Stephen Orlofsky of Blank Rome – Photo by Carmen Natale/ALM

For Stephen Orlofksy, the call to come into a case on a motion for leave to appeal to the New Jersey Supreme Court isn't an uncommon one. But in representing the City of Paterson in Lee v. Brown, he recognized the importance in addressing what he called “a horrible precedent for municipalities in this state.”

“I said, 'look, there are no guarantees,'” Orlofsky, a well-known litigator in New Jersey and former federal judge, recalled telling the client. “When they [the Supreme Court] took it, I knew I had a shot.”

Below, a trial court and the Appellate Division had ruled that the city's fire inspector should be awarded qualified immunity only, which meant the city could have been held at least partially liable in lawsuits filed over a June 30, 2010, apartment building fire that killed four people and injured numerous others. The plaintiffs claimed that the city fire inspector discovered numerous wiring issues at the building but failed to properly prosecute its owner. The high court granted a motion for leave to appeal.

Coming into a case late is “an anxiety-producing situation, because you're playing catch-up,” Orlofsky said—with a lot of material to review, complex issues to address, and limited time to accomplish all of that.

The case would turn on an interpretation of the state Supreme Court's 1991 ruling in Bombace v. Newark, which held: “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.”

The Bombace case draws a distinction between a “non-action” and an action leading to an event, Orlofsky noted. Whereas the City of Newark in Bombace had taken the action of withdrawing its complaint charging a building owner with a fire code violation, Paterson had not prosecuted following the inspection at issue in the Lee case. The city did threaten Brown with fines and directed her to hire an electrician to fix the wiring problems, which she didn't do, according to the suit.

The September 2017 argument was a “pretty spirited argument” in the case, which involved seven plaintiffs attorneys and one amicus, the New Jersey Association for Justice, opposing the city, Orlofsky said.

“The court immediately seized on the fact that this case turned on Bombace,” Orlofsky recalled. “Sometimes you can't tell anything, but I could tell they were following our argument.”

The court, led by Justice Faustino Fernandez-Vina, reversed in a February 2018 ruling. The Tort Claims Act “grants absolute immunity from liability to public entities and their employees for injuries resulting from a failure to enforce the law,” Fernandez-Vina wrote.

“The critical causative conduct in this case was [the] failure to contact [superiors] and secure an emergency power shut-off or to seek relief in court, not any affirmative action to enforce the law,” he said, adding that the “prior conduct of inspecting and issuing notices of violation is not sufficient to subject [the inspector] to liability.”

“If they had affirmed this … the city would've had to defend on the basis that they acted in good faith, and that would be a jury question,” Orlofsky said, contending that “endless” litigation would ensue if government entities could be held civilly liable for failure to enforce laws. One hypothetical suit he presented could be based on a police department's failure to issue a speeding citation to a driver who ultimately causes a crash.

Asked if the Lee case was particularly weighty given the consequences for New Jersey taxpayers, Orlofsky responded, “All my clients' cases weigh on me.” He did note that he also represented Jersey City in Wilson v. Jersey City, which in 2012 led to a Supreme Court ruling that two 9-1-1 operators were statutorily immune from negligence claims for mishandling calls about a fatal stabbing.

Orlofsky estimated going before the New Jersey Supreme Court seven or eight times since retiring from the bench. Orlofsky served in the U.S. Army from 1966 to 1970 and, after attending law school, was a U.S. magistrate judge in New Jersey from 1976 to 1980. Later he was nominated as a district judge by President Bill Clinton and sworn-in in late 1995. In between, Orlofsky was an associate, then partner, at Blank Rome in New Jersey. He returned to Blank Rome after his 2003 retirement from the bench.

It's not lost on Orlofsky that the Lee ruling has a tangible effect on the plaintiffs, but, he said, the consequences would have been far broader if the court decided differently.

“It's tragic that they [the plaintiffs] don't have a deep pocket to recover from. But at the same time, if [the court] had gone the other way, it would've been a horrible precedent for municipalities in this state,” he said.