On appeal from the Superior Court, Law Division, Essex County.
Pressler, Long and Gruccio. The opinion of the court was delivered by Pressler, P.J.A.D.
This Tort Claims action arises out of a tragic 1984 fire which destroyed the Newark home of plaintiff Linda Bombace and took the lives of her four children, ages 5 to 16. She brought this action on her own behalf and on behalf of the children's estates, claiming that the fire was due, in substantial part, to the negligence of Newark officials, most notably Cosmos DeCosta, for which, she asserts, the City is responsible by reason of respondeat superior.*fn1 She appeals from the entry of summary judgment dismissing her complaint. We disagree with the trial judge's conclusion that the municipal defendants, beyond factual dispute, are entitled to immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq. Accordingly, we reverse and remand for trial.
The building in which plaintiff lived with her children was a two-story duplex containing two apartments on each side of the house, one on each floor. Plaintiff had moved into one of the first-floor apartments in May 1983. Defendant Lonnie Coleman, the manager of the building, lived on the other side of the building. As we read the record, which includes extensive depositions, it appears that the building, and particularly plaintiff's apartment, was in deplorable, substandard condition, and that starting in August 1983, plaintiff made frequent complaints to the appropriate city officials respecting vermin infestation, absence and then inoperability of smoke detectors, and lack of central heating. Defendant DeCosta, an inspector employed by the City's Health and Welfare Department, had
inspected the premises at various times in response to these complaints, had issued violation notices, and had reinspected for abatements.
Plaintiff's negligence claim against the municipal defendants is based on two complaints which she made in October 1983. On October 20th, concerned about the inoperability of the smoke detector and exposed wires hanging from the ceiling, she contacted the neighborhood firehouse, and an inspector was dispatched to her apartment forthwith. He observed both problems and immediately issued a complaint and violation notice, which he then handed to Coleman, requiring their abatement within ten days. According to departmental procedure, the "field" documentation was required to be promptly transmitted to the central Fire Inspection Bureau for processing, reinspection, and whatever other follow-up action would be necessary or appropriate. For purposes of this motion, the City concedes that although the complaint, notice, and accompanying report were in fact sent the following day by the local firehouse to the Fire Inspection Bureau, the complaint was never "logged-in" and no action at all was ever taken. Apparently, the papers had been mislaid on arrival and were found in their pristine condition in the Bureau's office after the fire, which occurred during the early morning hours of February 26, 1984. It also appears that the smoke detectors remained inoperable from the date of the original violation notice. It is not alleged that defendant DeCosta was involved in these events respecting the inoperable smoke detector, although the record suggests that it was on account of an earlier inspection he had made that a smoke detector had been installed in the first instance.
The second gravamen of the complaint does involve DeCosta directly. On October 27, 1983, he inspected the apartment in response to plaintiff's complaint that no heat was being supplied. He verified the complaint and issued a complaint and violation notice. His report termed the no-heat situation an emergency. A municipal court hearing on the complaint was
scheduled for December 7, 1983. DeCosta reinspected the premises on December 6th preparatory to the hearing and found no abatement. The hearing was adjourned by either the court itself or the prosecutor until December 21, 1983. On the afternoon before the adjourned hearing, DeCosta again visited the premises for reinspection purposes. According to his deposition testimony, he found the door padlocked, thought he recollected that the apartment had been "made secure," and was told by Coleman that plaintiff and her children had moved out. He concluded that their removal constituted an abatement of the violation and so reported to the municipal court on the next day, requesting that the complaint be for that reason dismissed. It was. As a matter of fact, however, plaintiff had not moved, denied that the apartment had been secured, and denied that it was padlocked. Beyond that, she asserted that because of the intolerability of the lack of heat, she had asked DeCosta to advise her of the court hearing date so that she could appear and address the court if necessary. DeCosta never, however, gave her that information. It further appears that heat was not furnished up to the time of the fire, and the record provides support for the conclusion that the cause of the fire was directly related to that problem. Evidently, in order to heat the apartment, plaintiff used a portable electric heater and kept the gas oven on. Fire officials surmised that the fire was caused by contact between either of these heating sources and some flammable material.
Giving plaintiff the benefit of all favorable facts and inferences supported by the record, we are satisfied that the first of these asserted courses of negligent conduct, that relating to the lost report of the smoke detector violation, constituted negligence in the inspection of property or failure to enforce a law or both for which both the public entity and its employees are afforded absolute immunity by the Tort Claims Act. N.J.S.A. 59:2-4 and -6 and 59:3-5 and -7, respectively. We therefore
agree with the trial judge, for the reasons stated by him, that plaintiff's cause of action based on ...