On certification to the Superior Court, Appellate Division, whose opinion is reported at 202 N.J. Super. 106 (1985).
For affirmance in part and reversal in part -- Chief Justice Wilentz, and Justices Clifford, Pollock, Garibaldi and Stein. Concurring in part; dissenting in part -- Justice Handler. The opinion of the Court was delivered by Stein, Justice. Handler, J., concurring in part and dissenting in part.
In this case we consider the application of the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3, to the claims asserted by 339 residents of Jackson Township against that municipality.
The litigation involves claims for damages sustained because plaintiffs' well water was contaminated by toxic pollutants leaching into the Cohansey Aquifer from a landfill established and operated by Jackson Township. After an extensive trial, the jury found that the township had created a "nuisance" and a "dangerous condition" by virtue of its operation of the landfill, that its conduct was "palpably unreasonable," -- a prerequisite to recovery under N.J.S.A. 59:4-2 -- and that it was the proximate cause of the contamination of plaintiffs' water supply. The jury verdict resulted in an aggregate judgment of $15,854,392.78, to be divided among the plaintiffs in varying amounts. The jury returned individual awards for each of the plaintiffs that varied in accordance with such factors as proximity to the landfill, duration and extent of the exposure to contaminants, and the age of the claimant.
The verdict provided compensation for three distinct claims of injury: $2,056,480 was awarded for emotional distress caused by the knowledge that they had ingested water contaminated by toxic chemicals for up to six years; $5,396,940 was awarded for the deterioration of their quality of life during the twenty months when they were deprived of running water; and $8,204,500 was awarded to cover the future cost of annual medical surveillance that plaintiffs' expert testified would be
necessary because of plaintiffs' increased susceptibility to cancer and other diseases. The balance of the verdict, approximately $196,500, represented miscellaneous expenses not involved in this appeal.*fn1
The Appellate Division upheld that portion of the judgment awarding plaintiffs damages for impairment of their quality of life. 202 N.J. Super. 106, 120 (1985). It reversed the award for emotional distress, concluding that such damages constituted "pain and suffering" for which recovery is barred by N.J.S.A. 59:9-2(d). Id. at 116. The Appellate Division also set aside the $8,204,500 award for medical surveillance expenses, concluding that it is "impossible to say that defendant has so significantly increased the 'reasonable probability' that any of the plaintiffs will develop cancer so as to justify imposing upon defendant the financial burden of lifetime medical surveillance for early clinical signs of cancer." Id. at 122 (citation omitted).
In addition, the Appellate Division affirmed the trial court's dismissal of plaintiffs' claim for damages for their enhanced risk of disease, id. at 125-26, and upheld the trial court's reduction of the judgment by $850,000, the amount for which plaintiffs settled before trial with codefendant John Ernst, the Jackson Township engineer, id. at 126-27.*fn2 The Appellate Division also affirmed the trial court's dismissal of plaintiffs' claim under the federal Civil Rights Act of 1871, 42 U.S.C.A. § 1983. Id. at 128.
We granted plaintiffs' petition for certification to review the adverse portions of the Appellate Division decision, and granted defendant's cross-petition to review the affirmance of the damage award for impairment of plaintiffs' quality of life. 102 N.J. 306 (1985). We now affirm in part and reverse in part the judgment of the Appellate Division.
The evidence at trial provided ample support for the jury's conclusion that the township had operated the Legler landfill in a palpably unreasonable manner, a finding that the township did not contest before the Appellate Division. Briefly summarized, the proof showed that prior to 1971 the township operated another landfill that was the subject of complaints by neighboring residents and at least one citation for violation of state regulations. When the prior landfill's capacity was exhausted, the township opened the Legler landfill in 1972. The Department of Environmental Protection (DEP) granted a conditional permit for the new landfill, excluding liquid or soluble industrial wastes and limiting the depth of waste deposits to a specific grade above the level of the groundwater. The evidence indicated that, from the inception of the landfill's operation, the township failed to monitor the quantity and types of liquid waste dumped at the landfill, and ignored its duty to control and limit the depth of the trenches in which wastes were deposited. There was substantial evidence that the township disregarded the conditions imposed by DEP, and that the township's negligent operation of the landfill resulted in chemical contamination of the groundwater in the area and the underlying aquifer.
