ELR Citation: ELR 20403
No(s). L-51533-84 (N.J. Super. Ct. Law Div. Apr 3, 1985)

The court rules that generators of hazardous waste are strictly or absolutely liable for injuries caused by wastes leaking from disposal sites, but that waste haulers, municipal dump owners, and state regulators are not. Ruling on summary judgment motions by several groups of defendants in an action for hazardous waste injuries to health and property, the court initially dismisses the action against the state of New Jersey. The court rules that the state is statutorily insulated against claims for failure to revoke disposal permits for the Kin-Buc and Edison landfills. Nor may the state be liable for the dangerous condition of public property, because state regulation is insufficient to convert private or municipal landfills into state property. The state cannot be liable for creation of a nuisance, the court rules, because it does not own the landfill and is protected by the New Jersey Tort Claims Act. The court also rejects plaintiffs' inverse condemnation and civil rights claims.

The court next dismisses most of plaintiffs' claims against the township of Edison, which allegedly operates a hazardous waste disposal site adjacent to Kin-Buc. Claims based on alleged permitting and monitoring failures are defeated by statutory immunity for public officials. The court rules that a New Jersey statute imposing strict liability on hazardous waste facility owners and operators does not override the statutory immunity of government officials from strict liability offenses. The hazardous waste statute is not clear on this point, but apparently addresses only commercial, private-sector facilities, and the repeal of immunity provisions by implication is not favored. The court rules that the township might be statutorily liable as a public landowner under a statute making a public entity liable for dangerous conditions on public property if its protective efforts were "palpably unreasonable," but notes that whether liability accrues in this case must await resolution of factual questions. The court rules that a nuisance cause of action is barred for the same reasons that the state is immune to such claims. Next, the court rules that the 90-day notice requirement in the New Jersey Tort Claims Act is governed by the discovery rule. The period begins to run when plaintiff discovers or reasonably should have discovered the injury. The statute clearly makes the discovery rule applicable for statute of limitation purposes, and a different rule for notice would be irrational. Determining whether plaintiffs satisfied the notice requirement must await development of the factual record, however. The court notes that if plaintiffs' action is dismissed on notice grounds, the claims of infants would survive under the statute.

The court next holds that generators are subject to strict or absolute liability for the "inherently dangerous" activity of hazardous waste disposal. The result is consistent with the result in State Dept. of Environmental Protection v. Ventron, 13 ELR 20837, in which the state supreme court imposed absolute liability on waste site owners and operators. Generator liability is also consistent with the Restatement of Torts. Equity dictates that those creating the toxic waste, even though they pass diposal responsibility on to others, should bear the risk of loss rather than innocent victims. Generators are in a better position to spread the risk as well. The court further rules that even if absolute generator liability were not the law, the plaintiffs' claim would survive under a theory of vicarious liability for independent contractors' negligent handling of an "abnormally dangerous" substance. Defendants' argument that Ventron, 13 ELR 20837, did away with vicarious liability is wrong. The court notes, however, that there are factual issues about what each generator contributed to the disposal sites that will have to await trial. The court also rules that government regulation of the disposal sites and a siting law making owners and operators jointly and severally liable do not bar imposition of absolute liability for generators. The court notes that its rulings do not address whether defendant's waste disposal proximately caused plaintiffs' alleged injuries. It then rules that plaintiffs have stated a claim for punitive damages based either on negligent selection of contractors or negligent handling and production of wastes. The court grants defendants' motions to dismiss negligence per se claims, because plaintiffs cited no statutory duty violated by defendants, and nuisance claims, because they could only be based on nuisance per se, a doctrine recently eliminated by the state supreme court. Finally, the court summarily dismisses causes of action in trespass, battery, breach of warranty, and fraud.

Turning to municipalities that allegedly generated hazardous wastes disposed of in the Kin-Buc site, the court dismisses certain of the claims against them. It rules that a strict liability claim for abnormally dangerous activities against the borough of Wallington is barred by statute and that nothing in the Tort Caims Act imposes liability on a public entity for negligent acts of a contractor. However, the borough may be liable for negligent selection of a contractor. This question turns on who selected the contractor, because a municipality is exempted from liability for ministerial decisions. Development of a factual record is also required to determine whether plaintiffs complied with the 90-day notice requirement of the Tort Claims Act. The court makes parallel rulings with regard to claims against the township of Old Bridge, and adds that the notice question is complicated by the fact that plaintiffs served the wrong township, but that the township may have waived its right to use the notice defense, all of which must await development of the factual record for resolution.

Finally, the court rules that haulers of hazardous waste are not strictly liable for releases from dump sites, but only for releases occurring while the wastes are in their control. It also dismisses negligence per se and nuisance per se claims against the haulers, but rules that plaintiffs have pleaded the elements on an action for negligent selection of a dump site.

Counsel for Plaintiffs
Brian D. Drazin, Thomas J. DiChiara, Dennis A. Drazin
Drazin & Warshaw
25 Reckless Place, Red Bank NJ 07701
(201) 747-3730

Counsel for Defendants
Clyde A. Szuch (for Generators)
Pitney, Hardin, Kipp & Szuch
33 Washington St., Newark NJ 07102
(201) 623-1980

Robert Novack (for Haulers)
Budd, Larner, Kent, Gross, Picillo & Rosenbaum
33 Washington St., Newark NJ 07102
(201) 622-7400