ELR Citation: ELR 20631
No(s). L-5808-80 (N.J. Super. Ct. Law Div. Apr 5, 1983)

Ruling on a motion for partial summary judgment in a hazardous waste drinking water contamination case, the court dismisses claims for damages due to enhanced risk of disease and violation of the Civil Rights Act, but declines to dismiss claims for emotional distress and costs of future medial surveillance. The court first dismisses the claims for recompense for the enhanced risk of disease as too speculative, noting that if disease actually develops, the New Jersey statute of limitations, running from discovery of injury, will permit a later suit. The court then rules that a claim for unintentional infliction of emotional distress from fear of cancer can be sustained but only if such fears were reasonably foreseeable, if plaintiffs suffered physical injury sufficient to support such a claim, and if the emotional injuries are severe enough to be compensable. Accordingly, the court denies summary judgment. The court also denies summary judgment to defendants on plaintiffs' claims for medical costs for future testing required because of exposure to carcinogens. If plaintiffs can establish a medical need for testing, such damages are not too speculative. The court grants defendants summary judgment on plaintiffs' federal civil rights claim, holding that plaintiffs have no constitutional right to a clean environment, have alleged no intentional governmental intrusion on their persons, and have not been deprived of property without due process because they have adequate state remedies in tort.

[This opinion has not yet been officially approved for publication — Ed.]

Counsel for Plaintiffs
Donald I. Marlin, Steven J. Phillips
Kreindler & Kreindler
99 Park Ave., New York NY 10016
(212) 687-8181

Counsel for Defendants
Robert V. Paschon, Steven T. Singer
Paschon, Feurey & Kotzas
1005Hooper Ave., Toms River NJ 08753
(201) 341-3900

Guy W. Haskins
Haskins, Robottom, Hack, Piro & O'Day
200 Executive Dr., W. Orange NJ 07052
(201) 325-1122