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Kenney v. Scientific Inc.

April 3, 1985

JOHN J. KENNEY AND MARY C. KENNEY, HIS WIFE, ET ALS., PLAINTIFFS,
v.
SCIENTIFIC, INC., ET ALS., DEFENDANTS



Joelson, J.s.c. (retired and temporarily assigned on recall).

Joelson

[204 NJSuper Page 235] The 95 plaintiffs reside in the vicinity of landfills located in the Township of Edison. One of these landfills, Kin-Buc, is privately owned and operated. Plaintiffs allege that another landfill adjoining Kin-Buc is owned and operated by the Township of Edison. Further alleging that the operation or maintenance of the landfills caused them to suffer various physical and emotional disabilities and also property damage, they have brought action against the owners and operators of the landfills as well as against approximately 625 enterprises (hereinafter "generators") which allegedly generated waste which was hauled to the Kin-Buc landfill, and against approximately 25 companies (hereinafter "haulers") which transported the waste. For reasons which will be developed hereinafter, the complaint joined as defendants the State of New Jersey through the

Department of Environmental Protection and Department of Transportation, and have also joined the County of Middlesex. The Township of Old Bridge and the Borough of Wallington have also been joined as generators.

The complaint, which is sprawling and general, does not appear to allege specifically that any of the generators sent waste to the landfill of the Township of Edison. As a matter of fact, in opposition to several individual generators' earlier motions for summary judgment based upon the assertion that they were erroneously joined as defendants, counsel for plaintiffs certified that the names of the generators were learned from the records of the U.S. Environmental Protection Agency and the New Jersey Department of Environmental Protection regarding the Kin-Buc landfill. However, as far as concerns the landfill of the Township of Edison, the complaint does specifically allege that the Township of Edison owned or operated its landfill near Kin-Buc, "thus further saturating the earth and causing additional percolation and/or complicating the hydrogeological conditions of the general area."

This opinion will deal with various motions for summary judgment made by (1) the State; (2) the Township of Edison; (3) the generators, including the Township of Old Bridge and the Borough of Wallington, which the court considers to be in the nature of a generator, and (4) the haulers.*fn3

THE STATE OF NEW JERSEY

Tort claims against public entities are governed by the Tort Claims Act, N.J.S.A. 59:1-1 et seq. Insofar as plaintiffs seek to hold the State liable for the licensing or failure to revoke the license of a landfill or for the licensing of a hauler, they run afoul of N.J.S.A. 59:2-5 which follows:

A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend

or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or public employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked.

The immunity which is granted by N.J.S.A. 59:2-5 "is pervasive and applies to all phases of the licensing function, whether the governmental acts be classified as discretionary or ministerial." Malloy v. State, 76 N.J. 515, 520 (1978).

The comment to N.J.S.A. 59:2-5 is significant. It states:

This immunity is necessitated by the almost unlimited exposure to which public entities would otherwise be subjected if they were liable for the numerous occasions on which they issue, deny, suspend or revoke permits and licenses. In addition, most actions of this type by a public entity can be challenged through an existing administrative or judicial review process. [Citations omitted]

Furthermore, insofar as plaintiffs seek to hold the State liable for improperly or inadequately inspecting a landfill, they are barred by N.J.S.A. 59:2-6 which follows:

A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property; provided, however, that nothing in this section shall exonerate a public entity from liability for negligence during the course of, but outside the scope of, any inspection conducted by it, nor shall this section exonerate a public entity from liability for failure to protect against a dangerous condition as provided in chapter 4 [ N.J.S.A. 59:4-1 to -9]

The comment to N.J.S.A. 59:2-6 is also important. It states:

This immunity is essential in light of the potential and existing inspection activities engaged in by public entities for the benefit of the public generally. These activities are to be encouraged rather than discouraged by the imposition of civil tort liability. The inclusion of the reference to Chapter 4 [ N.J.S.A. 59:4-1 et seq. ] is intended to indicate that this immunity shall not apply when dangerous conditions of public property are involved. In those cases Chapter 4 of this act provides the controlling principles of liability.

Additionally, if it is plaintiffs' contention that the State failed to regulate or supervise a landfill as required by law, their claim is barred by N.J.S.A. 59:2-4 which provides:

A public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.

