
CAa. /t. App. 6
th
/ir. &,,4E Clandlord relieved of liability unless kne) of defect causing fire" or should have kno)n
of defect" or received notice of defect and failed to remedy it )ithin reasonable timeE? :ome +ndemnity /o. v.
.asiliko" *69 'd. 6&*" **4 A.*d *90 C&,4-E? Employers Aiability Assur. /orp. v. 'orse" *4& 'inn. *9," &&&
2.!.*d 4*3 C&,4&E? 'ayfair Babrics v. :enley" 60 2.<. 601" **4 A.*d 43* C&,4-E? Trailmobile" +nc." v. /ha$en" 9&
Tenn. App. 9-4" 1-3 @.!.*d 063 C&,41E? @chratter v. =evelopment Enterprises" +nc." 906 @.!.*d 69, CTenn. /t. App.
&,-,E Cstatute prohibiting e(culpatory clauses in tenant leases did not apply to counties )ith population of less than
*33"333E? see generally &9 A.A.R.1d -04 C&,4-E" #Halidity" construction" and effect of provision of lease e(empting
*&
negligence.
&4&

+n 3o*e 'nsurance Co& of 'llinois ! 7ational Tea Co&,
A29
a fire destroyed a store in a
shopping mall. The smoke from the fire and the )ater resulting from the fire8fighting efforts
caused damage to a substantial portion of other stores in the center. The store o)ners Cshopping
center tenantsE sued various individuals" including the store o)ner )ho caused the fire" the mall
o)ners" the manufacturer and seller of the euipment that caused the fire" and the fire department.
The trial court found that the fire )as the result of an electrical arc caused by a short circuit in the
control )iring in the storeOs deli oven.
&41
The trial 5udge concluded that the store )here the fire
originated )as solely responsible for the damage and entered 5udgment accordingly. The decision
)as affirmed on appeal as not manifestly erroneous" the appellate court ruling" inter alia, that the
mall o)ner is ans)erable for damage to the building only )hen it is caused by his neglect to repair
it" or )hen it is the result of a defect in the original construction.
&46
The tenants also argued that the
mall o)ners should have installed sprinkler systems and fire stops even though such devices )ere
not reuired by local or state building codes at the time the mall )as built. The trial 5udge re5ected
this argument" determining that the mall o)ners complied )ith all applicable building codes" and
therefore )ere not negligent.
:o)ever" as regards common areas" mall o)ners as landlords do o)e a duty to their
tenants to protect them from unreasonable risks of harm" including fire" resulting from foreseeable
activities taking place )ithin these areas.
&49
They must also use reasonable diligence to put and
keep in safe condition portions of their buildings used in common" including )ater pipes and
sprinkler systems"
&44
and common passage)ays.
&4-

3& Liability of Tenants to Mall ()ners for %ire
As a general rule" a person )ho chooses to take possession and control of property is fairly
charged )ith the responsibility of maintaining it and should e(pect to be held responsible for any
defects.
&40
Bactors to be considered in determining control of premises" for purposes of premises
liability" includeF &E management of daily operations? *E right to admit or e(clude company? 1E
responsibility for maintenance and repair? 6E liability for bills" ta(es" and )ages? and 9E
landlord or tenant from liability on account of fire.%
&4&
Plastone Plastic /o. v. !hitman8!ebb Realty /o." *-0 Ala. ,9" &-4 @o.*d *- C&,49E.
&4*
Supra&
&41
!hile it arguably foreseeable that a defect in an oven could cause a fire" it is less likely that paraffin8filled hair
curlers left unattended on a stove could ignite a conflagration that )ould substantially destroy an apartment
comple(. Det this is precisely )hat happened in .arner !& J&3&S&, 'nc." 660 B.*d *10 C6
th
/ir PHaQE" &,-& ;.@. App.
AEW+@ 0*--" a products liability action against the manufacturer of the hair curlers )here the appellate court reversed
the lo)er courtOs decision that they )ere not #inherently dangerous% and ordered a ne) trial.