At trial plaintiffs offered expert testimony to prove that the chemical contamination of their wells was caused by the township's improper operation of the landfill. The testimony established that, in varying concentrations, the following chemical substances had infiltrated various wells used by plaintiffs as a
water source: acetone; benzene; chlorobenzene; chloroform; dichlorofluoromethane; ethylbenzene; methylene chloride; methyl isobutyl ketone; 1,1,2,2-tetrachloroethane; tetrahydrofuran; 1,1,1-trichloroethane; and trichloroethylene. A groundwater expert described the probable movement and concentration of the chemicals as they migrated from the landfill toward plaintiffs' wells. A toxicologist summarized the known hazardous characteristics of the chemical substances. He testified that of the twelve identified chemicals, four were known carcinogens. Other potential toxic effects identified by the toxicologist included liver and kidney damage, mutations and alterations in genetic material, damage to blood and reproductive systems, neurological damage and skin irritations. The toxicologist also testified about differences in the extent of the chemical exposure experienced by various plaintiffs. An expert in the diagnosis and treatment of diseases caused by exposure to toxic substances testified that the plaintiffs required annual medical examinations to afford the earliest possible diagnosis of chemically induced illnesses. Her opinion was that a program of regular medical surveillance for plaintiffs would improve prospects for cure, treatment, prolongation of life, and minimization of pain and disability.
A substantial number -- more than 150 -- of the plaintiffs gave testimony with respect to damages, describing in detail the impairment of their quality of life during the period that they were without running water, and the emotional distress they suffered. With regard to the emotional distress claims, the plaintiffs' testimony detailed their emotional reactions to the chemical contamination of their wells and the deprivation of their water supply, as well as their fears for the health of their family members. Expert psychological testimony was offered to document plaintiffs' claims that they had sustained compensable psychological damage as a result of the contamination of their wells.
We now consider each of the plaintiffs' damage claims in the context of the evidence adduced at trial and the legal principles that should inform our application of the Tort Claims Act.
In November 1978, the residents of the Legler area of Jackson Township were advised by the local Board of Health not to drink their well water, and to limit washing and bathing to avoid prolonged exposure to the water. This warning was issued by the Board after tests disclosed that a number of wells in the Legler area of the township were contaminated by toxic chemicals. Initially, the township provided water to the affected residents in water tanks that were transported by tank trucks to various locations in the neighborhood. Plaintiffs brought their own containers, filled them with water from the tanks, and transported the water to their homes.
This water-supply system was soon discontinued and replaced by a home-delivery system. Residents in need of water tied a white cloth on their mailbox and received a 40 gallon barrel containing a plastic liner filled with water. The filled barrels weighed in excess of 100 pounds and were dropped off, as needed, on the properties of the Legler-area residents. The family-members frequently were required to move the barrels to a protected area, either inside a garage or inside the residence. Residents who stored the barrels in garages testified that the water froze in cold weather. Other residents rolled or dragged their barrels into their homes. In order to use the water for drinking, cooking, washing or bathing, the residents filled containers with water from the barrels to meet the varying needs of their households. On occasion, there was dirt or debris in the water and the township would be requested to provide a replacement barrel.
The Appellate Division opinion described the inconvenience experienced by one resident:
One witness, who suffered from arthritis, testified to hauling her water for drinking, cooking and bathing up nine steps because, as she said,
[t]here was no way that I could get the water upstairs except by hauling pot after pot out of the containers, . . . which was a considerable amount of hauling everyday just to use for drinking and bathing the children and cooking. [202 N.J. Super. at 117.]
