Bombace v. City of Newark

• Decision Date: 07 August 1991
• Citation: 593 A.2d 335,125 N.J. 361
• Parties: Linda BOMBACE, as Guardian Ad Litem of the Estates of her infant children, John Andaluz, Angelique Cotto, Lavinia Baez, and Nathena Baez, and Linda Bombace, Individually, Plaintiff-Respondent, v. The CITY OF NEWARK, Newark Fire Department, Newark City Code Enforcement Department, and Cosmo DeCosta, Defendants-Appellants, and Lonnie Coleman, Jr., and Akara Barfield, Defendants.
• Court: New Jersey Supreme Court

Page 361

125 N.J. 361

593 A.2d 335

Linda BOMBACE, as Guardian Ad Litem of the Estates of her infant children, John Andaluz, Angelique Cotto Lavinia Baez, and Nathena Baez, and Linda Bombace, Individually Plaintiff-Respondent, v. The CITY OF NEWARK, Newark Fire Department, Newark City Code Enforcement Department, and Cosmo DeCosta Defendants-Appellants and Lonnie Coleman, Jr., and Akara Barfield, Defendants.

Supreme Court of New Jersey.

Argued Jan. 29, 1991.

Decided Aug. 7, 1991.

Kathleen C. Goger, Asst. Corp. Counsel, for defendants-appellants (Glenn A. Grant, Corp. Counsel, attorney), Newark.

Richard M. Goldman, for plaintiff-respondent (Goldman & Goldman, attorneys; Vincent E. Ludwig, on the brief), West Orange.

PER CURIAM.

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.

I

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 ignition of something flammable within the apartment.

Plaintiff brought wrongful death and survivor actions against Barfield, Coleman, the City of Newark, and DeCosta. Barfield and Coleman defaulted.

The gravamen of the complaint against the municipal defendants is that the fire was caused by their ineffective enforcement of the municipal laws governing smoke detectors and heat. With respect to the latter, plaintiff contended specifically that those defendants were liable because of the termination of the municipal-violations proceeding. In their motion for summary judgment, defendants contended that even if all of plaintiff's allegations were true, they were immune from liability under the New Jersey Tort Claims Act. The trial court agreed that defendants were immune from liability and granted their motion for summary judgment.

On appeal, with regard to liability for the lost report of the smoke-detector violation, the Appellate Division agreed with the Law Division that defendants were entitled to absolute immunity under the Act and that summary judgment was proper. 241 N.J. Super. 1, 5-6, 574 A.2d 49 (1990). With respect to the heat complaint, however, the Appellate Division determined that defendants were entitled only to qualified immunity under the Act and reversed the summary judgment for defendants on that claim, remanding it to determine whether the employee had acted in good faith. Id. at 10, 574 A.2d 49.

This Court granted defendants' petition for certification. 122 N.J. 358, 585 A.2d 368 (1990), seeking review of the Appellate Division's judgment that the Tort Claims Act does not absolutely immunize defendants with respect to the heat complaint.

II

The Tort Claims Act grants an unqualified or absolute immunity to both public entities and their employees from liability for injuries caused by a failure to enforce the law. With respect to public employees, 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." N.J.S.A. 59:2-4, the public entity analog to section 3-5, states: "A public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law."

In contrast, N.J.S.A. 59:3-3 provides public employees with only qualified immunity with respect to the enforcement of the law: "A public employee is not liable if he acts in good faith in the execution or enforcement of any law."

The Act thus furnishes public entities and employees unqualified immunity for the "failure to enforce any law." It provides such employees with a qualified immunity, one that applies to "acts" done in the "execution or enforcement of any law," provided those "acts" are performed in good faith. Because a public entity generally will be liable, as would a private employer, for injuries proximately caused by its employees within the scope of the employment, N.J.S.A. 59:2-2, a public entity is derivatively entitled to the immunities afforded its employees.

The Act also provides an absolute immunity for public entities and employees with respect to injuries attributable to "inspections." That immunity applies to both the failure to inspect, N.J.S.A. 59:2-6, 3-7, and a negligent or inadequate inspection, N.J.S.A. 59:3-7. In this case, however, there has been no allegation that the City or its employees failed to make an inspection or made an inadequate or negligent inspection. Rather, with respect to the absence of heat to the apartment, plaintiff claims that the critical conduct of defendants consisted of the termination of the municipal court proceeding to enforce the heating violation. Also, with respect to the defective smoke detector, plaintiff asserts that the failure to follow up the violations notice was actionable.

The very narrow issue on this appeal is whether the discontinuance of a legal proceeding to enforce an ordinance concerning the absence of central heating constitutes either "failure to enforce any law" or "enforcement of any law."

The meaning encompassed by "failure to enforce a law" under N.J.S.A. 59:3-5 is not self-explanatory. The language itself reasonably suggests that the essential conduct constituting failure to enforce a law would consist of a failure to act, an omission, or non-action. That understanding is reinforced by a comparison of the language of the absolute immunity of section 3-5 with that of the qualified immunity of section 3-3, which applies to the "enforcement" of the law. The "good faith" that constitutes the basis for the qualified immunity refers expressly and specifically to "acts." N.J.S.A. 59:3-3. Further, although N.J.S.A. 59:3-3 uses the word "acts" in connection with the enforcement of the law, N.J.S.A. 59:3-5 makes no reference to "acts," but only to "injury." Thus, considerations of language and structure impel the inference that the absolute immunity of section 3-5 applies to non-action or the failure to act in connection with the enforcement of the law, and the qualified immunity of section 3-3 applies to acts constituting enforcement of the law.

The Appellate Division, relying on the analysis of the court in Marley v. Borough of Palmyra, 193 N.J.Super. 271, 473 A.2d 554 (Law Div.1983), recognized, as do we, that the critical...