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Lee v. Brown

Supreme Court of New Jersey

February 21, 2018

HAZEL HAMRICK LEE, INDIVIDUALLY, AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DARRELL A.HAMRICK AND RICKY HAMRICK, Plaintiff-Respondent,
v.
FLORENCE BROWN, THE PATERSON FIRE DEPARTMENT, THOMAS J. HIRZ, MICHAEL MUCCIO and L. IANDOLI, Defendants, and THE CITY OF PATERSON AND ROBERT BIERALS, Defendants-Appellants. DELTON DAILEY, INDIVIDUALLY AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF LETITA BUCKRHAM, Plaintiff-Respondent,
v.
FLORENCE BROWN, THE PATERSON FIRE DEPARTMENT, THOMAS J. HIRZ, MICHAEL MUCCIO and L. LANDOLI, Defendants, and THE CITY OF PATERSON AND ROBERT BIERALS, Defendants-Appellants. HOMESITE INSURANCE COMPANY, Plaintiff,
v.
FLORENCE BROWN, HAZEL HAMRICK LEE, INDIVIDUALLY AND AS ADMINSTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DARRELL A. HAMRICK AND RICKY HAMRICK, REBECCA THORPE, BY HER SUBROGEE STATE FARM FIRE & CASUALTY COMPANY, EDNA BROWN, BY HER SUBROGEE TRAVELERS INSURANCE COMPANY, TYRONE BYARD, THE ESTATE OF LATITA BUCKRHAM, THE ESTATE OF MARC SMITH, THE ESTATE OF BETTY JOHNSON, Defendants-Respondents, and THE CITY OF PATERSON AND ROBERT BIERALS, Defendants-Appellants, and THE PATERSON FIRE DEPARTMENT, THOMAS J. HIRZ, MICHAEL MUCCIO, L. IANDOLI and ANA CANCEL, Defendants. REBECCA THORPE, BY HER SUBROGEE STATE FARM FIRE & CASUALTY COMPANY, Plaintiff,
v.
FLORENCE BROWN, THE PATERSON FIRE DEPARTMENT, THOMAS J. HIRZ, MICHAEL MUCCIO, L. IANDOLI and ANA CANCEL, Defendants, and THE CITY OF PATERSON AND ROBERT BIERALS, Defendants-Appellants, and HAZEL HAMRICK LEE, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DARRELL A. HAMRICK AND RICKY HAMRICK, EDNA BROWN, BY HER SUBROGEE TRAVELERS INSURANCE COMPANY, TYRONE BYARD, THE ESTATE OF LATITA BUCKRHAM, THE ESTATE OF MARC SMITH, THE ESTATE OF BETTY JOHNSON, Defendants-Respondents. TYRONE BYARD, Plaintiff-Respondent,
v.
FLORENCE BROWN, THE PATERSON FIRE DEPARTMENT, THOMAS J. 4 HIRZ, MICHAEL MUCCIO, L. IANDOLI and ANA CANCEL, Defendants, and THE CITY OF PATERSON AND ROBERT BIERALS, Defendants-Appellants, and HAZEL HAMRICK LEE, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF DARRELL A. HAMRICK AND RICKY HAMRICK, REBECCA THORPE, BY HER SUBROGEE STATE FARM FIRE & CASUALTY COMPANY, EDNA BROWN, BY HER SUBROGEE TRAVELERS INSURANCE COMPANY, TYRONE BYARD, THE ESTATE OF LATITA BUCKRHAM, THE ESTATE OF MARC SMITH, THE ESTATE OF BETTY JOHNSON, Defendants-Respondents. FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC., a/s/o EDNA BROWN, Plaintiff-Respondent,
v.
FLORENCE BROWN, Defendant/Third-Party Plaintiff,
v.
CITY OF PATERSON, 5 Third-Party Defendant-Appellant, and CITY OF PATERSON FIRE DEPARTMENT, Third-Party Defendant. ELOISE WADE, AS ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF BETTY JEAN JOHNSON, Plaintiff-Respondent,
v.
FLORENCE BROWN and PUBLIC SERVICE ELECTRIC & GAS, Defendants

          Argued September 11, 2017

         FERNANDEZ-VINA, J., writing for the Court.

