Opinion
DOCKET NO. A-4391-14T2
06-30-2016
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 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, 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-Respondent, 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. 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, 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-Respondents.
William J. O'Kane argued the cause for appellant City of Paterson (Archer & Greiner, P.C., attorneys; Suzanne K. Collins, on the joint brief). Dennis Driscoll argued the cause for appellant Robert Bierals (Inglesino Webster Wyciskala Taylor, attorneys; Suzanne K. Collins, on the joint brief). S. Robert Princiotto argued the cause for respondent Tyrone Byard (Marcus & Levy, attorneys; Mr. Princiotto, on the brief). Michael A. Mark argued the cause for respondent Delton Dailey. Richard J. Abrahamsen argued the cause for respondent Eloise Wade (Abrahamsen Law Firm, LLC, attorneys; Mr. Abrahamsen, on the brief). Stewart M. Leviss argued the cause for respondents Hazel Hamrick Lee, individually and as administratrix ad prosequendum of the Estate of Darrell A. Hamrick, and Nicole Smith, individually and as administratrix ad prosequendum of the Estate of Marc Smith, and Ricky Hamrick (Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross, LLC, attorneys; Mr. Leviss and Roy J. Thibodaux, on the brief). Dennis J. Cummins, Jr. argued the cause for respondents Edna Brown and April Brown.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Kennedy and Gilson. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L-3348-11, L-4727-11, L-1248-12, L-1405-12, L-1906-12, L-2116-12 and L-2732-12 (consolidated). William J. O'Kane argued the cause for appellant City of Paterson (Archer & Greiner, P.C., attorneys; Suzanne K. Collins, on the joint brief). Dennis Driscoll argued the cause for appellant Robert Bierals (Inglesino Webster Wyciskala Taylor, attorneys; Suzanne K. Collins, on the joint brief). S. Robert Princiotto argued the cause for respondent Tyrone Byard (Marcus & Levy, attorneys; Mr. Princiotto, on the brief). Michael A. Mark argued the cause for respondent Delton Dailey. Richard J. Abrahamsen argued the cause for respondent Eloise Wade (Abrahamsen Law Firm, LLC, attorneys; Mr. Abrahamsen, on the brief). Stewart M. Leviss argued the cause for respondents Hazel Hamrick Lee, individually and as administratrix ad prosequendum of the Estate of Darrell A. Hamrick, and Nicole Smith, individually and as administratrix ad prosequendum of the Estate of Marc Smith, and Ricky Hamrick (Berkowitz, Lichtstein, Kuritsky, Giasullo & Gross, LLC, attorneys; Mr. Leviss and Roy J. Thibodaux, on the brief). Dennis J. Cummins, Jr. argued the cause for respondents Edna Brown and April Brown. PER CURIAM
This appeal arises out of four fatalities and injuries that resulted from a June 30, 2010 fire at a multi-dwelling home in Paterson. Seven lawsuits were brought by the individuals who suffered injuries during the fire and the estates of the people who perished in the fire. Plaintiffs asserted claims against a number of defendants, including the City of Paterson (City) and several City employees.
The City and its employees moved for summary judgment on all claims on grounds of immunity under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to :12-3. After a series of motions, the trial court ultimately granted partial summary judgment to all City employees, with the exception of Robert Bierals. As to Bierals, the court reasoned he was subject to qualified immunity and material factual disputes existed as to whether he acted in good faith.
On leave granted, the City and Bierals argue that Bierals is entitled to absolute immunity under N.J.S.A. 59:3-5 and -7, and the trial court erred in holding that Bierals was only entitled to qualified immunity under N.J.S.A. 59:3-3. We disagree and affirm.
I.
On June 30, 2010, a fire broke out at a Paterson home occupied by a number of tenants. The home was owned and maintained by Florence Brown. The fire started in the basement in electrical panels that had been improperly wired.
We derive the facts from the summary judgment record, viewing them in the light most favorable to plaintiffs, the non-moving parties. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014).
Several months prior to the fire, on January 9, 2010, the Paterson Fire Department had responded to Brown's home to investigate a potential fire hazard related to smoke coming from a boiler. While at the home, a City fire inspector discovered improper wiring of the electrical panels in the basement. He sent a fax to the City's electrical department stating: "The wiring at the panels in the Basement is Not Safe. An Electrical Inspection and order to correct may prevent a future mishap."
On January 11, 2010, defendant Robert Bierals, a City electrical inspector, inspected the electrical panels at Brown's home and found "open electrical panels" with wiring that was "not up to code" and was a "disaster." Bierals later stated that "whoever did this thing had no concern or really no knowledge of what they were doing" and "should be locked up."
Bierals photographed the wiring of the electrical panels and informed Brown of the dangerous conditions. On January 12, 2010, a "Notice of Violation and Order to Terminate" was sent to Brown, requiring her to remedy the situation. More than three months later, on April 23, 2010, a "Notice and Order of Penalty" was sent to Brown, informing her that the home was "in violation of the State Uniform Construction Code Act and Regulations."