As the Appellate Division noted, the lack of running water was an understandable source of tension and friction among members of the plaintiffs' households, who for nearly two years were compelled to obtain water in this primitive manner. Id.
The trial court charged the jury that plaintiffs' claim for "quality of life" damages encompassed "inconveniences, aggravation, and unnecessary expenditure of time and effort related to the use of the water hauled to their homes, as well as to other disruption in their lives, including disharmony in the family unit." The aggregate jury verdict on this claim was $5,396,940. This represented an average award of slightly over $16,000 for each plaintiff; thus, a family unit consisting of four plaintiffs received an average award of approximately $64,000.
In the Appellate Division and before this Court, defendant argues that this segment of the verdict is barred by the New Jersey Tort Claims Act, which provides:
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. [ N.J.S.A. 59:9-2(d).]
Defendant contends that the legislative intent in restricting damages for "pain and suffering" was to encompass claims for all "non-objective" injuries, unless the statutory threshold of severity of injury or expense of treatment is met. The township asserts that the inconvenience, aggravation, effort and disruption of the family unit that resulted from the loss of plaintiff's water supply was but a form of "pain and suffering" and therefore uncompensable under the Act.
The Appellate Division rejected the township's contention, concluding that there was a clear distinction between
the subjectively measured damages for pain and suffering, which are not compensable by the Tort Claims Act, and those which objectively affect quality of life by causing an interference with the use of one's land through inconvenience and the disruption of daily activities. [202 N.J. Super. at 118.]
We agree with the Appellate Division's conclusion. The Tort Claims Act's ban against recovery of damages for "pain and suffering resulting from any injury" is intended to apply to the intangible, subjective feelings of discomfort that are associated with personal injuries. It was not intended to bar claims for inconvenience associated with the invasion of a property interest. As the trial court's charge explained, plaintiffs sought damages to compensate them for the multiple inconveniences associated with a lack of running water. Although the disruption of plaintiffs' water supply is an "injury" under the Act, N.J.S.A. 59:1-3, the interest invaded here, the right to obtain potable running water from plaintiffs' own wells, is qualitatively different from "pain and suffering" related to a personal injury.
As the Appellate Division acknowledged, plaintiffs' claim for quality of life damages is derived from the law of nuisance. 202 N.J. Super. at 117-18. It has long been recognized that damages for inconvenience, annoyance, and discomfort are recoverable in a nuisance action. See Sterling v. Velsicol Chem. Corp., 647 F. Supp. 303, 321 (W.D.Tenn.1986); D. Dobbs, Remedies § 5.3, at 334 (1973); see also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 89, at 639 (5th ed. 1984) (quoting with approval from Dobbs, supra). The Restatement (Second) of Torts § 929 (1977) sets out three distinct categories of compensation with respect to invasions of an interest in land:
(a) the difference between the value of the land before the harm and the value after the harm, or at [plaintiff's] election in an appropriate case, the cost of restoration that has been or may be reasonably incurred;
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as occupant. [ Id. ]
While the first two of these components constitute damages for the interference with plaintiff's use and enjoyment of his land,
the third category compensates the plaintiff for his personal losses flowing directly from such an invasion. See Kornoff v. Kingsburg Cotton Oil Co., 45 Cal. 2d 265, 273-75, 288 P. 2d 507, 512-13 (1955); Miller v. Carnation Co., 39 Colo.App. 1, 4, 564 P. 2d 127, 130 (Colo.Ct.App.1977); Rust v. Guinn, 429 N.E. 2d 299, 303-04 (Ind.Ct.App.1981). As such, damages for inconvenience, discomfort, and annoyance constitute "distinct grounds of compensation for which in ordinary cases the person in possession is entitled to recover in addition to the harm to his proprietary interests." Restatement Second of Torts § 929 comment e (1977).
Accordingly, we conclude that the quality of life damages represent compensation for losses associated with damage to property, and agree with the Appellate Division that they do not constitute pain and suffering under the Tort Claims Act. We therefore sustain the judgment for quality of life damages.
