Continuing Tort Claim Not Barred by Failure of Plaintiffs to File within Two-Year Statute of Limitations

Herbert and Karen Wreden served a tort claims act notice against the Township of Lafayette on January 28, 2008, due to the Township’s construction of a retaining wall and water drainage adjacent to the Wredens’ property. As a result of this construction, water was directed onto their property and caused flooding. In 2009, the retaining wall collapsed, sending large blocks of concrete tumbling onto their property and causing an unstable and unsafe roadway frontage in front of their property. On June 28, 2011, in Wreden v. Township of Lafayette, 2014 N.J. Super. LEXIS (App.Div. 2014), plaintiffs filed suit against the Township, alleging damage to their property.

On the trial court level, Lafayette successfully obtained a dismissal of the complaint based upon a failure to state a cause of action. This type of motion differs from a summary judgment motion because its basis is that the complaint itself fails to state a claim, as pled, as opposed to the court considering other evidence submitted such as certifications or testimony.

The Township claimed that:

  1. the plaintiffs’ claims for a continuing tort were barred by the two-year statute of limitations;
  2. that the plaintiffs were required to submit a new notice of tort claim to seek damages for the collapse of the retaining wall on their property;
  3. that it was entitled to plan or design immunity; and
  4. that the plaintiffs’ inverse condemnation claim was barred by the entire controversy doctrine.

The trial court granted a dismissal on all of the first 3 bases and refused to permit an amendment to the complaint on the 4th basis. However, the Appellate Division reversed all of the trial court’s rulings and remanded the matter back to the trial court.

First, the appeals court found that the trial court failed to consider that the plaintiffs faced continuous flooding to their property and improperly focused only on the date the notice of claim was filed. Although the suit was not filed until three years after the notice of claim, the trial judge made no determination as to the applicability of the continuing tort doctrine. Contrary to the judge’s ruling, the Appellate Division noted that the date upon which a notice of claim is filed does not mark the accrual date for a cause of action in a continuing tort case.

Second, the Appellate Division disagreed with the trial court that the plaintiffs would have to file a new notice of tort claim when the retaining wall collapsed. The plaintiffs had already placed the Township on notice of the problem and the eventual collapse of the wall was merely a continuation of the tort plaintiffs had previously described.

Third, the appeals court found that the trial court judge mistakenly considered evidence external to the pleadings (a certification from a Township Committee member) as to the Township’s approval of the project in granting a dismissal based upon the plan and design immunity defense. While such evidence may be considered in a summary judgment motion, it cannot be considered in ruling on a motion to dismiss based upon the pleadings.

Last, on appeal, the Court found that the trial court judge erred in refusing to permit the plaintiffs to include an inverse condemnation claim against the Township in an amended complaint. This case was still ongoing as to the other defendants when the plaintiffs learned that some of the retaining wall was actually built on their property. No final judgment had been entered as to all parties and, hence, the plaintiffs should have been permitted to amend their complaint to assert this new claim.

This case is a published decision and is precedential. Thus, public entities need to take note of this case for any claims that arguably involve a continuous tort and be aware that, if the damage is continuing to occur, the statute of limitations to file suit against that public entity has likely not started to run.