A fire chief whose department is fighting a blaze has sole authority to determine whether a structure must be demolished to protect lives and other property, a New Jersey appeals court ruled on Tuesday.
The three-judge panel said a statute and an administrative regulation that requires building code officials to give property owners 24 hours’ notice of a pending demolition does not apply to a fire chief who is acting in his professional responsibility.
The Appellate Division upheld a decision by Cumberland County Judge David Morgan to grant summary judgment in favor of the city of Bridgeton, its fire chief and other officials, along with a private demolition contractor, who had been sued by a property owner whose building caught on fire and who was not given 24 hours’ notice before the chief ordered walls to be knocked down.
The panel said the relevant statute, N.J.S.A. 40A:14-54.1, unambiguously gives the fire chief, while on the scene of a fire, the ability to determine if a building needs to be partially or wholly demolished in order to quell the fire.
“The purpose of this law is to give a fire chief ‘sole authority’ to direct ongoing fire operations to protect the lives and property endangered by a fire until he or she declares the fire to be out,” the court said in Crystal Ice-Bridgeton v. Bridgeton, A-1687-11 66. He acted in ‘good faith’ in conducting firefighting operations and in ordering the destruction of the property to reveal any possibly hidden fires.”
The case stems from a December 2008 fire at the Crystal Ice-Bridgeton LLC facility in Bridgeton, a 17,000-square-foot building constructed of timber, brick and steel. When Chief David Schoch and other firefighters arrived at the scene at about 1:30 a.m., fire engulfed about 65 percent of the building.
Several hours in, Schoch, in consultation with the city’s construction and zoning official, Robert Mixner, determined that two of the buildng’s walls had to be demolished so firefighters could reach certain pockets of fire. They called in a contractor, David Gates Excavating, to take down the walls.
It took almost another five hours before Schoch could declare the fire to be out.
Afterwards, Crystal Ice-Bridgeton LLC filed a lawsuit against the city, Schoch, Mixner and Gates Excavating, alleging that the company should be compensated because N.J.A.C. 5:23-2.32(b)(2) and N.J.S.A. 40:48-2.5(f)(2) require construction officials to give building owners 24 hours’ notice if a building is to be demolished if it is in danger of collapsing.
Morgan said that statute and regulation did not apply because it was the fire chief, acting in his professional responsibility, who gave the demolition order and that it was in his discretion to do so. Morgan ruled the city and its officials were covered by the Tort Claims Act. Gates Excavating was covered by the TCA as well because of derivative immunity, he said.
Judges Douglas Fasciale, Anthony Parrillo and Jack Sabatino agreed in a published opinion.
“We are not dealing with a situation where a construction official decided independently, without the involvement of a fire chief, to demolish a fire-damaged building,” Fasciale wrote. “In such a situation, the requirements in [the statute and regulation cited by the plaintiff] potentially would be applicable.”
The panel dismissed as irrelevant suggestions that Mixner and not Schoch gave Gates Excavating the order to begin. Fasciale said the decision ultimately rested with Schoch, and that’s all that mattered.
“It is legally inconsequential who communicated the decision,” Fasciale said. “The chief acted pursuant to statutory authority … which provided him with the sole authority to combat the fire.”
Mullica Hill solo Jeffrey Dilazzero represented Crystal Ice while Tracy Bussel, of Clinton’s Gebhardt & Kiefer, represented the city and John Jacob Van Dyken, of the Cherry Hill office of Mintzer Sarowitz Zeris Ledva & Meyers, represented Gates Excavating. None returned telephone calls seeking comment.