         In this case the Court determines whether an electrical inspector is entitled to qualified immunity under N.J.S.A. 59:3-3, or absolute immunity under N.J.S.A. 59:3-5 or -7, pursuant to the Tort Claims Act (TCA).

         The case stems from a tragic fire in the City of Paterson (City) on June 30, 2010. The fire consumed a multi-unit home owned by Florence Brown, taking the lives of four residents and injuring several others as they made their escape. During the lengthy proceedings below, the question arose whether the City and its electrical inspector, Robert Bierals-alleged by the plaintiffs to be at least partially at fault for the fire-are entitled to qualified or absolute immunity under the TCA.

         On January 9, 2010, the Paterson Fire Department responded to Brown's multi-unit home to investigate smoke coming from a boiler. A City fire inspector discovered improper wiring in the electrical panels in the basement and notified the City's electrical department that the issue required further inspection. On January 11, 2010, Bierals, an electrical inspector employed by the City, inspected the electrical panels and determined that the wiring did not comply with the building code. Bierals photographed the wiring and told Brown that the wiring was extremely dangerous. The City, through Bierals, issued Brown a "Notice of Violation and Order to Terminate" on January 12, 2010. Brown did not respond. On April 23, 2010, the City sent a "Notice and Order of Penalty" to Brown, citing specific violations of the Uniform Construction Code Act and various regulations.

         Bierals returned to the Brown home on May 20, 2010 to re-inspect the wiring. Upon his arrival, Brown told him that she had not altered or repaired the wiring. Bierals told Brown to have the wiring repaired within two weeks. He directed Brown to notify him when the electrician arrived. In his report, Bierals indicated that he had re-inspected the wiring. He had not actually conducted a second inspection; instead, he relied on Brown's representation that the issue had not been corrected. After his visit, Bierals contacted Francine Ragucci, an employee of the City's Community Improvements Department. Bierals showed Ragucci photographs of the wiring and told her something had to be done to remedy the problem. Ragucci said that she would speak with Sal Ianelli, another City official, and inform Bierals about the conversation. Bierals did not hear from Ragucci.

         According to Bierals, if a code violation constitutes an imminent hazard, the City may terminate electrical service to the home. Bierals testified that department policy required him to notify his direct supervisor, Alfonso Del Carmen, of an imminent hazard and that Del Carmen would ultimately determine whether to shut off the power. Bierals did not contact Del Carmen about the Brown home because of a conflict between the two that occurred on a previous occasion when Bierals recommended a shut-off. Instead, he had contacted Ragucci because he thought the situation at Brown's property required immediate action. On June 30, 2010, the faulty wiring caused a fire at the Brown property, claiming the lives of four residents and injuring several others.

         Seven lawsuits were brought on behalf of the four decedents' estates and by several individuals who were injured escaping the fire. The actions were consolidated. The trial court ruled that all of the City employees except Bierals were entitled to absolute immunity under the TCA, N.J.S.A. 59:3-5 and -7, and granted summary judgment in favor of those defendants. The trial court determined that Bierals was entitled to qualified immunity under N.J.S.A. 59:3-3 and that a genuine dispute of material fact existed as to whether he acted in good faith. The court also ruled that the City was entitled to qualified immunity. Bierals and the City moved for summary judgment, arguing that they were entitled to absolute immunity. The court granted the motion in March 2015. Plaintiffs moved for reconsideration, and the court held a hearing on the issue. In April 2015, the court reconsidered and vacated the grant of summary judgment and concluded that qualified immunity should apply to Bierals and the City.

          The Appellate Division affirmed the trial court's order in an unpublished opinion. The panel determined that Bierals' actions fell within the qualified immunity provision because he was "enforcing" the law; the case did not involve a "failure to enforce" that would entitle Bierals and the City to absolute immunity. The panel held that there was a genuine dispute of material fact regarding whether Bierals acted in good faith under the qualified immunity provision, relying on Bombace v. City of Newark, 125 N.J. 361 (1991). The panel remanded to the trial court to decide the factual dispute. The Court granted leave to appeal. 228 N.J. 31 (2016).

         HELD: Because the critical causative conduct in this case was a failure to enforce the law, Bierals is entitled to absolute immunity. The City's liability is conditioned on that of Bierals, and thus the City is entitled to absolute immunity as well.