Plaintiffs do not rely on any theory of strict liability against the State. Indeed, N.J.S.A. 59:9-2b specifically bars

any judgment against a public entity based upon strict liability. However, in the brief submitted on their behalf, plaintiffs rely on N.J.S.A. 59:4-2 which deals with the liability of a public entity "for injury caused by a condition of its property." Noting that the final paragraph in N.J.S.A. 59:4-2 provides that a public entity shall not be liable "for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable," they contend that summary judgment should be precluded in order to afford them the opportunity to prove "palpably unreasonable" conduct on the part of the public entities. The court considers plaintiffs' reliance on N.J.S.A. 59:4-2 to be misplaced because the case before the court does not deal with a condition of public property of the State of New Jersey. The Kin-Buc landfill is privately owned and operated, and the adjacent landfill is owned and operated by the Township of Edison, the liability of which will be considered hereinafter. Plaintiffs rely on N.J.S.A. 59:4-1c which defines public property as "real or personal property owned or controlled by the public entity." They argue that since the landfills were subject to extensive and pervasive regulation by the State, they were "controlled" by the State within the meaning of N.J.S.A. 59:4-1c. However, government regulation does not convert private property into public property, nor convert municipal property into State property. In Bosch v. Hain, 184 N.J. Super. 204 (Law Div. 1982), which is relied upon in plaintiffs' brief, the court did discuss the possibility that extensive regulatory control of private property might result in the property being regarded as public within the intendment of N.J.S.A. 59:4-2. However, plaintiffs overlook the fact that in Bosch, the court found it "unnecessary for the court to resolve this difficult question." Id. at 210.

However, in an earlier case, Danow v. Penn Central Transportation Co., 153 N.J. Super. 597 (Law Div. 1977), which was not referred to in Bosch, a court ruled definitively as follows:

The word "controlled" in N.J.S.A. 59:4-1(c) should not be construed as extending beyond possessory control. The broad construction urged by plaintiff would enlarge governmental tort liability, without authority in decisional law or legislative history. [Id. at 603]

The logic of the Danow decision is buttressed by the fact that to extend N.J.S.A. 59:4-2 to property not in the possessory control of the State would be to expose the State to enormous liability. One has only to consider the pervasive State control in the areas of, for instance, the casino and liquor industries to realize the undesirability of adopting the theory urged upon the court by plaintiffs.

Plaintiffs' brief also relies on N.J.S.A. 59:2-3d as raising a question of fact as to whether the State acted in a manner that was "palpably unreasonable." Here again this court finds plaintiffs' reliance misplaced. Although it is true that the words "palpably unreasonable" are present in N.J.S.A. 59:2-3d, it must be remembered that N.J.S.A. 59:2-3d deals with discretionary activities as to the utilization of equipment and personnel. Therefore, that section deals with a far different function that that which is afforded immunity under N.J.S.A. 59:2-4, -5, and -6 quoted above.

The court will now turn to plaintiffs' contention in their brief that "[a] public entity can be held liable for the creation of a nuisance." In this respect, plaintiffs depend upon Birchwood Lakes Colony Club v. Medford Lakes, 90 N.J. 582 (1982). In that case, the Court was dealing with "a sewage treatment plant owned and operated by the borough." Id. at 587. As has already been pointed out, the State did not own either of the landfills here. Furthermore, the Court held in Birchwood that an action in nuisance against a public entity is "under and subject to the standards of the Tort Claims Act." Id. at 596.

According to the comment following N.J.S.A. 59:2-1, the Tort Claims Act "is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions." Thus, it has been stated that "[i]mmunity is the dominant consideration of the act." Birchwood Lakes

Colony Club v. Medford Lakes, supra, 90 N.J. at 596. The underlying purpose of the legislation was to "re-establish immunity for all governmental bodies within its definition of 'public entity.'" Burg v. State, 147 N.J. Super. 316, 320 (App.Div.1977); English v. Newark Housing Authority, 138 N.J. Super. 425, 428-429 (App.Div.1976). Under the Tort Claims Act, immunity rather than liability is the general rule. Ritchie v. Cahall, 386 F. Supp. 1207 (D.N.J.1974).

The State has also raised a procedural issue with regard to N.J.S.A. 59:8-8, which requires that a claimant file a notice of claim within 90 days of the accrual of the cause of action. The resolution of this issue would depend upon whether the so-called "discovery rule" applicable for purposes of the statute of limitations is also to be applied for the purpose of determining the timeliness of notice under N.J.S.A. 59:8-8. Since this court has already found that there can be no liability on the part of the State, it will not deal at this time with the issue of the adequacy of notice. Later in this opinion, the point will be discussed concerning the Township of Edison.

