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Saldana v. DiMedio

August 18, 1994


Judges Michels, Skillman and Wefing.

The opinion of the court was delivered by: Michels, P.J.A.D.

Argued June 7, 1994

On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Plaintiffs Marcelino and Juana Saldana, Olio Rowan, Noemi Santana, Juan and Edith Rosado, George and Helen Brown, Teodosia Lopez, and Rodolfo and Ida Robledo appeal from a summary judgment of the Law Division entered in favor of defendants City of Camden (Camden), Leonard J. DiMedio (DiMedio) and Walter Richardson (Richardson) in this property damage tort claims action.

Plaintiffs instituted this action against Camden and two of its employees, DiMedio, the Chief Building Inspector, and Richardson, the Director of Public Works, to recover damages sustained by their real property as a result of a series of fires. The fires were caused by unauthorized persons in vacant buildings owned by Camden, and the fires eventually spread to plaintiffs' properties. Camden obtained title to the vacant properties through tax foreclosures. The gravamen of the action is that Camden and its employees failed to maintain or secure vacant city-owned abandoned buildings and permitted unauthorized persons to occupy them and set fire that spread to their adjoining properties. More precisely, plaintiffs charged that (1) Camden and its employees negligently maintained or secured vacant buildings under their ownership and control; (2) Camden deprived them of their respective properties without due process of law in violation of Article I, paragraph 1, of the New Jersey Constitution; (3) Camden deprived them of their property in violation of the doctrine of fundamental fairness; (4) Camden took their property without just compensation in violation of Article I, paragraph 20, of the New Jersey Constitution; and (5) DiMedio and Richardson failed to exercise reasonable care in the discharge of their duties.

The proofs on the motion for summary judgment established that prior to the fires, Camden had received various complaints from people in the neighborhood regarding the dangerous conditions of the vacant city-owned buildings. Camden's own inspection documents revealed that certain buildings were dangerous and should be demolished or otherwise secured. At the time of the fires, DiMedio, as Chief Building Inspector, and Richardson, as Director of Public Works, were the officials most directly responsible for the maintenance and repair of city-owned property. DiMedio followed certain procedures for city-owned buildings determined to be "unsafe." He would first identify the property and then determine whether to demolish it or board it up. A report concerning one of the buildings adjacent to the properties owned by several of the plaintiffs indicated that the building was a hazard and should be demolished. DiMedio testified that demolition would occur only if a review of the report on the building revealed that it was an extreme emergency. Estimated cost of demolition during the 1980s ranged from about $10,000 to $18,000 per building.

Once DiMedio's department determined whether a building was to be demolished or boarded up, Richardson's department would act upon that determination. During his tenure, Richardson indicated the number of vacant buildings to be approximately 4,500 to 5,000, and that this number changed daily. Richardson was unsure of the percentage of these buildings owned by Camden. According to Richardson, Camden had to continually board up certain buildings, but they would not remain boarded up. He further testified that Camden had limited money and resources with which to deal with these problems. Additionally, Camden Fire Marshall Herbert Leary testified that abandoned and vacant buildings increased the risks of fire hazards. Plaintiffs' expert, Thomas R. Knoche, found Camden's procedures "regarding board-up and demolition [to be] disorganized and unsound."

Following pretrial discovery proceedings, defendants moved for summary judgment, contending that (1) the buildings were not in a dangerous condition as defined by N.J.S.A. 59:4-1a; (2) they were immune from enforcing the housing codes pursuant to N.J.S.A. 59:2-4 and 59:3-5; (3) their discretionary activities were immune pursuant to N.J.S.A. 59:3-2 and N.J.S.A. 59:2-3; (4) plaintiffs were not deprived of due process or fundamental fairness, and this property was not taken without just compensation; and (5) Richardson and DiMedio were immune from any actions while acting under the authority of law pursuant to N.J.S.A. 59:3-4. The trial court granted summary judgment in favor of Camden on the ground that it could not be held liable for the fire damage to plaintiffs' properties under N.J.S.A. 59:4-2. The trial court held that defendants were immune under "any theory [of l iability] based upon the failure to enforce the Uniform Construction Code/regulations" under N.J.S.A. 59:2-3 and N.J.S.A. 59:2-4. However, the trial court denied the motion of DiMedio and Richardson, holding that they were not immune from liability under N.J.S.A. 59:3-2a or N.J.S.A. 59:3-2d, nor were they entitled to immunity under N.J.S.A. 59:3-3. The trial court also held that even if the immunity granted public employees when acting in good faith in the execution or enforcement of any law under N.J.S.A. 59:3-3 applied, a genuine issue of fact existed as to whether DiMedio and Richardson acted in "good faith." The trial court declined to rule on plaintiffs' claims that they were deprived of the property without due process because the matter was proceeding against the individual defendants, and held that plaintiffs' claims of an unconstitutional taking of their property were premature and should await the outcome of pending appeals from Camden's demolition orders. On reconsideration, the trial court held that DiMedio and Richardson were entitled to summary judgment. This appeal followed.


Plaintiffs contend generally that the trial court erred in granting summary judgment in favor of defendants because they were entitled to proceed against these defendants under the provisions of N.J.S.A. 59:2-1 et seq. and N.J.S.A. 59:4-1 et seq.

