Edan Ben Elazar v. Macrietta Cleaners, Inc. (078079) (Union County and Statewide)

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
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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
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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
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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
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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.
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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.”
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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.
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