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Jobes v. Evangelista

April 28, 2004

FRANCIS E. JOBES, JR., PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
ALBERT EVANGELISTA, POMPTON LAKES VOLUNTEER FIRE DEPARTMENT, BOROUGH OF POMPTON LAKES AND SGT. STEPHEN SEIFRIED, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.
GERALD L. RIFENBARK, PLAINTIFF-RESPONDENT,
v.
ALBERT EVANGELISTA, POMPTON LAKES VOLUNTEER FIRE DEPARTMENT, BOROUGH OF POMPTON LAKES, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-1024-99 and L-1034-99.

Before Judges Pressler, Parker and R.B. Coleman.

The opinion of the court was delivered by: Pressler, P.J.A.D. (retired and temporarily assigned on recall)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2004

By these consolidated actions plaintiffs Francis E. Jobes, Jr. and Gerald Rifenbark each sought compensatory and punitive damages based on causes of action sounding in defamation, malicious prosecution and false-light invasion of privacy causes of action. The gravamen of their complaint was that defendant Albert Evangelista, the Chief of the Pompton Lakes Volunteer Fire Department,*fn1 without probable cause and with reckless disregard of the truth, had signed criminal complaints against each of them charging them with arson under N.J.S.A. 2C:17-1c (failure to control or report dangerous fire) and had granted interviews to the media in which he verbally repeated that accusation and elaborated on it with facts that were untrue.

Following a lengthy trial, the jury returned a verdict in favor of each plaintiff, awarding Jobes $250,000 on his defamation claim and $50,000 on his false-light and malicious prosecution claim and awarding Rifenbark $200,000 on his defamation claim and $600,000 on his false-light and malicious prosecution claim. Each plaintiff was also awarded punitive damages in the amount of $20,000. Defendant appeals, and plaintiffs cross-appeal with respect to punitive damages. We affirm the judgments entered upon the jury verdict in their entirety.

On October 27, 1997, a strip mall shopping center located in Pompton Lakes was completely destroyed by a fire which began in one of the anchor stores, an Acme supermarket. Because of the bow string wood truss construction of the shopping mall roof, the fire rapidly spread throughout the entire mall, making it impossible for the volunteer fire department, which had quickly responded to the 911 call, to extinguish it. Plaintiffs were both Acme employees. Jobes was a customer service representative also acting as head cashier on the day of the fire. Rifenbark was the meat department manager. When the Acme opened for business at 7:00 a.m. on the day of the fire, John Visser, the grocery department manager, was in charge pending the 8:00 a.m. arrival of the store manager.

The proofs permitted the jury to find that when Jobes arrived at the store at about 7:00 a.m., he noticed that a set of lights was out and detected a smell of electrical burning, not an unusual occurrence as the store had been having recurring problems with the ballast of the fluorescent lighting system. Jobes informed Visser, who instructed him to call maintenance. As Jobes was doing so, he saw a flame coming from the lighting fixture. He immediately directed that the store be evacuated and called 911. As he was doing so, he saw Rifenbark standing on the register counter spraying the flame with a fire extinguisher handed to him by Visser. Believing the problem had been dealt with, Jobes nevertheless asked for an emergency response. The first fire engine arrived at about 7:20 a.m.

As to Rifenbark, when he first arrived at the store sometime before 7:00 a.m., he too smelled what he believed to be a burnt ballast but did not believe anything more unusual was happening and did not realize there was a problem until some minutes later when he climbed onto the register counter to check on the ballast. It was then that he saw a red glow in the ceiling and asked Visser for a fire extinguisher. After a second spraying from the extinguisher failed to put out the red glow, Rifenbark told Visser that they should also hasten to leave the store. By that time, the 911 call had already been made and the fire engines were on their way.

When the firefighters arrived, within minutes thereafter, the flames had already spread through the bow string roof covering the entire mall and its collapse was imminent. Although there was evidence suggesting that the fire, which had started in an Acme lighting fixture, may have been burning for a hour to an hour and a half before the 911 call was made, defendant Evangelista conceded that once it had started there was nothing that could have been done to contain it because of the roof construction.

Law enforcement officers both from the Passaic County Prosecutor's Office (PCPO) arson squad and the Pompton Lakes Police Department investigated the fire. The report of Detective Seifried of the Pompton Lakes Police Department included a summary of his conversation at the scene of the fire with Rifenbark, generally of the tenor heretofore indicated.

Jobes, on the advice of Acme's lawyers, did not speak with Seifried. The PCPO's arson squad report was prepared by Senior Investigator Powell, who relied on arson squad notes made at the scene and who also interviewed Jobes by telephone. Powell's report included the information furnished by both Jobes and Rifenbark. It was Powell's conclusion that the fire had been entirely accidental, its rapid spread was due to the roof construction, and that the case file should be closed. Her recommendation was concurred in by the chief assistant prosecutor, the commander of the major crimes unit, and the arson squad's original investigator.

Defendant Evangelista was not, however, satisfied, apparently believing that someone had to be blamed for the fire and the consequent loss of the shopping mall. In reviewing both Seifried's report and Powell's report and noting some slight time discrepancies respecting the Acme employees' arrival at the store, he came to the conclusion that there had been a failure of proper reporting of the fire. He asked Detective Seifried to research the law for him. Seifried responded by giving him a copy of the police department charging manual. The manual correctly described the elements of N.J.S.A. 2C:17-1c, the fourth-degree crime of failing to control or report a dangerous fire. That statute reads as follows:

A persons who knows that a fire is endangering life or a substantial amount of property of another and either fails to take reasonable measures to put out or control the fire, when he can do so without substantial risk to himself, or to ...


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