The opinion of the court was delivered by: Simandle, District Judge
This tort matter is before the Court on Defendant's motion for summary judgment. [Docket Item 34.] Because, as explained below, Plaintiff's claim is barred by the applicable statute of limitations, the Court will grant Defendant's motion.
This case involves a polluted landfill site and its proximity to a proposed luxury home development. Between 1966 and 1978, Buzby Brothers Materials Corporation ("BBMC") operated a landfill on several parcels of land in Voorhees Township, New Jersey. BBMC leased one of the parcels from Radio Corporation of America ("RCA"), a predecessor of Defendant General Electric Company. From 1962 to 2000, Plantation Homes, Inc. ("Plantation"), the entity that eventually sold the land to Plaintiff, owned a parcel of land that sits adjacent to the parcel RCA leased to BBMC.
According to the State of New Jersey, from around 1972 to 1974, hazardous substances were disposed of in the landfill and discharged onto the land and into the surrounding waters. (See Weisman Cert., Ex-43, at 3 ("Whitman Report") (citing an NJDEP Administrative Consent Order).)
In 1987, Voorhees Township adopted a resolution that prohibited construction of buildings within 500 feet of the Buzby Landfill. (Weisman Cert., Ex-17 ("Resolution 194-87").) According to Plaintiff, a legal action challenging the moratorium in 1990 resulted in a settlement among the parties permitting development within the 500 foot corridor so long as each agreement of sale contained a special deed covenant acknowledging the contamination and agreeing to release the township from any liability. (Weisman Cert., Ex-20 ("Thatcher Letter").) According to Plaintiff, the contents of the settlement are now the general Voorhees township policy with regard to development in the 500 foot zone. (Schneider Cert., Ex-2, at 4 ("EcolSciences Report").) Plaintiff's expert appraiser identified the stigma resulting from the required special deed covenant as the key factor preventing development. (Schneider Cert., Ex-1, at 43 ("Darpino Appraisal").)
On October 23, 1987, eighty-five citizens filed an action pursuant to several environmental statutes against RCA and the Voorhees Township, among others. Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), liability for cleanup of a contaminated site may be imposed on Potentially Responsible Parties ("PRPs") including but not limited to the owner of the contaminated facility and any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of. 42 U.S.C. § 9607(a)(4). In 1990, the plaintiffs in that action settled their portion of the lawsuit.
In 1991, GE, as successor in interest to RCA, asserted claims against numerous defendants to recover costs expended on the cleanup of the site resulting from the settlement. General Elec. Co. v. Buzby Bros. Materials Corp., Civ. A. No. 87-4263, 1996 WL 608488 (D.N.J. June 20, 1996). During the pendency of that case, in 1993, the New Jersey Department of Environmental Protection ("NJDEP") entered a Administrative Consent Order that required the PRPs to undertake expansive investigatory and remedial activities aimed at remediating the contamination in and around the landfill site. Thereafter, the NJDEP and the signing parties agreed to a Remedial Investigation Work Plan in order to implement the terms of the Administrative Consent Order. That remediation is ongoing.
In 1994, Plantation sought leave to intervene and file a complaint in Defendant's cost recovery action. Plantation's proposed complaint was substantially similar to the present complaint, claiming damages for nuisance, negligence, and strict liability. (Weisman Cert., Ex-13 ("1994 Complaint").) The complaint alleged that "[t]he defendants disposed or permitted disposal of toxic and hazardous waste at [the Landfill]" resulting in Plantation's inability to develop the property because of the Voorhees township moratorium. (Id.) The motion to intervene was denied.
In July 2000, Joseph Samost, sole owner and president of Plantation, executed a deed in lieu of foreclosure transferring the property to Plaintiff (a partnership between Joseph Samost, his wife, and his daughter) for the sum of $1. (Weisman Cert., Ex-6 ("Sale Deed").) Samost, as president of Plantation, had submitted a certification in support of Plantation's 1994 motion to intervene, in which he acknowledged that he had reviewed the allegations asserted in the 1994 Proposed Complaint, testifying that these allegations were true and accurate. (Weisman Cert., Ex-14 ("Samost Cert.").) Samost was therefore aware of the contamination and the consequent Voorhees township restrictions on Plaintiff's property 13 years before this action.*fn1
On November 14, 2007, Plaintiff brought this action in New Jersey Superior Court. Plaintiff alleges that it has been unable to commence construction work on a luxury home development on its property because of the environmental hazards created by disposal of waste at Buzby Landfill, and in particular Defendant's portion of the landfill. Plaintiff asserts a claim for strict liability (Count I), based on Defendant's predecessor's acceptance and disposal of hazardous substances adjacent to privately-owned property; a claim for nuisance (Count II), based on the environmental hazards on Defendant's land that Plaintiff alleges continue to interfere with its property; and a claim for negligence (Count III), based on Defendant's predecessor's failure to ensure that the operations and activities of the Buzby Landfill complied with state and federal laws and breaches of duties of reasonable care.*fn2 Plaintiff seeks damages for the diminution in the value of the land, rather than any injunctive relief that may be available.
Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441 based on diversity jurisdiction. On summary judgment, Defendant argues that this action is barred by the applicable statute of limitations, that Plaintiff cannot prove Defendant was the proximate cause of its injuries, that Plaintiff assumed the risk of the harms at the time of purchase in 2000, and that Plaintiff's damages are too speculative for the court to award Plaintiff relief. Because the Court finds ...