ELR Citation: ELR 20642
No(s). A-2103-83T3 (N.J. Super. Ct. App. Div. Jun 4, 1985)

In an appeal from a damage award in a tort action for municipal hazardous waste contamination of drinking water, the court holds that the New Jersey Tort Claims Act bars recovery for emotional distress and medical surveillance, but not the award for impairment of quality of life. The court first rules that damages for emotional injury are not compensable under the Act without accompanying bodily harm. Plaintiffs' claims for emotional distress constitute subjective pain and suffering for which recovery is barred. Distinguishing plaintiffs' non-compensable subjective claims for pain and suffering, the court lets stand the jury's damages award for infringement of plaintiffs' quality of life resulting from the need to cope with inconvenient alternative water supplies. Next, the court reverses and vacates $8,330,000 in damages awarded to plaintiffs for medical surveillance for the early detection of cancer. Awards for medical surveillance were not justified, reasons the court, in light of the impossibility of quantifying the increased risk of cancer, and of the medically unsupportable contention of plaintiffs that they sustained subclinical cellular damage.

The court rejects defendants' argument that plaintiffs' geology expert was unqualified to offer testimony concerning the upgrade migration of contaminated groundwater. The court then labels as dictum the lower court's assertion that under New Jersey's discovery rule, the statute of limitations would not begin to toll until a plaintiff learned that he had sustained an injury, or that the injury was caused by the defendant's fault.

Turning to plaintiffs' cross-appeal, the court rejects their challenge to dismissal of claims for enhanced risk because plaintiffs failed to demonstrate the reasonable probability of the risk coming to fruition. The court rules that the New Jersey Tort Claims Act requires plaintiffs' judgment by the amount of settlement with an alleged tortfeasor subsequently determined to have been a non-negligent party, affirming the lower court's ruling.

Finally, the court dismisses plaintiffs' claim that defendant's contamination of their wells without compensation constituted an unconstitutional taking under the Civil Rights Act. The Tort Claims Act, which furnishes aggrieved parties the right of recovery for the tortious conduct of public entities, provides a constitutionally adequate post-deprivation remedy.

[The lower court opinion appears at 13 ELR 20631.]

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

Counsel for Appellant
H. Curtis Meanor, Michael L. Rodburg, James Stewart
Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700

Counsel for Respondents
Steven J. Phillips, DonaldI. Marlin
Levy, Phillips & Konigsberg
200 Park Ave., New York, NY 10166
(212) 972-1480

Arnold C. Lakind
Quaker Bridge Executive Center, Suite 306, Lawrenceville NJ 08648
(609) 275-0400