Get certified NFPA 96 and don’t get sued by not doing the job correctly

 — It’s hard for a restaurant to survive its first year.

Being closed for 10 days because of a fire during that time makes it even tougher. But harder still would be a second year with a second fire that causes an eight-month closing and a negligence lawsuit that includes seven other defendants.

This is what Gray Brooks, co-owner of Pizzeria Toro in Durham, has been facing.

“It makes me sad because it pulls me so far from what I do, what we do,” said Brooks, 46, who co-owns the pizza place with his wife, Cara Stacy, and business partner Jay Owens. “We just want to have a great restaurant.”

The owners hope to reopen Toro by Saturday and get back to making pizzas baked to a chewy crisp by three zones of heat in a wood-fire oven.

At the heart of Toro’s fire troubles was the pizza oven’s chimney duct. The exhaust duct snaked up above the restaurant and behind the condominium walls of the building’s second story. The channel made seven, 90-degree turns before reaching the roof. The partners opened Pizzeria Toro in October 2012 in a historic renovated building near Durham’s Five Points intersection in downtown.

On April 13, 2013, firefighters responded to a report of heavy smoke coming from the roof of the building, which includes three second-story condos. Fire officials extinguished a small fire on the roof that was dripping from the pizza oven’s duct, according to a Durham Fire Department report.

Toro made repairs and re-opened about 10 days later.

A second fire

On Nov. 4, 2013, firefighters responded to another flare at the building, about four hours after the restaurant’s oven fire was extinguished. That fire, which ruined one apartment and damaged two others, was again contained within the upper-level duct.

The fire displaced five residents from six weeks to six months, according to a Dec. 6, 2013, letter sent to Gene Bradham, the director of Durham’s Inspections Department, by Thomas Galloway, one of the condos’ tenants. The letter asks the city to not allow Toro to operate a wood-burning oven. Galloway declined to comment on the record for this story.

In that letter, some of Galloway’s concerns, which centered on residents’ safety and the chimney’s design and monthly cleaning, were echoed by his then-neighbor, Jason Couch, in a lawsuit filed Jan. 15 in Durham County Superior Court. The lawsuit contends Pizzeria Toro and ExhaustCLEAN, the Morrisville company contracted to clean the chimney duct, were jointly negligent and should pay actual and punitive damages.

The buildup of ash and tar materials in the chimney demonstrates that it “had not been cleaned for a long period of time” before the second fire, the lawsuit states.

Brooks said the chimney was cleaned every month, including 20 days before the fire.

Pizzeria Toro responded to the complaint on March 24 and added six third-party defendants: Lee Street Construction in Durham, Toro’s initial and post-fire general contractor; Atlantec Engineers in Raleigh, which engineered the duct; Center Studio Architecture in Durham, which designed the duct; Hay’s Heating & Air Conditioning in Hillsborough, which constructed the duct; Double C Ranch & Welding in Coats, which welded the duct; and CaptiveAire in Raleigh, which performed repair work on the duct.

Toro’s counter-claim is part of the legal dance of liability after a fire that is costing its insurance company hundreds of thousands of dollars, Brooks and others said.

In cases such as Toro’s, it’s “fairly common” for a company’s attorney to sue everyone connected to the project, said David Whitney, president of Atlantec. The move encourages having those parties discuss a settlement instead of dealing with a costly and complex court case.

“I don’t necessarily think that’s the right way to do things, but that is the way it is,” Whitney said.

Atlantec’s liability insurance costs increased by more than 10 percent as a result of the lawsuit, Whitney said, which was filed just before the company’s annual insurance renewal.

Andrew Philipps, president of Lee Street Construction, which is working on Toro’s post-fire construction, said it isn’t really about Toro’s owners suing him.

“It’s really about insurance companies suing each other,” Philipps said. Lee Street Construction is also the general contractor for a downtown renovation project for McClatchy Interactive, which is owned by the same company as The News & Observer.

John Szymankiewicz, a Raleigh attorney who isn’t connected to the Toro case, said, in general, it’s impossible for small businesses to avoid being named in a lawsuit, but owners can protect themselves by working with an insurance agent that will identify their company’s unique risks.

Contracts for products and services should include language in which the service provider guarantees and indemnified the work for a specific period of time.

Creating guidelines

In addition to the lawsuit, Toro owners have faced a permitting process slowed down by Durham officials’ research into guidelines for wood-fire ovens.

Several jurisdictions have contacted the N.C. Department of Insurance’s Office of State Fire Marshal in the past six months with requests for technical assistance with wood-fire ovens, wrote Richard Strickland, chief fire code consultant for the N.C. Department of Insurance, in an email response to a reporter’s questions.

If specific language isn’t outlined in the state fire code, cities can turn to a nationally recognized standard, such as guidelines set out by the National Fire Protection Association, said Tom Darling, Durham’s fire plans examiner.

The new city guidelines required Toro to add a fire suppression system with wet chemicals and nozzles aimed at the pizza oven. However, that system wouldn’t have prevented Toro’s fires, Brooks said.

The reconstructed chimney flue has been reduced to two 90 degree turns and will be cleaned every 15 days, Brooks said.

After the second fire, Toro’s owners felt more than heartbroken, Brooks said.

The business was fully insured and the staff would continue to get paid, but “everything just felt heavy and sad,” Brooks said.

Brooks is looking forward to getting back to work, but said he is still grappling with exactly how the business ended up in this position. The owners interviewed multiple companies to design, clean and repair the chimney, Brooks said, and they trusted the ones they hired.

“Tell me what was the one thing we were supposed to that we didn’t do,” Brooks said. “That is the question that doesn’t have an answer.”