Lee v. Brown

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                        Hazel Hamrick Lee v. Florence Brown, et al. (A-7/8-16) (078043)

Argued September 11, 2017 -- Decided February 21, 2018

FERNANDEZ-VINA, J., writing for the Court.

         In this case the Court determines whether an electrical inspector is entitled to qualified immunity under

N.J.S.A. 59:3-3, or absolute immunity under 
N.J.S.A. 59:3-5 or -7, pursuant to the Tort Claims Act (TCA).

         The case stems from a tragic fire in the City of Paterson (City) on June 30, 2010. The fire consumed a
multi-unit home owned by Florence Brown, taking the lives of four residents and injuring several others as they
made their escape. During the lengthy proceedings below, the question arose whether the City and its electrical
inspector, Robert Bierals—alleged by the plaintiffs to be at least partially at fault for the fire—are entitled to
qualified or absolute immunity under the TCA.

         On January 9, 2010, the Paterson Fire Department responded to Brown’s multi-unit home to investigate
smoke coming from a boiler. A City fire inspector discovered improper wiring in the electrical panels in the
basement and notified the City’s electrical department that the issue required further inspection. On January 11,
2010, Bierals, an electrical inspector employed by the City, inspected the electrical panels and determined that the
wiring did not comply with the building code. Bierals photographed the wiring and told Brown that the wiring was
extremely dangerous. The City, through Bierals, issued Brown a “Notice of Violation and Order to Terminate” on
January 12, 2010. Brown did not respond. On April 23, 2010, the City sent a “Notice and Order of Penalty” to
Brown, citing specific violations of the Uniform Construction Code Act and various regulations.

         Bierals returned to the Brown home on May 20, 2010 to re-inspect the wiring. Upon his arrival, Brown
told him that she had not altered or repaired the wiring. Bierals told Brown to have the wiring repaired within two
weeks. He directed Brown to notify him when the electrician arrived. In his report, Bierals indicated that he had re-
inspected the wiring. He had not actually conducted a second inspection; instead, he relied on Brown’s
representation that the issue had not been corrected. After his visit, Bierals contacted Francine Ragucci, an
employee of the City’s Community Improvements Department. Bierals showed Ragucci photographs of the wiring
and told her something had to be done to remedy the problem. Ragucci said that she would speak with Sal Ianelli,
another City official, and inform Bierals about the conversation. Bierals did not hear from Ragucci.

          According to Bierals, if a code violation constitutes an imminent hazard, the City may 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 that Del Carmen would ultimately determine whether to shut off the power.
Bierals did not contact Del Carmen about the Brown home because of a conflict between the two that occurred on a
previous occasion when Bierals recommended a shut-off. Instead, he had contacted Ragucci because he thought the
situation at Brown’s property required immediate action. On June 30, 2010, the faulty wiring caused a fire at the
Brown property, claiming the lives of four residents and injuring several others.

         Seven lawsuits were brought on behalf of the four decedents’ estates and by several individuals who were
injured escaping the fire. The actions were consolidated. The trial court ruled that all of the City employees except
Bierals were entitled to absolute immunity under the TCA, 
N.J.S.A. 59:3-5 and -7, and granted summary judgment
in favor of those defendants. The trial court determined that Bierals was entitled to qualified immunity under

N.J.S.A. 59:3-3 and that a genuine dispute of material fact existed as to whether he acted in good faith. The court
also ruled that the City was entitled to qualified immunity. Bierals and the City moved for summary judgment,
arguing that they were entitled to absolute immunity. The court granted the motion in March 2015. Plaintiffs
moved for reconsideration, and the court held a hearing on the issue. In April 2015, the court reconsidered and
vacated the grant of summary judgment and concluded that qualified immunity should apply to Bierals and the City.


                                                          1
          The Appellate Division affirmed the trial court’s order in an unpublished opinion. The panel determined
that Bierals’ actions fell within the qualified immunity provision because he was “enforcing” the law; the case did
not involve a “failure to enforce” that would entitle Bierals and the City to absolute immunity. The panel held that
there was a genuine dispute of material fact regarding whether Bierals acted in good faith under the qualified
immunity provision, relying on Bombace v. City of Newark, 
125 N.J. 361 (1991). The panel remanded to the trial
court to decide the factual dispute. The Court granted leave to appeal. 
228 N.J. 31 (2016).