&46
'& at -4.
&49
!illiams v. <ohns" &9- 'ich. App. &&9" 631 2.!.*d 9&4 C&,0-E.
&44
'elodee Aane Aingerie /o. v. American =ist. Tel. /o." &0 2.D.*d 9-" *-& 2.D.@. *d ,1-" *&0 2.E. *d 44&
C&,44E? Par8W ;niform @ervice /orp. v. Emigrant +nd. @avings .ank" &01 'isc. &*4" 6, 2.D.@.*d 99- C&,66E.
&4-
Aeary v Aa)rence @ales /orp" 66* Pa 10," *-9 A.*d 1* C&,-&E. +t has also been held that a mall o)ner is not
vicariously liable under theories of 5oint venture or agency )here consumers purchase contaminated food from his
tenantOs restaurant )hich causes illness. See /lapp v. <'IG@ke)er" +nc." &1- +ll. App. 1d 64," ,* +ll. =ec. &04" 606
2.E.*d ,&0 C1
rd
=ist. &,09E.
&40
.utler e( rel. .utler v. Rafferty" &33 2.D.*d *49" -4* 2.D.@.*d 94-" -,* 2.E.*d &399 C*331E? AaBlamme v.
=allessio" *4& /onn. *6-" 03* A.*d 41 C*33*E? see generally 4* A' <;R *d #Premises Aiability"% Z4" at 14,.
**
responsibilities of parties under lease.
&4,
One of the most common situations )here tenants are liable to their landlord involve fires
on the tenantsO premises"
&-3
even though many commercial leases e(onerate the tenant from
liability.
&-&
Often the courts refuse to enforce these e(culpatory clauses" especially )here there has
been active negligence
&-*
or )illful and )anton acts
&-1
on the part of the tenant that caused the fire.
Although this )riter couldnOt find such a case involving a mall tenant" numerous cases involving
tenants of commercial property amply illustrate this legal principle. Bor e(ample" )here the
landlord charged the tenant )ith negligence in failing to comply )ith fire prevention ordinances
relating to cutting of )eeds" removal of )ood shavings" fire8fighting euipment" and no8smoking
signs" the court in Stone Mountain 'nustries, 'nc& ! ,ennett
AG1
held that the lease provision
)hereby the tenant agreed to return the premises at the e(piration of the lease in as good condition
and repair as )hen first received" damage by Sfire . . . or other casualtyS e(cepted" referred to a fire
deemed to be a casualty" that is" an accident or other event not to be foreseen or guarded against"
and not one caused by the tenant[s negligence.
+n .alante ! 3atha)ay ,a"eries" +nc."
&-9
the lease provided that the tenant should make all
necessary repairs to the interior of the leased premises Sdamage by fire and unavoidable casualty
e(cepted"S but did not reuire the landlord to maintain fire insurance on the premises" nor reuire
the tenant to pay the amount of any premium increase caused by a particular use of the premises.
Applying the principle that a contract )ill not be construed to e(empt a party from liability for his
negligent acts unless such intention is e(pressed in uneuivocal terms" the court held that the
provision did not state a legally sufficient defense to an action by the landlord to recover the cost
of repairs precipitated by fire alleged to have been caused by the tenant[s negligence.
@imilarly" in an action by a landlord against his tenant for damages caused by destruction of
leased premises by fire that originated in combustible materials being stacked ne(t to the building
all )ay the up to eves and that progressed up to the e(terior )all to a combustible roof" the court in
,ritton !& -ooten
AG2
held that summary 5udgment )as erroneously granted the tenant on the basis
that the lease provision reuiring that" if leased premises )ere destroyed by fire" the lease )ould be
cancelled" contracted a)ay the landlordOs right to sue the tenant for destruction of premises by fire.