         1. The TCA grants absolute immunity from liability to public entities and their employees for injuries resulting from a failure to enforce the law. Bombace, 125 N.J. at 366. N.J.S.A. 59:3-5 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." In contrast, public employees are entitled only to qualified immunity when they are enforcing the law. N.J.S.A. 59:3-3 ("A public employee is not liable if he acts in good faith in the execution or enforcement of any law."). The TCA also insulates public entities and employees from liability for injuries due to a failure to inspect, or a negligent or inadequate inspection. N.J.S.A. 59:2-6, 59:3-7. (pp. 18-20)

         2. A "failure to enforce a law" under the absolute immunity provision means non-action or the failure to act, whereas the qualified immunity provision applies to actions "constituting enforcement of the law." Bombace, 125 N.J. at 367-68. "[I]f conduct giving rise to injury consists only of non-action or the failure to act in the enforcement of the law, it is entitled to absolute immunity, even though other antecedent or surrounding conduct might constitute acts or action that would otherwise be subject to the qualified immunity." Id. at 370. (pp. 20-21)

         3. The City of Newark inspector in Bombace accurately discovered the code violation (an inoperative smoke detector), issued a violation notice, and sent a report to the fire inspector. Id. at 364. However, those acts were not the basis for liability; that is, they were not the critical causative conduct. The triggering event was the dismissal of the complaint, which ceased any enforcement action. "[S]uch conduct in a sequence of events will not convert a subsequent non-action or failure to act into affirmative acts governed by the good-faith immunity of [N.J.S.A. 59:3-3]." Id. at 371. Absolute immunity under the TCA "is determined by whether the critical causative conduct by government employees consists of non-action or the failure to act with respect to the enforcement of the law." Id. at 373. "[N]on-action or failure to enforce the law . . . falls within the absolute immunity of section 3-5 [of the TCA]." Id. at 374. (p. 21)

         4. The critical causative conduct in this case was Bierals' failure to contact Del Carmen and secure an emergency power shut-off or to seek relief in court, not any affirmative action to enforce the law. The fire is alleged to have been caused by the faulty wiring on the electrical panels. Like the cessation of court proceedings in Bombace, Bierals' omission, not any action taken by him, allowed the problem to linger. Under the Court's interpretation of the TCA in Bombace, Bierals' prior conduct of inspecting and issuing notices of violation is not sufficient to subject him to liability. The failure to enforce the law is absolutely immune from liability under N.J.S.A. 59:3-5. Further, as in Bombace, the victims of the tragic fire here "would at least have a principal wrongdoer from whom to seek redress." Id. at 372. There is no dispute that the City's liability is conditioned on that of Bierals, and thus the City is entitled to absolute immunity as well. (p. 22)

         The judgment of the Appellate Division is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion.

         On appeal from the Superior Court, Appellate Division.

          Stephen M. Orlofsky argued the cause for appellant City of Paterson (Blank Rome and Archer & Greiner, attorneys; Stephen M. Orlofsky, Adrienne C. Rogove, Frank D. Allen, and William J. O'Kane, Jr., on the briefs).

          Denis F. Driscoll argued the cause for appellant Robert Bierals (Inglesino Webster Wyciskala & Taylor, attorneys; Denis F. Driscoll, Nicholas A. Grieco, Alyssa E. Spector, and Owen T. Weaver, of counsel and on the briefs).

          Stewart M. Leviss argued the cause for respondent Hazel Hamrick Lee (Berkowitz, Lichtstein, Kuritskym, Giasullo & Gross, attorneys; Stewart M. Leviss, on the briefs).

          S. Robert Princiotto argued the cause for respondent Tyrone Byard (Marcus & Levy, attorneys; S. Robert Princiotto, on the briefs).

          Richard J. Abrahamsen argued the cause for respondent Eloise Wade (Abrahamsen Law Firm, attorneys; Richard J. Abrahamsen, on the briefs).

          Dennis J. Cummins, Jr., argued the cause for respondents Edna Brown and April Brown (Dennis J. Cummins, on the letter-brief).

          Robert F. Renaud argued the cause for amici curiae New Jersey State League of Municipalities and New Jersey Institute of Local Government Attorneys (Palumbo Renaud & Deappolonio, attorneys; Robert F. Renaud, on the briefs).

          Eric G. Kahn argued the cause for amicus curiae New Jersey Association for Justice (Javerbaum Wurgaft, attorneys; Eric ...


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