HELD: Because the critical causative conduct in this case was a failure to enforce the law, Bierals is entitled to
absolute immunity. The City’s liability is conditioned on that of Bierals, and thus the City is entitled to absolute
immunity as well.

1. The TCA grants absolute immunity from liability to public entities and their employees for injuries resulting
from a failure to enforce the law. Bombace, 
125 N.J. at 366. 
N.J.S.A. 59:3-5 provides: “A public employee is not
liable for an injury caused by his adoption of or failure to adopt any law or by his failure to enforce any law.” In
contrast, public employees are entitled only to qualified immunity when they are enforcing the law. 
N.J.S.A. 59:3-3
(“A public employee is not liable if he acts in good faith in the execution or enforcement of any law.”). The TCA
also insulates public entities and employees from liability for injuries due to a failure to inspect, or a negligent or
inadequate inspection. 
N.J.S.A. 59:2-6, 59:3-7. (pp. 18-20)

2. A “failure to enforce a law” under the absolute immunity provision means non-action or the failure to act,
whereas the qualified immunity provision applies to actions “constituting enforcement of the law.” Bombace, 
125 N.J. at 367-68. “[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.” Id. at 370. (pp. 20-21)

3. The City of Newark inspector in Bombace accurately discovered the code violation (an inoperative smoke
detector), issued a violation notice, and sent a report to the fire inspector. Id. at 364. However, those acts were not
the basis for liability; that is, they were not the critical causative conduct. The triggering event was the dismissal of
the complaint, which ceased any enforcement action. “[S]uch conduct in a sequence of events will not convert a
subsequent non-action or failure to act into affirmative acts governed by the good-faith immunity of [
N.J.S.A. 59:3-
3].” Id. at 371. Absolute immunity under the TCA “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
373. “[N]on-action or failure to enforce the law . . . falls within the absolute immunity of section 3-5 [of the TCA].”
Id. at 374. (p. 21)

4. 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 fire is alleged to have
been caused by the faulty wiring on the electrical panels. Like the cessation of court proceedings in Bombace,
Bierals’ omission, not any action taken by him, allowed the problem to linger. Under the Court’s interpretation of
the TCA in Bombace, Bierals’ prior conduct of inspecting and issuing notices of violation is not sufficient to subject
him to liability. The failure to enforce the law is absolutely immune from liability under 
N.J.S.A. 59:3-5. Further,
as in Bombace, the victims of the tragic fire here “would at least have a principal wrongdoer from whom to seek
redress.” Id. at 372. 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. (p. 22)

        The judgment of the Appellate Division is REVERSED and the matter is REMANDED for further
proceedings consistent with this opinion.

      CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and PATTERSON join in
JUSTICE FERNANDEZ-VINA’s opinion. JUSTICES SOLOMON and TIMPONE did not participate.




                                                            2
                                     SUPREME COURT OF NEW JERSEY
                                      A-7/
8 September Term 2016
                                                078043

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

                                 1
THE CITY OF PATERSON AND
ROBERT BIERALS,

    Defendants-Appellants.


HOMESITE INSURANCE COMPANY,

    Plaintiff,

         v.

FLORENCE BROWN, HAZEL HAMRICK
LEE, INDIVIDUALLY AND AS
ADMINSTRATRIX 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.



                                2
REBECCA THORPE, BY HER
SUBROGEE STATE FARM FIRE &
CASUALTY COMPANY,

    Plaintiff,

         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.


                                   3
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,


                                  4
    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


         Argued September 11, 2017 – Decided February 21, 2018

         On appeal from the Superior Court, Appellate
         Division.

         Stephen M. Orlofsky argued the cause for
         appellant City of Paterson (Blank Rome and
         Archer & Greiner, attorneys; Stephen M.
         Orlofsky, Adrienne C. Rogove, Frank D.
         Allen, and William J. O’Kane, Jr., on the
         briefs).

