ELR Citation: ELR 20115
No(s). A-125-78 (N.J. Aug 3, 1982)

The Supreme Court of New Jersey rules that downstream riparian owners can maintain a nuisance action under the New Jersey Tort Claims Act against a municipality for damages caused by discharges of effluent from its sewage treatment plant. The court affirms the appellate division's ruling, 12 ELR 20174, that public entity liability for nuisance is recognized under the Tort Claims Act. However, to achieve consistency between common law standards and the legislative intent expressed in the Act, the court modifies the ruling to provide that imposition of such liability requires a finding that the municipality's action or failure to act was palpably unreasonable. The court also rules that the Tort Claims Act may provide immunity from nuisance liability. Appellant will be immune from liability for damages occurring subsequent to the issuance of its national pollutant discharge elimination system permit, provided that the permit establishes specific conditions for effluent discharge and that appellant complies with those conditions. In addition, appellant will be immune from liability for damages resulting from effluent discharges if the level of discharge was incorporated into a plan or design approved by the appropriate regulatory authority or if it carries the burden of proof or that its actions were discretionary under the meaning of the Tort Claims Act. The court remands the case for a determination of appellant's liability, based upon the reasonableness of its riparian use weighed against the harm resulting from such use.

Counsel for Appellant
Edward A. Kondracki
Davis & Reberkenny
P.O. Box 5459, Cherry Hill NJ 08002
(609) 667-6000

Counsel for Respondent
Matthew R. McCrink
McCrink & Nelson
Greenway Shopping Ctr., West Berlin NJ 08091
(609) 768-0033

Counsel for Amicus Curiae
Jerry Fischer, Deputy Attorney General
Dep't of Law & Public Safety
State House Annex, 2d Floor, Trenton NJ 08625
(609) 292-4919

For affirmance — Chief Justice WILENTZ, and Justices PASHMAN, CLIFFORD, SCHREIBER, HANDLER, POLLOCK and O'HERN — 7.

For reversal — None.