Edan Ben Elazar v. Macrietta Cleaners, Inc. (078079) (Union County and Statewide)
165 A.3d 758
| N.J. | 2017Background
- Swan Custom Cleaners operated adjacent to plaintiffs’ electronics shop; underground PCE storage tanks installed in 1946 on Township property and later owned/operated by Macrietta. Tanks were removed in 1998 and contamination/remediation followed.
- Viridian (Macrietta’s consultant) tested plaintiffs’ premises and sent letters in January and March 2011 reporting dangerous contaminant levels and a remediation map showing excavation across both Macrietta’s and Township property; the map did not show tank locations. Plaintiffs received copies.
- Edan Ben Elazar’s pulmonologist linked his respiratory illness to environmental exposure in January 2012; plaintiffs retained counsel in March 2012.
- Plaintiffs’ counsel obtained NJDEP records by OPRA, and on July 3, 2012 those records revealed the tanks had been located on Township property. Plaintiffs served a Tort Claims Act notice on the Township on September 11, 2012 and amended the complaint to add the Township in September 2013.
- The trial court and Appellate Division held the Township claim time-barred under the TCA’s 90-day notice rule (accrual March 11, 2011). The Supreme Court reversed and remanded for a Lopez hearing, holding the discovery rule could toll accrual as to the Township.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did plaintiffs’ cause of action accrue for TCA notice purposes? | Accrual was tolled by the discovery rule until plaintiffs learned via NJDEP records (July 3, 2012) that the tanks were on Township property, so the September 2012 notice was timely. | Accrual occurred no later than receipt of Viridian letters (Jan/Mar 2011); plaintiffs should have investigated and filed within 90 days. | The discovery rule can toll accrual as to a third-party public entity when plaintiff had no reason to suspect public-entity responsibility; summary judgment for Township was improper and remand for a Lopez hearing required. |
| Does the TCA’s 90-day notice period require a plaintiff to identify the specific public entity within 90 days of first learning of injury? | No — when plaintiff knows of injury attributable to a private actor but reasonably lacks evidence implicating a public entity, the 90-day clock does not run against that public entity until the plaintiff has evidence of its possible liability. | Yes — once plaintiff knows she was injured and that a third party was at fault, the duty to investigate includes identifying responsible public entities within the 90-day window. | Court: The 90-day period is tolled as to a public entity when the plaintiff reasonably lacks knowledge or evidence that the public entity may be responsible; the TCA does not abolish the discovery rule. |
| Were the Viridian letters sufficient to put plaintiffs on notice of Township responsibility? | No — letters and map did not reveal tank locations or show Township culpability; an objectively reasonable person could view the Township as another victim. | Yes — letters alerted plaintiffs to contamination and remediation affecting Township property, triggering a duty to investigate public culpability. | Court: On the summary record, the letters did not compel the conclusion plaintiffs should have known of Township responsibility; further factfinding (Lopez hearing) required. |
| Was plaintiffs’ post-OPRA diligence adequate to support tolling? | Yes — counsel promptly pursued records, paid fees, and obtained NJDEP documents that revealed Township involvement; notice followed within 90 days. | Implicitly argued plaintiffs delayed investigation and hence failed to meet TCA notice timing. | Court: Plaintiffs presented a reasonable basis showing diligent pursuit; factual issues remain for the trial court at a Lopez hearing. |
Key Cases Cited
- Beauchamp v. Amedio, 164 N.J. 111 (2000) (TCA accrual ordinarily at injury; discovery rule and extraordinary-circumstances discussion)
- McDade v. Siazon, 208 N.J. 463 (2011) (discovery rule applied to TCA notice; plaintiff must exercise reasonable diligence to identify public entities when facts put one on notice)
- Caravaggio v. D’Agostini, 166 N.J. 237 (2001) (distinguishes cases where plaintiff knows of injury but not additional responsible parties; tolling may apply as to unknown parties)
- Lopez v. Swyer, 62 N.J. 267 (1973) (procedure for evidentiary hearing on accrual/knowledge issues under discovery rule)
- Mancuso v. Neckles, 163 N.J. 26 (2000) (discovery rule may toll malpractice claims against additional providers when plaintiff reasonably unaware of their responsibility)