         Denis F. Driscoll argued the cause for
         appellant Robert Bierals (Inglesino Webster
         Wyciskala & Taylor, attorneys; Denis F.
         Driscoll, Nicholas A. Grieco, Alyssa E.
         Spector, and Owen T. Weaver, of counsel and
         on the briefs).

         Stewart M. Leviss argued the cause for
         respondent Hazel Hamrick Lee (Berkowitz,
         Lichtstein, Kuritskym, Giasullo & Gross,

                                 5
         attorneys; Stewart M. Leviss, on the
         briefs).

         S. Robert Princiotto argued the cause for
         respondent Tyrone Byard (Marcus & Levy,
         attorneys; S. Robert Princiotto, on the
         briefs).

         Richard J. Abrahamsen argued the cause for
         respondent Eloise Wade (Abrahamsen Law Firm,
         attorneys; Richard J. Abrahamsen, on the
         briefs).

         Dennis J. Cummins, Jr., argued the cause for
         respondents Edna Brown and April Brown
         (Dennis J. Cummins, on the letter-brief).

         Robert F. Renaud argued the cause for amici
         curiae New Jersey State League of
         Municipalities and New Jersey Institute of
         Local Government Attorneys (Palumbo Renaud &
         Deappolonio, attorneys; Robert F. Renaud, on
         the briefs).

         Eric G. Kahn argued the cause for amicus
         curiae New Jersey Association for Justice
         (Javerbaum Wurgaft, attorneys; Eric G. Kahn,
         of counsel and on the brief).

         Michael A. Mark submitted a letter-brief on
         behalf of respondent Delton Dailey.


    JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

    In this case the Court is tasked with determining whether

an electrical inspector is entitled to qualified immunity under


N.J.S.A. 59:3-3, or absolute immunity under 
N.J.S.A. 59:3-5 or -

7, pursuant to the Tort Claims Act (TCA).   The case stems from a

tragic fire in the City of Paterson (City) on June 30, 2010.

The fire consumed a multi-unit home owned by Florence Brown,


                                6
taking the lives of four residents and injuring several others

as they made their escape.    Seven lawsuits were filed by various

plaintiffs involved in the fire and those representing the

deceased against a number of private and public entities.

During the lengthy proceedings below, the question arose whether

the City and its electrical inspector, Robert Bierals -- alleged

by the plaintiffs to be at least partially at fault for the fire

-- are entitled to qualified or absolute immunity under the TCA,


N.J.S.A. 59:3-3, -5, or -7.

    During discovery, Bierals and the City moved for summary

judgment on immunity grounds.    The trial court ruled that

Bierals and the City were entitled only to qualified immunity

and denied their motions.    After the close of discovery, Bierals

and the City again moved for summary judgment.    A different

judge granted the motion, ruling that they were entitled to

absolute immunity.   On plaintiffs’ motion for reconsideration

pursuant to Rule 4:49-2, however, the judge denied summary

judgment, finding that Bierals and the City were entitled only

to qualified immunity.

    The Appellate Division granted the City and Bierals leave

to appeal and affirmed the denial of summary judgment.    The

panel held that Bierals’ actions could constitute enforcement of

the law and that a factual dispute remained as to whether he



                                  7
acted in good faith.     The case was remanded to the trial court

for further proceedings.

    We granted leave to appeal.        Because the critical causative

conduct in this case was a failure to enforce the law, Bierals

is entitled to absolute immunity.       We therefore reverse the

decision of the Appellate Division and enter judgment in favor

of Bierals and the City.

                                  I.

                                  A.

    Because this appeal arises out of defendants’ motion for

summary judgment, the relevant facts, derived from the record

below, are construed in the light most favorable to the

plaintiffs.

    On January 9, 2010, the Paterson Fire Department responded

to Brown’s multi-unit home to investigate smoke coming from a

boiler.     A City fire inspector discovered improper wiring in the

electrical panels in the basement and notified the City’s

electrical department that the issue required further

inspection.

    On January 11, 2010, Bierals, an electrical inspector

employed by the City, inspected the electrical panels and

determined that the wiring did not comply with the building

code.     Bierals photographed the wiring and told Brown that the

wiring was extremely dangerous.

