On appeal from Superior Court, Law Division, Ocean County.
Antell, J. H. Coleman and Simpson. The opinion of the court was delivered by Antell, P.J.A.D.
Between the years 1972 and 1978, unknown to the Legler area residents of Jackson Township, their well water was being contaminated by toxic pollutants leaching into the Cohansey Aquifer from a landfill operated by their municipality, defendant Jackson Township (hereinafter "defendant"). On December 20, 1978 a health emergency was declared and the Department of Environmental Protection ordered defendant to instruct Legler area residents to discontinue the use of well water entirely. From then until July 1980 water for household use was provided by various improvisations. At first, the residents carried their water from tankers placed in various locations within the Legler area. Later, township employees delivered to the residents plastic-lined water containers. Finally, the residents received containers with spigots; these were filled periodically with water pumped through a hose from a water truck. By July 1980 defendant constructed a public water supply system for the Legler residents, with residents paying a $610 hookup fee, plus other expenses, and normal water service was resumed.
This appeal is taken by defendant from a judgment entered in favor of 339 residents of the Legler area who claim to have been harmed by defendant's negligent operation of its landfill. In answer to special interrogatories the jury found that defendant had created a nuisance in the operation of its landfill between 1972 and 1978, that its negligence was palpably unreasonable and that it had been the proximate cause of harm to plaintiffs. An aggregate judgment in the amount of $15,892,303.97 was entered, to be distributed among the plaintiffs in specified amounts. The award was predicated on the recognition of three major damage theories. The first was to compensate
plaintiffs for their emotional distress upon learning that they had been ingesting contaminated water for six years. For this the jury awarded $2,084,392. The second component was for the impact upon the quality of their lives during the twenty months when they were deprived of running water. This award was for $5,400,880. Finally, an award was made for $8,213,000 to meet the cost of medical surveillance to guard against plaintiffs' increased risk of developing cancer, liver or kidney disease produced by their exposure to contaminants. The balance of the judgment award was for relatively minor miscellaneous expenses with which we are not here concerned. The jury awarded nothing for diminution in the value of plaintiffs' property.
On this appeal defendant challenges the awards for emotional distress and quality of life. It asserts that these actually constitute compensation for pain and suffering which, under the circumstances of this case, are not allowable elements of recovery under the New Jersey Tort Claims Act, N.J.S.A. 59:9-2(d). Defendant further maintains that the award for medical surveillance is not supported by the evidence and, further, constitutes a novel form of relief which should be discouraged in light of policy considerations underlying the Tort Claims Act.
Also assailed as error are rulings as to the admission of evidence, the qualifications of expert witnesses, comments of counsel in summation, the amount of the awards and an alleged determination by the trial court concerning the future rights of plaintiffs.
On their cross-appeal, plaintiffs argue that the trial court erred in allowing a pro tanto reduction of the judgment by the amount of an $850,000 settlement with a codefendant, in dismissing before trial plaintiffs' claims for relief under the Civil Rights Act of 1871, 42 U.S.C.A. § 1983, and in refusing to allow recovery of damages for plaintiffs' enhanced risk of disease.
Our inquiry begins with well established principles under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. "The basic approach of the Act is to reestablish sovereign immunity against tort claims except where there is a statutory declaration of liability. See Malloy v. State, 76 N.J. 515, 518-519 (1978)." Bell v. Bell, 83 N.J. 417, 423 (1980). The provisions of the Act defining the limits of governmental liability and immunity are contained in N.J.S.A. 59:2-1 through 2-10. New Jersey case law has consistently acknowledged the goals of the Act as insulating government from tort liability and discouraging unique claims.
