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Ayers v. Township of Jackson

Decided: April 5, 1983.

ROBERT AYERS AND MAE AYERS ET ALS., PLAINTIFFS,
v.
TOWNSHIP OF JACKSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ET ALS., DEFENDANTS



Havey, J.s.c.

Havey

Defendant Township of Jackson and its township engineer, defendant John A. Ernst, III, move for partial summary judgment against plaintiffs, dismissing various plaintiffs' claims for bodily injury in this action involving claims of groundwater pollution allegedly caused by the operation of a municipal landfill.

Plaintiffs are 325 residents of the Legler section of Jackson Township, Ocean County, who allege that toxic wastes leached through the municipal landfill owned and operated by defendant

township and contaminated plaintiffs' well water. The residents allege that this contamination caused them to suffer bodily injury, emotional distress, impairment of quality of life and enhancement of risk of cancer. They also claim that the contamination resulted in property damage and property value loss to their homes. They allege that exposure to known carcinogens ingested by them over a long period of time will require substantial medical surveillance in the future, and they assert that the contamination of their well water and its ingestion constitutes a violation of their civil rights and a taking of property without due process or just compensation, cognizable under the Civil Rights Act, 42 U.S.C.A. § 1983.

Plaintiffs' complaint is couched in negligence, trespass, nuisance, battery and strict liability in tort. They allege that in 1972 defendant township negligently selected the site in question as a municipal landfill, failed to make adequate test borings to determine soil conditions, and provided erroneous data to the Department of Environmental Protection in applying for a permit to operate the landfill. They allege that defendant Ernst, as township engineer, was responsible for the selection of the site and the application process, and was negligent in carrying out his duties. The complaint states that, commencing in 1972 when the township began operating the landfill, the township violated state standards and exceeded the conditions of its permit in accepting excess liquid waste and permitted dumping into trenches dug too deep. This resulted in ponding and the dumping of waste directly into the groundwater. Plaintiffs also assert that defendant township failed to properly maintain and supervise the landfill, resulting in the depositing of chemical wastes at the site. It is claimed that on various occasions from 1972 to 1978 defendant had actual knowledge of contamination of the groundwater beneath the landfill, but took no steps to abate the condition. Finally, it is claimed that in November 1978, after complaints by residents about changes in their drinking water and of foul odor emanating from the landfill, the State of New Jersey advised the residents to stop drinking their

well water. The State thereafter initiated an action in the Superior Court, Chancery Division, Ocean County, to compel closure of the landfill, which resulted in the installation of a public water supply for the Legler residents and a closure plan presently being implemented.

Defendants move for partial summary judgment dismissing plaintiffs' claims for emotional distress, enhanced risk, cost of medical surveillance in the future and any claim for civil rights violation under 42 U.S.C.A. § 1983. They argue that, from the pleadings and discovery, no genuine issue as to a material fact exists and that none of the claims are cognizable under either State or federal law. R. 4:46-1. The court will accept as true all of the allegations contained in plaintiffs' pleadings and discovery and the medical reports submitted, and will draw all reasonable inferences most favorable to plaintiffs. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954).

Enhanced Risk

Plaintiffs allege that they suffer from a present condition of enhanced risk of cancer as well as liver and kidney disease. Their experts will testify as to the presence of approximately three dozen chemicals in the groundwater, including benzene, acetone, chloroform and choloheizene. These substances are known carcinogens or cause liver and kidney injury. Experts will give a toxological profile of each chemical and will make an assessment of the exposure to these chemicals by various age groups, and will give opinions as to the risk enhancement to each of these age groups. Generally, they will testify that all individuals exposed to the well water contamination are at an increased risk of developing cancer and liver and kidney damage. Their risk will vary according to dose, duration and exposure and inherent susceptibility, with children and infants having the highest risk. The experts concede, however, that a quantitative measure of excess cancer, liver and kidney risk cannot be derived. Nowhere do the experts say that, to a degree of reasonable medical probability, any or all of the

plaintiffs will suffer from any of these diseases in the future. Plaintiffs argue, however, that medical testimony will establish that plaintiffs' chances of suffering from one of these diseases has been increased as a result of ingestion of these chemicals and that this enhanced risk is a presently existing condition which is a compensable injury.

In order to recover for the alleged negligence of another, plaintiff must plead and prove actual loss or damage. Prosser, Law of Torts, (4 ed. 1971), § 30 at 143. The damage or harm need not be immediate. A plaintiff may recover damages for the prospective consequence of a tortious injury if the "prospective consequence may, in reasonable probability, be expected to flow from the past harm. . . ." Coll v. Sherry, 29 N.J. 166, 175 (1959). Conversely, no recovery can be allowed for possible future consequences of tortious conduct. Budden v. Goldstein, 43 N.J. Super. 340, 346 (App.Div.1957). "Reasonable probability" has been held to require ". . . evidence in quality sufficient to generate a belief that the tendered hypothesis is in all human likelihood the fact." Ciuba v. Irvington Varnish & Insulator Co., 27 N.J. 127, 139 (1958). Plaintiffs characterize the increase in the risk of suffering a disease as reasonably probable and, therefore, compensable. But that risk cannot be quantified nor do any of the plaintiffs' experts even attempt to advance an opinion that any of the 325 plaintiffs have or will probably contract any of the diseases. The trier of fact is left to speculate as to the possible consequences of ingestion of the alleged carcinogens and other chemicals to the future health of each plaintiff. Plaintiffs rely upon Schwegel v. Goldberg, 209 Pa.Super. 280, 228 A.2d 405 (Super.Ct.1967), where enhanced risk of epilepsy was held to be compensable, as well as Lindsay v. Appleby, 91 Ill.App. 3d 705, 46 Ill.Dec. 832, 836, 414 N.E. 2d 885, 891 (App.Ct.1980), where the court held that an "increase in the risk of injury traceable to the conduct of a defendant is compensable. . . ." Both cases involved severe head injuries with possible epilepsy or seizures in the future. The court in Schwegel allowed a claim for a 5% future chance of seizure.

Plaintiffs' claims for enhancement in the risk of contracting cancer is not caused by a severe trauma or bodily injury, nor can a percentage increase be established. No case can be found in our State that would allow a plaintiff to recover for such speculative future consequences of a tortious act.

To permit recovery for possible risk of injury or sickness raises the spectre of potential claims arising out of tortious conduct increasing in boundless proportion. Without minimizing plaintiffs' claim, the court cannot ignore the fact that much of what we do and make part of our daily diet exposes us to potential, albeit remote, harm. As long as the risk exposure remains within the realm of speculation, it cannot be the basis of a claim of injury against the creator of that harm.

To hold that enhancement of risk is not actionable does not leave plaintiffs without a remedy, if in the future any plaintiff suffers from a physical condition which can medically be attributed to ingestion of the alleged contaminants. Our "discovery" rule provides that the statute of limitations applicable to a personal injury claim will not begin to run until a plaintiff becomes aware that he has sustained injury or until he becomes aware that his damage was caused by the fault of another. Lopez v. Swyer, 62 N.J. 267 (1973); Lynch v. Rubacky, 85 N.J. 65 (1982). If and when a plaintiff manifests a physical condition which could be medically attributed to the ingestion of the alleged contaminants, his cause of action will have survived the statute of limitations, N.J.S.A. 2A:14-2.

Cancerphobia

Plaintiffs seek to recover for the emotional distress suffered by them as a result of being exposed to cancer-causing chemicals in their water. Scientific reports are submitted by plaintiffs to support claims ranging from mild depression to severe conditions of psychosis, all arising out of fear of cancer. Many families have reported stress, ...


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