Edan Ben Elazar v. Macrietta Cleaners, Inc. (078079) (Union County and Statewide) , 230 N.J. 123 ( 2017 )


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  •                                                     SYLLABUS
    (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
    convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
    interest of brevity, portions of any opinion may not have been summarized.)
    Edan Ben Elazar v. Macrietta Cleaners, Inc. (078079)(A-11-16)
    Argued April 24, 2017 – Decided July 26, 2017
    LaVECCHIA, J., writing for the Court.
    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. Swyer, 
    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 SOLOMON did not participate.
    2
    SUPREME COURT OF NEW JERSEY
    A-11 September Term 2016
    078079
    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 – Decided July 26, 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).
    1
    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).
    JUSTICE LaVECCHIA delivered the opinion of the Court.
    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
    2
    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 a Lopez1 hearing was
    never held, we decline to make findings and instead remand to
    permit the trial court to conduct a Lopez proceeding as directed
    in this opinion.
    I.
    A.
    On September 18, 2012, plaintiffs Edan and Edna Ben Elazar
    commenced an action in tort for personal injuries as well as
    property damages.   The action was filed against private parties.
    The bodily injury claims filed by both husband and wife were
    1   Lopez v. Swyer, 
    62 N.J. 267
     (1973).
    3
    premised on a theory that they were exposed to airborne
    contamination while working indoors at their electronics repair
    business on property adjacent to a dry cleaner.
    Importantly, for purposes of this appeal, on September 11,
    2012, plaintiffs’ counsel served the Township of Cranford
    (Township) with a notice of claim under the Tort Claims Act,
    dated September 4, 2012; and, one year later, on September 4,
    2013, plaintiffs amended their complaint to add the Township as
    a defendant on their claims for personal injuries.
    The Township filed a motion for summary judgment to dismiss
    on the basis of failure to submit a timely notice of claim under
    N.J.S.A. 59:8-8.   We glean the following facts from the summary
    judgment record, which includes depositions and documentary
    evidence produced in discovery conducted thus far.   The facts
    are presented in the light most favorable to plaintiffs, who
    opposed entry of summary judgment.
    B.
    The events that give rise to plaintiffs’ claims relate to
    activities associated with the dry cleaner that operated next
    door to plaintiffs’ business.
    Swan Custom Cleaners was a dry cleaning establishment
    located in the Township.   The dry cleaner fronts on a street,
    and there is Township-owned property behind it.   In February
    1946, the Township’s inspector of buildings authorized the dry
    4
    cleaner to install three underground fuel oil and solvent
    storage tanks on the Township’s property.       The authorization is
    not a recorded document.    A copy of the inspector’s memorandum
    to file was produced in discovery.      Importantly, the underground
    tanks stored tetrachloroethylene (also known as
    percholoroethylene or PCE), a chemical used in the dry cleaning
    process.    In 1985, Macrietta Realty (Macrietta)2 purchased Swan
    Custom Cleaners and operated the dry cleaning business for more
    than twenty years.
    In 1988, plaintiffs opened their electronics repair
    business on property 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:       Edan and Edna
    have chronic asthma and bronchitis, and Edna has a chronic blood
    disorder.
    In 1998, Macrietta’s underground storage tanks were
    removed, and soil tests at the time revealed contamination in
    the area surrounding the tanks.       Macrietta notified the New
    Jersey Department of Environmental Protection (NJDEP), and the
    NJDEP notified the Township of the contamination.      Since then,
    2  We will refer to Macrietta Realty and its related defendants,
    both individual and corporate, collectively as Macrietta.
    5
    environmental remediation at the site has been an ongoing
    effort.   The dry cleaner ceased operations in 2008.
    In 2010, as part of the environmental-remediation process,
    Macrietta retained Viridian Environmental Consultants
    (Viridian).    Viridian sampled the air quality in properties
    surrounding the dry cleaner, including plaintiffs’ electronics
    store.    When the samples revealed high levels of
    tetrachloroethene, air sampling continued into 2011.
    On January 13, 2011, Viridian installed at the electronics
    store an ultraviolet unit designed to eliminate contaminants.
    The next day, January 14, Viridian sent a letter to the
    Township’s health department, advising the Township that there
    was an immediate environmental concern at plaintiffs’ property
    because of the detected levels of contaminants.      Plaintiffs
    received a copy of this letter.
    On March 11, 2011, Viridian wrote a letter addressed to
    plaintiffs, explaining that high levels of contaminants
    discovered on plaintiffs’ property created a health risk.         The
    letter also detailed 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
    6
    map did not indicate the original location of the removed tanks,
    but rather depicted the extent of the affected soil to be
    removed.    Plaintiffs, who are immigrants from Iran and Israel,
    do not read English; their son, who is proficient in English,
    read the letters to them.
    On January 12, 2012, Edan visited his pulmonologist
    complaining of a worsening cough.    He told his doctor that
    chemical odors had permeated his shop for years.    And, he
    explained that Viridian had recently conducted tests that
