On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Baime, Conley and Villanueva. The opinion of the court was delivered by Conley, J.A.D.
[269 NJSuper Page 144] This appeal causes us to consider whether the ancient, and now almost dead, doctrine of " nullum tempus occurrit regi " (no time runs against the sovereign) bars defendants' reliance upon N.J.S.A. 2A:14-1.1. The trial Judge concluded that the doctrine applied only to statutes of limitations, that N.J.S.A. 2A:14-1.1 was something different (a statute of repose), and that, in any event, nullum tempus occurrit regi (nullum tempus) is no longer favored. As to the latter, he is correct. See N.J. Educ. Facilities Auth. v. Gruzen, 125 N.J. 66, 75, 592 A.2d 559 (1991); Holloway v. State, 125 N.J. 386, 398, 593 A.2d 716 (1991). See also Devins v. Bogota, 124 N.J. 570, 579, 592 A.2d 199 (1991). Compare N.J.S.A. 2A:14-1.2 (as of January 1, 1992, actions by the State must be
commenced within ten years of accrual of the cause of action).*fn1 We disagree, however, that the doctrine was not applicable to Rutgers at the time it filed its complaint and hold that it precludes defendants' reliance upon N.J.S.A. 2A:14-1.1.
In 1962, Rutgers hired defendant Grad to design its Engineering Building "C" at its New Brunswick facility. Grad's responsibilities included designing an underground piping system to be used for discharging chemicals from the engineering building into an on-site acid neutralization pond. Defendants D & M and Lehr acted as soil engineers for the installation of the piping system and participated in the system's design and installation. The system was installed in early 1963.
During renovations to the "C" Wing in 1987, Rutgers discovered that glass drainage pipes under the basement floor were cracked and that chemicals were being discharged into the lands and waters of the State, resulting in soil and groundwater contamination. The New Jersey Department of Environmental Protection and Energy required Rutgers to dispose of the contaminated soil and to install groundwater monitoring wells.
Rutgers ultimately learned that the glass piping was inappropriate for its intended purpose, that the soil in which the pipe was laid was improperly compacted, and that the piping system had been improperly designed and installed. It accordingly brought this suit, sounding in both contract and tort, against defendants on December 26, 1991 which the trial court then dismissed upon defendants' motion pursuant to N.J.S.A. 2A:14-1.1.
No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution
or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.
Unless nullum tempus applies, it is undisputed that Rutgers' complaint would be barred by this ten-year time period.
Nullum tempus means that time does not run against the State or any of its agencies or subdivision. Port Auth. of N.Y. & N.J. v. Bosco, 193 N.J. Super. 696, 699, 475 A.2d 676 (App.Div. 1984). Fashioned at common law, N.J. Educ. Facilities v. Gruzen, 125 N.J. at 74, 592 A.2d 559, nullum tempus literally means "time does not run against the king," Devins v. Bogota, 124 N.J. at 575, 592 A.2d 199, and takes its life from the ancient rationale that "the king established his own rules for litigation," id. at 576, 592 A.2d 199, and that "the king was too busy protecting the interests of his people to keep track of his lands and to bring suits to protect them in a timely fashion." Ibid. Absent inclusion either expressly or by implication of the State in a statute of limitations, nullum tempus operates so that such a statute, "should not be read to affect adversely the State's rights[.]" Ibid. See Livingston Bd. of Educ. v. U.S. Gypsum Co., 249 N.J. Super. 498, 505, 592 A.2d 653 (App.Div.1991); N.J. Educ. Facilities Auth. v. Conditioning Co., 237 N.J. Super. 310, 319, 567 A.2d 1013 (App.Div.1989), aff'd in part, rev'd in part on other grounds, sub nom., N.J. Educ. Facilities Auth. v. Gruzen, 125 N.J. 66, 59 ...