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Fama v. Bay-Pointe Engineering Associates, Inc.

A-0713-02T5 (N.J. Super. App. Div. 2003) (Unpublished)

LANDOWNER’S LIABILITY; MUNICIPALITIES; IMMUNITY—A township engineer, whether an individual or an entity, can be a public employee for the purposes of being immune from certain lawsuits, even if working only part time and working for many other municipalities.

Owners of four, single-family homes sued their developer, their architect, and the municipality’s engineer for damages caused to their homes due to sub-surface water. The homes were constructed on foundations with full basements instead of with crawl spaces, in an area with a high water table. As a result, their basements flooded every spring. The owners claimed that the engineer and his firm negligently inspected their homes. The municipality’s engineer moved for summary judgment based on the New Jersey Tort Claims Act. He claimed that he and his engineering firm were appointed as Township Engineer, and, as such were public employees immune from tort liability for their actions or inactions. In response, the owners claimed that the engineer and his firm were not public employees, but independent contractors who could not avail themselves of the shield from liability afforded public employees under the Tort Claims Act. Their argument was that the engineer was not a public employee because he was the municipal engineer for other municipalities as well. Further, even if the engineer was a public employee, his firm was not. The lower court found for the engineer and his firm, rejecting both arguments. It found that a public employee may work part time and be immunized from liability under the Tort Claims Act. It also found that corporations can be public employees, so the engineer’s firm was also immunized. The lower court took note that the engineer’s contract with the municipality contained hourly rates for various categories of the engineering firm’s employees. It reasoned that the municipality obviously intended for the entire engineering firm to be a public employee. Lastly, the owners claimed that they were third party beneficiaries of the contract between the engineering firm and the municipality and therefore entitled to damages for breach of that contract. The lower court rejected that claim, finding that the blanket tort immunity granted a public employee under the Tort Claims Act cannot be subverted by calling it a contract claim as opposed to a tort claim. The Appellate Division affirmed.


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