Failure to File Timely Tort Claims Act Notice Should Not Bar Suit Against Municipality for Injuries Due to Chemical Vapors Based Upon Discovery Rule

Plaintiffs Edan and Edna Ben Elazar alleged that they suffered various personal injuries due to chemical vapors that infiltrated their electronics repair shop. The chemicals emanated from leaking underground storage tanks that belonged to the dry cleaner next door to the plaintiff’s shop but were buried in adjoining municipal property with the Township’s permission. In Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123 (2017), the issue litigated as to the municipality was whether the Tort Claims Act notice was timely filed. Under the facts of the case, the New Jersey Supreme Court ruled that the claim was not barred based upon the application of the discovery rule.

Back in 1946, the Township permitted the dry cleaner to locate underground storage tanks containing fuel oil and solvents on municipal property in a lane directly adjacent to the cleaner’s property. In 1998, contamination was discovered when the tanks were removed. The DEP was notified and cleanup activities began. They continued after the dry cleaner ceased operating in 2008. In late 2010, the dry cleaner’s environmental consultant began testing indoor air at properties adjoining to the cleaner, including the plaintiff’s shop.

In January 2011, the consultant wrote to the Township, with a copy to the plaintiffs, advising the Township that the indoor air pollution at the plaintiff’s place of business posed a health threat. On March 11, 2011, the cleaner’s consultant wrote directly to the plaintiffs, advising them that the sampling results showed that the indoor air sample in their basement contained chemicals that exceeded the DEP’s screening levels and was considered not acceptable due to a long-term health risk when breathing the contaminated indoor air. Neither letter mentioned that the tanks were located on Township property.

From the time that the plaintiffs opened their shop in 1988, they detected a chemical smell from the dry cleaner. Over the years, both of them experienced respiratory symptoms. Plaintiff Edan claimed that the contamination exacerbated his asthma. Both claimed that the chemicals caused them chronic respiratory problems. The record was clear that, as of the receipt of the March 11, 2011 letter, the plaintiffs were aware that the indoor air pollution from the cleaner posed a health risk to them.

Plaintiffs ultimately retained counsel in March 2012 who sent an OPRA request to the DEP. Upon receipt of the documents in July 2012, they learned that the dry cleaner’s underground storage tanks were located on Township property. Thereafter, they filed a notice of Tort Claim on September 4, 2012.

Suit was filed by the plaintiffs for their injuries and the Township was joined to that suit in September 2013. The Township filed a motion for summary judgment on the basis that the notice was not timely filed. The trial court granted the motion, which was appealed and affirmed by the Appellate Division.

On appeal, the plaintiffs argued that their September 2012 notice was timely. The Appellate Division rejected that argument. However, the case was further appealed to the New Jersey Supreme Court, which reversed the Appellate Division’s decision.

The Supreme Court noted that, under the Tort Claims Act “TCA”), a plaintiff must file a notice of claim with the public entity within 90 days of the accrual of the cause of action. Barring extraordinary circumstances, failure to do so bars any tort claim against the public entity.

The time period to file the TCA notice is the date upon which the claim accrues. The accrual date will depend on the date on which the alleged tortious act occurred. The discovery rule may apply depending upon whether the facts would alert “a reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of another.” If a plaintiff knows he has suffered an injury but does not know that it is attributable to the fault of another, the Court held that the discovery rule tolls the date of accrual as to that unknown responsible party.

In the context of the TCA, the discovery rule would apply to the notice requirement. Hence, the discovery rule would toll the accrual date and the 90 day time period within which the injured party must file a notice of claim against a public entity is delayed until the injured party learns of the injury or of the third party’s responsibility for that injury.

Here, the letters sent by the consultant did not mention that the tanks were located on Township property. Nothing in those communications would have alerted a reasonable person that anyone other than the cleaner was responsible for the contamination. The evidence that the tanks were placed on public property was not disclosed until the DEP released documents in July 2012. Hence, under the circumstances, the Supreme Court found that the discovery rule applied. Thus, the notice of claim, filed in September 2012, was timely filed after the involvement of the municipality was disclosed.

Accordingly, the Court reversed the Appellate Division’s decision and the case was remanded back to the trial court.