The jury verdict awarded plaintiffs damages for emotional distress in the aggregate amount of $2,056,480. The individual verdicts ranged from $40 to $14,000.
Many of the plaintiffs testified about their emotional reactions to the knowledge that their well-water was contaminated. Most of the plaintiffs' testimony on the issue of emotional distress was relatively brief and general. Typically, their testimony did not indicate that the emotional distress resulted in physical symptoms or required medical treatment. No treating physicians testified regarding plaintiffs' emotional distress claims. Nevertheless, the consistent thrust of the testimony offered by numerous witnesses was that they suffered anxiety, stress, fear, and depression, and that these feelings were directly and causally related to the knowledge that they and members of their family had ingested and been exposed to contaminated water for a substantial time period.
Plaintiffs also presented testimony from an experienced clinical psychologist, Dr. Margaret Gibbs, who had administered a variety of psychological tests to 88 of the adult plaintiffs. The tests measured stress levels, depression, feelings of control, and personality. Dr. Gibbs testified that the sample of plaintiffs she tested manifested abnormally high levels of stress, depression, health concerns and psychological problems. She expressed the opinion that the psychological conditions observed by her were causally related to the contamination of plaintiffs' water supply.
Before the Appellate Division, the township challenged the jury verdict awarding damages for emotional distress on two grounds. The township contended that plaintiffs had not proved that the emotional distress experienced by them was manifested by any discernible physical symptoms or injuries, arguing that proof of related physical symptoms was a prerequisite to recovery under Falzone v. Busch, 45 N.J. 559, 569 (1965), and Portee v. Jaffee, 84 N.J. 88, 93 (1980). The trial court, in denying defendant's motion for summary judgment, had acknowledged the significance of proof of physical injury or sickness to sustain a damage claim based on emotional distress. Ayers v. Township of Jackson, 189 N.J. Super. 561, 570 (Law Div.1983); see also Eyrich for Eyrich v. Dam, 193 N.J. Super. 244, 253-54 (App.Div.) (citing Restatement (Second) of Torts § 436A (1965)), certif. denied, 97 N.J. 583 (1984).
In addition, the township contended that the jury verdict for emotional distress constituted damages for "pain and suffering resulting from any injury," recovery for which is expressly barred by the Tort Claims Act, N.J.S.A. 59:9-2(d). The Appellate Division, without deciding the issue of the sufficiency of plaintiffs' proofs, agreed that the verdict for emotional distress was barred by the Act:
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. [202 N.J. Super. at 116.]
Before us, plaintiffs contend that the Appellate Division misconstrued the bar of the Tort Claims Act. They argue that the Legislature's intent was to prohibit damages for pain and suffering resulting from a physical injury only. Plaintiffs maintain that their emotional distress claims should not be barred by the Act, because they are based on "independent injuries," and do not constitute pain and suffering incidental to a physical injury. They also emphasize that their emotional distress claims are compensable because we have abandoned the requirement of physical impact as a condition to recovery for emotional distress.
We acknowledge that our cases no longer require proof of causally-related physical impact to sustain a recovery for emotional distress. See Portee v. Jaffee, supra, 84 N.J. at 93, and Falzone v. Busch, supra, 45 N.J. at 569. Nevertheless, we reject plaintiffs' assertion that the Tort Claims Act's limitation against recovery for "pain and suffering resulting from any injury" does not apply to claims based on emotional distress.
In construing the statutory language, we are cognizant that the legislative intent was to re-establish the immunity of all governmental bodies in New Jersey except in the circumstances enumerated in the Act. See Birchwood Lakes Colony Club v. Borough of Medford Lakes, 90 N.J. 582, 596 (1982); English v. Newark Housing Auth., 138 N.J. Super. 425, 428-29 (App.Div.1976). We are cautioned by the Comment to N.J.S.A. 59:2-1 that
[t]he approach should be whether an immunity applies and if not, should liability attach. It is hoped that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities. [Comment, N.J.S.A. 59:2-1.]
