Absolute vs. Qualified Immunity Under the Tort Claims Act

Lee v. Brown, 232 N.J. 114 (2018).  [Disclosure:  My firm, Lite DePalma Greenberg, LLC, represented certain defendants in this case who were dismissed from the case on motion prior to the appeal that is the subject of this post]  Today’s unanimous opinion by Justice Fernandez-Vina deals with whether the appellants, the City of Paterson and one of its employees, an electrical inspector, were entitled to absolute immunity under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. (“TCA”), or merely qualified immunity.  The Law Division and the Appellate Division determined that only qualified immunity was appropriate.  The Supreme Court disagreed, holding that absolute immunity was required.

The case arose out of a 2010 fire at a multi-unit apartment building.  The conduct of the electrical inspector in the wake of that fire was at the center of the dispute.  Under the TCA, inaction, or a failure to enforce the law, gives rise to absolute immunity.  Conduct constituting enforcement of the law, in contrast, is subject only to qualified immunity.  Justice Fernandez-Vina drew those principles from Bombace v. City of Newark, 125 N.J. 361 (1991), on which the Appellate Division relied.

The Appellate Division concluded that the inspector’s conduct constituted “enforcing” the law, so that court afforded only qualified immunity.  The Supreme Court disagreed, ruling that the inspector had failed to enforce the law.

The fire was alleged to have been caused by “faulty wiring on the electrical panels.”  Though the inspector had previously inspected and issued notices of violation, that was not the “causative conduct” that led to the fire.  Instead, it was his subsequent failure to seek an emergency power shut-off or to seek relief in court– inaction or failure to enforce the law– that caused the fire and the resulting damage.  Accordingly, absolute immunity applied to the inspector, and since the inspector was entitled to absolute immunity, so was the City.

This was a difficult case.  The Law Division at first ruled that the inspector was entitled only to qualified immunity, even as the court granted absolute immunity to other City employee defendants.  Later, when the inspector sought summary judgment granting absolute immunity, the Law Division granted that motion, but then granted a motion for reconsideration and held that only qualified immunity was available to the inspector.  The Supreme Court came down on the side of the inspector.

Since absolute immunity was the result today, there will be no more twists and turns in this long-running case.  It is over.