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The New Jersey Supreme Court grants absolute immunity to a public employee's failure to enforce the lawVictor A. Afanador

In Hazel Hamrick Lee v. Florence Brown, et al., decided earlier this week, the New Jersey Supreme Court held that a public employee and his employer, the City of Paterson (“the City”), were both entitled to absolute immunity pursuant to N.J.S.A. 59:3-5. The Court decided that pursuant to its previous holding in Bombace v. City of Newark, 125 N.J. 361 (1991), the City’s electrical inspector was entitled to absolute immunity when he failed to enforce a law, which according to the Court, triggered the absolute immunity provided in N.J.S.A. 59:3-5. The Court reviewed the facts and determined that despite an ensuing fire that claimed four lives, and the electrical inspector’s issuance of: (1) a “Notice of Violation and Order to Terminate” electrical service; and (2) a “Notice and Order of Penalty,” his actions, or lack thereof, justified the absolute immunity imbedded within N.J.S.A. 59:3-5, as opposed to a good faith qualified immunity.

The Court reasoned that the inspector’s affirmative decision “not” to inform his direct supervisor of an imminent electrical hazard in order to obtain an electrical power shut-off for the property and his failure to seek the proper relief in court was akin to not enforcing the law. The inspector previously had personal issues with his supervisor. As a result, instead of notifying his supervisory of the hazard, he spoke to an employee in the City’s Community Improvements Department to address the issue. The Court did not find this compelling enough to prove action seeking to enforce the law, which would have triggered a factual qualified immunity analysis and a remand to the trial court.

In citing to Bombace, Justice Fernandez-Vina, writing for the Court explained:
 
Absolute immunity under the TCA is “determined by whether the critical causative conduct by government employees consists of non-action or failure to act with respect to the enforcement of the law . . . [N]on-action or failure to enforce the law . . . falls within the absolute immunity of section 3-5 [of the TCA].”

As highlighted by Domenick Stampone, Esq., Corporation Counsel for the City of Paterson:

Absolute and qualified immunity is designed to protect the taxpayers when government employees are faced with everyday challenges that are potentially dangerous in their daily work activities. These employees often are required to fight fires, save human lives and protect property, while exposed to litigious risk for incomplete victory in any action they take. As such, public entities and their employees are entitled to a strong presumption of immunity for every action or inaction.

This decision further reinforces the overarching theme behind the Tort Claims Act and its central underpinning that immunity is the rule and liability the exception when analyzing claims against public entities. That important principle is often forgotten.