    reported high levels of air contamination inside his business’s
    building.   The doctor told Edan that he believed there was a
    connection between Edan’s asthma and the contaminants that
    Viridian reported.    When deposed, Edan stated that, before his
    consultation with his doctor, he did not know that the chemical
    odors he smelled were connected to his health problems.       Edan
    sought a second opinion and, after that doctor agreed that a
    connection could exist between the chemical contamination and
    plaintiffs’ medical conditions, in March 2012, plaintiffs
    retained counsel.
    Plaintiffs’ lawyer promptly filed a request under the Open
    Public Records Act, N.J.S.A. 47:1A-1 to -13, with the NJDEP
    seeking “[a]ny and all documents relating to the PCE
    contamination at the [Swan Cleaner’s] site,” including
    information about “testing, notices of violation, remediation,
    7
    [cleanup], third party impact, correspondence between
    governmental entities and property owners, correspondence
    between governmental entities and third parties regarding said
    cleanup, and any other reports detailing the cleanup of this
    site.”   On July 3, 2012, the NJDEP responded to the request by
    releasing documents that revealed that the dry cleaner’s leaking
    underground storage tanks containing PCE had been located on the
    Township’s property.   Contaminated soil was identified on both
    the Township’s and the dry cleaner’s property.
    As noted, on September 4, 2012, plaintiffs executed a
    notice of claim that was served on the Township on September 11,
    2012.
    On September 18, 2012, plaintiffs filed their complaint
    against Macrietta, alleging, among other claims, personal
    injuries as a result of exposure to airborne environmental
    contamination from chemicals used by the dry cleaner that
    entered plaintiffs’ business quarters.   Plaintiffs alleged that
    Macrietta was negligent; that the dry cleaner was a private
    nuisance; and that the chemical contamination constituted
    trespass.   They sought damages for their bodily injuries and
    property damages.   Within a year of filing their notice of tort
    claim, on September 4, 2013, plaintiffs amended the complaint to
    add the Township as a defendant.
    8
    C.
    In seeking dismissal of the claim on the ground that the
    notice of claim was untimely, the Township asserted that
    plaintiffs should have been aware by January 14, 2011 -- when
    they received the first Viridian letter -- that they had a
    potential claim against the Township.   Alternatively, the
    Township argued, plaintiffs knew by the second Viridian letter,
    dated March 11, 2011, that they had a potential claim against
    the Township.   Because plaintiffs failed to file a notice of
    claim within ninety days of March 11, 2011, the Township
    asserted that plaintiffs’ claim against it was time-barred by
    the Tort Claims Act’s ninety-day notice requirement contained in
    N.J.S.A. 59:8-8.
    In opposition to the motion, plaintiffs argued that their
    notice of claim was timely because it was filed within ninety
    days of July 3, 2012 -- when the NJDEP released documents to
    plaintiffs that revealed that the dry cleaner’s tanks were
    located on Township property.   Plaintiffs argued that no
    reasonable person would expect the dry cleaner’s storage tanks
    to be housed on government property, and that plaintiffs
    therefore could not reasonably have known that the Tort Claims
    Act’s notice requirement would apply until they learned that the
    Township bore some responsibility for the contamination that
    injured plaintiffs.
    9
    The trial court determined that plaintiffs’ claim accrued,
    at the latest, in January 2011 when plaintiffs received the
    first Viridian letter.    The court emphasized that, even if a
    layman would not have expected that the tanks were located on
    government property, the law imposes a duty to investigate the
    matter.    The court identified January 2011 as the time when
    plaintiffs should have known that there was a contamination
    problem on their property; at that point, the court continued,
    plaintiffs were responsible for investigating the matter to
    determine the source of the contamination and the responsible
    parties.    The court concluded that, “[h]aving failed to do that
    in a timely manner and to file their tort claims notice even
    within that year, their claim is dismissed as it relates to [the
    Township].”
    Plaintiffs appealed, and the Appellate Division affirmed in
    an unpublished opinion.    The panel stated that the record
    contained “no genuine issue that upon receiving Viridian’s March
    2011 letter -- if not upon receiving the January 2011 letter --
    plaintiffs were aware that the indoor air pollution from the
    cleaners posed a health risk to them.”    The panel continued,
    stating that once plaintiffs received the letters reporting
    contamination, “it was reasonable for them to conclude not only
    that they had suffered an injury, but that a third party was at
    fault.”    The court noted that “accrual does not depend on
    10
    identifying the third party at fault,” and so plaintiffs’ lack
    of knowledge that the Township might be liable had no impact on
    the accrual date.   Because plaintiffs failed to file within
    ninety days of the March 2011 Viridian letter, the panel held
    that their claim against the Township was barred by the Tort
    Claims Act.
    Plaintiffs filed a motion for leave to appeal with this
    Court, which we granted.   
    228 N.J. 88
     (2016).
    Before this Court, plaintiffs’ and the Township’s arguments
    are embellishments on their positions before the trial and
    appellate courts.
    II.
    The Tort Claims Act, N.J.S.A. 59:8-1 to -11, establishes
    that public entities are generally immune from tort liability,
    except in certain limited circumstances.   Beauchamp v. Amedio,
    
