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.