The Supreme Court of New Jersey has ruled a city and its electrical inspector are not liable for claims resulting from a fatal fire within a multi-unit home that was allegedly caused by faulty wiring. The court stated in its opinion that public entities and their employees cannot be held liable for failing to enforce the law.
The case comes after a fire in the city of Paterson, N.J., on June 30, 2010, which consumed a multi-unit home owned by Florence Brown. The fire killed four residents and injured several others.
Seven lawsuits were subsequently brought on behalf of the four descendants’ estates and by several others who were injured escaping the fire. The actions were consolidated.
During the proceedings, questions arose as to whether Paterson and its electrical inspector, Robert Bierals – alleged by the plaintiffs to be partially at fault for the fire – were entitled to qualified or absolute immunity under New Jersey’s Tort Claims Act (TCA).
The TCA grants absolute immunity from liability to public entities and their employees for injuries resulting from their failure to enforce the law. In contrast, public employees are entitled only to qualified immunity when they are enforcing the law. The TCA also protects public entities and their employees from liability for injuries due to failure to inspect, or a negligent or inadequate inspection.
Because the Supreme Court of New Jersey found that in this case, the critical causative conduct was a failure to enforce the law, it ruled Bierals is entitled to absolute immunity. The city of Paterson’s liability is conditioned on that of Bierals, so the city is entitled to absolute immunity as well, the court found.
On January 9, 2010, the Paterson Fire Department visited Brown’s multi-unit home to investigate smoke coming from a boiler. A fire inspector found improper wiring in the basement’s electrical panels and notified the city’s electrical department for further inspection.
Bierals, an electrical inspector employed by the city, reviewed the electrical panels and determined the wiring did not comply with the building code. Bierals took photos of the wiring and told Brown it was extremely dangerous.
Through Bierals, the city of Paterson issued Brown a “Notice of Violation and Order to Terminate,” but Brown did not respond. The city then sent a “Notice and Order of Penalty” to Brown, citing specific violations of the Uniform Construction Code Act and various regulations.
When Bierals returned to Brown’s home to reinspect the wiring, Brown told him she had not altered or repaired it. Bierals told Brown to hire an electrician and have the wiring repaired within two weeks, asking her to notify him when the electrician arrived.
Although Bierals indicated in his report he had reinspected the wiring, he had not actually conducted a second inspection, according to the Supreme Court of New Jersey opinion document. Instead, he relied on Brown’s indication that the issue had not been corrected.
After his visit to Brown’s home, Bierals contacted Francine Ragucci, an employee of Paterson’s Community Improvements Department. Bierals testified he showed Ragucci photos of the wiring and told her the problem needed to be fixed. Ragucci said she would speak with Sal Ianelli, another city official, and inform Bierals about the conversation. However, Bierals did not hear from Ragucci, according to the opinion document.
According to Bierals, if a code violation means a hazard is imminent, the city can 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 Del Carmen would determine whether to shut off power at Brown’s home.
Bierals did not contact Del Carmen because of a previous conflict between them when Bierals had recommended a shutoff in a separate situation. According to Bierals, Del Carmen had accused him of recommending a power shut-off to create work for an electrician friend. After the incident, Bierals decided to longer go through Del Carmen to obtain a shut-off. Instead, he contacted Ragucci because he thought the situation at Brown’s property required immediate action, the opinion document stated.
On June 30, 2010, the faulty wiring caused a fire at Brown’s property, killing four residents and injuring several others.
After seven lawsuits were brought, the city of Paterson and its employees moved for summary judgment.
The trial court initially ruled that all of the city of Paterson employees except Bierals were entitled to absolute immunity under the TCA and granted summary judgment in favor of those defendants. Bierals instead was determined by the trial court to have qualified immunity, as questions remained about whether he acted in good faith. The court also ruled that the city of Paterson was entitled to qualified immunity.
Bierals and the city of Paterson then moved for summary judgment before a different judge, arguing they were entitled to absolute immunity. The court granted the motion in March 2015. Plaintiffs moved for reconsideration, and the court held a hearing.
