On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Bilder, Ashbey and A.m. Stein. The opinion of the court was delivered by A.m. Stein, J.A.D.
We granted leave to appeal from the Law Division's order granting defendant Diamond Shamrock Chemicals Company partial summary judgment on the claims for emotional distress set forth in paragraph No. 192 and Counts Eight and Nine of plaintiffs' amended complaint. We affirm.
In Mauro v. Raymark Industries, Inc., 116 N.J. 126, 137, 561 A.2d 257 (1989) the New Jersey Supreme Court specifically left undecided the question of whether exposure to toxic chemicals without physical injury gives rise to a claim for emotional distress damages. This case is not a suitable vehicle for resolution of all dimensions of that issue.
Plaintiffs are ninety-seven individuals, and estates of individuals, who lived, worked and conducted business in the vicinity of the Diamond Shamrock plant in the Ironbound section of Newark.*fn1 They claim to suffer mental distress from the knowledge or belief that they were exposed to dioxin, a highly toxic by-product of the agricultural chemicals manufactured by Diamond Shamrock at this plant from 1957 to 1970. The underlying facts describing the basis of the claimed exposure are set forth in Judge Long's opinion in our earlier decision in I.H.R.A.C. v. Diamond Shamrock Chem., 216 N.J. Super. 166, 168-169, 523 A.2d 250 (App.Div.1987).
Paragraph No. 192 of the amended complaint alleges that
As a direct . . . result of defendant Diamond's activities, the individual plaintiffs have suffered extreme emotional distress proximately caused by the . . . inhalation and absorption of [dioxin] and other toxics, . . .
Defendant Diamond knew of the dangers of [dioxin] and other toxics that Diamond placed into the environment in the area surrounding 80 Lister Avenue and defendant Diamond failed to warn of the danger or take action to prevent the danger to plaintiffs.
Individual plaintiffs have suffered and will continue to suffer emotional and mental distress, including fear and anxiety.
Defendant Diamond negligently created dangers by its manufacture of [dioxin] and other toxics and its negligent placement of these materials in the ...