As we said of these enactments in English v. Newark Housing Auth., 138 N.J. Super. 425, 428-429 (App.Div.1976), "the basic legislative premise is to re-establish immunity for all governmental bodies within its definition of 'public entity.' Immunity is all-inclusive within that definition except as otherwise provided by the act." In the comment accompanying N.J.S.A. 59:2-1 the thought is expressed that under this enactment the judicial approach should be " whether an immunity applies and if not, should liability attach " (emphasis in original). This was said to mark a departure from that taken by our Supreme Court in B.W. King, Inc. v. West New York, 49 N.J. 318, 325 (1967), "asking whether there is any reason why it [immunity] should apply." It was hopefully contemplated that "in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities." The comment closes with the following paragraph: Subsection (b) is intended to insure that any immunity provisions provided in the act or by common law will prevail over the liability provisions. It is anticipated that the Courts will realistically interpret both the statutory and common law immunities in order to effectuate their intended scope.
Fair v. Bergen Cty., 151 N.J. Super. 520, 522-523 (App.Div.1977). See also Cobb v. Waddington, 154 N.J. Super. 11, 16 (App.Div.1977), certif. den. 76 N.J. 235 (1978). Specifically pertinent to this appeal is the following provision in N.J.S.A. 59:9-2(d) addressing recoverability of damages for pain and suffering:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and
dental treatment of the claimant for such injury, sickness or disease, including prosthetic devices and ambulance, hospital or professional nursing service.
The comment to the foregoing statute, also relevant, states:
The limitation on the recovery of damages in subparagraph (d) reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravated circumstances -- cases involving permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000. The limitation that pain and suffering may only be awarded when medical expenses exceed $1,000 insures that such damages will not be awarded unless the loss is substantial.
It is undisputed that none of the plaintiffs has suffered bodily injury approaching the kind described in the statute as prerequisite to the recovery of damages for pain and suffering or has incurred any expenses for medical treatment made necessary by defendant's negligence.
Plaintiffs' claims for emotional distress were based upon their feelings of dismay and anxiety for their own health and that of their families upon learning that they had been consuming and bathing in contaminated water. Their anguish was variously described in terms of fear, anger, apprehension and humiliation. Do these constitute "pain and suffering" for which recovery is barred under N.J.S.A. 59:9-2(d)?
Pain and suffering encompasses "physical or mental injury or suffering." Botta v. Brunner, 26 N.J. 82, 95 (1958). "[M]ental injury or suffering" was again categorized under the concept of pain and suffering in Doud v. Housing Authority of Newark, 75 N.J. Super. 340, 346 (App.Div.1962). And in Tramutola v. Bortone, 118 N.J. Super. 503, 518 (App.Div.1972), aff'd in part as mod., and rev'd and remanded in part on other grounds, 63 N.J. 9 (1973), "psychiatric injury" was equated with "physical pain" for purposes of damages in a personal injury action. From the Supreme Court decision it appears that a medical opinion was offered that plaintiff was suffering from
". . . a chronic anxiety and depressive reaction, which is an emotional reaction and a mood disturbance related to the difficulties which he had following this operation, particularly to the knowledge, the awareness of a retained metallic fragment and the prospect, although not a certain one, of a potential surgical procedure in the future." [63 N.J. at 14]
In one civil rights case it was held that plaintiff's humiliation and her physical and emotional distress constituted pain and suffering for which the Civil Rights Commission could award damages. Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 404, 416 (1973). Berman v. Allan, 80 N.J. 421, 433 (1979) also viewed "emotional suffering * * * mental and emotional distress" as forms of pain for which damages were equally recoverable.
We cannot conceive how plaintiffs' concern that their exposure to toxic wastes might have precipitated a serious illness can be characterized as anything other than pain and suffering. It is a measure of their entirely subjective responses to a situation which, though threatening, never materialized into objective manifestations of injury. Under the circumstances, we conclude that although damages for these intangible harms might be recoverable from a non-governmental entity, as consequential to a nuisance, the language of N.J.S.A. 59:9-2(d), barring damages from a public entity "for pain and suffering resulting from any injury," clearly precludes recovery herein. If it is plaintiffs' contention that their emotional distress was a primary and ...