CEPA Found Not to Apply to Volunteer Firefighter

As many employers already know, New Jersey has one of the broadest whistleblower protection laws in the United States.  In the past, the Conscientious Employee Protection Act (“CEPA”) has been expansively interpreted to provide wide ranging protections to not only employees who engage in whistleblowing activities but also independent contractors, who while technically not employees, are nevertheless covered by the law because such persons frequently are performing similar types of services for companies.

One issue that has never been addressed in any reported New Jersey state court decision is whether volunteers who perform services for companies are also entitled (like independent contractors) to the protections afforded by CEPA for engaging in whistleblowing activities.  That has now changed and, surprisingly, the result was not what one would have expected given the way that CEPA’s coverage has been construed expansively in the past by New Jersey’s Courts.

In Sauter v. Colts Neck Volunteer Fire Co., No. 2, A-0354-15T1, 2017 WL 4020461 (N.J. Super. Ct. App. Div. Sept. 13, 2017), Plaintiff was a long time member of the Defendant’s all volunteer fire department.  Along with serving as a volunteer in Defendant’s fire department, Plaintiff was also a full time employee of the Monmouth County’s Sheriff’s Office.  Defendant’s fire fighters were all unpaid volunteers.  However, firefighters could participate in a Volunteer Length of Service Program (“LOSAP”), which provided a small amount of compensation to volunteers, ranging from $400 to $1150 a year, depending on length of service.  Members could access these funds only after they were no longer with the fire company.  Along with providing the opportunity to participate in the LOSAP, volunteer fire fighters were also provided with workers’ compensation coverage for any injuries occurring while providing services to the fire company.

Plaintiff was a twenty (20) year member of the fire department.  During that time, Plaintiff had accumulated $5,871 in LOSAP benefits. In 2013, the members of the fire department voted to terminate Plaintiff’s membership in the company.  As the court said in its decision, the Plaintiff’s twenty (20) years of membership was less than harmonious.  According to the court’s decision, the members of the department terminated Plaintiff because he was “abusive’, “angry”, and “belligerent.” Plaintiff in his lawsuit challenged his termination by claiming that it was wrongful under CEPA because he had previously engaged in certain whistleblowing activities that included challenging the filing of an insurance claim by the department because he thought it was fraudulent. Plaintiff likewise had complained that fire department members were wrongfully dumping their personal garbage in a fire department dumpster as well.

This was not the first CEPA action that Plaintiff filed against the Department. Earlier, in 2004, Plaintiff filed a previous CEPA claim after his brother (a fire company supervisor who actually voted for Plaintiff’s dismissal) was denied a contract to renovate the fire company’s hall.  That claim was ultimately settled, but even after the settlement, Plaintiff continued to complain that he was not provided with all the counsel fees that he thought were due to him.

In its reported decision, the Appellate Court held that the dismissal of Plaintiff’s CEPA claim in this case by the Trial Judge was appropriate because CEPA did not apply to persons who are strictly volunteers and not employees.  Relying upon the language of the CEPA statute itself, the court concluded that only persons who receive actual financial remuneration for the services that they perform are entitled to CEPA’s protections because the law was designed to protect such persons from suffering any adverse actions that would affect their continuing financial livelihood.  The Plaintiff had argued that the funds received through the LOSAP program were sufficient remuneration to make him an employee under CEPA. The court rejected this argument, finding that the minimal amount received did not approximate the monetary value of the services that firefighters actually provided to the Department.  The court also rejected Plaintiff’s additional request that CEPA’s coverage be expanded to include volunteers so they too could fall within CEPA’s protections just like independent contractors.  The court rejected this request to expand CEPA’s protections declaring that doing so would not serve CEPA’s goal of protecting a person’s livelihood from risk because of whistleblowing activities.

While technically this case did not involve an employer or employment type relationship, the decision can only be considered a positive one for employers because the court could have continued to expansively interpret CEPA and bring within its scope many other service providers that employers might retain who are not technically employees (as occurred with independent contractors) and are right now not covered by the law.  The case also serves as a continuing warning to employers that they must rigorously adhere to CEPA’s requirements because retaliation lawsuits remain commonplace and are still very popular claims being brought today in the New Jersey courts.  In this case alone, we see that this was the second CEPA claim that this Plaintiff filed against the very same fire department.  Thus, any type of perceived retaliation will no doubt result in similar types of lawsuits, so it is important, now more so than ever, that employers make employment related decisions on legitimate grounds, for legitimate business reasons, and not to retaliate against an employee for past whistleblowing conduct.