Close to a month after that, and forty-one days before the fire, Bierals returned to the home on May 20, 2010 and was informed by Brown that the wiring had not been fixed. Bierals gave Brown an additional two weeks to hire an electrician to fix the problem and instructed her to notify him when the electrician arrived at the home. In his notations made that day, Bierals wrote that he had "re-inspected" the home, although he had not actually re-inspected the basement or the wiring.
Brown failed to contact Bierals within several weeks after the May 20 visit. Bierals then contacted Francine Ragucci, who worked in the City's Community Improvements Building Department, to seek guidance on how to handle the situation. Bierals showed Ragucci the photographs of Brown's basement and informed her that "[w]e have to do something about this." Bierals testified that Ragucci told him that she would speak with the City official in charge of the construction department, Sal Ianelli, and would get back to him. Bierals testified that Ragucci never followed up with him.
Bierals also testified that the City had procedures concerning how to handle "imminent hazards." According to Bierals, if an electric code violation constituted an "imminent hazard," the electrical power to the home could be shut off. Bierals had been instructed that department policy required him to notify his direct supervisor, Alfonso Del Carmen, of an imminent hazard and Del Carmen would then determine whether to shut off the power.
Bierals, however, never contacted Del Carmen about the situation at the Brown home. In that regard, Bierals testified that he no longer communicated with Del Carmen about electric shut-offs because of a conflict that had arisen when Bierals had previously recommended turning off power to a residence. In that prior situation, Del Carmen had accused Bierals of making the recommendation only to generate work for a friend who was the electrician. Bierals testified that after that incident, he decided he would not deal with Del Carmen concerning shutting off power to a property.
On June 30, 2010, the circuits in the improperly wired electrical panels overloaded causing a fire at Brown's home. Four residents died in the fire and several other persons were injured. As noted earlier, seven lawsuits were brought on behalf of the survivors of the four decedents and by several individuals who suffered injuries trying to escape the fire. The lawsuits, which were consolidated, named various defendants including Brown, the City, and City employees.
The City contends that the origins and cause of the fire are disputed, but for purposes of this summary judgment appeal, we accept the facts as pled by plaintiffs.
In 2013, Brown pled guilty to third-degree recklessly causing widespread injury or damage, N.J.S.A. 2C:17-2(b). She admitted that she "recklessly caus[ed]" a fire "by failing to make necessary electrical repairs" to her home. Brown also admitted that she had been aware that tenants were sharing electricity and had made changes to the electrical system that created conditions that could lead to a fire.
The parties engaged in discovery, and motion practice ensued with the City and all of its employees, including Bierals, moving for summary judgment. Following the denial of its initial summary judgment motion, the City and its employees again moved for summary judgment. On the second summary judgment motion, the trial court determined that all defendants, with the exception of Bierals, were immunized under N.J.S.A. 59:3-5 and -7, and thus granted those defendants summary judgment. Specifically, the trial court found that the conduct of those City employees consisted of negligent inspections or negligent failure to enforce the law, and such negligence was entitled to absolute immunity under the Act. As to Bierals, the trial court found that he was protected by a qualified immunity under N.J.S.A. 59:3-3, and material factual disputes existed as to whether Bierals acted in good faith.
At the close of discovery, the City and Bierals moved for summary judgment a third time, and that motion was heard by another judge. Initially, the judge granted summary judgment but, on reconsideration, the judge determined that a qualified immunity applied and whether Bierals "acted in good faith in his execution or enforcement of law with respect to the electrical conditions" was a question of fact to be determined by a jury. Thus, the trial court granted plaintiffs reconsideration and denied summary judgment to Bierals, and the City as Bierals's employer, in an order filed on April 8, 2015. We granted Bierals and the City leave to appeal that order.
II.
On appeal, the City and Bierals make two arguments: (1) they are entitled to absolute immunity under the Act; and (2) they are not responsible for Brown's failure to correct electrical code violations.
The City and Bierals actually divide this argument into two parts, and in the second part of their argument they contend that since they are entitled to absolute immunity, there is no need to address the qualified immunity. Given the relationship between the arguments, we have treated them as one argument. --------
We use a de novo standard of review "[b]ecause this appeal arises from the trial court's grant of reconsideration of a summary judgment determination." Guido v. Duane Morris LLP, 202 N.J. 79, 82 (2010). In reviewing an order granting summary judgment, "we employ the same standard that governs the trial court." Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004). Summary judgment should be granted when no material issues of fact exist and the moving party demonstrates that it is entitled to judgment as a matter of law. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A.