In addition to barring damages for pain and suffering resulting from an injury, the Act also precludes recovery against governmental entities for prejudgment interest, N.J.S.A. 59:9-2(a), strict liability claims, id. at 59:9-2(b), punitive damages, id. at 59:9-2(c), and subrogation claims, id. at 59:9-2(e).
Addressing first plaintiffs' contention that emotional distress is not an "injury" as that term is used in the Tort Claims Act, we observe that the Act broadly defines injury to include
death, injury to a person, damage to or loss of property or any other injury that a person may suffer that would be actionable if inflicted by a private person. [ N.J.S.A. 59:1-3.]
The statutory definition is expansive and unqualified and clearly accommodates "emotional distress" as an injury "that a person may suffer that would be actionable if inflicted by a private person." The term "injury" is also used in N.J.S.A. 59:4-2, which defines the scope of public entity liability.*fn3 Plainly, if emotional distress did not constitute an injury under this section, plaintiffs could not have asserted a cause of action for emotional distress under the Act. We discern no basis in the legislative history or in the statutory scheme of the Act for assigning a more restrictive meaning to the term "injury" as used in N.J.S.A. 59:9-2(d), the section that limits liability for pain and suffering, than that accorded to the same word in the section of the Act that imposes liability on a public entity. Accordingly, we hold that claims for emotional distress are encompassed by the term "injury" in N.J.S.A. 59:9-2(d).*fn4
The term "pain and suffering" is not defined in the Act. The Comment to N.J.S.A. 59:9-2 describes the limitation on damages for pain and suffering as reflecting "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 * * *." Comment, N.J.S.A. 59:9-2. We are in full accord with the conclusion of the Appellate Division that the subjective symptoms of depression, stress, health concerns, and anxiety described by the plaintiffs and their expert witness constitute "pain and suffering resulting from any injury" as that phrase is used in N.J.S.A. 59:9-2(d).
We have recognized in other contexts involving damages for emotional distress that the injury sought to be redressed can fairly be described as pain and suffering. See Evers v. Dollinger, 95 N.J. 399, 410 (1984) ("Certainly compensable injury in the form of mental pain and suffering in a context of medical malpractice is not new"); Berman v. Allen, 80 N.J. 421, 433 (1979) ("courts have come to recognize that mental and emotional distress is just as 'real' as physical pain"); Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 416 (1973) (affirming an award of $750 for "pain and suffering" intended to compensate plaintiff for mental distress experienced as a result of discrimination); cf. DePass v. U.S., 721 F.2d 203, 206 (7th Cir.1983) (Posner, J., dissenting) ("'pain and suffering'
does not mean just physical pain and suffering but includes the unhappiness caused by disfiguring and crippling injuries").
Assuming as we do that tortiously-inflicted emotional distress is as much an "injury" under the Act as a broken limb, it is evident that subjective symptoms such as depression, fear, and anxiety -- either as a consequence of emotional distress or a broken limb -- constitute "pain and suffering" for the purposes of the Tort Claims Act.
We have no doubt, based on our review of the record, that many of the plaintiffs understandably experienced substantial emotional distress as a result of the contamination of their water supply. However, the legislature has expressly determined that the pain and suffering occasioned by their emotional distress is not compensable by damages from Jackson Township. The New Jersey Tort Claims Act bars the recovery of such damages. Accordingly, we affirm the Appellate Division's reversal of that portion of the jury verdict awarding damages for emotional distress.
Claims for Enhanced Risk and Medical Surveillance
No claims were asserted by plaintiffs seeking recovery for specific illnesses caused by their exposure to chemicals. Rather, they claim damages for the enhanced risk of future illness attributable to such exposure. They also seek to recover the expenses of annual medical examinations to monitor their physical health and detect symptoms of disease at the earliest possible opportunity.