The court reasoned that the lease provision did not e(culpate the tenant from liability for damages
caused by his o)n negligence" but only relieved him from further contractual obligations. The
court vie)ed the record as suggesting that permitting trash and refuge to accumulate and pile up
ne(t to the building )as in violation of the local safety code" )hich )ould be a basis for liability if
it )ere found to be a substantial factor in causing the fire. Even if there )as no safety code" the
court noted" such conduct might )ell be vie)ed as actionable negligence being the pro(imate
cause" or substantial factor" in destruction of the building" regardless of ho) the fire started. The
&4,
Bontaine v. :ome =epot" +nc." *93 Ga. App. &*1" 993 @.E.*d 4,&C*33&E. See also 60 A.A.R.1d &&41 C&,-1E"
#Aiability of lessee of particular premises in shopping center for in5ury to patron from condition on portion of premises
not included in his leasehold.%
&-3
&9 A.A.R.1d -04 C&,4-E.
&-&
'&
&-*
@ears" Roebuck > /o. v. Poling" *60 +o)a 90*" 0& 2.!.*d 64*C&,9-E.
&-1
Englehardt v. Triple W /hemical Aaboratories" +nc." 91 +ll. App.1d ,*4" && +ll. =ec. 4&1" 14, 2.E.*d 4- C&,--E.
&-6
&&* Ga. App. 644" &69 @.E.*d 9,& C&,49E.
&-9
4 App. =iv. *d &6*" &-4 2.D.@.*d 0- C&,90E.
&-4
0&- @.!.*d 661 CIy. &,,&E.
*1
court re5ected the argument that the source of the spark that ignited the fire )as a superseding
cause" concluding that no matter ho) the spark )as ignited" )hether negligently" intentionally"
criminally" or truly accidentally" it did not override the tenantOs negligence.
Aastly" in Ac@uisto !& Doel R& 3ahn Enterprises, 'nc."
&--
)here parties to the lease failed to
agree that one or both of them )ould carry fire insurance" the court held that the clause in the lease
e(empting the tenant from liability for Sloss by fire or inevitable accident" damage by the
elementsS meant that only fire caused by unavoidable conseuences or acts of God )as to be
e(empt" but not fire caused by negligence. +t concluded the lease )as not ambiguous" and that the
tenant )as liable for negligently causing a fire on the leased premises.

I3. /ON/L.SION
This essay has briefly surveyed shopping mall fire safety by revie)ing the effectiveness of
sprinklers" smoke control" signage and alarms" and evacuation strategies" as )ell as e(amining the
ability of prescriptive versus performance8based building codes to enhance mall fire safety. Then
premises liability of mall o)ners and tenants as it pertains to fire safety )as considered.
Bortunately" incidents of death and in5ury resulting from fires )ithin modern shopping mall
are small.
&-0
Given that most ;.@. building codes are prescriptive"
&-,
this )riter could find no case
in the ;.@. )here a mall o)ner or tenant )as held responsible for death or in5ury in a mall fire. +n
terms of fire safety" shopping malls are as safe as other public places and safer than oneOs home.
As one commentator observedF
#public places such as hotels" offices or shopping malls are at least as safe
in the ;nited @tates as else)here. +t is the fire problem in the home that
most distinguishes our fire e(perience from that of other industriali$ed nations.%
&03
2evertheless" given the design of modern shopping centers and the thousands of shoppers
)ho routinely patroni$e malls" it behooves architects and designers" facility o)ners and managers
to make use of the most up8to8date state of the art fire safety technology and euipment to protect
their customers from the risks of fire.
&--
,9 2' &,1" 4&, P.*d &*1- C&,03E.
&-0
Baruhar" supra at *3.
&-,
.egley" supra&
&03
P:+AA+P @. @/:AE2'A2" +2TER2AT+O2AA /O2/EPT@ +2 B+RE PROTE/T+O2 8 2E! +=EA@ BRO'
E;ROPE CTri=ata Publishers" Arlington" HA? <uly &,,1E at &" available at
httpFGG))).sysplan.comGtridataGpublicationsGdocumentsGintlLconcepts&&L&6L3-.pdf Clast visited @ept 4" *330E.
*6