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Lamb v. Global Landfill Reclaiming

Decided: July 19, 1988.

BERNARD LAMB ET AL., PLAINTIFFS-APPELLANTS,
v.
GLOBAL LANDFILL RECLAIMING, ET AL., DEFENDANTS, AND STATE OF NEW JERSEY; BOROUGH OF CARTERET; CITY OF ELIZABETH; BOROUGH OF ENGLISHTOWN; TOWNSHIP OF MARLBORO; BOROUGH OF METUCHEN; BOROUGH OF MIDDLESEX; TOWNSHIP OF MIDDLETOWN; TOWNSHIP OF OLD BRIDGE; NEW JERSEY TURNPIKE AUTHORITY; CITY OF RAHWAY; BOROUGH OF ROSELLE PARK; BOROUGH OF SAYREVILLE; CITY OF SOUTH AMBOY; AND BOROUGH OF SPOTSWOOD, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Appellate Division, whose opinion is reported at For reversal -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- Justice Clifford. The opinion of the Court was delivered by Garibaldi, J. Clifford, J., dissenting.

Garibaldi

[111 NJ Page 136] This interlocutory matter requires the Court to determine whether the trial court abused its discretion by permitting plaintiffs in a toxic tort action to file a notice of late claim pursuant to § 59:8-9 of the New Jersey Tort Claims Act (the "Act"), N.J.S.A. 59:1-1 to 12-3. The Appellate Division reversed

the judgment of the trial court, finding that plaintiffs failed to state sufficient reasons to warrant late filing of notice of claim against governmental entities. Lamb v. Global Landfill, 219 N.J. Super. 446 (1987). We now reverse and reinstate the order of the trial court permitting plaintiffs to file a late notice of claim.

I.

In March 1986, residents of four apartment complexes located in the Township of Old Bridge discovered that many tenants complained of common unexplained medical conditions and illnesses. These conditions included gastrointestinal disorders, neurological defects, skin rashes, various forms of cancer, a learning disability among school children, as well as other illnesses. The apartment complexes affected by the unexplained illnesses are located adjacent to the Global Landfill (Global) and the Sommers Brothers Estate. Global began to operate as a dumping site in 1968, and was used by public and private entities until its closing in 1984. Given their proximity to the waste site, residents wondered whether the unexplained illnesses could be attributable to pollutants being emitted by the landfill. Bernard and Christine Lamb, residents of the London Terrace apartment complex near Global, collected soil samples from the landfill, and then submitted the samples to a northern New Jersey laboratory for analysis. The results of the preliminary testing revealed that there was a hazardous amount of volatile organics in the landfill. Citizens Seek to Spur DEP to Act on Dump Concerns, The Sentinel, Oct. 15, 1986, at 6, col. 1. Township officials and the New Jersey Department of Environmental Protection (the "DEP") assured the Lambs that the landfill did not pose a health hazard.*fn1

Notwithstanding these assurances, in March 1986 the Lambs and others founded a community interest group known as Citizens Helping Environmental Cleanup (CHEC). CHEC then continued to pursue its own investigation of the landfill's toxicity.

Also in March 1986, CHEC contacted a law firm in order to determine what legal remedies were available to investigate and clean up the landfill, as well as to compensate those who may have been injured through exposure to toxic waste. The law firm, in turn, retained Southwest Occupational Health Services (SOHS), a hazard management firm, to analyze soil, water, and other material samples taken from the landfill. The purpose of SOHS's investigation was to determine whether hazardous waste components existed at the site, and, if so, whether further investigation would be warranted. On April 12, 1986, an employee of SOHS conducted an on-site inspection of the landfills. The investigator identified various potential soil and water sampling sites. On May 12 and 13, 1986, SOHS revisited the site to collect soil and water samples for analysis. SOHS sent the samples to the NUS Corporation, Laboratory Services Division, in Houston, Texas. The laboratory test showed that various toxic wastes, pollutants, and other dangerous substances were present in the area.

SOHS prepared a report of the laboratory results that CHEC's law firm received on July 29, 1986.*fn2 Following receipt

of the report, CHEC and the law firm held several town meetings. CHEC members and their attorneys discussed the findings of the report with the residents, informing them that their medical complaints may have been caused by priority pollutants buried in the landfill. While the laboratory report confirmed the presence of toxic pollutants, CHEC was unfamiliar with the identity of those individuals, firms, and entities responsible for the existence of the pollutants.