                                   8
    The City, through Bierals, issued Brown a “Notice of

Violation and Order to Terminate” on January 12, 2010.     Brown

did not respond.     On April 23, 2010, the City sent a “Notice and

Order of Penalty” to Brown, citing specific violations of the

Uniform Construction Code Act and various regulations.

    Bierals returned to the Brown home on May 20, 2010 to re-

inspect the wiring.     Upon his arrival, Brown told him that she

had not altered or repaired the wiring.     Bierals told Brown to

hire an electrician and have the wiring repaired within two

weeks.     He directed Brown to notify him when the electrician

arrived.    In his report, Bierals indicated that he had re-

inspected the wiring.     He had not actually conducted a second

inspection; instead, he relied on Brown’s representation that

the issue had not been corrected.

    After his visit to the home on May 20, 2010, Bierals

contacted Francine Ragucci, an employee of the City’s Community

Improvements Department.     Bierals testified that he showed

Ragucci photographs of the wiring and told her something had to

be done to remedy the problem.    Ragucci said that she would

speak with Sal Ianelli, another City official, and inform

Bierals about the conversation.     Bierals did not hear from

Ragucci.

    According to Bierals, if a code violation constitutes an

imminent hazard, the City may terminate electrical service to

                                   9
the home.    Bierals testified that department policy required him

to notify his direct supervisor, Alfonso Del Carmen, of an

imminent hazard and that Del Carmen would ultimately determine

whether to shut off the power.

       Bierals did not contact Del Carmen about the issue at the

Brown home because of a conflict between the two that had

occurred on a previous occasion when Bierals recommended a shut-

off.    According to Bierals, Del Carmen had accused him of

recommending a power shut-off to generate work for an

electrician friend.    After the incident, Bierals decided he

would no longer go through Del Carmen to obtain a shut-off.

Instead, he had contacted Ragucci because he thought the

situation at Brown’s property required immediate action.

       On June 30, 2010, the faulty wiring caused a fire at the

Brown property claiming the lives of four residents and injuring

several others.

                                 B.

       Seven lawsuits were brought on behalf of the four

decedents’ estates and by several individuals who were injured

escaping the fire.    Two lawsuits named Bierals as a defendant in

addition to the City, and several named other City employees.

The actions were consolidated.

       In March 2013, the City and its employees moved for summary

judgment.    The trial court denied the motions in April 2013.     In

                                 
10 June 2013, the City and its employees again moved for summary

judgment.     The trial court ruled that all of the City employees

except Bierals were entitled to absolute immunity under the TCA,


N.J.S.A. 59:3-5 and -7, and granted summary judgment in favor of

those defendants.

    The trial court determined that Bierals was entitled to

qualified immunity under 
N.J.S.A. 59:3-3 and that a genuine

dispute of material fact existed as to whether he acted in good

faith.     The court also ruled that the City was entitled to

qualified immunity.

    At the close of discovery, Bierals and the City moved for

summary judgment a third time, before a different judge, arguing

that they were entitled to absolute immunity.     The court granted

the motion in March 2015.     Plaintiffs moved for reconsideration,

and the court held a hearing on the issue.     In April 2015, the

court reconsidered and vacated the grant of summary judgment and

concluded that qualified immunity should apply to Bierals and

his employer, the City.

    The Appellate Division granted Bierals and the City leave

to appeal the April 2015 order.     In June 2016, a three-judge

panel affirmed the trial court’s order in an unpublished

opinion.     The Appellate Division found the “central issue” to be

whether Bierals and the City were “entitled to either absolute

immunity under 
N.J.S.A. 59:3-5 and -7, or qualified immunity

                                  11
under N.J.S.A. 59:3-3.”    The panel held that they were entitled

only to qualified immunity.

    The panel determined that Bierals’ actions fell within the

qualified immunity provision because he was “enforcing” the law;

the case did not involve a “failure to enforce” that would

entitle Bierals and the City to absolute immunity.   The panel

held that there was a genuine dispute of material fact regarding

whether Bierals acted in good faith under the qualified immunity

provision.

