The opinion of the court was delivered by: Pisano, District Judge.
Plaintiff, Woodcliff Inc. ("Woodcliff") brings this action against Jersey Construction Inc. ("JCI") and the New Jersey Department of Transportation ("NJDOT") alleging that, in connection with a road construction project, contaminated soil from NJDOT's property was transported by JCI to Woodcliff's property. Two counts in the complaint remain against NJDOT:*fn1 Count Three alleges liability under the New Jersey Spill Compensation and Control Act ("Spill Act"), and Count Four alleging common law trespass. Presently before the Court is NJDOT's motion for summary judgment. The Court heard oral argument on August 6, 2012. For the reasons below, NJDOT's motion is granted in part and denied in part.
Plaintiff Woodcliff is the owner and developer of a residential community known as Woodcliff Estates at Hamilton located in Hamilton, New Jersey. In or about 2009, road construction work was being performed by JCI in connection with the construction of a new shopping center by Stanbery Hamilton LLC ("Stanberry") at Route 130 and Hamilton Square Road in Hamilton (the "Intersection"). Affidavit of Richard Dube ("Dube Aff.") ¶ 6. Plaintiff alleges that during the road work, defendant JCI removed 8,000 cubic yards of soil and offered it to Woodcliff for use in Woodcliff's ongoing development activities. Compl. ¶ 12. Woodcliff accepted the offer, and the soil was deposited in two piles at Woodcliff Estates. Id. ¶ 13. Approximately one year later, Plaintiff discovered the soil was contaminated with arsenic. Id. ¶ 14. According to the complaint,
Although the complaint alleges that JCI was performing road work for NJDOT at the relevant times, the record thus far*fn2 shows that JCI was, rather, performing the work pursuant to a contract with Stanbery. NJDOT and Stanbery were parties to a "Developer Agreement" that required Stanbery to make certain improvements to the roadways because, as set forth in the agreement, Stanbery's development would "aggravate conditions on the State highway system" as a result of the increase in traffic created by the new shopping center. Szabo Cert. Ex. B at 1. As such, Stanbery contracted with JCI to perform the necessary road construction work. Dube Aff. ¶ 6.
NJDOT moves for summary judgment alleging, as to Count Three of the complaint, that it is not liable under the Spill Act because certain exceptions applicable to governmental entities under the Act apply. As to Count Four, NJDOT alleges that Plaintiff's trespass claim is barred.
A. Summary Judgment Standard
A court shall grant summary judgment under Rule 56 of the Federal Rules of Civil Procedure "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The substantive law identifies which facts are critical or "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact raises a "genuine" issue "if the evidence is such that a reasonable jury could return a verdict" for the non-moving party. Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988).
On a summary judgment motion, the moving party must show, first, that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party makes this showing, the burden shifts to the non-moving party to present evidence that a genuine fact issue compels a trial. Id. at 324. The non-moving party must then offer admissible evidence that establishes a genuine issue of material fact, id., not just "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The Court must consider all facts and their logical inferences in the light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The Court shall not "weigh the evidence and determine the truth of the matter," but need determine only whether a genuine issue necessitates a trial. Anderson, 477 U.S. at 249. If the non-moving party fails to demonstrate proof beyond a "mere scintilla" of evidence that a genuine issue of material fact exists, then the Court must grant summary judgment. Big Apple BMW v. BMW of North America, 974 F.2d 1358, 1363 (3d Cir. 1992).
B. Count Three -- Spill Act Claim
Under New Jersey's Spill Act, "any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred." N.J.S.A. 58:10--23.11g(c)(1). It further provides that [w]henever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance.
N.J.S.A. 58:10-23.11f. However, the Act provides exceptions from liability for governmental ...