In order to determine the identities of those responsible for creating the toxic conditions at the landfill, CHEC's law firm conducted a two-month investigation in the Trenton office of the DEP. Members of the law firm made numerous trips to that office in order to examine the DEP's file concerning Global. By the end of August 1986, after reviewing the DEP files, the firm compiled a list of most of the entities responsible for dumping waste at the landfill, including various public entities.*fn3

In addition to determining the identities of those who may have contributed to the toxic conditions at the landfill, CHEC and its attorneys engaged in other organizational and investigative activities during the time between March 1986, when the Lambs received the results of the preliminary laboratory results, and October 14, 1986, when plaintiffs filed a motion seeking leave to file a late notice of claim. On April 17, 1986, plaintiffs' counsel, after noting that a lawsuit had not yet been filed, is quoted as saying, "We're still investigating and collecting information. We need medical information from residents and toxicological reports of what's in the landfill, so we can test

the people to see if there is a link." Neighbors See Threat from Global, News Tribune, Apr. 17, 1986, at 1, col. 1.

Plaintiffs' counsel designed a medical questionnaire whose purpose was to solicit from area residents information concerning their various health-related complaints. Plaintiffs hoped to determine whether there was in fact a correlation between the higher incidence of health problems and their proximity to the landfill. Newspaper accounts indicate that various parties, including the Sayreville Health Department, were distributing these questionnaires in Old Bridge and Sayreville as late as May 1986. See Group Eyes Possibility of Link Between Landfill and Illness, The Suburban, May 14, 1986, at 29, col. 1; Sayreville Distributes Questionnaire, News Tribune, May 9, 1986, at 37, col. 1; DEP Awaiting Plan to Remove Chemical Drums, News Tribune, May 5, 1986, at 4, col. 1.

CHEC's organizational activities during this time period involved town meetings and informational sessions with area residents, as well as ongoing communications with Township and state officials, including the DEP. See Global Test Results Expected, News Tribune, Aug. 18, 1986, at 4, col. 1; Azzarello Awaiting Results from Tests at Global Site, News Tribune, Aug. 7, 1986, at 4, col. 2; Residents' Concerns Over Landfill Aired, News Tribune, Apr. 30, 1986, at 4, col. 1. As late as August 26, 1986, one news account reported that CHEC was then "calling for free health screenings for area children and more detailed tests of the Global-Sommer properties by the DEP. . . ." Meetings Urged on Findings of Global, News Tribune, Aug. 26, 1986, at 4, col. 1.

On October 14, 1986, after having collected the necessary data, the plaintiffs filed a motion seeking leave to file a late notice of claim against twenty-eight public entities, pursuant to § 59:8-9 of the Act. Section 59:8-9 permits a late notice of claim to be filed within one year of the accrual of a cause of action against a public entity, provided that the public entity is not prejudiced thereby and provided that the motion for such

relief is based on affidavits showing "sufficient reasons" for failure to file within the ninety-day period normally required by § 59:8-8. Plaintiffs' attorneys filed two identical affidavits, in which they (1) described the circumstances leading to contamination of the environment, (2) listed the various maladies affecting the residents, and (3) stated that "plaintiffs were unable to comply with the notice of claim requirement within the ninety day period because of the severity of their injuries and inability to investigate the circumstances surrounding the complained of occurrence."

On November 10, 1986, the trial court granted plaintiffs' motion to file a late notice of claim based solely on the papers then before it. On December 5, 1986, the court issued a written opinion in support of its decision. In granting plaintiffs' request to file a late notice of claim, the trial court noted that "New Jersey courts have not enumerated factors or circumstances that constitute 'sufficient reasons'" for delay. The trial court further stated that "a standard of liberality is applied in assessing the reasons for delay . . . resolving all doubts in favor of the applicant so that whenever possible cases may be heard on the merits." According to the trial court, "[t]he only limitation that the courts recognize in reviewing 'sufficient reasons,' is that plaintiff's application to file a late notice of claim must be supported by a factual showing which leads to a considered judgment." The court also noted that great deference is accorded to the judgment of the trial court. Against this legal background, the trial court concluded

that plaintiffs' motion to file a late notice of claim should be granted. A cause of action based on toxic waste presents a unique circumstance because it is difficult to determine the date of accrual. This Court determined that the nature of the circumstances rendered the date of accrual as March 1986. This Court further concluded that the severity of plaintiffs' injuries, plaintiffs' efforts to investigate the activities at GLOBAL LANDFILL and the very nature of the tort involved established "sufficient reasons" for the plaintiffs' delay in filing this motion. In addition, this Court concluded that defendants were not substantially prejudiced by plaintiffs' delay in filing this motion because defendants had constructive notice of a potential lawsuit.

[Emphasis added.]


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