    The Appellate Division, relying on Bombace v. City of

Newark, 
125 N.J. 361 (1991), reasoned that “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.”   Because

plaintiffs alleged that 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.

    We granted the motion for leave to appeal.     
228 N.J. 31

(2016); cf. R. 2:2-2(b).   We also granted amicus curiae status

to the New Jersey State League of Municipalities and the New

Jersey Institute of Local Government Attorneys (collectively,

NJSLM) and to the New Jersey Association for Justice (NJAJ).




                                 12
                               II.

    The City asserts that it is entitled to absolute immunity

under 
N.J.S.A. 59:3-5, because the fire was caused by a failure

to enforce the law, or under 
N.J.S.A. 59:3-7, because the fire

was caused by a failure to inspect or negligent inspection.      The

City posits that the Appellate Division’s judgment is contrary

to Bombace, in which this Court found the City of Newark and its

employee were entitled to absolute immunity.     
125 N.J. at 374.

According to the City, the fact that the fire inspector had

taken a series of steps in Bombace did not convert the

subsequent inaction -- the termination of enforcement

proceedings -- into an affirmative act that would be entitled to

only qualified immunity under the TCA.   Instead, the critical

causative conduct was the termination of enforcement proceedings

and lack of subsequent action, entitling Newark to absolute

immunity.

    The City asserts that the availability of absolute immunity

hinges on whether the critical causative conduct that gives rise

to the injury is a failure to enforce the law.    The City

emphasizes that Bierals’ failure to contact Del Carmen to pursue

the shut-off was the critical causative conduct in this case.

That failure qualifies as a failure to enforce the law,

according to the City, and so the City is entitled to absolute

immunity.

                               13
     Alternatively, the City argues that the trial court

improperly reconsidered the original grant of summary judgment

and this Court should reinstate that order.   The City contends

that the motion judge abused his discretion by reconsidering and

vacating the grant of summary judgment.

     Bierals’ arguments largely track those of the City.     He

contends 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

asserts that if the fire was a result of his inadequate

inspection, he is shielded from liability by the absolute

immunity provided by 
N.J.S.A. 59:3-7.   Bierals points to the

plaintiffs’ failure to identify an affirmative act on his part

that would subject him to the qualified immunity provision of

the TCA.   Specifically, Bierals asserts that his failure to turn

off the power upon discovering the faulty wiring and failure to

notify his supervisor of the situation constitute a failure to

enforce the law, entitling him to absolute immunity.

     Plaintiff Hazel Hamrick Lee argues that the City and

Bierals are entitled to qualified immunity under 
N.J.S.A. 59:3-

3.   Lee contends that Bierals’ actions, including issuing

violations and reporting the matter to Ragucci, constitute

enforcing the law.   Lee argues that her claim arises from how

Bierals acted, not whether he did so.   Lee distinguishes

                                14
Bierals’ conduct from that of the inspector in Bombace by

pointing to the cessation of enforcement proceedings in that

case in contrast to the continuing enforcement efforts by

Bierals here.   Lee claims that Bierals was actively engaged in

enforcing the law and that the issue to decide is whether he

acted in good faith, not whether he acted at all.   Finally, Lee

argues that the motion judge did not abuse his discretion by

reconsidering and vacating the grant of summary judgment.

     Plaintiff Tyrone Byard, who was injured in the fire while

escaping the building by jumping from a window, also argues that

the City and Bierals are only entitled to qualified immunity.

Byard contends that the most significant factor in the Bombace

Court’s analysis was the City’s decision to terminate the

enforcement proceedings by dismissing the action.   Here,

according to Byard, Bierals acted to enforce the law and never

terminated enforcement.   Instead, this case is about the manner

in which Bierals enforced the law and his recognition that the

panels constituted an imminent hazard.   Finally, Byard argues

that Bierals was acting in a ministerial capacity and failed to

use means reasonably available to him to resolve an obvious

danger, and that the matter of whether Bierals’ actions were

ministerial should be left to a jury.1


1  This issue was not addressed in the April 8, 2015 order
vacating the grant of summary judgment and was not addressed by
                                15
    Plaintiff representatives of the estate of Betty Jean

Johnson, who perished in the fire, argue that the electrical

connection was public property under control of the City.