The central issue on this appeal is whether Bierals is entitled to either absolute immunity under N.J.S.A. 59:3-5 and -7, or qualified immunity under N.J.S.A. 59:3-3. "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." Bombace v. City of Newark, 125 N.J. 361, 366 (1991). N.J.S.A. 59:3-5 provides that "[a] public employee is not liable for an injury caused by his [or her] adoption of or failure to adopt any law or by his [or her] failure to enforce any law." Public entities are conferred the same absolute immunity under N.J.S.A. 59:2-4.
The Act provides qualified immunity with respect to the enforcement of the law. N.J.S.A. 59:3-3. In that regard, N.J.S.A. 59:3-3 shields a public employee if "he [or she] acts in good faith in the execution or enforcement of any law."
Our Supreme Court has explained that the Act "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." Bombace, supra, 125 N.J. at 367 (first quoting N.J.S.A. 59:3-5; then quoting N.J.S.A. 59:3-3). The Court has also explained "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." Id. at 386.
In Bombace v. City of Newark, a mother notified the City of Newark of the lack of heat and smoke detectors in her apartment. Id. at 364. The city sent violation notices, but lost the violation notice for the smoke detectors; and after several months, terminated the prosecution of claims regarding the lack of heat. Id. at 364-65. Thereafter, the apartment caught fire killing the mother's four children. Id. at 365. The Court held that the city was entitled to absolute immunity under Section 3-5 of the Act. Id. at 373-74. In ruling, our Supreme Court explained:
[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.
. . . .
In sum, application of the absolute immunity under the Act 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 370, 373.]
Plaintiffs contend that Bierals acted to enforce the law, but did not act in good faith. Specifically, plaintiffs assert that Bierals knew that the improper wiring in Brown's home constituted an imminent hazard, but failed to act in good faith in seeking to shut off the power because he would have had to deal with Del Carmen. When viewing the summary judgment record in the light most favorable to plaintiffs, plaintiffs' contentions establish material factual disputes.
Bierals testified that he had decided not to deal with Del Carmen concerning shutting off power to any property. While Bierals also testified that he did not believe that the wiring at Brown's home was an imminent hazard, a jury could find that testimony incredible in light of other statements and actions taken by Bierals. For example, Bierals also stated that the wiring he saw in Brown's home was so dangerous that he believed "whoever did the wiring should be locked up" and "had no idea of the hazard they are creating or don't care about people." Furthermore, after speaking with Brown in May 2010, Bierals contacted supervising City officials to seek guidance on the situation. Viewed in the light most favorable to plaintiffs, a jury could find that Bierals believed that something immediate needed to be done about the wiring in Brown's home, but he did not act in good faith because he did not want to deal with Del Carmen.
In short, we agree with the trial judge on reconsideration that a genuine issue of material fact existed concerning whether Bierals acted in good faith.
The City and Bierals argue that they are entitled to the absolute immunity provided by N.J.S.A. 59:3-5. Specifically, they contend that Bierals took action to enforce the electrical code and that his refusal to deal with Del Carmen to shut off the power to Brown's house was a failure to act. Plaintiffs do not contend that Bierals failed to act; rather, they contend that in acting to enforce the law, Bierals did not act in good faith.
The City and Bierals also contend that they are protected by the absolute immunity for a negligent or inadequate inspection provided under N.J.S.A. 59:3-7. In this case, however, plaintiffs are not alleging that the City or Bierals failed to make an inspection or made an inadequate or negligent inspection. Instead, they contend that Bierals recognized the serious nature of the improper wiring in Brown's home, but in enforcing law he did not act in good faith.
One of the plaintiffs also argues that we could alternatively affirm the denial of summary judgment by holding that the City was responsible for a dangerous condition on property it controlled. In that regard, that plaintiff contends defendant PSE&G installed the electrical connection to Brown's home and installed meters. Plaintiff then argues the PSE&G meters were public property. This issue, however, was not addressed in the April 8, 2015 order that is before us on leave to appeal. Thus, we do not reach this argument.
Other plaintiffs argue they were denied the right to amend their pleadings to name Bierals as a direct defendant. Those plaintiffs, however, did not seek leave to appeal that aspect of the April 8, 2015 order and, thus, that issue is also not before us and we do not address it.
B.
The City also argues that it is not responsible for Brown's failure to correct the electrical code violations in her home. In making that argument, the City relies on a discussion in Bombace where the Court recognized that a public entity is not responsible for making a private party comply with the law. See Bombace, supra, 125 N.J. at 373. The public policy argument the City seeks to make, however, does not apply in this situation. In Bombace, the Court observed that there were sound public policy reasons for apportioning liability for the government's failure to address dangers existing on private property and that a public entity is not responsible for failing to prevent someone else from harming the plaintiff. Id. at 371-73. The qualified immunity provided by N.J.S.A. 59:3-3, however, accounts for that policy. Because Bierals was acting to enforce the law, he is subject to a qualified immunity that requires he act in good faith. Accordingly, we find the City's public policy argument inapplicable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION