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Elazar v. Macrietta Cleaners, Inc.

Supreme Court of New Jersey

July 26, 2017

EDAN BEN ELAZAR and EDNA BEN ELAZAR, Plaintiffs-Appellants,
v.
MACRIETTA CLEANERS, INC., d/b/a SWAN CUSTOM CLEANERS and d/b/a COIT SERVICES, MACRIETTA REALTY, CO., COIT SERVICES OF CENTRAL NEW JERSEY INC., ESTATE OF MAX STAUBER, HENRIETTA STAUBER, ALAN W. STAUBER, NORMAN A. SOBIN, STEVEN D. LASKER, ESTATE OF WILLIAM B. ROCKER, LYNN SCHONBRAUN and CAROL RUBIN as personal representatives of the ESTATE OF JOAN ROCKER NEWMAN, SWAN CLEANERS AND DYERS, INC., CAROLYNN LAUNDRY, INC., TOWNSHIP OF CRANFORD, a New Jersey municipal corporation, and John and Jane Does 1-100. Defendants-Respondents.

          Argued April 24, 2017

         On appeal from the Superior Court, Appellate Division.

          Stuart J. Lieberman argued the cause for appellants (Lieberman & Blecher, attorneys; Stuart J. Lieberman of counsel and on the brief, and Michael G. Sinkevich, on the brief).

          Elizabeth A. Kenny argued the cause for respondent Township of Cranford (McElroy Deutsch Mulvaney & Carpenter, attorneys; Robert P. Donovan, of counsel and on the brief, and Elizabeth A. Kenny on the brief).

          LAVECCHIA JUSTICE

         In this appeal involving the notice provision of the Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11, the Court considers whether accrual of plaintiffs' claim against the public-entity defendant should have been tolled in accordance the discovery rule. Specifically, the Court considers how discovery-rule principles apply to establish the accrual date of a claim, where circumstances did not appear to implicate a third-party public-entity defendant.

         Swan Custom Cleaners was a dry cleaning establishment in the Township of Cranford (Township). In February 1946, the Township's inspector of buildings authorized the dry cleaner to install three underground fuel oil and solvent storage tanks on the Township-owned property behind the cleaners. In 1985, Macrietta Realty purchased Swan and, with related parties (collectively, Macrietta), operated the business for more than twenty years.

         In 1988, plaintiffs Edan and Edna Ben Elazar opened an electronics repair business next door to the dry cleaner. Plaintiffs noticed that a chemical odor emanated from the dry cleaning business but did not question it. Since the 1990s, both plaintiffs have experienced medical problems.

         In 1998, Macrietta's underground storage tanks were removed, and soil tests revealed contamination. Macrietta notified the New Jersey Department of Environmental Protection (NJDEP), which notified the Township of the contamination. Since then, environmental remediation at the site has been an ongoing effort. On January 14, 2011, Macrietta's environmental consultant sent a letter to the Township's health department, advising that there was an immediate environmental concern at plaintiffs' property. Plaintiffs received a copy of this letter.

         On March 11, 2011, the consultant wrote a letter to plaintiffs, explaining that high levels of contaminants discovered on plaintiffs' property created a health risk, and detailing some of the remedial efforts that Macrietta had undertaken since discovering the contamination. Attached to the letter was a map, which indicated the parameters of property that would need to be excavated to remediate environmental damage from the contamination. The excavated property included Macrietta's property and part of the Township's property. The map did not indicate the original location of the removed tanks, but rather depicted the extent of the affected soil to be removed.

         On January 12, 2012, Edan Ben Elazar's treating pulmonologist concluded that his illness may be a result of exposure to environmental contaminants. Plaintiffs retained counsel in March 2012, and counsel promptly requested documents from the NJDEP under the Open Public Records Act. The documents that the NJDEP provided on July 3, 2012 showed that the tanks had been located on the Township's property. Plaintiffs' counsel filed a notice of claim with the Township on September 11, 2012.

         Plaintiffs commenced this action on September 18, 2012, and amended the complaint in September 2013 to add the Township as a defendant. The trial court granted the Township's motion for summary judgment. The court found that plaintiffs' cause of action accrued, at the latest, by March 11, 2011, and that plaintiffs' notice of claim was untimely under the TCA because it was served beyond the ninety-day period prescribed by N.J.S.A. 59:8-8. The Appellate Division affirmed, and the Court granted plaintiffs' motion for leave to appeal. 228 N.J. 88 (2016).

         HELD: When a plaintiff is injured by a third party and has no reason to believe that another party, specifically a public entity, is responsible, the discovery rule applies to toll the accrual date that triggers the notice-of-claim requirement. Here, it was error for summary judgment to have been granted to the public-entity defendant based on the record presented, because plaintiffs put forward a reasonable basis to support a determination that the claim against the public entity was diligently pursued and notice of claim was timely filed.

         1. Under the TCA, a plaintiff must file a notice of claim with the public entity within ninety days of the accrual of the cause of action. Failure to do so bars the tort claim against the public entity, absent extraordinary circumstances. Before determining whether a claimant has timely filed within the ninety-day period, a court must determine the date on which the claim accrued, (pp. 11-12)

         2. In general, a claim accrues on the date on which the underlying tortious act occurred. Whether the discovery rule applies depends on whether the facts presented would alert a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another. When a plaintiff knows he has suffered an injury but does not know that it is attributable to the fault of another, the discovery rule tolls the date of accrual as to that unknown responsible party. And, when a plaintiff knows her injury is the fault of another, but is reasonably unaware that a third party may also be responsible, the accrual clock does not begin ticking against the third party until the plaintiff has evidence that reveals his or her possible complicity. In the setting of the Tort Claims Act, the discovery rule applies to the notice requirement as well: when the discovery rule tolls the accrual date, the ninety-day period within which the injured party must file a notice of claim against a public entity is likewise delayed until the injured party learns of the injury or of the third party's responsibility for that injury, (pp. 12-14)

         3. In this case, the trial and appellate courts relied on the two letters the environmental consultant sent in early 2011 to conclude that plaintiffs should have been on notice to seek other responsible parties, and should have found the Township's involvement in time to file a notice of claim. The Court disagrees that the record compels that conclusion. Nothing about those communications would have alerted an objectively reasonable person to believe that the contaminants were coming from any source other than Macrietta's establishment. The map that accompanied the March letter and that showed the planned remediation does not reveal where the underground tanks were stored. An objectively reasonable person could believe that the Township was simply another victim of the leaking contaminants. It was Macrietta that notified plaintiffs and others-including the Township and the NJDEP-of the leak, and Macrietta that took steps to address its responsibility for the contaminated soil and other properties affected by the vapors of the leaked materials. The evidence demonstrating that the Township authorized the dry cleaner to place tanks on public property came later through discovery when the Township located and turned over the 1946 memorandum to file stating same. Before the NJDEP released documents in July 2012, this record contained nothing to suggest that a public actor was responsible, (pp. 15-17)

         4. Although two decisions of the Court previously dealt with the discovery rule in the context of the accrual of a claim against a public entity, neither addressed circumstances in which plaintiffs learned that they had been injured by another-a private party that had taken steps to assume responsibility for the problem caused by its negligence- but nothing indicated involvement of a public entity. Other cases stand for the proposition that when a plaintiff knows of an injury, and that it is the fault of another, but is reasonably unaware that a third party may also be responsible, the time period for accrual of a claim against the third party is tolled until the plaintiff has evidence that reveals his or her possible complicity. That is the case here. The notice-of-tort-claim requirement does not eliminate normal application of the discovery rule. (pp. 17-22)

         5. Plaintiffs have presented facts demonstrating that Edan did not connect his health issues to Macrietta's environmental contaminants until his doctor made that connection for him. That assertion is accepted as true for purposes of summary judgment. Further, plaintiffs' counsel set out communications with the NJDEP, which show diligent pursuit of evidence that finally revealed that the tanks were on Township property. The notice of claim was timely filed after that point in time, and the amendment to the complaint was timely, (pp. 22-24).

         6. In the absence of a hearing under Lopez v. Swver, 62 N.J. 267 (1973), the Court declines to make findings on the issues presented and remands for a hearing. The significance formerly placed on the letters from defendants' environmental consultant should be re-examined based on the information that these documents conveyed, (p. 24)

         The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for further proceedings consistent with the Court's opinion.

          CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, and SOLOMON, join in JUSTICE LaVECCHIA's opinion. JUSTICES PATTERSON and TIMPONE did not participate.

         This case involves a tort claim against a municipality that was dismissed for failure to comply with the Tort Claims Act requirement that a public-entity defendant be served with a notice of claim "not later than the 90th day after accrual of the cause of action." N.J.S.A. 59:8-8. At issue is whether accrual of plaintiffs' claim against the public-entity defendant should have been tolled in accordance with the discovery rule.

         In determining when a cause of action accrues for purposes of that notice requirement, common law principles governing accrual of a tort claim apply. Under traditional equitable principles of our discovery rule, the date of the accrual of a claim -- ordinarily, the date of the injury -- may be tolled when plaintiffs lack knowledge of fault of a third party. The accrual date of a claim may also be tolled when plaintiffs, knowing that one third party is liable, do not know that their injury is also the responsibility of an additional party. In this instance, we consider how discovery-rule principles apply to establish the accrual date of a claim, where circumstances did not appear to implicate a third-party public-entity defendant.

         Plaintiffs maintain that this matter was prematurely dismissed without proper accounting for the fact that a private party had taken responsibility for the tort and without proper consideration of how, in these circumstances, that action affects the accrual of plaintiffs' claims against the public entity. We agree with plaintiffs that it was error for summary judgment to have been granted to the public-entity defendant based on the record presented, because plaintiffs put forward a reasonable basis to support a determination that the claim against the public entity was diligently pursued and notice of claim was timely filed. However, because ...


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