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Ayers v. Jackson, Township of

Citation: 17 ELR 20858
No. No. A-83/84, 525 A.2d 287/25 ERC 1953/106 N.J. 557, (N.J., 05/07/1987) Aff'd in part, rev'd in part

The New Jersey Supreme Court holds that 339 residents of Jackson Township are entitled to $8 million in damages for diminished quality of life and the cost of annual medical surveillance as a result of well-water contamination by toxic pollutants that leached from the township's landfill. The court first rules that diminished quality of life, based on plaintiffs' use of make-shift alternate water supplies rather than their accustomed running water, is compensable under the New Jersey Tort Claims Act. These claims are not barred under the "pain and suffering" exclusion, which does not apply to claims for inconvenience associated with the invasion of a property interest. However, the court rules that emotional distress is not compensable under the New Jersey Tort Claims Act's "pain and suffering" exclusion, even though a causally related physical impact is no longer required. The court holds that emotional distress is an "injury" as defined in the Act and that the distress suffered by plaintiffs constitutes "pain and suffering resulting from any injury."

Turning to claims of increased risk of future illness and claims for costs of medical surveillance, the court first holds that the single controversy rule, requiring plaintiffs to include all related claims against a defendant in a single action, cannot be applied to bar future lawsuits for diseases not yet manifested. Moreover, New Jersey's statute of limitations is avoided because the cause of action does not accrue until the victim is aware of the disease and of the facts indicating that a third party is or may be responsible. The court rules that an unquantified enhanced risk of future disease is an "injury" for purposes of the New Jersey Tort Claims Act, but that the Act does not waive sovereign immunity for such an unquantified risk. The court declines to reach the issue of whether sovereign immunity is waived if the risk were quantified. The court then rules that compensation for future medical surveillance may be ordered even if there is no quantification of the probability of future disease and no symptoms of medical problems, if the medical surveillance is reasonable. Reasonableness is to be determined by the likelihood of disease, the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases at risk, and the value of early diagnosis. The court holds that establishing a court-supervised fund to administer medical surveillance payments is preferable to lump sum payments to plaintiffs, and that this approach should be the general rule where the defendant is a public entity. However, in this case the court declines to upset the jury verdict providing lump sums for individual plaintiffs, since neither party objected to submitting the issue in this way to the jury, and because the court-administered fund approach is new and so should be applied prospectively.

The court upholds the dismissal of plaintiffs' claim under 42 U.S.C. §1983, ruling that the "law of the case" doctrine does not automatically require the acceptance of a decision on this point by the U.S. District Court in New Jersey, and the U.S. Supreme Court has since undercut the federal district court decision. Finally, the court holds that a prior settlement was properly deducted from the plaintiffs' recovery.

In a separate opinion dissenting in part, one judge would permit recovery for unquantified risk of future disease, and would not establish a preference for judicially supervised medical surveillance funds.

[The decisions below appear at 13 ELR 20631 and 15 ELR 20642.]

Counsel for Plaintiffs
Steven J. Phillips
Levy, Phillips & Konigsberg
90 Park Ave., New York NY 10016
(212) 972-1480

Counsel for Defendant
James Stewart
Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700