Johnson contends that only PSE&G and the City were authorized to

work on the electrical connection to the grid and that Brown

would be guilty of meter tampering if she attempted to alter the

connection.    Because it is public property controlled by the

City, according to Johnson, the City was responsible for a

dangerous condition on the property it controlled.    The

Appellate Division declined to address this issue, determining

it was not an aspect of the order before the panel on leave to

appeal.   Therefore, the issue is not before this Court.

    Amici NJSLM assert that the general rule for municipalities

under the TCA is immunity from tort suits; liability is the

exception.    The groups contend that the threshold question is



the Appellate Division. “The standard for liability under the
TCA depends on whether the conduct of individuals acting on
behalf of the public entity was ministerial or discretionary.”
Henebema v. S. Jersey Transp. Auth., 
219 N.J. 481, 490 (2014)
(citing 
N.J.S.A. 59:2-3(d)). “If the action was ministerial,
liability for the public entity is evaluated based on an
ordinary negligence standard.” Ibid. Citing several cases
regarding ministerial acts of first responders, Byard contends
Bierals’ acts were ministerial. We find that Bierals, as an
inspector, had a broad range of discretion in investigating and
resolving code violations -- for example, he could issue a
notice to repair the issue, a summary offense, or seek a shut-
off through departmental procedure, among other options.
Bierals was not required to follow a prescribed course of action
by law and his actions were not subject to liability under an
ordinary negligence standard.
                                 16
whether absolute immunity applies.     If it does, they argue, the

inquiry is complete; if it does not apply, the Court should then

undertake the qualified immunity inquiry.     NJSLM posit that

absolute immunity is appropriate in this case, applying Bombace

and providing an overview of the TCA.     Amici warn 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.

       Amicus NJAJ argues that Bierals’ failure to shut off the

power to the home was a failure to enforce a City policy, not a

law.    Bierals breached procedure but enforced the law by issuing

violations even though he failed to shut off the power.     NJAJ

stresses that there was no decision by Bierals to terminate

enforcement.    Liability, according to NJAJ, is predicated on

action in this case, not inaction.     NJAJ contends that the

inspection immunity provision of the TCA -- 
N.J.S.A. 59:3-7 --

does not apply because it was not Bierals’ inspection that

caused the fire.

       NJAJ also argues that this Court should recognize “special

circumstances” and, even if we decide absolute immunity applies,

hold the City and Bierals liable.     The actions in this case,

according to amicus, rise to the level of egregious misconduct

and should be subject to liability.



                                 17
                                III.

    Courts may reconsider final judgments or orders within

twenty days of entry.   R. 4:49-2.     “A motion for reconsideration

. . . is a matter left to the trial court’s sound discretion.”

Guido v. Duane Morris LLP, 
202 N.J. 79, 87 (2010) (citation and

internal quotation marks omitted).     Here, the trial court

expressed doubt regarding its initial ruling and determined in

the exercise of its discretion, on reviewing the facts before

it, that reconsideration of the grant of summary judgment was

warranted.   We base our decision on the denial of summary

judgment, not the decision to grant reconsideration.

    Summary judgment is appropriate “when no genuine issue of

material fact is at issue and the moving party is entitled to a

judgment as a matter of law.”   Steinberg v. Sahara Sam’s Oasis,

LLC, 
226 N.J. 344, 366 (2016) (citing R. 4:46-2(c)).      We review

appeals from determinations of summary judgment by employing the

same standards governing the trial court.      Id. at 349-50; Globe

Motor Co. v. Igdalev, 
225 N.J. 469, 479 (2016).      Because the

dispute here involves the application of the TCA to the facts of

this case, we review the determination de novo.      See State v.

Nantambu, 
221 N.J. 390, 404 (2015).      That is, we give “deference

to the supported factual findings of the trial court, but” not

to its “application of legal principles to such factual




                                18
findings.”   Ibid. (quoting State v. Brown, 
216 N.J. 508, 545

(2014)).