Before trial, the trial court granted defendant's motion for summary judgment dismissing the enhanced risk claim. It held that plaintiffs' proofs, with the benefit of all favorable inferences, would not establish a "reasonable probability" that plaintiffs would sustain future injury as a result of chemical contamination of their water supply. 189 N.J. Super. at 567-68 (citing Coll v. Sherry, 29 N.J. 166, 175 (1959)). The trial court also observed that recognition of the enhanced risk claim would
cause the jury to "speculate * * * [as] to the future health of each plaintiff," and raise "the spectre of potential claims * * * increasing in boundless proportion." Id. However, the court specifically noted that future claims for injury attributable to exposure to contaminants in the water supply would not be barred by the statute of limitations. Id. 189 N.J. Super. at 568 (citing Lopez v. Swyer, 62 N.J. 267 (1973), and Lynch v. Rubacky, 85 N.J. 65 (1982)). The Appellate Division affirmed the dismissal of the enhanced risk claim, but characterized the trial court's observation that future claims for physical injury would not be barred by the statute of limitations as "dictum only," having "no controlling significance to the future rights of the parties." Id. at 125.
With regard to the claims for medical surveillance expenses, the trial court denied defendant's summary judgment motion, 189 N.J. Super. at 573, and the jury verdict included damages of $8,204,500 for medical surveillance. The Appellate Division reversed, concluding that the claims for medical surveillance expenses, like the claims for "enhanced risk," were too speculative to warrant recognition under the Tort Claims Act:
Faced with the admitted inability of the expert witness to quantify the increased risk, we cannot rule out the probability that such increase is so microscopically small as to be meaningless. Without some quantifying guidance it becomes impossible to say that defendant has so significantly increased the "reasonable probability," Coll v. Sherry, 29 N.J. 166, 175 (1959), that any of the plaintiffs will develop cancer so as to justify imposing upon defendant the financial burden of lifetime medical surveillance for early clinical signs of cancer. In reaching this conclusion we heed the Legislature's hopeful expectation that "the courts will exercise restraint in the acceptance of novel causes of action against public entities." Comment, N.J.S.A. 59:2-1. [202 N.J. Super. at 122-23.]
As a result of the trial court's and Appellate Division's rulings, plaintiffs are left to await actual manifestation of physical injury attributable to their exposure to toxic chemicals before they can institute and sustain a damage claim for personal injuries against the defendant. Although the trial court observed that any such future suits could avoid the bar of the statute of limitations by virtue of our "discovery rule," 189
N.J. Super. at 568, the Appellate Division's characterization of that statement as nonbinding dictum defers to this or another court the task of determining whether subsequent personal injury suits against this defendant may indeed be maintained. In the interim, under the Appellate Division ruling, any plaintiff who obtains regular or periodic medical surveillance for the express purpose of detecting adverse physical conditions attributable to exposure to toxic chemicals must personally bear the expense of that evaluation to the extent its cost is not covered by plaintiffs' own health insurance.
In our view, these decisions fall short of effectuating the policies of the Tort Claims Act where claims are asserted against a public entity for wrongful exposure to toxic chemicals. Although we concur with the Appellate Division's refusal to recognize plaintiffs' damage claim based on enhanced risk, we disagree with its conclusion that an award for medical surveillance damages cannot be supported by this record. We also deem it appropriate to clarify the effect of the statute of limitations, N.J.S.A. 2A:14-2, and the single controversy doctrine on future claims for personal injuries.
Our evaluation of the enhanced risk and medical surveillance claims requires that we focus on a critical issue in the management of toxic tort litigation: at what stage in the evolution of a toxic injury should tort law intercede by requiring the responsible party to pay damages?
At the outset, we must recognize that the issues presented by this case and others like it will be recurring. We note the difficulty that both law and science experience in attempting to deal with the emerging complexities of industrialized society and the consequent implications for human health. One facet of that problem is represented here, in the form of years of inadequate and improper ...