In April 2015, the court reconsidered and vacated the grant of summary judgment. In June 2016, a three-judge panel affirmed the trial court’s order in an unpublished opinion, holding that Bierals and Paterson were entitled only to qualified immunity. Because plaintiffs alleged Bierals acted to enforce the law but did not act in good faith, the panel remanded to the trial court to decide the factual dispute.
N.J. Supreme Court Decision
In its opinion document, the Supreme Court of New Jersey stated plaintiff Hazel Hamrick Lee argued the city of Paterson and Bierals are entitled to qualified immunity because Bierals’ actions, including issuing violations and reporting the problem to Ragucci, constitute enforcing the law. Lee claimed the issue to decide is whether Bierals acted in good faith, not whether he acted at all, the opinion document said. In addition, plaintiff Tyrone Byard, who was injured in the fire while escaping the building, agreed the city of Paterson and Bierals are only entitled to qualified immunity.
Amicus NJAJ (New Jersey Association for Justice) stated Bierals’ failure to shut off the home’s power was a failure to enforce a city policy, not a law. NJAJ contended Bierals breached procedure, but enforced the law by issuing violations even though he failed to shut off power. Liability in this case, according to NJAJ, is predicated on action rather than inaction, the opinion document said.
With this in mind, NJAJ said the inspection immunity provision of the TCA does not apply because it was not Bierals’ inspection that caused the fire. NJAJ also stated the court should recognize “special circumstances” and, even if it is decided that absolute immunity applies, the court should hold Paterson and Bierals liable, the opinion document said.
According to the amicus, “the actions in this case….rise to the level of egregious misconduct and should be subject to liability,” the opinion document added.
Alternatively, the city of Paterson asserted it is entitled to absolute immunity because the fire was caused by a failure to enforce the law or a failure to inspect. It emphasized Bierals’ failure to contact Del Carmen to pursue the shut-off was the critical causative conduct in this case constituting a failure to enforce the law, so the city is entitled to absolute immunity, the opinion document said.
Bierals’ arguments were similar to the city of Paterson’s, contending that because he did not issue an “Unsafe Structure Notice” or tell Del Carmen about the issue and turn off the power, he is entitled to absolute immunity. Bierals also asserted if the fire was a result of his inadequate inspection, he is shielded from liability due to his failure to turn off the power after discovering the faulty wiring and his failure to notify his supervisor of the situation, the opinion document said.
Amici NJSLM (New Jersey State League of Municipalities) also asserted the general rule for municipalities under the TCA is immunity from tort suits, and liability is the exception. NJSLM contended absolute immunity is appropriate in this case, warning that “public entities will be exposed to a flood of tort claims from which the legislature intended to insulate them if the court does not reverse the Appellate Division’s decision in this case,” the opinion document stated.
Indeed, the New Jersey Supreme Court found in its opinion the TCA effectuates the legislature’s intent to establish immunity for government action as the rule and liability as the exception.
“The statute strikes a balance between allowing municipal governments to perform their necessary functions without an avalanche of tort liability while holding public entities accountable for injuries that are a direct result of their wrongful conduct,” the court stated in its opinion. “The legislative design insulates government from suit based on a violation ‘attributable to someone else’s wrongful acts,’ when the government’s conduct is ‘only an indirect contributing cause of the harm.'”
With this in mind, the New Jersey Supreme Court ruled 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 New Jersey Supreme Court decided the fire is alleged to have been caused by the faulty wiring on the electrical panels and was not the result of any corrective action taken by Bierals.
Under its interpretation of the TCA, the court found Bierals’ prior conduct of inspecting and issuing notices of violation was not sufficient to subject him to liability.
“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,” the Supreme Court stated in its opinion. “Because we find that Bierals and the city are entitled to absolute immunity, we need not reach the issue of whether the inspector acted in good faith.”
The New Jersey Supreme Court concluded defendants Bierals and Paterson are entitled to summary judgment, reversed the judgment of the Appellate Division and remanded to resolve the remaining issues in the consolidated case.