The twelfth count of the complaint charges that "the plaintiffs' use and enjoyment of their property(s) [ sic ] and value of same was so significantly diminished as to constitute an inverse condemnation." If it is plaintiffs' purpose here to assert that there was inverse condemnation on the part of the State, such claim is without merit. In the case now under consideration, there was no activity in the nature of a taking or an attempt to take on the part of the State of New Jersey. Some kind of action on the part of an entity cloaked with the authority to condemn is a prerequisite for invoking the doctrine of inverse condemnation. See Washington Market Enterprises v. Trenton, 68 N.J. 107 (1975); Morris County Land, etc. v. Parsippany-Troy Hills Tp., 40 N.J. 539 (1963).

Similarly, plaintiffs' claim against the State for a violation of 42 U.S.C.A. § 1983 must fail. The landfill in this case was not a State operation. Furthermore, it has been held that

even where the operation of a municipally owned and operated landfill resulted in the leaching of toxic wastes so as to cause physical injury and property damage to neighbors, a violation of the civil rights protections afforded by 42 U.S.C.A. § 1983 did not occur. Ayers v. Jackson Tp., 189 N.J. Super. 561 (Law Div. 1983).

In view of all the foregoing, the motion for summary judgment made by the State of New Jersey will be granted.

THE TOWNSHIP OF EDISON

Plaintiffs' case against the Township of Edison is two-pronged. The first aspect of their case is essentially similar to their action against the State of New Jersey in that it complains about the township's permitting the Kin-Buc landfill to operate, and about the manner in which the activities of Kin-Buc were monitored by the township. For the reasons already expressed in the discussion of the motion for summary judgment of the State, partial summary judgment will be granted in favor of the Township of Edison as to its permitting the Kin-Buc landfill to operate and as to the monitoring of the Kin-Buc landfill.

However, the second aspect of plaintiffs' cause of action against the township is different from their cause against the State inasmuch as the second aspect concerns the alleged ownership and operation of a landfill by the township itself. There is a regrettable lack of affidavits and certifications, but at oral argument counsel for the Township of Edison virtually conceded that a landfill adjacent to the privately owned and operated Kin-Buc landfill is owned and operated by the township. Should discovery indicate that such concession was not warranted, the township may renew its application for total summary judgment. However, this opinion will proceed on the assumption that the Township of Edison does in fact own and operate a landfill.

Even with the benefit of the assumption that a landfill adjoining the Kin-Buc landfill is owned and operated by the

township, plaintiffs cannot be entitled to the benefit of the doctrine of strict liability. N.J.S.A. 59:9-2b, to which reference has been made above, provides:

No judgment shall be granted against a public entity or public employee on the basis of strict liability, implied warranty or products liability.

Later in this opinion, in dealing with the subject of absolute liability regarding the generators, the court will fully consider the doctrine of absolute liability with regard to toxic wastes. In doing so, reference will be made to N.J.S.A. 13:1E-62 which has been raised by the generators in another context. Plaintiffs have not referred to that section. It provides that every owner or operator of a major hazardous waste facility shall be "strictly liable, without regard to fault" for all damages resulting from the operations of the facility. However, the court is satisfied that N.J.S.A. 13:1E-62 in its imposition of strict liability does not encompass public entities. The section is part of the Major Hazardous Waste Facilities Siting Act, N.J.S.A. 13:1E-49 et seq. The legislative finding and declarations, which are contained in N.J.S.A. 13:1E-50, conclude with the statement that "major hazardous waste facilities should be privately operated and subject to strict governmental regulation." Furthermore, in N.J.S.A. 13:1E-51, a hazardous waste facility is defined as "any commercial hazardous waste facility which has a total capacity to treat, store or dispose of more than 250,000 gallons of hazardous waste, or the equivalent thereof." The record does not disclose the capacity of the Edison landfill, but the court does not consider that landfill to be a commercial facility despite the ensuing statement in the definition that a commercial hazardous waste facility means any hazardous waste facility "which accepts hazardous waste from more than one generator." The prime consideration there appears to be to exempt a private facility which does not accept waste from more than one generator, rather than to include public entities. The section of the Tort Claims Act, N.J.S.A. 59:9-2b, which firmly precludes a judgment for strict liability, remains in the statutes. Repeal by implication is a disfavored

doctrine. Brewer v. Porch, 53 N.J. 167, 173 (1969); Loboda v. Clark Tp., 40 N.J. 424, 435 (1963); Swede v. City of ...


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