On certification to the Superior Court, Appellate Division, whose opinion is reported at 241 N.J. Super. 1 (1990).
For reversal in part -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None.
Plaintiff Linda Bombace's four children, ages five through sixteen, perished in a tragic fire at their Newark apartment in the early morning of February 26, 1984. The fire was apparently caused by a stove or portable heater that the family used for heat due to the lack of central heat in the apartment.
Plaintiff brought a lawsuit against the landlord and the landlord's managing agent. She also sued the City of Newark (the City) and its employee under the Tort Claims Act (Act) (N.J.S.A. 59:1-1 to 59:12-3), claiming that the mishandling of violations complaints relating to inoperative smoke detectors and the lack of heating contributed to the tragedy. The municipal defendants asserted immunity from liability under the Act.
The Act provides municipalities and their employees with absolute immunity when the claimed liability is attributable to a failure to enforce any law. The Act also furnishes a qualified immunity, subject to good-faith conduct by the employee, when the claimed liability grows out of the execution or enforcement of any law. This appeal requires the Court to interpret and define those immunities and to determine whether under the factual circumstances they apply to the municipality and its employee.
Ms. Bombace and her children lived in a two-story building containing four apartments. The premises were owned by defendant Akara Barfield and managed by defendant Lonnie Coleman, Jr., who lived in the building. On October 20, 1983, plaintiff communicated with the Newark Fire Department about exposed wires and faulty smoke detectors in her apartment. Fire officers inspected the premises and found violations. They issued a violation notice to Coleman for "faulty electric" and "inoperable smoke detector." On the next day, the notice was sent to the Fire Inspection Bureau, but was never logged or recorded. After the 1984 fire, the notice was found lying on a table in the Inspection Bureau.
On October 26, 1983, plaintiff contacted the Newark Code Enforcement Bureau regarding the lack of heat in her apartment. The next day, defendant Cosmo DeCosta, an inspector from the bureau, inspected the premises and found that no heat was being supplied to the apartment. He issued a violation notice to Coleman. The heating-violation complaint was scheduled to be heard in Newark Municipal Court on December 7, 1983, but plaintiff was never notified of the court date. DeCosta reinspected the premises on December 6, 1983, and found that the violation had not been abated. However, the matter was adjourned, for reasons unknown to the parties, until December
21, 1983. Again, plaintiff was not notified of the court date.
On December 20, 1983, the day before the newly-scheduled hearing, DeCosta returned to reinspect the premises. According to DeCosta, the premises appeared vacant and secured. Coleman, the building manager, informed DeCosta that plaintiff and her family had vacated the premises.
The next day the heating violation matter against the landlord was called to be heard in Newark Municipal Court. DeCosta stated:
I went by there again this morning. It's sealed and boarded. That's the extent of it. They moved out on him. It's all secured and that was the end of it.
The court therefore dismissed the complaint. As noted, plaintiff had not been notified of either the original or the rescheduled court date.
According to plaintiff, she and her children had not vacated the premises, but rather still resided there, and the premises were not secured. (Although these facts are accepted for purposes of the summary judgment motion, several of plaintiff's neighbors noticed that her windows were boarded up and thought she had moved.) The apartment remained without heat.
The fatal fire occurred on February 26, 1984, during a cold spell. Fire officials attributed the fire to the use of the gas stove or a portable heater to keep warm and the resulting ...