    The TCA effectuates the Legislature’s intent to establish

immunity for government action as the rule and liability as the

exception.   See 
N.J.S.A. 59:1-2 (“[I]t is hereby declared to be

the public policy of this State that public entities shall only

be liable for their negligence within the limitations of this

act and in accordance with the fair and uniform principles

established herein.”).   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.    See ibid.   (“The Legislature

recognizes the inherently unfair and inequitable results which

occur in the strict application of the traditional doctrine of

sovereign immunity.   On the other hand, the Legislature

recognizes that while a private entrepreneur may readily be held

liable for negligence within the chosen ambit of his activity,

the area within which government has the power to act for the

public good is almost without limit and therefore government

should not have the duty to do everything that might be done.”).

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

                                19
of the harm.”   Bombace, 
125 N.J. at 372.   Therefore,

“application of the absolute immunity under the [TCA] 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 373.

       The TCA grants absolute immunity from liability to public

entities and their employees for injuries resulting from a

failure to enforce the law.    Bombace, 
125 N.J. at 366.   
N.J.S.A.

59:3-5 provides:    “A public employee is not liable for an injury

caused by his adoption of or failure to adopt any law or by his

failure to enforce any law.”    In contrast, public employees are

entitled only to qualified immunity when they are enforcing the

law.    
N.J.S.A. 59:3-3 (“A public employee is not liable if he

acts in good faith in the execution or enforcement of any

law.”).    The TCA also insulates public entities and employees

from liability for injuries due to a failure to inspect, or a

negligent or inadequate inspection.    
N.J.S.A. 59:2-6, 59:3-7.

       In Bombace, we determined that a “failure to enforce a law”

under the absolute immunity provision means non-action or the

failure to act, whereas the qualified immunity provision applies

to actions “constituting enforcement of the law.”    
125 N.J. at
 367-68.    We held that “if 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

                                 20
antecedent or surrounding conduct might constitute acts or

action that would otherwise be subject to the qualified

immunity.”   Id. at 370.

    Much like the case before us, the City of Newark inspector

in Bombace accurately discovered the code violation (an

inoperative smoke detector), issued a violation notice, and sent

a report to the fire inspector.    Id. at 364.     However, those

acts were not the basis for liability; that is, they were not

the critical causative conduct.    The triggering event was the

dismissal of the complaint, which ceased any enforcement action.

“[S]uch conduct in a sequence of events will not convert a

subsequent non-action or failure to act into affirmative acts

governed by the good-faith immunity of [N.J.S.A. 59:3-3].”       Id.

at 371.   Absolute immunity under the TCA “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 373.    “[N]on-action or failure

to enforce the law . . . falls within the absolute immunity of

section 3-5 [of the TCA].”    Id. at 374.

    The gravamen of plaintiffs’ complaints against the City and

Bierals is that the fire was caused by Bierals’ ineffective

enforcement of the construction code.      Because the issuance of

violation notices and remediation orders are “acts constituting

enforcement of the law,” id. at 368, according to plaintiffs,

                                  21
the municipal defendants are entitled only to qualified

immunity.

    We disagree.      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 fire is alleged to

have been caused by the faulty wiring on the electrical panels.

It was not the result of any corrective action taken by Bierals.

Like the cessation of court proceedings in Bombace, Bierals’

omission, not any action taken by him, allowed the problem to

linger.     Under our interpretation of the TCA in Bombace,

Bierals’ prior conduct of inspecting and issuing notices of

violation is not sufficient to subject him to liability.      The

failure to enforce the law is absolutely immune from liability

under 
N.J.S.A. 59:3-5.     Further, as in Bombace, the victims of

the tragic fire here “would at least have a principal wrongdoer

from whom to seek redress.”    Id. at 372.   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.

    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.

                                 IV.



                                  22
    We conclude that defendants Bierals and the City are

entitled to summary judgment.   Accordingly, we reverse the

judgment of the Appellate Division and remand to resolve the

remaining issues in this consolidated case.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and
PATTERSON join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICES
SOLOMON and TIMPONE did not participate.




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