City Not Liable for Partial Demolition of Burning Building Where Necessary to Fight the Fire

Crystal Ice-Bridgeton, LLC v. City of Bridgeton, 428 N.J. Super. 576 (App. Div. 2012).  Plaintiff’s building caught fire.  Bridgeton firefighters responded and were at the site for nine hours.  While the fire was still raging, Bridgeton’s Fire Chief determined that, in the interest of safety, it was necessary to partially demolish the building in order to “open up hidden pockets of fire” that had to be put out in order to complete the suppression of the fire.  The City brought in an outside contractor to do that demolition.  Finally, the fire was put out.

Plaintiff sued the City, the Fire Chief, and the contractor.  Plaintiff complained that it was not given advance notice of the demolition.  The Law Division granted summary judgment to defendants.  Plaintiff appealed, and the Appellate Division affirmed.  Judge Fasciale wrote the panel’s opinion. 

Judge Fasciale first noted that the appeal was interlocutory rather than final, since Bridgeton had filed a counterclaim for nuisance.  The parties had agreed to dismiss that counterclaim pending the result of the appeal, but the panel observed that this did make an otherwise interlocutory ruling final.  Nonetheless, the court decided to grant leave to appeal and consider the merits of the case. 

Judge Fasciale stated that the standard of review of a grant of summary judgment is to view the record most favorably to the opponent of the motion, and then to see whether the evidence is so one-sided that a rational finder of fact could decide only one way.  He found that to be the case here.

N.J.S.A. 40A:14-54.1 gave the Fire Chief “sole authority … with respect to all firefighting operations relating to the protection of lives and property endangered by [a] fire.”  That statute did not require advance notice to plaintiff of the demolition, as plaintiff conceded.  Plaintiff relied instead on statutes that address when a construction official or other public officer can demolish property.  Those statutes were inapplicable, Judge Fasciale found, because they did not involve a Fire Chief acting pursuant to his “sole authority” while a fire was still raging.  

Moreover, the panel concluded, both the City defendants and the contractor were protected by Tort Claims Act immunities.  N.J.S.A. 59:3-6 immunized the Fire Chief for a decision that he was statutorily authorized to make.  Moreover, he made that decision in good faith, thereby coming under the protection of N.J.S.A. 59:3-3.  At most, he was negligent.  That did not suffice for liability.  Since the Fire Chief was immune, N.J.S.A. 59:2-2 immunized the City as well.  Finally, the contractor was shielded by derivative Tort Claims Act immunity.  The contractor had done nothing more than follow the Fire Chief’s directive.  In those circumstances, i the contractor were not immune, its liability would be passed back to the otheerwise immune City, thereby “rendering meaningless the tort immunity.”