It is fundamental that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. The moving party's burden on such a motion is to exclude all reasonable doubt as to the existence of any genuine issue of material fact. All inferences of doubt are drawn against the moving party and in favor of the opponent of the motion. "The papers supporting the motion are closely scrutinized and the opposing papers indulgently treated." Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75, 110 A.2d 24 (1954); see also Brenner and Co. v. Perl, 72 N.J. Super. 160, 166, 178 A.2d 19 (App. Div. 1962). If there is the slightest doubt as to the existence of a material issue of fact, the motion should be denied. Garley v. Waddington, 177 N.J. Super. 173, 179, 425 A.2d 1084 (App. Div. 1981); Linn v. Rand, 140 N.J. Super. 212, 216, 356 A.2d 15 (App. Div. 1976).

Furthermore, summary judgment should not be granted where the adjudication of such a motion would constitute what is in effect a trial by pleadings and affidavits involving issues of fact. Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 211-12, 521 A.2d 872 (App. Div. 1987). Although summary judgment serves the valid purpose in our judicial system of protecting against groundless claims and frivolous defenses, it is not a substitute for a full plenary trial. United Advertising Corp. v. Metuchen, 35 N.J. 193, 195-96, 172 A.2d 429 (1961). In short, summary judgment should be denied unless the right thereto appears so clearly as to leave no room for controversy. Shanley & Fisher, P.C. v. Sisselman, supra, 215 N.J. Super. at 212. Considered in this light, the trial court erred in granting defendants summary judgment with respect to plaintiffs' property damage Tort Claims Act cause of action. See also Henschke v. Borough of Clayton, 251 N.J. Super. 393, 398, 598 A.2d 526 (App. Div. 1991); McDermott v. TENDUN Constructors, 211 N.J. Super. 196, 205-06, 511 A.2d 690 (App. Div.), certif. denied, 107 N.J. 43 (1986).

Under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 et seq., public entities shall be liable for their negligence only as set forth in the Act and in accordance with the fair and uniform principles established therein. See Tice v. Cramer, 133 N.J. 347, 355, 627 A.2d 1090 (1993); Pico v. State, 116 N.J. 55, 59, 560 A.2d 1193 (1989). With regard to public entities, the Act is intended "to re-establish a system in which immunity is the rule, and liability the exception." Bombace v. City of Newark, 125 N.J. 361, 372, 593 A.2d 335 (1991). The analysis for determining public-employee liability under the Act differs from the analysis for determining public-entity liability. The Supreme Court in Chatham v. Hall, 128 N.J. 394, 402-04 (1992), explained this difference as follows:

In determining the issues posed by this appeal, we rely on the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3 (Act), which governs claims against public entities and public employees. We emphasize initially that the Act reestablishes sovereign immunity for public entities, but does not similarly shield public employees. Longo v. Santoro, 195 N.J. Super. 507, 515, 480 A.2d 934 (App. Div.), certif. den., 99 N.J. 210, 491 A.2d 706 (1984). A public entity is deemed "not liable for an injury" except as provided in the Act, N.J.S.A. 59:2-1. In contrast, a public employee "is liable for injury" except as otherwise provided. N.J.S.A. 59:3-1. . . That differential treatment of public employees and entities by the Tort Claims Act reflects longstanding legal principles in the State and explains in large part the apparent anomaly that public employees may be exposed to greater liability than their public employers. While some may be surprised that public employees and employers are treated differently for tort purposes, the distinctions are readily explainable given the evolution of tort law in New Jersey. Moreover, it should be emphasized that the apparent harshness of exposing employees to greater liability under certain limited circumstances is just that --apparent. In practice, the longstanding policy of indemnifying public employees shields them from ruinous tort penalties.

"The burden of proof in establishing the applicability of the immunities rests with the public entity." Bligen v. Jersey City Housing Authority, 131 N.J. 124, 128, 619 A.2d 575 (1993); see also Manna v. State, 129 N.J. 341, 351, 609 A.2d 757 (1992); Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582, 600, 449 A.2d 472 (1982). In determining whether immunity applies, the court must "identify the culpable cause of the accident and to ask if that 'identified cause or condition is one that the Legislature intended to immunize." Levin v. County of Salem, 133 N.J. 35, 43, 626 A.2d 1091 (1993) (quoting Weiss v. New Jersey Transit, 128 N.J. 376, 380, 608 A.2d 254 (1992)). The Comment to N.J.S.A. at 59:2-1 instructs courts to employ an analysis that first asks "whether an immunity applies and if not, should liability attach." Thus, this is the analysis we have employed.

The Act grants an absolute immunity to both public entities and their employees from liability for injuries caused by a failure to enforce the law. N.J.S.A. 59:2-4 concerns the immunity of public entities and provides: "A public entity is not liable for an injury caused by adopting or failing to adopt a law or by failing to enforce any law." N.J.S.A. 59:3-5 concerns the immunity of public employees and provides: "A public employee is not liable for an injury caused by his adoption of or failure to adopt any law or by his failure to enforce any law." Under these sections, public entities and their employees are not liable for their "failure to enforce safety ordinances, regulations or the law generally." See Margolis and Novick, Claims Against Public Entities (1994), Comments to N.J.S.A. 59:2-4 and N.J.S.A. 59:3-5.

In this case, the trial court found that plaintiffs' claims were based upon defendants' failure to enforce N.J.A.C. 5:23-2.32(a) of the Uniform Construction ...

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