    164 N.J. 111
    , 115 (2000) (“The overall purpose of the Act was to
    reestablish the immunity of public entities while coherently
    ameliorating the harsh results of the doctrine.”).     As a
    prerequisite to proceeding with a tort claim against a public
    entity, a plaintiff must file a notice of claim within ninety
    days of the accrual of the cause of action.      N.J.S.A. 59:8-8.
    Under extraordinary circumstances, and accompanied by a showing
    that the public entity has not been substantially prejudiced, a
    plaintiff may file a late notice of claim within one year of the
    11
    accrual of the claim.      N.J.S.A. 59:8-9.    However, failure to
    file within ninety days under normal conditions, or within one
    year under extraordinary circumstances, bars the claimant from
    bringing the tort claim against the public entity.       N.J.S.A.
    59:8-8(a).
    Before determining whether a claimant has timely filed
    within the ninety-day time period, a court must determine the
    date on which the claim accrued.        McDade v. Siazon, 
    208 N.J. 463
    , 475 (2011) (“The first task is always to determine when the
    claim accrued.” (quoting Beauchamp, 
    supra,
     
    164 N.J. at 118
    )).
    N.J.S.A. 59:8-1 of the Tort Claims Act governs accrual.        The
    provision “does not define the date of accrual in any
    significant way, [but] the comment to that section states that
    ‘[i]t is intended that the term accrual of a cause of action
    shall be defined in accordance with existing law in the private
    sector.’”    Beauchamp, 
    supra,
     
    164 N.J. at 116
     (second alteration
    in original) (footnote omitted) (quoting Harry A. Margolis &
    Robert Novack, Claims Against Public Entities, 1972 Task Force
    Comment to N.J.S.A. 59:8-1 (Gann 2000)).
    In general, our law in the private sector holds that a
    claim accrues on the date on which the underlying tortious act
    occurred.    
    Id. at 117
    .   However, that same common law allows for
    delay of the legally cognizable date of accrual when the victim
    is unaware of his injury or does not know that a third party is
    12
    liable for the injury.    
    Ibid.
       By operation of the discovery
    rule, the accrual date is tolled from the date of the tortious
    act or injury when the injured party either does not know of his
    injury or does not know that a third party is responsible for
    the injury.    McDade, 
    supra,
     
    208 N.J. at 475
    ; see also Ayers v.
    Jackson, 
    106 N.J. 557
    , 582 (1987) (“Few states follow New
    Jersey’s discovery rule that tolls the statute [of limitations
    for personal-injury claims] until the victim discovers both the
    injury and the facts suggesting that a third party may be
    responsible.”).
    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.”   Caravaggio v. D’Agostini, 
    166 N.J. 237
    , 246
    (2001).   “The standard is basically an objective one -- whether
    plaintiff ‘knew or should have known’ of sufficient facts to
    start the statute of limitations running.”     
    Ibid.
     (quoting Baird
    v. Am. Med. Optics, 
    155 N.J. 54
    , 72 (1998)).     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.     
    Ibid.
    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
    13
    the third party until the plaintiff has evidence that reveals
    his or her possible complicity.”     Id. at 250.
    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.
    See McDade, 
    supra,
     
    208 N.J. at 475
    ; see also Beauchamp, 
    supra,
    164 N.J. at 122
     (explaining that discovery rule tolls ninety-day
    notice period “[u]ntil the existence of an injury (or, knowledge
    of the fact that a third party has caused it) is ascertained”).
    Once the accrual date is established, our case law acknowledges
    the public-policy reasons for which the Tort Claims Act allows
    only a short period for service of a notice of claim on the
    responsible public entity.   See McDade, 
    supra,
     
    208 N.J. at
    475-
    76.
    III.
    We are reviewing the grant of summary judgment to the
    Township.   Summary judgment is appropriate when, viewed in the
    light most favorable to the non-moving party, “the pleadings,
    depositions, answers to interrogatories and admissions on file,
    together with the affidavits, if any, show that there is no
    genuine issue as to any material fact challenged and that the
    14
    moving party is entitled to a judgment or order as a matter of
    law.”   R. 4:46-2; see Brill v. Guardian Life Ins. Co. of Am.,
    
    142 N.J. 520
    , 528-29 (1995).   Our review in this matter is
    plenary.   Bhagat v. Bhagat, 
    217 N.J. 22
    , 38 (2014) (“An
    appellate court reviews an order granting summary judgment in
    accordance with the same standard as the motion judge.”).
    This appeal involves application of established principles
    of the discovery rule.   Agreeing with the Township’s argument,
    the trial and appellate courts relied on the two letters from
    Viridian in early 2011 -- notifying plaintiffs of environmental
    contamination that affected them and their property -- to
    conclude that plaintiffs should have been on notice to look for
    other responsible parties and should have found the Township’s
    involvement in time to file a notice of claim.    We disagree that
    the record compels that conclusion and find that summary
    judgment was not appropriately entered in favor of the Township.
    First, 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 to
    plaintiffs and that showed the planned remediation does not
    reveal where the underground tanks were stored.   The map
    revealed only that leaked contaminants required excavation of
    polluted soil on properties owned by the dry cleaner and the
    15
    Township.   That a leak occurred on one property and affected
    that property’s neighbors does not necessarily mean that any
    neighbor -- here, the Township -- is at fault.     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.      We
    are not impressed by the map, which lacks the evidentiary value
    to compel the conclusion that it provided proof or raised
    suspicion that another entity was responsible.
    Indeed, we note that, had plaintiffs searched recorded land
    documents seeking to learn whether the tanks were on Township
    property, their search would have come up empty.    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.
    The point is that plaintiffs were faulted for not being
    diligent enough in 2011 to think to look for another potentially
    liable third party and, specifically, for failing to know to do
    so within the abbreviated timeframe of the Tort Claims Act.
    Before the NJDEP released documents in July 2012, this record
    16
    contained nothing to suggest that a public actor was
    responsible.   The responsibility to look for other third parties
    liable for Macrietta’s polluting was overblown in application
    here.
    Two cases of this Court previously dealt with the discovery
    rule in the context of accrual of a claim against a public
    entity.   Both involved situations in which the plaintiffs knew
    immediately that one or more public entities were involved.
    In Beauchamp, 
    supra,
     the plaintiff was rear-ended by a New
    Jersey Transit bus, and she suffered neck, shoulder, and back
    pain, as well as headaches, as a result.    
    164 N.J. at 114
    .   The
    plaintiff did not file a notice of claim within the time limits
    of the Tort Claims Act because, at first, her injuries did not
    appear serious enough to support the claim.    
    Ibid.
       Later --
    past the ninety-day period provided in the Tort Claims Act -- it
    became clear that the plaintiff had suffered permanent injuries.
    
    Id. at 115
    .
    Nine months after the accident, and less than two months
    after discovering that her injuries were permanent, the
    plaintiff filed a notice of claim with several government
    entities and also filed a motion to file a late notice of claim
    under N.J.S.A. 59:8-9.   
    Ibid.
       The case thus involved the
    extraordinary-circumstances requirement for allowing a late
    filing of a notice of claim.
    17
    The trial court denied the motion, and the Appellate
    Division affirmed.   
    Ibid.
       This Court reversed, but we did not
    hold that the discovery rule applied to toll the accrual date.
    
    Id. at 123
    .   Our holding turned on a conclusion that the
    plaintiff had established extraordinary circumstances to justify
    a late notice-of-claim filing.   
    Ibid.
       The Court explained that
    the plaintiff’s accrual date was uncontested because she knew at
    the time of the car accident that she was injured; in fact, she
    consulted a doctor and a lawyer shortly after the accident.       
    Id. at 119
    .   The Court rejected the argument that the discovery rule
    should toll the accrual date of the plaintiff’s claim until she
    knew her injuries were permanent, adhering instead to essential
    considerations in stating that “[t]he date of accrual of her
    cause of action was the date of the accident in which she knew
    she was injured and that a public entity was responsible.”
    
    Ibid.
     (emphasis added).
    McDade, 
    supra,
     also involved a tort claim against a public
    entity in which the plaintiff failed to comply with the notice-
    of-claim provision of the Tort Claims Act.   
    208 N.J. at 468
    .
    But again, as in Beauchamp, the plaintiff in McDade was on
    notice that public entities were involved.
    In McDade, the plaintiff tripped on a pipe that was
    protruding from a public sidewalk.    Egg Harbor Township owned
    the sidewalk where the plaintiff slipped and fell, and a
    18
    different entity, the Egg Harbor Township Municipal Utility
    Authority (MUA), owned the pipe.      
    Id. at 469
    .   The problem in
    McDade was that the plaintiff served a notice of claim within
    ninety days of the accident upon Egg Harbor Township, Atlantic
    County, and the State of New Jersey, but not the MUA.       
    Id. at 469-70
    .
    The MUA’s motion for summary judgment, claiming that the
    plaintiff’s notice of claim was untimely, was denied by the
    trial court.   
    Id. at 469
    .   The Appellate Division reversed, and
    this Court affirmed the Appellate Division.     
    Id. at 481
    .   We
    explained that the discovery rule did not apply to the claims
    because the plaintiff, having experienced the accident, was
    immediately aware of the injury when it occurred.      
    Id. at 478
    .
    Although “not immediately aware of the true identity of the
    pipe’s owner,” the plaintiff was responsible under the discovery
    rule to exercise reasonable diligence to determine the correct
    public entity to sue.   
    Id. at 478-79
    .     The plaintiff in McDade,
    like the plaintiff in Beauchamp, knew immediately that public
    entities were involved, but did not look diligently enough to
    identify all public entities.   The McDade opinion notes that the
    plaintiff had failed to conduct an inspection of the pipe,
    investigate its owner, or search the public record.      
    Id. at 479
    .
    Thus, both Beauchamp and McDade addressed whether
    discovery-rule applications should result in tolling the accrual
    19
    date for a claim against a public entity.   However, neither
    application 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.
    Our Court discussed a related problem in Caravaggio, supra,
    when considering the differences between two classes of
    plaintiffs:   “those who do not know that they have been injured
    and those who know they have suffered an injury but do not know
    that it is attributable to the fault of another.”   
    166 N.J. at 246
    .    The Court determined that “‘[a] sub-category of the
    “knowledge of fault” cases is that in which a plaintiff knows
    she has been injured and knows the injury was the fault of
    another, but does not know that an additional party was also
    responsible for her plight.’”    
    Id. at 248
     (quoting Martinez v.
    Cooper Hosp. Univ. Med. Ctr., 
    163 N.J. 45
    , 54 (2000)); see also
    Gallagher v. Burdette-Tomlin Mem’l Hosp., 
    163 N.J. 38
    , 43-44
    (2000) (tolling accrual of cause of action where plaintiff
    belatedly discovered that after-care physicians, in addition to
    other defendants, were at fault for plaintiffs’ injuries);
    Mancuso v. Neckles, 
    163 N.J. 26
    , 36-37 (2000) (holding that
    where plaintiff brought claim against surgeon but was reasonably
    unaware of responsibility of radiologist, discovery rule could
    20
    toll malpractice claim against radiologist); Savage v. Old
    Bridge-Sayreville Med. Group, P.A., 
    134 N.J. 241
    , 250 (1993)
    (remanding for Lopez hearing where plaintiff knew of injury and
    of one likely cause, but not that her physician was also
    liable).
    Thus, in Caravaggio, 
    supra,
     we reiterated:
    Martinez,   Savage,  Gallagher   and Mancuso
    reaffirm the basic principle that where a
    plaintiff knows of an injury and that the
    injury is due to the fault of another, he or
    she has a duty to act. However, those cases
    also stand for the proposition that when a
    plaintiff knows of an injury, and knows that
    it 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.
    [
    166 N.J. at 249-50
    .]
    That is the case here.     This case involves the application
    of the discovery rule in a context where nothing suggested that
    a public entity bore any responsibility for plaintiffs’
    injuries.    The notice-of-tort-claim requirement does not
    eliminate normal application of the discovery rule.    When a
    plaintiff is injured by a third party and has no reason to
    believe that another party, specifically a public entity, is
    responsible for the injury, then the discovery rule applies to
    toll the accrual date for triggering the notice-of-claim
    requirement.    The discovery rule should be applied with
    21
    reasonableness as to whether a diligent plaintiff would have or
    should have realized that a public entity was involved at all.3
    Turning more specifically to the facts as they appear in
    this summary judgment record, plaintiffs have asserted that not
    until their receipt of documents from the NJDEP on July 3, 2012
    did they learn that the tanks that leaked and caused the
    contamination were actually located on Township property.   The
    Township does not point to any earlier document revealing that
    information.
    Plaintiffs have presented facts demonstrating that Edan did
    not connect his health issues to the inhalation of odors from
    Macrietta’s environmental contaminants until his doctor made
    that connection for him.   We accept that assertion as true for
    purposes of summary judgment.   Further, plaintiffs’ counsel has
    painstakingly set out the back-and-forth communications with the
    NJDEP, which reflect the exact course of events from plaintiffs’
    3  To similar effect, our Court applied the extraordinary-
    circumstances extension for filing a notice of claim in Lowe v.
    Zarghami, 
    158 N.J. 606
     (1999). We found that the plaintiff
    faced extraordinary circumstances because there was no evidence
    that she knew or should have suspected that her doctor was
    associated with a public entity. 
    Id. at 629-30
    . Although we
    determined that the plaintiff’s claim accrued in 1995 when she
    discovered that her medical problems could be associated with
    the metal clip inside her body and sought to pursue all medical
    personnel involved, we concluded that her motion to file a late
    notice of claim within one year of the injury’s accrual should
    allow her claim against the public entity to proceed. 
    Id. at 613, 625
    .
    22
    OPRA request to the NJDEP’s release of the documents to counsel
    on July 3, 2012.4   Those communications 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,
    following from the notice of claim that was filed with the
    Township.
    In sum, we are convinced on this record, as it exists thus
    far, that the Viridian letters from 2011 do not demonstrate that
    plaintiffs either knew or should have known that a public
    defendant might have been responsible for their injuries,
    triggering the exceedingly short time granted for presentation
    4  The record reveals the following sequence of events. On March
    16, 2012, plaintiffs filed an OPRA request with the NJDEP,
    seeking “[a]ny and all documents relating to the PCE
    contamination at the [Swan Cleaner’s] site.” On March 22, 2012,
    the NJDEP responded that it had located responsive documents and
    indicated that retrieving the documents would require a service
    fee for extraordinary effort and time. Plaintiffs paid the fee.
    On April 17, 2012, the NJDEP notified plaintiffs that copying
    the documents would take fifteen to twenty business days. On
    May 7, 2012, plaintiffs received an invoice for the cost of
    copying the requested documents, which plaintiffs paid.
    Thereafter, plaintiffs received “Community Right to Know” forms
    identifying substances maintained at the dry cleaner. On June
    8, 2012, plaintiffs followed up with the NJDEP, asking why no
    documents were released relating to the active environmental
    remediation at the site. On June 22, 2012, the NJDEP indicated
    that it found additional responsive documents. Again,
    plaintiffs received an invoice for copying fees, which
    plaintiffs paid on July 3, 2012. Plaintiffs then received
    documents that revealed that the Township had “allowed the
    installation of underground storage tanks on Township property
    contiguous to the dry cleaner property.”
    23
    of the notice of claim required by the Tort Claims Act.      We
    glean no evident lack of diligence here in failing to earlier
    detect the Township’s responsibility for its role in allowing
    the tanks that leaked to be on its property.
    That said, there has not been a Lopez hearing in this
    matter and, therefore, we hesitate to make findings that ought
    to be made in the first instance by the trial court after the
    opportunity for a hearing on the subject as opposed to a mere
    summary judgment record.    A remand for such a hearing is
    required.   However, in that hearing, the significance formerly
    placed on the Viridian letters should be reexamined in light of
    our observations of the quality and quantity of information
    those documents conveyed.
    IV.
    The judgment of the Appellate Division is reversed, and the
    matter is remanded to the trial court for further proceedings
    consistent with this opinion.
    CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA,
    and SOLOMON, join in JUSTICE LaVECCHIA’s opinion. JUSTICES
    PATTERSON and SOLOMON did not participate.
    24